Danny Hanna v Renfay Projects Pty Ltd
[2022] FWC 2484
•16 SEPTEMBER 2022
| [2022] FWC 2484 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Danny Hanna
v
Renfay Projects Pty Ltd
(U2022/2812)
| COMMISSIONER MATHESON | SYDNEY, 16 SEPTEMBER 2022 |
Application for an unfair dismissal remedy – no valid reason – dismissal harsh, unjust and unreasonable – compensation awarded – compensation reduced due to Applicant’s short length of service.
On 6 March 2022, Mr Danny Hanna (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Renfay Projects Pty Ltd (Respondent). The Applicant seeks financial compensation.
When can the Commission order a remedy for unfair dismissal?
Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(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; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.
Background
The uncontested factual background to the matter is as follows:
· The Respondent is a construction company that employed 26 employees at the time of the Applicant’s dismissal.
· The Applicant was employed by the Respondent as an estimator.
· It was proposed that the Applicant commence employment on 19 July 2021. However, due to COVID-19 lockdowns, his commencement date was delayed until 2 August 2021.
· On the morning of 21 February 2022, the Applicant sent a message to a ‘group chat’ including the Respondent’s personnel. The Respondent’s Human Resources Manager, Jasmin Ali, took issue with this and the Applicant was instructed to come into the office.
· In the afternoon of 21 February 2022, a meeting was held between the Applicant, Ms Ali and Mr Anthony Rahme.
· At the meeting on 21 February 2022, the Applicant was provided with a letter dealing with the subject matter “Assessment/Counselling Session” (Counselling Letter) which listed areas for improvement and proposed a meeting on 21 March 2022 to review the Applicant’s progress. The stated areas for improvement included:
“Listening to instructions from chain of command.
Prioritizing [sic] tasks from most important to least as quotations have not been submitted on due dates at the majority of times.
Understanding the scope of works and conceptualizing [sic] how the project will be tackled.
Working independently, too much assistance is required when preparing quotes
Following chain of communication, should not be going to the Director with HR issues
Lack of drive for self-learning and motivation
Optimistic sentiment
Increase productivity.”
· The Counselling Letter also stated, “[t]ake this notice as a drive to performance boost and improvement” and included an acknowledgement for the Applicant and a witness to sign which stated “I have read and understood this letter and the attached Advice of First Employee Warning and have been given a copy”.
· The Applicant attempted to contact the Respondent’s Director, Mr Fady Bechara, on 21 February 2022 following the meeting.
· On 22 February 2022, Ms Ali sent an email to the Applicant stating:
“Upon departing yesterday’s assessment, I have been unfortunately informed that once again you have not followed protocol and you have made direct contact with Fady Bechara.
This truly saddens us, as one of the main drives for improvement in yesterdays counselling session was that you are to respect the company structure and understand that any issues relating to HR are to be engaged directly with myself.
Fady has his role of director, and this comes with a great deal of responsibility. He cannot just stop his duty to attend to your needs when ever it suits you.
Danny, you must understand that you cannot dictate others to suit your needs, particularly your abrupt reaction during yesterday’s meeting. This meeting was with two senior members: myself and Anthony Rahme. The meeting was arranged to provide you with counselling and because you were not happy with, the review you decided to walk out of the meeting. This is not professional.
How can this example of abruptness allow us to entrust you with our clients? During your career, you will come across many people that may not provide you with information you want to hear, but you cannot simply walk away, it is your duty to better yourself and carry out your given duties and responsibilities.
I believe that your request to take time off from work should be used wisely to decide on whether you really want to pursue a future here at Renfay Projects as your actions are not acceptable.
As Anthony explained yesterday, you need to be professional and block out any personal issues to allow you to be productive at work. Boundaries must be set between work and personal matters. The requirement to be at the office is to better you and to provide you with all the education and one on one assistance that is required with your role as an estimator. But if you require time off to attend to personal needs, protocol needs to be followed and you are to report to me, your HR officer along with Anthony Rahme the senior estimator.”
Should you have any issues with the above or require any further explanation, please contact me direct.”
· The Applicant’s employment was terminated on 22 February 2022, with the Applicant being paid one week’s wages in lieu of notice. A letter entitled “Dismissal Notice”, dated 22 February 2022 and signed by Ms Ali (Dismissal Notice) was provided to the Applicant, which stated:
“During our 6 month review (delated due to holiday period and covid), we provided you with an assessment /counselling session detailing areas in need of improvement and how to better your work ethic. Our plan was to help you achieve your goals and improve performance in your role. However, you got extremely emotional right from the beginning and got up and left. Once I called you back up, you were rude and hanged up on me before returning. We completed the meeting, but you weren’t responsive and became defensive instead of trying to improve and dictated you are taking the rest of the week off due to personal issues.
Today, I emailed you again regarding not following protocol and not dictating others to suit your needs. We do not feel the discussion from yesterday’s meeting resonated with you. You have been dictative [sic], rude and abusive towards Fady, Anthony, Justin and myself. You seem to twist information and give false information leaving us with an untrustworthy employee.
I regret to inform you that your employment with Renfay Projects is being terminated as of today, the 22nd of February 2022. We thank you for your time with us and wish you all the best in your future endeavours.
In accordance with your contract you will be paid out one week’s wage, in lieu of notice.”
· At the time of his dismissal, the Applicant was paid a salary of $75,000.00 per annum, excluding superannuation, equating to $1,442.31 per week.
The determinative conference
There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a conference for the matter (s.399 of the FW Act).
At the conference on 20 June and 30 June 2022, the Applicant was self-represented and represented by his sister, Ms Bernadette Chehine, who is not a paid agent or lawyer, and the Respondent was represented by Ms Ali.
Witnesses
The Applicant gave evidence on his own behalf.
The following witnesses gave evidence on behalf of the Respondent:
· Ms Jasmin Ali, Accounts/Human Resources Manager of the Respondent;
· Mr Anthony Rahme, Senior Estimator and employee of the Respondent;
· Mr Justin Sassine, Estimator and employee of the Respondent;
· Mr Fady Bechara, Director and employee of the Respondent; and
· Ms Kendal Bowes, Administrative Assistant and employee of the Respondent.
Submissions
The Applicant filed submissions in the Commission on 3 May 2022. The Respondent filed submissions in the Commission on 17 May 2022. Final written submissions were filed by the Applicant on 24 May 2022.
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from his employment.
Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from his employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.
Initial matters
Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(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.
Was the application made within the period required?
Section 394(2) of the FW Act requires an application to be made within 21 days after the dismissal took effect.
It is not disputed and I find that the Applicant was dismissed from his employment on 22 February 2022 and made the application on 6 March 2022. I am therefore satisfied that the application was made within the period required in s.394(2) of the FW Act.
Was the Applicant protected from unfair dismissal at the time of dismissal?
I have set out above when a person is protected from unfair dismissal.
It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.
It was not in dispute and I find that the Applicant was an employee, who commenced their employment with the Respondent on 2 August 2021 and was dismissed on 22 February 2022 a period in excess of 6 months.
It was not in dispute and I find that the Applicant was an employee.
I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
It was not in dispute and I find that, at the time of dismissal, the sum of the Applicant’s annual rate of earnings (being $75,000.00), together with such other amounts worked out in accordance with regulation 3.05 of the Fair Work Regulations 2009, was less than the high income threshold, which, for a dismissal taking effect on or before 30 June 2022, is $158,500.00.
I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
Section 388 of the FW Act provides that 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.
As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis).
I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.
Was the dismissal a case of genuine redundancy?
Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
It was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.
I am therefore satisfied that the dismissal was not a case of genuine redundancy.
Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[1]
I set out my consideration of each below.
Section 387(a) - Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
Submissions
By way of summary, the Applicant submitted that there was no valid reason for the dismissal related to his capacity or conduct because:
· “no misconduct or serious misconduct took place” and the Applicant “was not “dictative” or “abusive” towards his colleagues”;
· there “is no basis or evidence that he was rude or abusive to his colleagues” as stated in the Dismissal Notice; and
· the Applicant was otherwise a “capable”, “courteous and hard-working” employee.[2]
The Respondent submitted that there was a valid reason for the dismissal related to the Applicant’s misconduct and, by way of summary, described the events leading up to the alleged misconduct as follows:[3]
· the Applicant was performing poorly;
· the Applicant was offered time off to care for his parents, however he declined this offer;
· the Applicant advised he would be working from home in a text message, without requesting permission from his manager or human resources;
· human resources (i.e. Ms Ali) contacted the Applicant to determine why he was working from home and it was found he was on the way to his parents’ house to care for them and was not working from home;
· the Respondent came to the realisation that the Applicant did not take personal leave as his intention was to work from his parents’ home to care for them and take them to appointments;
· when requested to return to the office, the Applicant became aggressive and “refused to acknowledge Mrs Ali’s position as the HR representative”; and
· after hearing feedback during a counselling session, the Applicant began phoning and harassing colleagues.
The Respondent submitted that the Applicant’s misconduct occurred on 21 and 22 February 2022 and included:[4]
· “[n]ot advising [the Respondent] that he was planning to work at his parent’s house as he was taking care of them”;
· “[s]peaking to the HR representative in a rude and aggressive manner”;
· “[s]howing abusive and aggressive behavior during his counselling session/assessment meeting”;
· “[m]aking abusive phone calls to colleagues following information discussed in his assessment meeting”;
· “[b]eing disrespectful to the director of the company”;
· “[l]ying to his superiors and refusing to follow protocol and company procedures”; and
· “[c]reating a toxic working environment for his colleagues”.
The Respondent submitted that this constitutes misconduct as defined in clauses 42b, 42g, and 42j of the Applicant’s employment contract which provides, in relation to termination of employment:
“Termination of employment
40. Either party may terminate this Agreement by providing written notice of termination in accordance with the minimum level prescribed by the National Employment Standards.
41. Renfay may, at its absolute discretion, require you to work out your notice period or may elect to pay part or all of the notice period in lieu. If you are required to work out your notice period, Renfay may, at its absolute discretion, specify alternate duties.
42.Notwithstanding the above, Renfay may terminate your employment without notice or payment in lieu of notice if, in the opinion of Renfay, you have engaged in serious misconduct or failure to perform the duties required. Misconduct has its ordinary meaning at law and includes (but is not limited to):
a. any material breach of the terms of this Agreement or Renfay’s employee handbook;
b. dishonesty or theft;
c. misrepresentation of your qualifications or employment history;
d. falsification of Renfay’s records;
e. unauthorised absence from work;
f. becoming bankrupt, insolvent or making any arrangement or composition with creditors;
g. wilful disobedience of Renfay’s lawful directions;
h. being charged with a criminal offence which, in Renfay’s opinion, affects your suitability to perform the position;
i. drunkenness or being under the influence of illegal substances;
j. any acts or violence, threatened violence or harassment against another person;
k. any act which places your own safety, or that of any colleague or associate of Renfay at risk;
l. neglect of duty or incompetence;
m. wilful damage to Renfay property;
n. loss of your driver’s licence or other essential licence required to perform your role;
o. conduct of a sort which, in Renfay’s opinion, may injure Renfay’s reputation; or
p. a breach of Renfay’s Confidential Information and Intellectual Property terms.”
Evidence
By way of summary, the Applicant’s evidence in relation to the events of 21 and 22 February 2022 are as follows:[5]
· On Monday 21 February 2022, Sydney residents were advised to avoid unnecessary travel on roads due to the cancellation of train services.
· The Applicant’s line manager and Director was Mr Bechara.
· Mr Bechara had indicated to the Applicant on at least two occasions that he did not need to seek permission to work remotely and could simply tell his employer when he needs to work remotely by communicating to Ms Ali and the team and had said “I’d like to think we have that kind of trusting relationship”.
· On one occasion when Mr Bechara advised the Applicant that he did not need approval to work from home or remotely, Mr Sassine, a colleague of the Applicant, was witness to this advice.
· On 21 February 2022, the Applicant messaged the office WhatsApp group chat that morning to notify staff that he would be working remotely and such a communication was typical and acceptable of him and other employees during his employment.
· Shortly after sending the WhatsApp message, Ms Ali called him and during that call:
oMs Ali suggested it was unacceptable to work remotely without first checking with her;
oMs Ali mentioned she was of the understanding from Mr Bechara that employees were not to work from home/remotely without prior approval and they needed a good reason to do so;
othe Applicant suggested that Ms Ali double check the advice she had received from Mr Bechara as it conflicted with the advice of Mr Bechara to the Applicant;
othe Applicant mentioned that it was odd that he needed to let human resources know if he was working from home/remotely and that he did not need to do this in previous jobs, to which Ms Ali replied with words to the effect “we aren’t other workplaces, this is Renfay!”;
othe Applicant mentioned that he reports to Mr Bechara who was his manager since he started working with the Respondent;
oMs Ali said this was not the case and told the Applicant he reported to Mr Rahme, a Senior Estimator who had been with the Respondent for two weeks;
othis was the first time the Applicant had been told by the Respondent that there had been a change in that he was to report to Mr Rahme;
othe Applicant offered to go into the office and Ms Ali said yes; and
othe Applicant informed Ms Ali that he would need to take carer’s leave the following day, being 22 February 2022, to accompany his elderly father to an urgent medical procedure.
· Immediately after the phone call with Ms Ali, the Applicant attempted to call and text Mr Bechara to seek clarity on the need to seek approval for working from home/remotely, however Mr Bechara did not respond on 21 February 2022.
· The Applicant made his way into work following the discussion with Ms Ali on 21 February 2022, arriving at the workplace at 9:30am.
· When he arrived at the office, he observed there were fewer employees there than usual and the room in which the Applicant normally worked and which was usually occupied by four employees was empty until approximately 1:00pm.
· At approximately 2:00pm on 21 February 2022, an email invitation was sent from Ms Ali to the Applicant and Mr Rahme entitled “HR Meeting”, scheduled for 4:00pm that day. The nature of the meeting was not disclosed and there were no attachments or an agenda attached to the invitation.
· At 3:00pm on 21 February 2022, Ms Ali called the Applicant to confirm he had received the invitation and he subsequently accepted the invitation at 3:04pm.
· The Applicant, Mr Rahme and Ms Ali attended the meeting.
· Upon entering the meeting room, the Applicant was given the Counselling Letter and this was the first time he had sighted that document.
· The Applicant was not given prior context of the meeting or an opportunity to bring a support person.
· It was unclear to the Applicant whether the meeting was a performance review, a performance management session or a meeting for disciplinary action and he was not provided with an opportunity to prepare for it.
· The Applicant was not given an opportunity during the meeting to respond to the assessment of his performance, raise questions, provide feedback or explain himself and was upset and agitated with the approach taken to provide him with counselling and a warning.
· At no point during the meeting was the Applicant made aware of poor performance to the extent set out in the Counselling Letter and was only given informal feedback on how to improve minor technical aspects of his methodology in estimating project costs.
· During the meeting, upset by the feedback and manner in which the meeting was handled, the Applicant excused himself from the meeting stating that he needed a 20 minute break to “clear his head”.
· Within 2 minutes of leaving the room, Ms Ali called him back into the room and stated that she needed to meet her teenage daughter at 5:00pm and therefore required the meeting to continue.
· Mr Rahme continued reading the Counselling Letter and Ms Ali then “thrust the pen and paper in front of [the Applicant] to sign”. The Applicant signed the Counselling Letter in a state of shock, under duress and felt he had to rush and was pressured to sign it.
· Ms Ali handed the Applicant a copy of the Counselling Letter and the meeting closed at approximately 4:45pm.
· During the meeting, the Applicant stated that he would like to take time off work, an offer that had been made to him by Mr Bechara on 11 February 2022 and Ms Ali on or around 15 February 2022 which he had initially declined.
· The Applicant considered Ms Ali’s demeanor during the meeting to be “aggressive and condescending”.
· After Ms Ali left the meeting room, there was an exchange of words between the Applicant and Mr Rahme during which the Applicant expressed his dismay at what had occurred and Mr Rahme said to Mr Hanna “they don’t know what they are doing”.
· At 5:35pm on 21 February 2022, the Applicant emailed Ms Ali stating:
“The timing of my 6 monthly review wasn’t ideal considering my personal circumstances. I will take you and Fady up on the offer of taking time off work to deal with my parent’s [sic] declining health, I will take the rest of the week off. Mum needs observation as she comes off medications and I’ll be taking dad to Westmead hospital tomorrow morning.
Thank you for understanding.”
· The Applicant attempted to text and call Mr Bechara on 21 February 2021 to gain an understanding of the circumstances surrounding the meeting but was unsuccessful. The text message sent by the Applicant to Mr Bechara stated:
“Hi Fady, I was a bit blindsided by my review this afternoon. Especially since you weren’t there. Can we catch up for a coffee tomorrow afternoon?”
· At 10:26am on the morning of 22 February 2022, Ms Ali sent the Applicant an email which he did not read until later that day and which, by way of summary:
oraised concerns about the Applicant contacting Mr Bechara instead of Ms Ali directly;
oraised concerns about the Applicant’s “abrupt reaction” during the meeting on 21 February 2022 and that the Applicant walked out of the meeting;
oexpressed the belief that the Applicant’s request to take time off work should be used to decide on whether he wanted to pursue a future with the Respondent; and
ostated that boundaries needed to be set between work and personal matters and that, if the Applicant required time off to attend to personal needs, he needed to report to Ms Ali and Mr Rahme.
· At 11:11am on 22 February 2022, Ms Ali attempted to call the Applicant but he was unable to answer as he was at a medical appointment with his father. When Ms Ali attempted to call him, the Applicant texted Ms Ali to tell her he was with his father to which she replied “No problem- take care”. The Applicant sent a further text stating “Is everything ok?”, however Ms Ali did not respond.
· In the afternoon of 22 February 2022, the Applicant sent Ms Ali a copy of a medical certificate from the doctor who treated his father.
· At 11:27am on 22 February 2022, the Applicant send a text message to Mr Bechara requesting to talk to him later that afternoon.
· Mr Bechara phoned the applicant at approximately 12:00-12:30pm on 22 February 2022 and during that call the Applicant requested a time to discuss his concerns with Mr Bechara, to which Mr Bechara replied with words to the effect of “we will speak throughout the week” before ending the call.
· On the afternoon of 22 February 2022, the Applicant spoke to Mr Rahme via phone to express his concerns about how the meeting had transpired and the email from Ms Ali that morning. During that call, the Applicant:
oasked why he was not offered any support such as counselling through EAP, to which Mr Rahme responded by saying that counselling is probably not something a company the size of the Respondent would offer employees;
oexpressed concerns about company culture, to which Mr Rahme responded by saying that if he were in the Applicant’s position he would consider resigning;
oexpressed concerns about the email sent by Ms Ali and the direction that he was not to make contact with Mr Bechara to discuss the concerns raised in the Counselling Letter; and
owas asked by Mr Rahme whether he would like him to convey any concerns he had raised during the phone conversation with Ms Ali to which the Applicant replied “No”.
· At 5:40pm on 22 February 2022, the Applicant was provided with the Dismissal Notice via email.
By way of summary, Ms Ali’s evidence in relation to the events of 21 and 22 February 2022 is as follows:[6]
· On the morning of 21 February 2022, she received a message on the company group chat from the Applicant advising that he would be working from home.
· Ms Ali called the Applicant querying why no notice of this was given and the Applicant refused to acknowledge her role in human resources and demanded to speak to the Director. Mr Bechara, claiming he only had to report to him.
· During the same phone call, the Applicant mentioned he was driving to his parents’ home, indicating he was not working from home nor intending to work that day.
· Upon arrival in the office, the Applicant raised his voice toward her which led to the decision to bring forward his 6 monthly review to that afternoon.
· The Applicant was told in the 6 monthly review meeting not to contact Mr Bechara directly and Ms Ali sent the Applicant an email “detailing the proper channels, chain of command and protocols”.
· During the 6 monthly review meeting, the Applicant abruptly left and, when asked to return, “raised his voice and spoke rudely upon re-entrance to the meeting”.
· During the meeting, the Applicant was “aggressive” and, at the end of the meeting, stood up, demanded the rest of the week off and left.
· On the morning of the dismissal, Mr Sassine reported an “abusive” phone call and Mr Bechara reported “harassment by continuous phone calls and texts”. Mr Rahme also “reported an abusive phone call from the Applicant”.
· The Applicant’s dismissal was actioned as a result of the “multiple reports of abuse” and the Applicant’s “inability to follow clear instructions” which “ruined” “mutual trust” between the Applicant and Respondent.
· The Applicant’s final pay was processed on 14 March 2022 and included payment of one weeks’ notice in lieu and annual leave.
By way of summary, Mr Rahme’s evidence in relation to the events of 21 and 22 February 2022 is as follows:[7]
· During the meeting on 21 February 2022 between Mr Rahme, the Applicant and Ms Ali, the Applicant “got worked up and aggressive demanding [they] stop the meeting and reschedule to a time that suits him” and got up and announced he was leaving the room and would be back in 20 minutes.
· Mr Rahme advised Ms Ali to call the Applicant back into the room.
· Mr Rahme “noticed that [the Applicant] was attacking [Ms Ali] and she was distraught at [the Applicant’s] actions” and he then “took lead of the meeting”.
· Mr Rahme emphasised to the Applicant that the meeting was to assist his performance in his role and to provide him with the further guidance he required.
· At the end of the meeting, the Applicant “stood up and dictated he will be taking the rest of the week off and stormed out of the room”.
· On 22 February 2022, he was in a meeting with Mr Sassine when he received a call from the Applicant and put the call on speaker. Mr Rahme said that, during that call:
othe Applicant was “rude and abusive and disrespecting colleagues on the phone”;
ohe “attempted to talk to [the Applicant] as a friend and advise him to follow protocol and accept guidance that was provided to him”;
othe Applicant raised his voice at him “dictating his degree in his MBA etc. and refused to accept that he needed guidance in his role”; and
ohe advised the Applicant, “if you are unhappy in this company and don’t want to contribute then he maybe he [sic] should consider leaving”, to which the Applicant replied that “he will rather stay and not contribute or take on board any guidance, instructions, protocol so that he is just passing time”.
· Following the call, Mr Rahme emailed human resources making a compliant about the Applicant “as he felt he was a liability to the company and did not wish to work with an abusive and toxic person”.
Mr Rahme also gave evidence about the Applicant’s performance in the lead up to these events, which was that, by way of summary:[8]
· On the first day in his role, Mr Rahme was introduced to the team he would be leading consisting of the Applicant and Mr Sassine.
· During his first two weeks in his role as Senior Estimator, he observed that the Applicant required additional guidance and assistance with his role.
· On the afternoon of 16 February 2022, he reviewed an email from a client addressed to the Applicant regarding a project and he assisted him in answering the client’s questions before setting some minor takes for the Applicant to carry out that were to be reviewed that afternoon. That afternoon, when he met with the Applicant to go through his work, the Applicant had not completed any of the set tasks assigned by Mr Rahme and had not asked for assistance. Mr Rahme took from this that the Applicant did not feel comfortable with Mr Rahme as his senior and only wanted to work with and follow instructions from Mr Bechara. Mr Bechara then completed the tasks that had been set for the Applicant.
· Mr Rahme “observed but did not comment that [the Applicant] was constantly daydreaming and was not focused”.
By way of summary, Mr Sassine’s evidence was that:[9]
· He noticed the Applicant consistently coming to work late and raised a concern about this with the Applicant and asked if everything was ok.
· Prior to Mr Rahme commencing employment with the Respondent, he advised the Applicant that he would no longer be leading the team and that Mr Rahme would be his direct manager and that this was reiterated upon Mr Rahme’s commencement.
· Mr Rahme commenced working for the Respondent on 7 February 2022 and was introduced to Mr Sassine and the Applicant as the head of the estimating division.
· On 18 February 2022, the Applicant advised Mr Sassine on his way out of the office that he would be working from home on Monday and Mr Sassine “was surprised but did not respond”.
· On 21 February 2022, he received a phone call from the Applicant at 8:25am in the morning advising him that the Applicant would not be working from home and was on his way to the office and that the Applicant was surprised that human resources did not allow him to work from home.
· At 6:57pm, the Applicant called him upset and reprimanded him for providing management with feedback on his performance, “accusing him of being distrustful” and saying that he should have kept the information between himself and the Applicant. Mr Sassine responded by saying that, while personal information is confidential, he had a duty to provide feedback regarding work performance.
· On 22 February 2022, Mr Sassine advised Ms Ali about the phone call.
· That afternoon, he witnessed a call from the Applicant to Mr Rahme (as the phone was on speaker) and described the Applicant as “being rude and abusive not only to [Mr Rahme] but also degrading his fellow colleagues”.
By way of summary, Mr Bechara’s evidence was that:[10]
· He was the Applicant’s interim manager while Mr Sassine was working from home during a COVID-19 lockdown period.
· When Mr Sassine returned to the office, the Applicant began reporting to Mr Sassine.
· He trained and assisted the Applicant in his role and often had to re-do his work.
· He offered the Applicant time off to help his parents, however the Applicant insisted he did not need time off.
· On the morning of 21 February 2022, he saw a message on the company group chat from the Applicant stating that he was working from home and called Ms Ali to see if she was aware and had given permission. When learning Ms Ali was unaware, he instructed her to call the Applicant to “remind him of company protocol”.
· During a phone call with Ms Ali, he “noticed how distressed she was by the treatment from the [Applicant]” and “advised her to move the 6-month probation review forward to that afternoon since mistreatment by employees is not acceptable”.
· He received multiple phone calls from the Applicant while he was busy in meetings.
· On 22 February 2022, he called Ms Ali and advised her of the Applicant’s “continuous texts and phone calls”. During this phone call, he was alerted to the “misconduct during the 6-month probation review and the abusive phone call [Mr] Sassine received” and instructed Ms Ali to email the Applicant “a reminder of company protocol”.
· After “hearing about the misconduct”, he called the Applicant and described the Applicant as being “rude, disrespectful and demanding” towards him.
· After receiving an email from the Applicant’s manager, Mr Rahme, and “learning about further misconduct”, he instructed Ms Ali to terminate the Applicant’s employment.
Consideration and findings
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[11] and should not be “capricious, fanciful, spiteful or prejudiced.”[12] However, 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.[13]
The Respondent’s position is that there was a valid reason related to the Applicant’s conduct. For there to be a valid reason related to the Applicant’s conduct, I must find that the conduct occurred and justified termination.[14] “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.”[15]
The Respondent submitted that the Applicant’s misconduct occurred on 21 and 22 February 2022 and included:[16]
· “[n]ot advising [the Respondent] that he was planning to work at his parent’s house as he was taking care of them”;
· “[s]peaking to the HR representative in a rude and aggressive manner”;
· “[s]howing abusive and aggressive behavior during his counselling session/assessment meeting”;
· “[m]aking abusive phone calls to colleagues following information discussed in his assessment meeting”;
· “[b]eing disrespectful to the director of the company”;
· “[l]ying to his superiors and refusing to follow protocol and company procedures”; and
· “[c]reating a toxic working environment for his colleagues”.
It is clear from the evidence that interpersonal conflict between the Applicant and his colleagues, Ms Ali, Mr Rahme and Mr Sassine, arose during the events of 21 and 22 February 2022. This appears to have stemmed from the Applicant’s communication on 21 February 2022 that he would be working from home and the direction from Ms Ali that followed.
It seems to me that there was a deficit in clear communication to the Applicant regarding expectations about working from home, the protocols to be followed and channels of communication in the event that an employee wishes to do so, as well as who the Applicant ultimately reported to. It is apparent that other employees, including Mr Sassine, had worked from home in the past and it is also apparent that Mr Bechara had provided the Applicant with directions in relation to his work in the past. The evidence does not establish that Mr Rahme, as the Applicant’s new manager, had a discussion with him regarding expectations about working from home and there is no evidence that the Applicant had been told about appropriate lines of communication for such a request or that Ms Ali had any responsibility for approving or denying such requests. It is not clear from the evidence what process the Applicant should have followed. I also note that the Applicant told Mr Sassine, who was the Applicant’s former team leader, that he was working from home on the Friday prior to Monday 21 February 2022 and Mr Sassine’s own evidence was that he did not say anything to the Applicant about this, despite being a more senior employee. After having received the call from Ms Ali and having taken instructions from Mr Bechara in the past, it was reasonable that the Applicant wanted to contact Mr Bechara to clear things up. In any case, after Ms Ali’s call, the Applicant did in fact come to the office.
In these circumstances, I do not consider that the Applicant’s group chat message constitutes conduct that justifies dismissal. This takes me to the conduct of the Applicant that followed.
Mr Rahme’s evidence was that, in his two weeks of employment, he had observed that “[Mr] Bechara and [Mr] Sassine had almost showered [the Applicant] with attention, guidance, and almost held his hand in progressing [the Applicant’s] productivity and his pro-activeness towards his duties as an estimator”.[17] It is apparent from the evidence that Mr Bechara no longer wanted the Applicant to deal directly with him and expected him to instead take directions from Ms Ali and Mr Rahme, who had commenced in the Senior Estimator role two weeks prior. However, I am not satisfied that this was clearly communicated at any juncture prior to the events on 21 February 2022 or by Mr Bechara himself. While I am satisfied that Mr Rahme was introduced to the Applicant as the Senior Estimator upon his commencement, I am not satisfied that there was any further communication with the Applicant about what communication he was to have in the future with Mr Bechara and that there had been a change in expectations in this regard. It seems to me that Mr Bechara’s handover of his management responsibilities in relation to the Applicant and engagement with the Applicant about this was lacking. Further, rather than raising his concerns about the frequency and nature of the Applicant’s contact with him directly, it seems Mr Bechara sought to avoid the problem and instead delegated the task of raising his concerns to Ms Ali.
It is therefore unsurprising that the Applicant became frustrated when Ms Ali questioned him about working from home without prior context or that Ms Ali and Mr Rahme were tasked with delivering his 6 month performance review with very limited notice of this and when he had not reported to them during the bulk of his tenure.
I am also not satisfied, based on the evidence before me, that anyone had clearly raised the concerns about the Applicant, as set out in the Counselling Letter, with the Applicant directly and indicated what he needed to do to address those concerns prior to the meeting on 21 February 2022. The concerns in the Counselling Letter are also non-specific and do not provide details or examples of when the performance and conduct issues occurred, with areas for opportunity stated as:
“Listening to instructions from chain of command.
Prioritizing [sic] tasks from most important to least as quotations have not been submitted on due dates at the majority of times.
Understanding the scope of works and conceptualizing [sic] how the project will be tackled.
Working independently, too much assistance is required when preparing quotes
Following chain of communication, should not be going to the Director with HR issues
Lack of drive for self-learning and motivation
Optimistic sentiment
Increase productivity.”
The Counselling Letter also stated, “[t]ake this notice as a drive to performance boost and improvement” and included an acknowledgement for the Applicant and a witness to sign which stated “I have read and understood this letter and the attached Advice of First Employee Warning and have been given a copy”.
In this context, it is understandable for the Applicant to have become frustrated and upset as a result of being counselled and given a warning about matters of such a broad general nature by persons who had limited direct experience in relation to his performance and for things that would likely have come as a surprise to him at the meeting. I have considered the evidence regarding how this manifested in the Applicant’s conduct and whether that conduct justified termination.
Ms Ali’s evidence was that:[18]
· Upon arrival in the office on 21 February 2022, the Applicant raised his voice toward her.
· During the 6 monthly review meeting, the Applicant abruptly left and when asked to return, “raised his voice and spoke rudely upon re-entrance to the meeting”.
· During the meeting, the Applicant was “aggressive” and at the end of the meeting stood up, demanded the rest of the week off and left.
· Mr Sassine reported an “abusive” phone call.
· Mr Bechara reported “harassment by continuous phone calls and texts”.
While terms such as “abusive” and “aggressive” have been used as descriptors by Ms Ali, she did not articulate clearly what was said and how it was said or why she perceived the Applicant’s conduct in this way.
Mr Rahme’s evidence was that:[19]
· During the meeting on 21 February 2022 between Mr Rahme, the Applicant and Ms Ali, the Applicant “got worked up and aggressive demanding [they] stop the meeting and reschedule to a time that suits him” and got up and announced he was leaving the room and would be back in 20 minutes.
· Mr Rahme “noticed that [the Applicant] was attacking [Ms Ali] and she was distraught at [the Applicant’s] actions”.
· At the end of the meeting, the Applicant “stood up and dictated he will be taking the rest of the week off and stormed out of the room”.
· On 22 February 2022, the Applicant called him and:
owas “rude and abusive and disrespecting colleagues on the phone”;
oraised his voice at him “dictating his degree in his MBA etc. and refused to accept that he needed guidance in his role”.
ohe advised the Applicant, “if you are unhappy in this company and don’t want to contribute then he maybe he [sic] should consider leaving”, to which the Applicant replied that “he will rather stay and not contribute or take on board any guidance, instructions, protocol so that he is just passing time”.
Mr Sassine’s evidence was that:[20]
· On 21 February 2022, the Applicant called him upset and reprimanded him for providing management with feedback on his performance, “accusing him of being distrustful”.
· On the afternoon of 22 February 2022, he witnessed a call from the Applicant to Mr Rahme and described the Applicant as “being rude and abusive not only to [Mr Rahme] but also degrading his fellow colleagues”.
Mr Bechara’s evidence was that:[21]
· He received multiple phone calls from the Applicant while he was busy in meetings.
· After hearing about “misconduct”, he called the Applicant and described him as being “rude, disrespectful and demanding” towards him.
Again, while terms such as “abusive”, “aggressive”, “worked up”, “rude”, “degrading”, “disrespectful” and “demanding” have been used as descriptors by Mr Rahme, Mr Sassine, and Mr Bechara, they did not articulate in detail why they described the Applicant’s conduct in this way.
I am not satisfied that the attempts the Applicant made to contact Mr Bechara could be properly described as “abuse”, “harassment” or other improper behaviour in the context of the prior relationship between the Applicant and Mr Bechara, who had been a source of direction and assistance for the Applicant. It seems more likely that the Applicant was simply seeking to escalate his concerns.
It is also clear that, across 21 and 22 February 2022, the Applicant was encouraged by both Ms Ali and Mr Rahme to consider his future employment with the Respondent and it is reasonable that the Applicant would have found this unsettling and would likely have become upset by the events that had transpired since sending the group chat message regarding his working from home intentions on the morning of 21 February 2022.
I do, however, accept that, during the meeting on 21 February 2022, emotions were running high, discussions were heated, the Applicant likely raised his voice in discussions with Ms Ali and Mr Rahme and the Applicant abruptly left the room during the counselling session, indicating he would be back in 20 minutes, before being asked to return by Ms Ali.
I am satisfied that the Applicant became upset by the events that transpired across 21 and 22 February 2022, and his communications in response to the approach of Ms Ali and Mr Rahme could have been better handled. However, taking into account all of the circumstances, including the Applicant’s apparent confusion around why he had been reprimanded for notifying his colleagues of his intention to work from home, who he was to take directions from and communicate with, the impromptu 6 month review meeting that he was not prepared for and which would have likely been a surprise to him, as well as the difficult personal circumstances he was experiencing at the time, I am not satisfied that the Applicant’s conduct was such that it justified the Applicant’s dismissal.
In all the circumstances, I find that there was no valid reason for dismissal related to the Applicant’s conduct.
Section 387(b) - Was the Applicant notified of the valid reason?
Proper consideration of s.387(b) of the FW Act requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a) of the FW Act.[22]
The notification of a valid reason must take place before any decision to terminate the Applicant’s employment in order to provide the Applicant with an opportunity to respond to the reason identified.[23]
As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[24]
Notwithstanding this, even if there had been a valid reason for the dismissal, it is apparent that the Applicant was not notified of the reasons for his dismissal before the decision was taken to terminate his employment. It is clear from the evidence that Mr Bechara made the decision to terminate the Applicant’s employment, instructed Ms Ali to do so and the Applicant was emailed a Dismissal Notice stating:
“During our 6 month review (delated due to holiday period and covid), we provided you with an assessment /counselling session detailing areas in need of improvement and how to better your work ethic. Our plan was to help you achieve your goals and improve performance in your role. However, you got extremely emotional right from the beginning and got up and left. Once I called you back up, you were rude and hanged up on me before returning. We completed the meeting, but you weren’t responsive and became defensive instead of trying to improve and dictated you are taking the rest of the week off due to personal issues.
Today, I emailed you again regarding not following protocol and not dictating others to suit your needs. We do not feel the discussion from yesterday’s meeting resonated with you. You have been dictative [sic], rude and abusive towards Fady, Anthony, Justin and myself. You seem to twist information and give false information leaving us with an untrustworthy employee.
I regret to inform you that your employment with Renfay Projects is being terminated as of today, the 22nd of February 2022. We thank you for your time with us and wish you all the best in your future endeavours…”
The notification of reasons for dismissal came after the decision to dismiss the Applicant was made and this would not have constituted notification for the purposes of s.387(b) of the FW Act.
Section 387(c) - Was the Applicant given an opportunity to respond to any valid reason related to his capacity or conduct?
In order to be given an opportunity to respond, the employee must be made aware of allegations concerning the employee’s conduct so as to be able to respond to them and must be given an opportunity to defend themselves. As Justice Moore has stated, “the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That…does not constitute an opportunity to defend.”[25]
The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[26] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[27]
As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[28]
Notwithstanding this, even if there had been a valid reason for the dismissal, it is apparent that the Applicant was not provided with an opportunity to respond to reasons for his dismissal and defend himself before the decision was taken to terminate his employment. As I have found above, Mr Bechara made the decision to terminate the Applicant’s employment, instructed Ms Ali to do so and the Applicant was emailed the Dismissal Notice on 22 February 2022. The Applicant was not put on notice about the allegations that had been made against him concerning his conduct and that his employment was under consideration as a result. It is clear that the Applicant did not have an opportunity to respond before he was dismissed.
Section 387(d) - Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[29]
The Applicant submitted that:[30]
· There was no meeting held in person or over the phone prior to or after the dismissal taking effect and the Dismissal Notice was sent via email whilst the Applicant was on personal leave, therefore the Applicant “could not have made a request for a support person”.
· The meeting of 21 February 2022 was not a discussion relating to a dismissal. The Applicant was unaware of the nature of the meeting, therefore could not have requested a support person, nor was one made available to him during or after the meeting, to be present to assist at any discussion relating to his subsequent dismissal.
The Respondent submitted that, during the meeting of 21 February 2022, there was no intention of dismissing the Applicant hence why a support person was not offered and that the meeting was to assist the Applicant to improve his performance and to provide feedback and support for improvement.[31]
As both parties have submitted, the meeting of 21 February 2022 did not involve discussions in relation to the dismissal. There is no evidence of discussions relating to the dismissal having taken place.
I find that there were no discussions relating to the dismissal and as such, the issue of the refusal of a support person does not arise for consideration.
Section 387(e) - Was the Applicant warned about unsatisfactory performance before the dismissal?
The Respondent submitted that the dismissal of the Applicant was a result of the Applicant’s conduct. While the Respondent may have had some performance concerns about the Applicant, as the Respondent submitted, at the meeting on 21 February 2022, it did not intend to dismiss him about this. As the dismissal did not relate to unsatisfactory performance but rather, the conduct of the Applicant, this factor is not relevant to the present circumstances.
Notwithstanding this, even if this was not the case and the Applicant’s performance was a reason for the dismissal, the only evidence of a warning that is present in this matter is the Counselling Letter given to the Applicant on the afternoon of 21 February 2022.
A warning for the purposes of s.387(e) of the FW Act must clearly identify:
· the areas of deficiency in the employee’s performance;
· the assistance or training that might be provided;
· the standards required; and
· a reasonable timeframe within which the employee is required to meet such standards.[32]
In addition, the warning must “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”[33] In order to constitute a warning for the purposes of s.387(e) of the FW Act, it is not sufficient for the employer merely to exhort their employee to improve their performance.[34]
The Counselling Letter does not clearly set out a timeframe in which the Applicant is required to meet the standards required and broad general descriptors such as “increase productivity” and “optimistic sentiment” do not in my view make clear what the standards required are. The Counselling Letter does not provide a reasonable timeframe within which the Applicant is required to meet the Respondent’s standards and nor does it make clear that Applicant’s employment is at risk unless the performance issue identified is addressed.
The Counselling Letter would not properly constitute a warning for the purposes of s.387(e) of the FW Act.
Section 387(f) and (g) - To what degree would the size of the Respondent’s enterprise or the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
The Respondent submitted that the size of its enterprise was likely to impact on the procedures followed in effecting the dismissal because:
· “being exposed to only a small number of employees” it had “never had to deal with an abusive employee before and therefore did not know the protocol in dealing with this”; and
· it “booked the 6-month probation review outside of that period, by 2 weeks, as [it] thought it was acceptable due to the pressure the business was receiving from COVID-19 and the weather”.[35]
The Respondent also submitted that the lack of dedicated human resource management specialists or expertise in the Respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal because, while it has a human resources manager, Ms Ali, she is not a specialist or expert and also acts as the accounts and office manager as the Respondent does not have the financial resources to employ a human resources expert.[36]
The Applicant submitted that the Respondent has approximately 26 employees, has a $30M project management portfolio and pointed to statements it had made about employment related matters in its remedial brochure and employment contract. It also submitted that the Applicant has a dedicated human resources manager, being Ms Ali.
It is not in contest that the Respondent has approximately 26 employees and I accept that the Respondent is not a large company. However, while the FW Act recognises that “small business are genuinely different in nature both organisationally and operationally”,[37] it does not follow that such an employer’s procedures in effecting a dismissal can be entirely devoid of fairness.
I also accept that Ms Ali does not appear to be a specialist and seems to have been allocated the human resources function after being employed in another capacity for the Respondent and it is apparent she lacks expertise. However, I note the absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”[38]
I have considered the Respondent’s small size and Ms Ali’s (and therefore the Respondent’s) lack of expertise in human resources, despite her title, and how this may have had effect on the procedures followed in effecting the Applicant’s dismissal. The Respondent’s submission that it “booked the 6-month probation review outside of that period, by 2 weeks, as [it] thought it was acceptable due to the pressure the business was receiving from COVID-19 and the weather”[39] suggests it may have been under the misapprehension that it was able to dismiss the Applicant at its discretion following a “probationary review” without turning its mind to the considerations in the FW Act that apply to dismissals, including whether the reason for the dismissal was a valid one. However, this submission does not sit well with the Respondent’s evidence that it did not intend to dismiss the Applicant at the meeting on 21 February 2022, which it has described as a 6 month review.
There are clear deficiencies in the human resources practices of the Respondent generally, such as the way it communicates reporting line changes and expectations and in the way it manages probationary reviews. However, ss.387(f) and (g) of the FW Act are related to the procedures followed in effecting the dismissal.
The decision to dismiss the Applicant was made later on 22 February 2022 and the Respondent acted swiftly in doing so. In particular, it is clear that Mr Bechara, as the Director of the Respondent, had made a decision to dismiss the Applicant on 22 February 2022 and directed Ms Ali to act on this decision and terminate the Applicant’s employment, which she did by way of email on 22 February 2022. It is difficult to see any factors that would have changed this trajectory. I am not satisfied that either the size of the business or its lack of human resource expertise had any impact on the procedures followed in effecting the dismissal.
Section 387(h) - What other matters are relevant?
Section 387(h) of the FW Act requires the Commission to take into account any other matters that the Commission considers relevant.
The Applicant submitted that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable:[40]
· Ms Ali and Mr Rahme demonstrated little concern or care for the Applicant’s carer’s obligations; and
· the Respondent terminated the Applicant’s employment while he was on carer’s leave on 22 February 2022.
Notwithstanding that I have found there was not valid reason for the dismissal, it is apparent that the Respondent had concerns about the Applicant’s conduct during the events of 21 February 2022 and 22 February 2022 and the Applicant was not warned that he was at risk of dismissal prior to his dismissal or given an opportunity to answer before a decision was made. I consider that the sudden nature in which the decision to terminate the Applicant was made is relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in s.387 of the FW Act as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[41]
Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of the Applicant was harsh, unjust and unreasonable.
Conclusion
I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act.
Remedy
Being satisfied that the Applicant:
· made an application for an order granting a remedy under s.394 of the FW Act;
· was a person protected from unfair dismissal; and
· was unfairly dismissed within the meaning of s.385 of the FW Act,
I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
Under s.390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of the Applicant inappropriate?
The Respondent submitted that reinstatement is not appropriate because the Applicant’s “misconduct made his colleagues feel uncomfortable and unsafe in his presence” and it wants “employees to feel safe and work in a positive and productive environment”.[42]
The Applicant submitted that reinstatement is not appropriate because:
· the Respondent has dealt with him unprofessionally during a stressful time and has shown no compassion towards him;
· the Respondent has made vexatious claims towards him and terminated his employment in a callous fashion; and
· he cannot see himself working with the Respondent in these circumstances.[43]
It is clear that the relationship between the Applicant and Respondent has irretrievably broken down. In such circumstances, “the Applicant’s disposition is a sure guide to the Commission as to whether or not it would be appropriate to reinstate or re-employ the Applicant. To act contrary to the Applicant’s desired position in this respect would be to give effect to an order that may not yield a productive or cooperative workplace.”[44]
Having regard to the matters referred to above, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.
Is an order for payment of compensation appropriate in all the circumstances of the case?
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”.[45]
I must therefore consider whether it is appropriate in all the circumstances to make an order for payment of compensation (s.390(3)(b) of the FW Act).
Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[46] The Applicant submitted that he has not found a job and indicated that he was seeking 16 weeks’ pay by way of remedy in addition to work travel and entertainment cost reimbursements.[47] I note that, while I am able to consider whether the Applicant has suffered financial loss in deciding whether to award compensation, ordering payment of reimbursement expenses is not within the Commission’s jurisdiction in this matter. In all the circumstances, and given the Applicant has experienced a period of unemployment since his dismissal, I consider that an order for payment of compensation is appropriate because I am satisfied that the Applicant has suffered some loss as a result of the termination of his employment.
Section 392 of the FW Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered.
In considering each of the criteria in s.392 of the FW Act, it is useful to refer to the helpful restatement of principles to be applied in the assessment of compensation in Johnson
v North West Supermarkets T/A Castlemaine IGA:[48]
“[9] The well-established approach to the assessment of compensation under s 392 is to apply the ‘Sprigg formula’, derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. This approach was articulated in the context of the current legislative framework in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c), that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:
“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:
‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’
[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...”
[10] The identification of this starting point amount ‘necessarily involves assessments as to future events that will often be problematic,’ but, as the Full Bench observed in McCulloch v Calvary Health Care Adelaide, ‘while the task of determining an anticipated period of employment can be difficult, it must be done.’
[11] Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.” (references omitted)
The Sprigg formula was discussed and refined in Ellawala v Australian Postal Corporation[49] as follows:
“[31] The principles applicable to determining an amount to be ordered in lieu of reinstatement are dealt with in Sprigg. In that case the Full Bench endorsed the following approach:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
[32] Any amount provisionally arrived at by application of these steps is subject to whether offsetting weight is given to other circumstances, including those that need now to be taken into account under paragraphs 170CH(7)(a), (b) and (c). The legislative cap on the amount able to be ordered is then applied pursuant to ss.170CH(8) and (9).
[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:
“...we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.”
[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the "anticipated period of employment". This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the "anticipated period of employment" are deducted. An example may assist to illustrate the approach to be taken.
[35] In a particular case the Commission estimates that if the applicant had not been terminated then he or she would have remained in employment for a further 12 months. The applicant has earned $3,000 a month for the 18 months since termination, that is $54,000. Only the money earned in the first twelve months after termination - that is $36,000 - is deducted from the Commission's estimate of the applicant's lost remuneration. Monies earned after the end of the "anticipated period of employment", 12 months after termination in this example, are not deducted. This is because the calculation is intended to put the applicant in the financial position he or she would have been in but for the termination of their employment.
[36] The next step is to discount the remaining amount for "contingencies". This step is a means of taking into account the possibility that the occurrence of contingencies to which the applicant was subject might have brought about some change in earning capacity or earnings.
…
[45] In relation to the fourth step set out in Sprigg we note that the usual practice is to settle a gross amount and leave taxation for determination.” (my emphasis, references omitted)
In Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe,[50] the Full Bench stated that, in quantifying compensation, it is necessary to set out with some precision the way in which the various matters required to be taken into account under s.392(2) of the FW Act (and s.392(3) if relevant), and the steps in the Sprigg formula, have been assessed and quantified. The Full Bench also proffered that the way in which a final compensation amount has been arrived at should be readily apparent and explicable from the reasons of the decision-maker.
I will assess compensation having regard to these matters.
Remuneration that would have been received if the dismissal had not occurred – s.392(2)(c)
As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”[51]
While the reasons for the Applicant’s dismissal were not performance related and performance related concerns were not put to the Applicant clearly, I do accept that the Respondent had concerns about the Applicant’s performance. This can be seen in the evidence of:
· Mr Bechara, who was the Applicant’s interim manager while Mr Sassine was working from home. Mr Bechara’s evidence was that he trained and assisted the Applicant in his role as he needed constant support and often had to go back and re-do his work.
· Mr Sassine who was, for a time, head of the estimating division. Mr Sassine’s evidence was that the Applicant was consistently late for work.
· Mr Rahme who was appointed as head of the estimating division and within his first two weeks of employment observed that the Applicant required additional guidance and assistance with his role and that Mr Bechara and Mr Sassine had “almost showered [the Applicant] with attention, guidance, and almost held his hand in progressing [the Applicant’s] productivity and his pro-activeness towards his duties as an estimator”. Mr Rahme also provided an example of delegating tasks to the Applicant that were not completed with the result that Mr Bechara ended up doing them and observed that he was not focused.
It is likely that these concerns about the Applicant’s performance contributed to the Respondent’s concerns about him working from home as it is likely that he required a closer degree of supervision and support than Mr Sassine.
While I have found that the Applicant’s conduct did not amount to misconduct justifying dismissal, his conduct does suggest to me that his reaction to feedback was poor and that he may have had some difficulty in regulating his behaviour during difficult conversations. In this context and given the concerns the Respondent had about his performance in the role, it seems unlikely he would have had a long tenure with the Respondent and I find that at best, if he had not been dismissed and a performance management program was instigated, he would have likely remained employed for a period of 8 weeks.
Based on his earnings prior to the dismissal, being $1,442.31 per week, this would amount to $11,538.48.
Remuneration earned – s.392(2)(e) and income reasonably likely to be earned – ss.392(2)(f) and (g)
Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e) of the FW Act. Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is to be taken into account under s.392(2)(f). Any remuneration likely to be earned after that date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g) in accordance with the Sprigg formula.[52]
I have earlier found that, had the Applicant remained in employment, he would have likely done so for a period of 8 weeks. The Applicant has not secured alternative employment and I am satisfied that the Applicant did not earn any income in the 8 weeks post his dismissal.
The Applicant was however paid one week in lieu of notice, reducing the amount by $1,442.31, leaving $10,096.17 gross in compensation.
Length of service – s.392(2)(b) and any other matters – s.392(2)(g)
The Applicant’s length of service was between 6 and 7 months, which is not particularly significant. As such, I apply a 15% discount to the amount of $11,538.48, reducing the amount of compensation by $1,730.77 to $8,365.40.
I do not consider there is any basis for any deduction for contingencies in this matter and it will be left to the Respondent to deduct taxation required by law.
Viability – s.392(2)(a)
The Respondent submitted that, if compensation is ordered, it would “negatively affect our business” and that the Respondent “has struggled financially from COVID-19 and the recent rain in Sydney, with losses outweighing profits”.[53] While the Respondent has not produced evidence turning to its financial performance, I do accept that the Respondent is quite small in scale, employing only 26 employees, and that, if a significant award of compensation were made, it would likely have some impact. As such, I apply a 5% discount to the amount of $11,538.48, reducing the amount by a further $576.92 to $7,788.48.
Mitigation efforts – s.392(2)(d)
The Applicant must provide evidence that he has taken reasonable steps to minimise the impact of the dismissal.[54] What is reasonable depends on the circumstances of the case.[55]
The Respondent submitted that it is unaware of the Applicant’s efforts to find other work however the Applicant gave evidence that he has applied for 60 jobs through either seek.com or LinkedIn since his dismissal.
I am satisfied that the Applicant mitigated his loss by actively seeking alternative employment.
Misconduct – s.392(3)
While I consider that the Applicant could have handled himself better during the meeting on 21 February 2022, I have earlier found that I am not satisfied that the Applicant engaged in misconduct so no deduction is required under s.392(3) of the FW Act.
Compensation cap – s.392(5) and (6)
I find that the total amount of the remuneration received by the Applicant during the 26 weeks immediately before the dismissal was $37,500.00.
I find that the total amount of the remuneration to which the Applicant was entitled during the 26 weeks immediately before the dismissal was $37,500.00.
The high income threshold immediately before the dismissal was $158,500.00. Half of that amount is $79,250.00.
The amount of compensation ordered by the Commission must therefore not exceed $37,500.00.
Instalments – s.393
I do not consider that there is any reason for compensation to be made by way of instalments. The conduct of the Respondent most certainly weighs against this.
Shock, Distress – s.392(4)
The amount of compensation calculated must not and will not include a component for shock, distress, humiliation or other analogous hurt caused to the Applicant by the manner of his dismissal.
Conclusion
I am satisfied that the Applicant was protected from unfair dismissal, that the dismissal was unfair and that an order for compensation equating to $7,788.48, less taxation to be deducted as required by law, is appropriate having regard to all the circumstances of the case.
An order requiring the payment of this amount within 14 days will be issued with this decision.
COMMISSIONER
Appearances:
Ms B Chehine on behalf of the Applicant.
Ms J Ali on behalf of the Respondent.
Hearing details:
2022.
Sydney (by Video using Microsoft Teams).
June 20 and 30.
[1] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[2] Applicant, ‘Outline of argument: merits’, filed 3 May 2022, 6d.
[3] Respondent, ‘Outline of Argument’, filed 17 May 2022, 4c.
[4] Ibid, 4a.
[5] Applicant, ‘Witness Statement of Danny Hanna’, filed 3 May 2022, [5]-[7], [9], [11], [13], [15]-[16], [18]-[19], Appendix B, Appendix C and Appendix M.
[6] Respondent, ‘Witness Statement of Jasmin Ali’, filed 17 May 2022.
[7] Respondent, ‘Witness Statement of Anthony Rahme’, filed 17 May 2022, 1-2.
[8] Ibid, 1.
[9] Respondent, ‘Witness Statement of Justin Sassine’, filed 17 May 2022.
[10] Respondent, ‘Witness Statement of Fady Bechara’, filed 17 May 2022.
[11] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[12] Ibid.
[13] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[14] Edwards v Justice Giudice [1999] FCA 1836, [7].
[15] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[16] Respondent, ‘Outline of Argument’, filed 17 May 2022, 4a.
[17] Respondent, ‘Witness Statement of Anthony Rahme’, filed 17 May 2022, 1.
[18] Respondent, ‘Witness Statement of Jasmin Ali’, filed 17 May 2022.
[19] Respondent, ‘Witness Statement of Anthony Rahme’, filed 17 May 2022, 1-2.
[20] Respondent, ‘Witness Statement of Justin Sassine’, filed 17 May 2022.
[21] Respondent, ‘Witness Statement of Fady Bechara’, filed 17 May 2022.
[22] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[23] Crozier v Palazzo Corporation Pty Ltd t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [39].
[24] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[25] Wadey v YMCA Canberra [1996] IRCA 568.
[26] RMIT v Asher (2010) 194 IR 1, 14-15.
[27] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[28] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[29] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[30] Applicant, ‘Outline of argument: merits’, filed 3 May 2022, 6d.
[31] Respondent, ‘Outline of Argument’, filed 17 May 2022, 3h.
[32] McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].
[33] Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
[34] Ibid.
[35] Respondent, ‘Outline of Argument’, filed 17 May 2022, 3j.
[36] Ibid, 3l.
[37] Williams v Top Image Hair Design[2012] FWA 9517, [40].
[38] Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].
[39] Respondent, ‘Outline of Argument’, filed 17 May 2022, 3j.
[40] Applicant, ‘Outline of argument: merits’, filed 3 May 2022, 6d.
[41] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].
[42] Respondent, ‘Outline of Argument’, filed 17 May 2022, 6a.
[43] Applicant, ‘Outline of argument: merits’, filed 3 May 2022, 7b.
[44] Taylor v C-Tech Laser Pty Ltd[2013] FWC 8732, [58].
[45] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
[46] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].
[47] Applicant, ‘Outline of argument: merits’, filed 3 May 2022, 7c.
[48] [2018] FWC 679.
[49] Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000)
[50] [2017] FWCFB 429, [43].
[51] He v Lewin [2004] FCAFC 161, [58].
[52] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [31].
[53] Respondent, ‘Outline of Argument’, filed 17 May 2022, 6b.
[54] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
[55] Ibid, [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
Printed by authority of the Commonwealth Government Printer
<PR745920>
0
18
0