David Lumsden v Ringthane Pty Ltd T/A Tradewinds Hotel
[2021] FWC 816
•10 MAY 2021
| [2021] FWC 816 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Lumsden
v
Ringthane Pty Ltd T/A Tradewinds Hotel
(U2020/13992)
DEPUTY PRESIDENT BINET | PERTH, 10 MAY 2021 |
Application for an unfair dismissal remedy.
[1] On 22 October 2020, Mr David Lumsden (Mr Lumsden) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Ringthane Pty Ltd trading as the Tradewinds Hotel (Tradewinds Hotel).
[2] On 3 November 2020, Tradewinds Hotel filed a Form F3 Employer Response.
[3] On 8 December 2020, the parties participated in a conciliation, but the issues in dispute could not be resolved.
[4] Taking into account the above, the Application was listed for a Hearing in Perth on 1 April 2021. On 12 February, the parties were notified that the Hearing was brought forward to 24 February 2021 (Hearing).
[5] Directions for the filing of materials in advance of the Hearing were issued to the parties on 11 December 2020 (Directions).
[6] On 7 January 2021, Tradewinds Hotel made an application pursuant to s 587 of the Fair Work Act 2009 (Cth) (FW Act) to dismiss the Application on the basis that it had no reasonable prospects of success (Dismissal Application).
[7] Section 587 provides:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[8] Tradewinds Hotel submitted that the Application should be dismissed on the grounds that Mr Lumsden’s purpose in making the Application is to ventilate allegations with respect to his supervisor rather than to seek a remedy for unfair dismissal and is therefore frivolous and/or vexatious.
[9] In addition, or in the alternative, Tradewinds Hotel submitted that the Application is frivolous, vexatious and/or has no reasonable prosect of success and should be dismissed because:
“The words of David Lumsden’s witness statement in his s.394 application demonstrate that he would be incapable of meeting the essential perquisites of a continuing employment relationship.
Accordingly the applicant has removed reinstatement as a remedy and therefore no other possible remedy can be ordered by the Deputy President under the provisions of the FW Act.”
[10] The Dismissal Application wrongly presumes that if reinstatement is not an available remedy that an Application is therefore without reasonable prospect of success and must be vexations or frivolous.
[11] While reinstatement is the primary remedy available under s 390 of the FW Act it is not the only remedy available. If reinstatement is deemed to be inappropriate then pursuant to section s 392 the FWC can make an order for compensation.
[12] Furthermore, the fact that no remedy is ultimately ordered does not mean that an Application is frivolous or vexatious or without reasonable prospects of success. An Application is not without purpose or proper purpose just because a remedy is not awarded. An application seeking a finding that a dismissal was unfair serves a ‘proper’ purpose by vindicating an aggrieved applicant even if in all the circumstances of the case the award of a remedy is not appropriate.
[13] Similarly, an application might be ‘successful’ in that a finding that a dismissal was unfair might be made even in circumstances where it is not appropriate to order a remedy, for example if the employee has fully mitigated their loss.
[14] While Mr Lumsden holds negative views about his supervisor which he wishes to ventilate this does not of itself mean that the substantive application is without any proper purpose or without any reasonable prospect of success.
[15] The Dismissal Application does not address the merit of the substantive application; namely whether or not Mr Lumsden was unfairly dismissed.
[16] It would be premature to determine that the Application had no prospect of success in advance of the Hearing from the parties in relation to the merit of the Application (where no jurisdictional objection is pressed by either party).
[17] While I ultimately have decided that Mr Lumsden’s dismissal was not unfair the materials filed by the parties in advance of the Hearing were not such that Mr Lumsden could be said to have had no reasonable prosect of success.
Permission to be represented
[18] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.1
[19] Tradewinds Hotel sought permission to be represented at the Hearing.
[20] Having considered the submissions of the parties, leave was granted to Tradewinds Hotel to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
[21] At the Hearing Mr Lumsden represented himself and Tradewinds Hotel was represented by Mr Ron Jones of Ron Jones Consulting.
Evidence
[22] Mr Lumsden provided written and oral evidence on his own behalf. He also filed a witness statement of Ms Yasmin Gray (Ms Gray) who was employed as a Waitress/Receptionist by Tradewinds Hotel.
[23] On 22 February 2021, Mr Lumsden advised the FWC that Ms Gray was not able to appear at the Hearing.
[24] The following witnesses provided written evidence on behalf of Tradewinds Hotel:
a. Mr Gary Beadel – General Manager - Tradeswinds Hotel (Mr Beadel);
b. Ms Sarah Younghusband – Regional Director of Sales (Ms Younghusband);
c. Ms Leah Pagcaliwagan – Assistant Food and Beverage Manager (Ms Pagcaliwagan); and
d. Mr Brett Braithwaite – Food and Beverage Manager (Mr Braithwaite).
[25] Mr Beadel and Mr Braithwaite gave oral evidence at the Hearing.
[26] The parties jointly prepared and filed a Digital Court Book containing the evidence and submissions of the parties. The Digital Court Book was admitted at the Hearing as an exhibit and marked DCB1.
[27] Final written submissions were filed on behalf of Mr Lumsden on 8 March 2021. Final written submissions were filed by Tradewinds Hotel on 15 March 2021.
[28] In reaching my decision, I have considered all the submissions made, and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.
Background
[29] Mr Lumsden commenced employment with Tradewinds Hotel on 16 January 2020 reporting to the Food and Beverage Manager, Mr Brett Braithwaite and the Assistant Food and Beverage Manager, Ms Pagcaliwagan.2 He primarily performed bar tending duties.
[30] His employment was covered by the Hospitality Industry (General) Award 2020.
[31] Not long after Mr Braithwaite commenced in his role Mr Lumsden admits he took a disliking to Mr Braithwaite. Mr Lumsden did not approve of Mr Braithwaite’s interactions with other staff members. He used a variety of mediums including Facebook to encourage his colleagues to make complaints about Mr Braithwaite. He also raised his concerns about Mr Braithwaite with Ms Pagcaliwagan who indicated that she was unable to act unless allegations were raised with her directly. Mr Lumsden concedes that no one else came forward to complain about Mr Braithwaite. 3
[32] In her written statement Ms Gray gave evidence that she had concerns about Mr Braithwaite’s interactions with her during one shift in August 2019. She concedes that she did not report these concerns and that Tradewinds Hotel only became aware of them in the course of an investigation which they conducted after Mr Lumsden was dismissed. 4
[33] Mr Lumsden’s relationship with Mr Braithwaite deteriorated further throughout Mr Lumsden’s employment and as such would avoid speaking to Mr Braithwaite and would move away from him whenever Mr Braithwaite approached him. 5
[34] Mr Braithwaite said he became concerned about Mr Lumsden’s behaviour towards him and on the morning of 2 October 2020 approached Mr Lumsden while Mr Lumsden was preparing the bar for service. Mr Lumsden was behind the bar at the time. Mr Braithwaite says that he sensed that Mr Lumsden was angry with him for some reason and asked Mr Lumsden what was wrong. 6
[35] Mr Lumsden says that he told Mr Braithwaite that he was upset with him because he believed that Mr Braithwaite interacted inappropriately with other staff. 7 Mr Braithwaite says that he replied that Mr Lumsden should be careful about making such accusations.8
[36] Mr Lumsden says that he was surprised that Mr Braithwaite did not immediately deny the allegation and took the view that Mr Braithwaite was therefore admitting the alleged conduct. Mr Lumsden concedes that in light of this he that he took a “firmer tone from this point forward” in the conversation. 9
[37] Mr Braithwaite says he felt uncomfortable continuing the conversation with an increasingly agitated Mr Lumsden and said that he told Mr Lumsden that there were several options they could explore instead such as mediation. Mr Lumsden concluded that this meant that Mr Braithwaite was acknowledging his conduct was not appropriate. Inexplicably Mr Lumsden also concluded that Mr Braithwaite suggested these options in order to secure a non-disclosure commitment from Mr Lumsden. 10
“Mr. Braithwaite then attempted to offer a mediated outcome (see Witness Statement of David Lumsden, paragraph 12). The Applicant submits that Mr. Braithwaite, as an experienced manager would have understood this to be an attempt to achieve an outcome involving non-disclosure and non-disparagement clauses that would protect his employment and reputation while only addressing the confrontation between himself and the Applicant, and not his behaviour towards young female staff. Such an outcome would also achieve the Applicant’s resignation, which would help to prevent further exposure of Mr Braithwaite’s behaviour in the future.”
[38] Mr Lumsden says that he then asked Mr Braithwaite directly if he had engaged in inappropriate conduct. Mr Lumsden concedes that Mr Braithwaite denied the allegations. 11
[39] As they spoke Mr Lumsden began cutting garnishes with a paring knife in preparation for bar service. Mr Braithwaite says that Mr Lumsden began pointing the knife at him. Both Mr Lumsden and Mr Braithwaite agree that Mr Braithwaite told Mr Lumsden to stop pointing the knife at him. Mr Braithwaite says that when he told Mr Lumsden to stop pointing the knife at him he changed his grip and made a motion towards his face with the knife. Mr Lumsden concedes that he had been holding the knife while speaking to Mr Braithwaite and that he had pointed at Mr Braithwaite but says he was not holding the knife when he pointed at Mr Braithwaite. Mr Braithwaite reminded Mr Lumsden that he was on CCTV and briskly left the area. 12 Mr Lumsden says that he was extremely shaken by the event and was genuinely afraid of what Mr Lumsden might do. He says that as he left Mr Lumsden yelled at him that he didnot care if the incident was on camera or not.13
[40] Mr Braithwaite went to his office still shaking and called Mr Ben Fuller. He explained what happened and asked to review the CTV footage. The CTV footage did not cover the area in which the incident occurred.
[41] Mr Braithwaite reported the incident to Mr Beadel at approximately 12.30pm. 14 He immediately prepared a witness statement which he emailed to himself.15 In that statement he described the incident in the following way:16
“He started to say just stop, and by this point he had picked up a knife and was cutting some fruit, and was pointing the knife at me. I said not to do so and he turned the knife and pointed it directly at me.
I said that he was on camera, and started to work a way, and said he did not care.”
[42] At around 2.15pm on 2 October 2020 Mr Beadel asked Mr Lumsden to meet with him in his office. During this meeting, Mr Lumsden told Mr Beadel his views of Mr Braithwaite. 17
[43] Mr Lumsden says that Mr Beadel asked him if he was holding a knife and if he had pointed at Mr Braithwaite during their conversation earlier in the day. Mr Lumsden concedes that he informed Mr Beadel that he had done both. However, he insists that he meant that he had held the knife and pointed his finger, not that he had pointed the knife at Mr Braithwaite.
[44] Mr Beadel’s recollections of the conversation was that he asked Mr Lumsden several times whether he pointed the knife at Mr Braithwaite and that Mr Lumsden eventually conceded that he did and that he did so because he knew that it would upset Mr Braithwaite.
[45] Mr Beadel says that Mr Lumsden stated that he had zero respect for Mr Braithwaite, asserted that he did not perform his duties properly and that he behaved as if he had Asperger’s disease. He says that Mr Lumsden made a variety of allegations of misconduct on Mr Braithwaite’s part towards other staff members. 18
[46] Mr Beadel informed Mr Lumsden at the end of the meeting that he was stood down pending the finalisation of an investigation into the allegation that he had threatened Mr Braithwaite with a knife. Mr Beadel also informed him that he would commence an investigation into Mr Lumsden’s allegations that Mr Braithwaite had behaved inappropriately. 19
[47] On Monday 5 October 2020 and Tuesday 6 October 2020 Mr Beadel conducted meetings with the two staff members Mr Lumsden asserted had been the targets of Mr Braithwaite’s inappropriate conduct; Ms Gray and another female staff member. Mr Beadel arranged for Ms Younghusband to attend the meetings in her capacity as a senior female member of staff so that the women being interviewed felt comfortable. Ms Gray informed Mr Beadel that she was uncomfortable working with Mr Braithwaite and did not want to work at Tradewinds Hotel while it was a state COVID-19 quarantine facility. She was offered and accepted a role elsewhere in the business at another venue. The other staff member indicated that she was not offended by Mr Braithwaite’s conduct and was happy to continue working with him. 20
[48] Mr Beadle then raised the allegations with Mr Braithwaite who indicated that the contact complained of was accidental and that he was remorseful if any offence had been taken. 21
[49] Later on Tuesday 6 October 2020 Mr Beadel called Mr Lumsden and informed him that his employment with Tradewinds Hotel was terminated and, because he was a casual, the termination of his employment was effective immediately. 22
[50] Mr Lumsden sought an order for reinstatement and compensation in the form of back-pay. 23
Is Mr Lumsden protected from unfair dismissal?
[51] An order for reinstatement or compensation may only be made if Mr Lumsden was unfairly dismissed and Mr Lumsden was protected from unfair dismissal at the time of his dismissal.
[52] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed 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 one or more of the following apply:
a) a modern award covers the person;
b) an enterprise agreement applies to the person in relation to the employment;
c) 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.
[53] For the purposes of Part 3-2 of the FW Act an employer means a national system employer and an employee means a national system employer. There is no dispute and I find that Tradewinds Hotel is a national system employerand Mr Lumsden is a national system employee.
[54] If the employer is not a small business, the ‘minimum employment period’ is six months ending at the earlier of the following times:
a) the time when the person is given notice of the dismissal; or
b) immediately before the dismissal.
[55] The period of employment with an employer is the period of continuous service the employee has completed with the employer. 24
[56] A period of service as a casual employee does not count towards the employee’s period of employment unless the employment as a casual employee was on a regular and systematic basis and during the period of service the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis. The parties say that Mr Lumsden was employed on a regular and systematic basis.
[57] There is no dispute, and I am satisfied, that Tradewinds Hotel is not a small business employer for the purposes of section 383 of the FW Act.
[58] Mr Lumsden commenced employment with Tradewinds Hotel on 16 January 2020. Mr Lumsden was dismissed on 6 October 2020.25
[59] I am therefore satisfied that, at the time of dismissal, Mr Lumsden was an employee who had completed a period of employment of at least the minimum employment period.
[60] There is no dispute, and I am satisfied, that the Hospitality Industry (General) Award 2020 applied to his employment at the time of his dismissal.26 Consequently, I am satisfied that Mr Lumsden was protected from unfair dismissal.
Was Mr Lumsden unfairly dismissed?
[61] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:
a) the person has been dismissed;
b) the dismissal was harsh, unjust or unreasonable;
c) the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and
d) the dismissal was not a case of genuine redundancy.
Was Mr Lumsden dismissed?
[62] Section 386(1) of the FW Act provides that a person has been dismissed if the person’s employment was terminated at the employer’s initiative or the person resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.
[63] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[64] There was no dispute, and I am find, that Mr Lumsden’s employment with Tradewinds Hotel was terminated at the initiative of Tradewinds Hotel.
[65] I am therefore satisfied that Mr Lumsden has been dismissed within the meaning of section 385 of the FW Act.
Was Mr Lumsden’s dismissal a case of genuine redundancy?
[66] Pursuant to 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.
[67] It was not in dispute, and I am find, that Mr Lumsden’s dismissal was not due to Tradewinds Hotel no longer requiring his job to be performed by anyone because of changes in Tradewinds Hotel’s operational requirements.
[68] I am therefore satisfied that the dismissal was not a case of genuine redundancy.
Was Mr Lumsden’s dismissal consistent with the SBFD Code?
[69] Section 388 of the FW Act provides that a person’s dismissal was consistent with the SBFD 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 SBFD Code in relation to the dismissal.
[70] It was not in dispute, and I find, that Tradewinds Hotel was not a small business employer within the meaning of s 23 of the FW Act at the relevant time, having in excess of fourteen employees.
[71] As Tradewinds Hotel is not a small business employer within the meaning of the FW Act, I am therefore satisfied that the SBFD Code does not apply to Mr Lumsden’ dismissal.
Was the Application made within the period required?
[72] Pursuant to s 396 of the FW Act, the FWC is obliged to decide whether an application was made within the period required in s 394(2) of the FW Act before considering the merits of an application.
[73] Section 394(2) of the FW Act requires that the Application is to be made within 21 days after the dismissal took effect.
[74] It is not disputed, and I am satisfied, that Mr Lumsden was dismissed from his employment on 6 October 2020 and made the Application on 22 October 2020. I am therefore satisfied that the Application was made within the period required in s 394(2) of the FW Act.
Was the dismissal harsh, unjust or unreasonable?
[75] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd by McHugh and Gummow JJ as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”27
[76] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
b) whether the person was notified of that reason;
c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
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;
e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
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.
[77] Each of these criteria must be considered to the extent they are relevant to the factual circumstances of the Application.28
Was there a valid reason for the dismissal related to Mr Lumsden capacity or conduct?
[78] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”29 and should not be “capricious, fanciful, spiteful or prejudiced.”30 However, the FWC will not stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.31
[79] Where a dismissal relates to an employee’s conduct, the FWC must be satisfied that the conduct occurred and justified termination.32 “The question of whether the alleged conduct took place and what it involved is to be determined by the FWC on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”33
[80] Tradewinds Hotel say that it had a reasonable belief that Mr Lumsden pointed a knife at his supervisor with the intention of threatening or intimidating him and that such conduct formed a valid reason for his dismissal. 34
[81] Mr Lumsden denies he threatened Mr Braithwaite with the knife and says that Mr Braithwaite fabricated the event to protect his employment and reputation after Mr Lumsden confronted him with allegations that he had behaved inappropriately in the workplace. 35
[82] Mr Lumsden denies admitting to Mr Beadel that he had threatened Mr Braithwaite with a knife and says that Mr Beadel was friends with Mr Braithwaite and sought to protect Mr Braithwaite by dismissing Mr Lumsden. 36
[83] Annexed to Mr Braithwaite’s witness statement was a photo of the knife that he says Mr Lumsden threatened him with. 37 Mr Lumsden denies this is the knife he was using on the day in question and asserts that he was using a knife with a rounded end. However, Mr Lumsden concedes the knife identified by Mr Braithwaite was in fact a knife used in the bar. Even if the knife Mr Braithwaite identified is not the knife Mr Lumsden was using given that Mr Lumsden was using the knife to cut lemons, the knife he was using is unlikely to have been blunt and therefore posed some risk to Mr Braithwaite.
[84] It is clear from the evidence that Mr Lumsden held strong negative views about Mr Braithwaite for some considerable time before the incident on 2 October 2020 occurred. Mr Lumsden had been unsuccessful in encouraging his colleagues to make complaints about Mr Braithwaite or having Ms Pagcaliwagen initiate an investigation on her own initiative. Mr Lumsden appears to have become highly agitated and frustrated as a consequence and this was reflected in his dismissive conduct towards Mr Braithwaite.
[85] Mr Lumsden asserts that Mr Braithwaite and Mr Beadle lied in their evidence in order to protect Mr Braithwaite. There is no evidence to suggest this is the case. Mr Beadle promptly investigated the allegations made by Mr Lumsden after Mr Lumsden informed him of them. The investigation did not reveal conduct of the serious nature alleged by Mr Lumsden or which would warrant formal disciplinary action being taken against Mr Braithwaite.
[86] Even if the allegations Mr Lumsden made about Mr Braithwaite were true, challenging him with a knife was not an appropriate way to deal with those issues. It was not necessary for Mr Braithwaite to concoct a story about Mr Lumsden pointing a knife at him to ‘silence’ him. Instead, he could have more easily offered Mr Lumsden who was employed on a casual basis less shifts.
[87] There is no evidence to suggest that prior to the incident Mr Braithwaite held any ill will towards Mr Lumsden or that he was in any way the aggressor. Rather, it appears that Mr Braithwaite approached Mr Lumsden in a conciliatory way in order to resolve Mr Lumsden’s obvious unhappiness with him.
[88] Mr Braithwaite says that Mr Lumsden pointed the knife at him in a threatening manner. He says that he felt intimidated and shaken by the event. His evidence is consistent with the contemporaneous email he sent shortly after the incident.
[89] The fact that Mr Braithwaite went to check the CCTV footage immediately after the event suggests that he believed the footage would reveal that Mr Lumsden was doing something more threatening than merely pointing at him.
[90] Mr Lumsden concedes that he had the knife in his hand as he became more agitated in his discussions with Mr Braithwaite. Mr Lumsden also concedes that he pointed at Mr Braithwaite. If the knife was in his hand it seems more probable than not given his admitted level of agitation that Mr Lumsden pointed the knife at Mr Braithwaite rather than putting the knife down and then pointing.
[91] This is further corroborated by the evidence in relation to the discussion between Mr Beadel and Mr Lumsden shortly after the incident. Mr Beadel says that Mr Lumsden admitted that he pointed the knife at Mr Braithwaite and that he intended to upset Mr Braithwaite.
[92] Based on the evidence before me and the submissions of the parties, I am satisfied that Mr Lumsden’s conduct on 2 October 2020 constituted a valid reason for his dismissal.
Was Mr Lumsden notified of the valid reason?
[93] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,38 and in explicit,39 plain and clear terms.40
[94] In Crozier v Palazzo Corporation Pty Ltd 41 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 42
[95] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason in s 387(c), involves consideration of whether procedural fairness was afforded to Mr Lumsden before his dismissal was effected. Satisfaction of the notification requirement will usually require a straightforward factual inquiry to be made, namely what was the applicant told about the reason for the dismissal, before the dismissal took place?
[96] Mr Beadel informed Mr Lumsden of the allegation made by Mr Braithwaite when he met with Mr Lumsden on 2 October 2020.
[97] Therefore, I am satisfied that Mr Lumsden was notified of the reasons for his dismissal.
Was Mr Lumsden given an opportunity to respond to any valid reason related to his capacity or conduct?
[98] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.43
[99] 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.44 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.45
[100] Mr Lumsden was provided with an opportunity to respond to the reasons for his termination at the meeting he attended with Mr Beadel on 2 October 2020.
[101] I am satisfied that Mr Lumsden was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.
Did Tradewinds Hotel unreasonably refuse to allow Mr Lumsden to have a support person present to assist at discussions relating to the dismissal?
[102] 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.
[103] Mr Lumsden did not request that a support person be present during the discussions held on 2 October 2020.
[104] 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.” 46
[105] I am satisfied that Tradewinds Hotel did not unreasonably refuse to allow Mr Lumsden to have a support person present at discussions relating to his dismissal.
Was Mr Lumsden warned about unsatisfactory performance before the dismissal?
[106] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.47
[107] For the reasons given earlier in this decision, I am satisfied that the Tradewinds Hotel dismissed Mr Lumsden for reasons relating to his conduct and not his performance. Tradewinds Hotel did not rely on, and did not make any submission to the effect, that Mr Lumsden’s dismissal related to his performance. It follows that in the circumstances of this case, this factor is not a material consideration.
To what degree would the size of Tradewinds Hotel’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[108] Where an employer is substantial, and has dedicated human resources personnel and access to legal advice, there will likely be no reason for it not to follow fair procedures.48
[109] Tradewinds Hotel is a large business and no allegations of a denial of procedural fairness have been raised by Mr Lumsden.
[110] I am satisfied that the procedures followed by Tradewinds Hotel were appropriate having regard to the size of its enterprise.
[111] It follows therefore that in the circumstances of this case, this factor is not a material consideration.
To what degree would the absence of dedicated human resource management specialists or expertise in Tradewinds Hotel’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[112] The absence of dedicated human resource management or expertise in an employer’s enterprise may also impact on the procedures followed by an employer in effecting a dismissal. Although 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.”49
[113] There is no assertion by Tradewinds Hotel that the absence of dedicated human resource specialists or expertise impacted on the procedures followed in effecting the dismissal.
[114] It follows therefore that in the circumstances of this case, this factor is not a material consideration.
What other matters are relevant?
[115] Section 387(h) requires the FWC to take into account any other matters that the FWC considers relevant.
[116] Mr Lumsden submits that the FWC ought to have regard to the improbability of him engaging in the conduct which resulted in his dismissal.
[117] Tradewinds Hotel submits that the FWC should have regard to the nature of the comments that Mr Lumsden has made about Mr Braithwaite and Mr Beadel. Tradewinds Hotel submits that these comments make the continued employment of Mr Lumsden within the business unviable.
[118] Given the passion which Mr Lumsden appears to have held at the time and holds now about the allegations the probability of him engaging in the behaviour which he did is not unsurprising. The matters raised by Tradewinds Hotel would be relevant to any order for reinstatement if it were made.
Conclusion
[119] Taking into account each of the matters discussed above, I have come to the conclusion that the dismissal of Mr Lumsden was not harsh, unjust nor unreasonable. On the evidence that I have accepted, the Applicant’s conduct directed to his manager was inappropriate. In my view, Mr Lumsden’s conduct, when viewed in its totality, justified dismissal.
[120] The application for an unfair dismissal remedy is therefore dismissed. An Order to this effect is issued separately in PR727019.
DEPUTY PRESIDENT
Appearances:
D. Lumsden for the Applicant.
R. Jones for the Respondent.
Hearing details:
2021.
Perth.
February 24.
Final written submissions:
Applicant, 8 March 2021.
Respondent, 15 March 2021.
Printed by authority of the Commonwealth Government Printer
<PR727018>
1 Warrell v Walton (2013) 233 IR 335, 341 [22].
2 Digital Court Book, 73 (‘DCB’).
3 Ibid 21.
4 Ibid 26 – 28.
5 Ibid 21.
6 Ibid 22, 42.
7 Ibid.
8 Ibid 37, 42.
9 Ibid 23.
10 Ibid 18, 23, 37, 43.
11 Ibid 23.
12 Ibid 23, 37,42 – 43.
13 Ibid 43.
14 Ibid 33.
15 Ibid 37.
16 Ibid.
17 Ibid 24, 33.
18 Ibid 33 – 35.
19 Ibid 35.
20 Ibid 35 – 40.
21 Ibid 43.
22 Ibid 24.
23 Ibid 4.
24 Fair Work Act 2009 (Cth) s 383.
25 DCB (n 1) 2.
26 Ibid.
27 (1995) 185 CLR 410, 465.
28 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, 4 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB), (Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
29 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
30 Ibid.
31 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
32 Edwards v Justice Giudice (1999) 94 FCR 561, 565 [7] (Moore J).
33 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23] - [24].
34 DCB (n 1) 30.
35 Ibid 17.
36 Ibid.
37 Ibid 44.
38 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [73] (‘Crozier’).
39 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
40 Ibid.
41 (2000) 98 IR 137.
42 Ibid 151.
43 Crozier (n 38) 151 [75].
44 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 – 15 [26] quoting Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
45 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
46 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
47 Annetta v Ansett Australia (2000) 98 IR 233, 237
48 Jetstar v Meetson-Lemkes (2013) 239 IR 1, 21 – 22 [68].
49 Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].
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