Dmitry Agarev v Amber Aviation Academy Pty Ltd

[2017] FWC 5416

[2017] FWC 5416

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dmitry Agarev
v
Amber Aviation Academy Pty Ltd
(U2017/6277)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 23 OCTOBER 2017

Application for an unfair dismissal remedy.

[1] Mr Dmitry Agarev was employed by Amber Aviation Academy Pty Ltd from 17 January 2016 until his employment was summarily terminated on 5 June 2017.

[2] Amber Aviation objected to Mr Agarev’s application on the basis that it was a small business and the dismissal was consistent with the Small Business Fair Dismissal Code. At the hearing, Mr Mahendra Naidu, a director of Amber Aviation, gave uncontested evidence that Amber Aviation and its associated entities employed less than 15 employees.    As a result, Mr Agarev conceded that this was a small business. 1

[3] Therefore, the first issue to be determined was whether the dismissal was consistent with the Code.

[4] Directions were issued to the parties to file material. Amber Aviation was directed to file material both in support of its objection and in relation to the substantive application. Amber Aviation filed an outline of argument in support of its objection and a Form F4 but did not file any statements of evidence. Amber Aviation did not file any material in response to Mr Agarev’s substantive application. At the commencement of the matter, I asked Mr Naidu if Amber Aviation intended calling any evidence and he advised that Amber Aviation relied on its application and documents filed and he would give sworn evidence in relation to the facts set out in those documents. There was no objection to this. Mr Agarev filed a witness statement and submissions.

[5] Having conferred with the parties I determined to conduct the matter by way of a determinative conference.

Events leading to the dismissal

[6] Mr Agarev was employed as an Instructor Pilot Grade 2. In April 2017, Amber Aviation halted all of its operations after being issued with non-compliance notices from CASA. Further, its Chief Flying Instructor resigned. 2

[7] On or around 31 March 2017, Mr Naidu offered Mr Agarev the position of Head of Aircraft Airworthiness and Maintenance Control. This position required CASA endorsement and on 10 April 2017 Mr Agarev’s appointment was approved by CASA. 3

[8] As part of his duties Mr Agarev was required to update the record of data pertaining to maintenance schedule and category of aircraft operations. These records were kept on a whiteboard. Mr Agarev gave evidence that due to the positioning of his desk and the whiteboard he was required to climb onto his desk to complete this task. Mr Agarev gave evidence that he decided that, as this was unsafe, he would redraw the table so that he did not have to climb onto the desk. It was his evidence that he told Mr Naidu prior to cleaning the whiteboard that he intended removing the data and told him why it was necessary and that Mr Naidu said words to the effect of “that was fine as long as he supplied him with the excel spreadsheet that recorded the data.” 4 Mr Agarev said he placed the excel spreadsheet in the relevant folder on the company network and sent an email indicating its location.5 He also took a photo of the whiteboard before it was cleaned and included that in the email. Mr Agarev gave evidence that on 2 May 2017 he commenced redrawing the table but did not complete this task before he left work for the day. Mr Agarev was on an RDO the next day. Mr Agarev did not consider it a problem that the whiteboard record was incomplete when he left as Amber Aviation was not operational at that time.6

[9] Mr Naidu gave evidence that he could not recall the conversation with Mr Agarev. Mr Naidu agreed that Mr Agarev had commenced repopulating the amended design but it did not include any aircraft information. He said Mr Agarev did not inform anyone regarding the status of this and he then went on five days leave. It was his view that Mr Agarev should have informed someone from management that he had not finished repopulating the whiteboard.

[10] A CASA Flight Operations Inspector was in attendance the next day to conduct an assessment flight check. Mr Naidu said that when he went to check the status of the assigned aircraft he saw the whiteboard was incomplete and asked the Operations Administrator to contact Mr Agarev to see what had happened. Mr Agarev gave him the location of the picture of the whiteboard. 7 Mr Naidu made reference to emails between the parties about this incident but did not submit any such emails to the Commission.

[11] On 3 May 2017 in an email, Mr Naidu sought an explanation from Mr Agarev. He alleged that Mr Agarev’s conduct was a serious breach of the Company Change Management process.

[12] In his email, he alleged that Mr Agarev:

“decided and progressed to change the whiteboard aircraft status system yesterday afternoon without raising a request for change and without my approval. You left the whiteboard blank yesterday with no aircraft status information on it. You are aware that I had requested you to take the next five days off (RDO) in lieu of your public holiday days due. We had this discussion yesterday morning. I fail to understand as to why you left the aircraft status whiteboard blank and incomplete yesterday when you were fully aware that you would be away from work for the next five days. You are also fully aware of the fact that we have a CASA delegate (Flight Operations Inspector) conducting assessment with one of our employees and we wouldn’t consider any operational changes or disruptions at this point in time. Your actions are considered to be very irresponsible and thoughtless causing disruptions and has created constraints on operations. Under the circumstances, please provide urgently a written explanation of your intentions and actions leading to this.” 8

[13] In response, Mr Agarev sent an email to Mr Naidu on 3 May 2017 in which he stated:

“I have advised you and a number of Amber employees including Douglas and James Keath, of my change of the size of the whiteboard in the operation room, as the board covers my side of the desk. I was unable to safely add or change data on the board. My biggest concern was that I could potentially fall off the chair or table whilst adding this data. I have communicated to you verbally yesterday and on number of occasions. During the time of the change I have taken a photo and also updated all of the data in an excel spreadsheet, placed in the HAAMC folder on the company Q drive folder and a copy of the link was sent to your email. I was unable to complete my work on time because my working hours are from 8.30-17.00. I was going to continue finishing the update of the board on Wednesday.” 9

[14] In response, Mr Naidu sent an email saying:

“Thanks for this feedback, however I wasn’t aware of this change till I came into the room yesterday afternoon and saw you cleaning the whiteboard. In future please note that you require my explicit approval for changes in this Organisation and the change has to be approved by an RFC as per the Change Management process in place. Please review your chain of reporting as the HAAMC you are reporting directly to the CEO. I will arrange a formal meeting on your return to discuss and record this occurrence - “Leaving the Aircraft Status Board blank and proceeding to change an approved system without formal change request or approval.” 10

[15] This email is inconsistent with Mr Naidu’s evidence that he was unaware that the whiteboard had been cleaned until the next day. Mr Naidu’s email makes it clear that he was aware that the whiteboard was being cleaned as it was occurring. There was no evidence that Mr Naidu objected to Mr Agarev’s conduct at the time or that he directed him to stop or directed him to repopulate the whiteboard before he left work that day.

[16] Minutes of a meeting held on 10 and 11 May 2017 were tendered. Those minutes were signed by Mr Naidu on 17 May 2017 and by Mr Agarev on 12 May 2017. Mr Naidu accepted that the signed minutes were an accurate record of the meeting. Those minutes stated:

“Dmitry 11 states that he was authorised by Mahendra12 verbally to make the change on a number of occasions and was instructed to send an email of the backed up data with the link to the file location on the Q drive, however Mahendra cannot recall this. Dmitry states that he sent an email to Mahendra on the date, 2 May 2017 at 11.55am and it’s confirmed. The whiteboard was adjusted in the afternoon.”13

[17] Mr Naidu did not issue Mr Agarev with any warning either written or verbal as a result of this incident.

[18] On the afternoon of 2 May 2017, Mr Agarev met with Mr Naidu. Mr Agarev said he was told by Mr Naidu for the first time that the company had financial difficulties and that there would be a need for redundancies. Mr Agarev said Mr Naidu told him that all Grade 2 Instructors would be made redundant and that there would be the option of being engaged as a causal or permanent part time employee or as a subcontractor. He was told that his RDO’s would no longer be paid out as a lump sum and he needed to take the next six days off work to use up his RDO’s. He was told he needed to consider his options. There was a discussion about Mr Agarev’s accrued annual leave and he was told that he would be paid his accrued leave on termination and would receive one month’s notice of termination. Mr Agarev said that his contract provided for three months’ notice and he showed Mr Naidu a copy of his contract. 14

[19] Mr Naidu denied telling Mr Agarev that his position was being made redundant. Mr Naidu gave evidence that he was keeping Mr Agarev informed about the thinking of the directors and that no definite decisions had been made.

[20] The minutes of the meeting on 10 and 11 May 2017 make reference to what occurred on 2 May 2017. Both parties accept that these minutes are accurate.

[21] Those minutes record that Mr Agarev:

“was advised about redundancy within the Amber Aviation group that may affect his position…. Dmitry asked clarification on the hours of work for at (sic) Amber Aviation, as a Part Time, Casual or Contract employee. Mahendra advised that the standard contract will guarantee one day per week with no change in the pay rate as per the appropriate level of rating or job within the company. The days of work will most likely be on Saturday or Sunday or as required. Dmitry indicated that he may be interested in taking up future roles as a casual employee. Dmitry asked how long further remodelling will require and what he should do if in the meantime a full-time position with guaranteed dates and hours was to present itself with another organisation. Mahendra advised that given the current circumstances and the necessary changes within Amber Aviation group, he would only encourage Dmitry to take whatever he thinks is the best option for himself. Mahendra will require 2 weeks to complete the remodelling and notified Dmitry in writing of any changes to his contract. Mahendra advised Dmitry that his RDO time was not the initial redundancy notice period.” 15

[22] On 3 May 2017, Mr Agarev sent Mr Naidu an email asking him for written notice of termination and redundancy and asked for an outline of the options available to him going forward. 16

[23] On 11 May 2017, Mr Agarev in response to a question from a student, advised that he was going to be made redundant and that he didn’t know whether he would be returning to work for Amber Aviation. He said the student had overheard him talking to his union representative about his impending redundancy and wanted to know if he was leaving. 17

[24] Amber Aviation contends that in responding to the student, Mr Agarev breached his confidentiality obligations by disclosing to a student its restructuring plans. 18

[25] On 15 May 2017, Mr Agarev attended his medical practitioner and received a medical certificate. He was absent from work for five days.

[26] Mr Naidu said that Mr Agarev was obliged to disclose to management the nature of his medical condition. Mr Naidu said that this was required by the regulations and the operations manual. Neither document was put before the Commission. Mr Naidu said that if a pilot believes that they may not be fit for duty they had an obligation to advise his or her employer.

[27] Mr Naidu said that when Mr Agarev returned to work he would not disclose the nature of his illness and he consequently requested that Mr Agarev obtain a clearance from a Designated Aviation Medical Examiner which he did. 19 Mr Naidu said that had he known Mr Agarev was absent from work in part due to stress, he would not have assigned active flight duties to him.20

[28] On 2 June 2017, Mr Agarev met with Mr Sundeep Rao and was told that he was being subjected to performance management. He was told that everyone was going to have their performance evaluated and that there would be a follow-up meeting at the end of June 2017. 21

[29] Later that day Mr Agarev was booked to undertaking a training flight with a student. This involved a three hour flight. Mr Agarev was required to plan the flight so that the plane was landed at Essendon Airport at least ten minutes before last light. Mr Agarev accepted that he failed to confirm the end of day light in the pre-flight planning stage. Whilst en-route he realised that he had insufficient time to return to base and after checking with Amber Aviation he landed at an alternative airport. 22

[30] Mr Agarev described this as a mistake and said that no one was injured nor was any company property damaged and he did not breach any CASA rules or regulations. He said that he had never made a mistake of this kind before but he “was more stressed than usual at work in light of the whiteboard incident and the morning’s notice of my impending performance review.” 23

[31] Mr Naidu said that when the plane was recovered from the other airport it was found to only have ten litres of fuel on board which was below permitted fuel reserves as required by CASA regulations and company policy.

[32] Mr Agarev gave evidence that this allegation was investigated at the termination meeting. It was his unchallenged evidence that Mr Naidu instructed him and Mr Rao to evaluate the aircraft fuelling system and that they established that the dipstick and fuel gauges did not accurately reflect the amount of fuel placed in the aircraft. This information was reported to Mr Naidu; Mr Naidu was supplied with photographs by Mr Rao of both the gauges and the placement of the dipstick for his review on 6 June 2017 during the termination meeting but prior to the recording beginning. 24

[33] A meeting was held on 6 June 2017 and the allegations about the failure to plan the flight were put to Mr Agarev. At this meeting there were also allegations that there were some deficiencies in the student records. Further, the allegation about breach of confidentiality was raised. Mr Agarev was alleged to have told a student that he would be made redundant and would not be working for the company anymore. This was said to be confidential information. The meeting notes record Mr Agarev saying that he was asked by a student if he was being made redundant. In his evidence in chief Mr Agarev said that the student asked him if he was leaving because he overheard him talking to his representative when he was seeking advice about the proposed redundancy. He told the student that he was being made redundant and didn’t know whether or not he would be returning to work with Amber Aviation.

[34] Another person at the meeting, “S”, said he told the student that he was not sure when Mr Agarev would be returning but made no mention of redundancy.

[35] At the conclusion of the meeting Mr Naidu said:

“there is a number of things that’s a great concern here, my job is to ensure and protect this company and ensure that everybody operates with safety mandate. And as well as not only protect the clients, stakeholder and protect the company’s operational certificates at all costs. So based with everything, presenting to me today, which I will provide you all in writing and I will sate all reasons in that very clearly, I’m gonna immediately due to all these bridges (sic) and the confidentiality is very serious and that information is not to leak out of this room, as remoulding the business. And it has been pass around through the students and one of our students has sat here with me and has literally said and told me that and said this is what Dmitry told me on this flight. You (Dmitry) will return everything that belongs to the company to Sundeep and Chang.” 25

[36] Mr Agarev was summarily dismissed.

[37] After the dismissal, in the documentation filed by Mr Naidu and adopted by him as his evidence he said that Mr Agarev failed to accurately and correctly maintain student training records and despite training, failed to record student progress incorrectly and failed to understand the formative and summative grading criteria. 26

The Small Business Fair Dismissal Code

[38] The Code provides as follows:

Summary dismissal

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

[39] In Ryman v Thrash Pty Ltd 27 a Full Bench of the Commission examined the summary dismissal part of the Code in detail and concluded as follows:

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

[39] To be clear, nothing stated above is to be taken as suggesting that in relation to such a dismissal it is necessary for the Commission to be satisfied that the serious misconduct which is the basis for the dismissal actually occurred in order for the dismissal not to be unfair. As was explained in Pinawin T/A RoseVi.Hair.Face.Body v Domingo:

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

[40] Whether the employer had “reasonable grounds” for the relevant belief is of course to be determined objectively.

[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates in the following way:

(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.

(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.”

[40] Serious misconduct is defined for the purposes of the Act in the Fair Work Regulations 2009(Regulations)as follows:

“1.07 Meaning of serious misconduct

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

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

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

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

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

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

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

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

(i) theft; or

(iii) fraud; or

(iv) assault;

(b) the employee being intoxicated at work;

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

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

The material before the Commission

[41] In this matter, Mr Naidu represented Amber Aviation. The material filed by Amber Aviation was extremely limited. Further, despite being advised at the hearing of the need to deal with Mr Agarev’s evidence where it was in conflict with his evidence, Mr Naidu did not challenge significant parts of Mr Agarev’s evidence. For example Mr Agarev gave evidence about the allegation about the amount of fuel in the aircraft. Mr Naidu did not challenge this evidence at the hearing or in the material filed on 7 August 2017.

[42] While it is not to be doubted that self-represented parties face difficulties in representing themselves, the Commission publishes significant resources to assist such parties. For example, the Unfair Dismissal Bench Book explains what a small business is required to establish if it seeks to rely on the Code. Whilst the Commission may assist a self- represented party, the self-represented party bears the ultimate responsibility to put its case to the Commission. In this case, Amber Aviation was obliged to establish that it had complied with the Small Business Fair Dismissal Code.

Consideration

[43] Whether Mr Naidu, as the controlling mind of the employer, genuinely held the belief that Mr Agarev’s conduct justified immediate dismissal is a question of fact. 

[44] Mr Naidu gave evidence that not one incident caused him to dismiss Mr Agarev but a series of incidents starting with the whiteboard incident led him to conclude that safety was a great concern. 28 Those incidents were the whiteboard incident; the failure to have regard to the end of day light when planning a flight; the failure to ensure that there was sufficient fuel in the plane; the breach of confidentiality and the failure to advise management of the reasons for his sick leave. Mr Naidu said he was dismissed “because of a trend and a safety - and we are not going to – or were not going to compromise safety in any form whatsoever. There was a trend developing. He started doing things which fall through - all the occurrences, which is not normal for an airman or for a pilot to do that. We had grave - I personally had grave safety concerns and I took the action which was required.”29

[45] In that context I must be satisfied that Amber Aviation had reasonable grounds for believing that Mr Agarev’s conduct warranted summary dismissal. Mr Naidu did not specify other than by references to safety concerns which element of regulation 1.07 he relied upon.

[46] I am satisfied that Mr Agarev sought Mr Naidu’s approval prior to cleaning the whiteboard and that Mr Naidu was aware on 2 May 2017 that Mr Agarev was cleaning the whiteboard. I am further satisfied that Mr Agarev sent Mr Naidu an email which provided Mr Naidu with a link to the relevant information. To the extent that there is a conflict between Mr Agarev’s evidence about this and Mr Naidu’s, I prefer Mr Agarev’s evidence as it is consistent with the meeting minutes and with Mr Naidu’s email in which he acknowledged that he saw Mr Agarev clearing the whiteboard and there was no evidence that he raised any concerns.

[47] Further, this matter was discussed at the meeting on 10 or 11 May 2017 and no decision was made to terminate Mr Agarev until 5 June 2017. Further, there is nothing in the email of 3 May 2017 from Mr Naidu that suggested that he had formed a view that the conduct was such as to warrant summary dismissal. Further, Mr Naidu stated that Mr Agarev was not dismissed for the whiteboard. 30 I am therefore not satisfied that Mr Naidu genuinely believed on reasonable grounds that Mr Agarev’s conduct in clearing the whiteboard and not repopulating the new table prior to leaving work warranted summary dismissal.

[48] I am satisfied that Mr Agarev’s conduct in failing to take account of the end of light when planning the flight did not comply with Amber Aviation’s procedures. It was this conduct that was the core reason Mr Agarev was dismissed. 31 Mr Naidu said that had Mr Agarev “been a junior grade 3 instructor with 300 hours or 250 hours of time, still working under supervision, it would have been acceptable and [they] would have then done remediation and worked with that instructor. Dmitry at that point in time was a grade 2 instructor with sufficient privileges and sufficient experience to understand that to conduct that flight in that aircraft within the time remaining by end of daylight was not safe planning and he shouldn’t have done that flight.”32

[49] He said that Mr Agarev knew he did not have night currency and he should have arranged the flight for another day. He also submitted that he was concerned about the impact on the reputation of the business “in terms of parents making decisions that [they] were not conducting flight operations in an unsafe manner.” 33

[50] However again Mr Naidu emphasised that in reaching his decision to dismiss Mr Agarev a number of things came together 34 and he did not give evidence that he had a belief that this conduct on its own warranted summary dismissal.

[51] I am not satisfied that Mr Naidu genuinely believed on reasonable grounds that Mr Agarev failed to ensure that there was sufficient fuel in the plane as I am satisfied that prior to making the decision to terminate Mr Agarev an investigation conducted by Amber Aviation established that the fault lay elsewhere. A belief cannot be reasonable if it is contrary to the evidence before the decision maker.

[52] I am not satisfied that Mr Naidu genuinely believed that Mr Agarev’s conduct in advising a student that he was being made redundant was sufficiently serious as to warrant Mr Agarev’s summary dismissal. Mr Agarev told the student that he was to be made redundant. In the meeting he told Mr Agarev that this breach of confidentiality was serious. It is not necessary for me to decide if in fact Mr Agarev breached his confidentiality obligations. I am satisfied that Mr Naidu reasonably believed that he had. However I am not satisfied on an objective basis that this breach by itself warranted summary dismissal.

[53] I am not satisfied that Amber Aviation genuinely believed that Mr Agarev’s conduct in not advising it of the reasons for his sick leave was sufficiently serious as to warrant Mr Agarev’s summary dismissal. This was because the response of Amber Aviation to this refusal was to require Mr Agarev to provide a further medical clearance which he did.

[54] There was no submission that Mr Naidu believed on reasonable grounds that Mr Agarev’s record keeping warranted summary dismissal. While Mr Naidu gave evidence about the deficiency in Mr Agarev’s record keeping, it is difficult to reconcile this with his evidence that in April 2017 consistently with his recommendation Mr Agarev was promoted to Head of Aircraft Airworthiness and Maintenance Control and that he was advised that if he was made redundant he could continue with the business as a casual employee or a contractor. Further this was raised with Mr Agarev in May and he was not issued with a warning about the performance of his duties.

[55] Mr Naidu did not submit that any one of the incidents warranted summary dismissal so the question then is whether taken as a whole Mr Naidu genuinely believed on reasonable grounds that the totality of the conduct warranted summary dismissal.

[56] There may be cases were persistent breaches of company policy warrant summary dismissal even if the individual breaches do not. For example a pattern of safety breaches may warrant summary dismissal.

[57] Mr Naidu explained “so these were the serious misconducts that we had to make the decision based on, and mainly it was based around the safety and safety was my key concern, because of the trend developing.” 35

[58] However Mr Naidu could not reasonably have formed the view that Mr Agarev breached safety policies on more than one occasion. He was aware at the time that Mr Agarev was cleaning the information from the whiteboard; his own investigation established that Mr Agarev was not responsible for the lack of fuel; Mr Agarev did fail to check the end of light but once he became aware of his error he complied with the procedures; and the breach of confidentiality did not relate to safety. I am not satisfied that there was any reasonable basis for Mr Naidu to have formed the view that there was a trend developing in relation to Mr Agarev’s approach to safety or his safety record.

[59] In those circumstances I am not satisfied that objectively Mr Naidu’s belief that Mr Agarev’s conduct warranted summary dismissal was based on reasonable grounds. I am therefore no satisfied that the dismissal was consistent with the Small Business Fair Dismissal Code.

Was the termination of employment harsh, unjust or unreasonable?

[60] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(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);

[61] I am satisfied that there was a valid reason for the dismissal. Mr Agarev was an experienced instructor. It was his job to provide training. His failure to check the end of daylight was more than a mistake. It was fortunate that Mr Agarev was within safe distance of an airport when he realised his error as he was aware that he did not have night flying proficiency. Further, I accept that such an event could damage Amber Aviation’s reputation.

s387(b) whether Mr Agarev was notified of that reason;

[62] Mr Agarev was notified of the reason prior to the decision to dismiss him was made.

s387(c) whether Mr Agarev was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[63] Mr Agarev was given an opportunity to respond to the reason for his dismissal.

s387(d) any unreasonable refusal by the employer to allow Mr Agarev to have a support person present to assist at any discussions relating to dismissal;

[64] Mr Agarev was not denied a support person.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Agarev had been warned about that unsatisfactory performance before the dismissal;

[65] To the extent to which his failure to check end of light is characterised as unsatisfactory performance Mr Agarev has not been issued with any warning that his unsatisfactory performance could lead to the termination of his employment.

s387(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;

s387(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;

[66] This is a small business but no submissions were made in relation to this criterion by Amber Aviation.

s387(h) any other matters that the Fair Work Commission considers relevant.

[67] Mr Agarev was terminated without notice in circumstances where his conduct did not warrant summary termination. There was no evidence that Mr Agarev’s conduct in failing to check end of light was wilful or deliberate or that his conduct caused a serious and imminent risk to anyone’s health or safety or the reputation, viability or profitability of the business.

Conclusion

[68] I am satisfied that dismissal without notice was harsh. I accept that there was a valid reason for his dismissal and that Mr Agarev was afforded procedural fairness. However I am satisfied that the failure to give Mr Agarev notice of dismissal was harsh and meant that the dismissal was unfair.

Remedy

[69] Mr Aragev is not seeking reinstatement of his employment.

[70] In assessing any amount in lieu of reinstatement, the Fair Work Commission is required to have regard to the following:

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

[71] There was no submission or evidence that any order for compensation would have any effect on the viability of the business.

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

[72] Mr Agarev was not employed for a long period of time.

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

[73] Had Mr Agarev not been dismissed summarily, I am satisfied that he would have been dismissed on notice and would therefore have either been given 90 days’ notice or by been paid 90 days’ pay.

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

[74] Mr Agarev commenced new employment on 3 July 2017. I am satisfied that he took reasonable steps to mitigate his loss.

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

[75] Mr Agarev is earning $1000 more per annum than he earned at Amber Aviation but this was due to the increase in the minimum award rate of pay from 1 July 2017 which he would have received had he remained working for Amber Aviation.

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

[76] This criterion is not relevant.

(g) any other matter that the Fair Work Commission considers relevant.

[77] There are no other relevant matters.

Conclusion

[78] Mr Agarev’s monthly wage was $3750. Mr Agarev calculated his loss at $4531 being the amount he calculated he would be paid for 27 days work. This is the number of days between his date of dismissal and the commencement of his employment. Mr Agarev was employed to work five days per week. On my calculations, Mr Agarev for working from 6 June to 2 July 2017 would have been paid $3205.48 plus superannuation.

[79] I will therefore order Amber Aviation pay Mr Agarev $3205.48 less tax according to law and pay to Mr Agarev’s superannuation fund $394.52 within 21 days of the making of this order.

DEPUTY PRESIDENT

Appearances:

C. Larkins for the Applicant.

M. Naidu for the Respondent.

Hearing details:

2017.

Melbourne:

11 September.

 1   Transcript PN 92

 2   Exhibit A1 at [10]

 3   Ibid at [12]

 4   Ibid at [31]-[33]

 5   Ibid at [33]

 6   Ibid at [31]

 7   Exhibit R2

 8   Exhibit A1 at DA11

 9   Ibid

 10   Ibid

 11   Mr Agarev

 12   Mr Naidu

 13   Exhibit A1 at DA9

 14   Ibid at [17]-[21]

 15   Ibid at DA9

 16   Ibid at DA10

 17   Ibid at [36]-[38]

 18   Exhibit R3

 19   Exhibit A1 at [50]-[53]

 20   Exhibit R3

 21   Exhibit A1 at [40]

 22   Ibid at [41]

 23   Ibid at [40]-[42]

 24   Ibid at [45]-[49]

 25   Ibid at DA9

 26   Exhibit R3

 27   [2015] FWCFB 5264

 28   Transcript PN 128

 29   Ibid PN 377

 30   Ibid PN 383

 31   Ibid PN 383

 32   Ibid PN 553

 33   Ibid PN 555

 34   Ibid

 35   Ibid PN 558

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