Eddie Atash v The Men's Grooming

[2021] FWC 3298

[2021] FWC 3298

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Eddie Atash
v
The Men’s Grooming
(U2020/15706)

DEPUTY PRESIDENT CROSS SYDNEY, 8 JUNE 2021

Application for an unfair dismissal remedy.

Background

[1] An application was filed on 5 December 2020 by Mr Eddie Atash (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant sought an unfair dismissal remedy of 26 weeks monetary compensation following his alleged dismissal by D&Z Men’s Hairdressing Pty Ltd t/a The Men’s Grooming (the Respondent) on 17 December 2020.

[2] The Applicant commenced working at the Stanhope Gardens store of the Respondent in February 2018. The Applicant was employed as a Barber and Store Manager. The Applicant was previously employed by an associated entity of the Respondent at its Blacktown store from 2016.

[3] The Application was listed for conciliation but did not settle at that conciliation, and the matter was then allocated to me for hearing and determination. I issued Directions to the parties prescribing a timetable for the filing of Outline of Submissions, together with any witness statements and other documentary material upon which each party intended to rely.

[4] In accordance with my Directions, the following materials were filed:

(a) On 17 February 2021, the Applicant filed a brief Affidavit that annexed his Form F2 Unfair Dismissal Application and the annexures to that application; and

(b) The Respondent filed an Outline of Submissions, together with Statements from Mr Dana Ari, the sole Director of the Respondent, dated 17 March 2021, and a Statement from Mr Ali Al Halini, another Barber employed by the Respondent, dated 25 February 2021.

[5] The Applicant did not file any materials in reply at the time prescribed in the Directions. On the morning of the hearing of the matter, the Applicant sought to rely on a Statement of himself drafted in reply to the Statement of Mr Ari, together with an email, a payslip and a report from the Applicant’s Psychologist. Counsel for the Respondent sought a short adjournment to consider those materials, and thereafter candidly conceded that no prejudice would arise from those materials being received at such a late stage.

The Issues

[6] The Respondent accepted that the Applicant was a person protected from unfair dismissal in accordance with section 382 of the Act.

[7] The Respondent further accepted that it was not a small business employer (s.23) and therefore, the Small Business Fair Dismissal Code (s.388) did not apply.

[8] The Respondent raised, however, the jurisdictional objection that the Applicant had not been ‘dismissed’ for the purposes of section 385(a) of the Act.

[9] The issues to be determined in the matter were:

(a) Whether the Applicant resigned or had been dismissed?;

(b) If the Applicant was dismissed, was that dismissal harsh, unjust or unreasonable?; and

(c) If the dismissal was harsh, unjust or unreasonable, would the Commission order the payment of compensation?

The Evidence and Findings of Fact

[10] I have considered the evidence of the Applicant, Mr Ari and Mr Al Halini. Based upon my observation of the witnesses, where their evidence differed, I have preferred the evidence of Mr Ari and Mr Al Halini to that of the Applicant. The two reasons for that conclusion are:

(a) The evidence of Mr Ari in particular was supported by contemporaneous documentation received from third parties; and

(b) Mr Ari and Mr Al Halini gave clear, balanced and considered evidence. The Applicant, on the other hand, sought to tailor his evidence to minimise or unacceptably explain away his conduct in order to assist his case.

[11] The factual findings I make are as follows:

(a) As noted above, the applicant commenced work for the Respondent at its Stanhope Gardens store (the Store) as a barber and manager in around February 2018. He had previously worked at the Blacktown store of an associated company to the Respondent.

(b) Shortly after the Applicant commenced working for Respondent in February 2018, Mr Ari started to receive complaints from management of the shopping centre (the Centre Management) at which the Store was located about the Applicant refusing to park his vehicle, a Ford Mustang, in the staff car park. The Centre Management claimed the Applicant was parking in designated customer parking.

(c) On 18 April 2018, Mr Ari received an email from Michael Mitchell of Centre Management. That email was as follows:

‘Hi Dana,

We are extremely disappointed with one of your staff who drives a Mustang. We have been asking him to park up the back in the allotted Staff Car Spaces however he is refusing to do so and is being abrasive with our staff.

I would be grateful if you could discuss the matter with him and have the matter resolved by tomorrow. Please advise him that if he fails to park up the back from now on (commencing tomorrow), we will have no other alternative than to cancel his parking card.

Sorry to bother you with this Dana. However, I trust that you will have the matter resolved by COB today.’

(d) After receiving the above email, Mr Ari spoke to the Applicant in relation to the complaint. He said words to the effect of:

‘If you keep parking in customer spots and centre manager sees you, she may cancel your card.’

(e) On 23 May 2018, Mr Ari received a further email from Nicole Miles of Centre Management. That email was as follows:

‘Just an email to let you know that I had quite a heated argument with your staff member Eddie this morning. Due to his inability to park in the correct staff parking areas after numerous warnings, his card was blocked from use on Monday.

He came into the Centre Management office this morning, quite heated and demanding to know who blocked his card. I advised that we had blocked it as he had continued to park in the customer parking area. He used excuses that his car had been damaged, that he was never told where to park and that he had worked in 10 shopping centres and no one had cancelled his card before. He also called me ‘Mum’ which I told him I didn't appreciate.

I have reinstated his card in this instance, but I hope with your assistance you can emphasise the importance of parking in the correct area. For each car park bay that is taken by a staff member, that is potentially 6-8 cars of customers that you are inconveniencing PER DAY, and who will potentially shop elsewhere if they cannot park quickly and efficiently. If we see him parking in the incorrect area again, his card will be cancelled permanently.

Thanks for your assistance Dana - please let me know if there's anything I can help with.’

(f) Again, after receiving the above email, Mr Ari spoke to the Applicant in relation to the complaint. He said words to the effect of:

‘Eddie if you keep behaving this way, it looks really bad on all of us because you wear the uniform, and everyone can see who you are and who you work for. This also affects my relationship with the centre management and our business with them.’

(g) Also in 2018, Mr Ari received a complaint regarding the Applicant’s behaviour towards a female customer who had brought her children to the Store to get haircuts. It was alleged that the Applicant followed the female customer outside the shop and offered to give her a ride in his vehicle, however the female customer indicated that she was married and not interested. The female customer’s husband made a complaint to Centre Management, who passed the complaint to Mr Ari.

(h) Later the same day, Mr Ari called the husband and the following conversation occurred:

Husband:	'If your worker ever tries to offer my wife a ride again, I'll come there and teach him a lesson in front of everyone.'
Mr Ari:	'Mate, I am very sorry. I will definitely have a chat with him and make sure nothing like this ever happens. Please let me know if you'd like to all come back, I would like to offer you all free haircuts.'
Husband:	'I won't be sending them to that shop ever again.'

(i) After the above conversation Mr Ari spoke with the Applicant and the following conversation occurred:

Mr Ari:	‘You need to watch what you say or how your words may be taken.'
The Applicant:	'I did not mean anything bad, and I did not do anything wrong by that lady. I was just being friendly and having a friendly conversation.'
Mr Ari:	'Eddie I spoke to the husband. He had left his phone number with centre management and then centre management gave me his number for me to call. This person would not go out of his way to contact me if nothing bad had happened.'

(j) On 21 October 2020, Mr Ari received a critical online review of the Store. Mr Ari made enquiries into the review and received the following email from the customer:

‘I do not know the name of the barber. I believe it was Adi but i may be wrong. I have been a regular customer of Mens grooming even before it was re -branded. I usually get my hair get from Alex and yesterday Alex was not there and i needed a haircut for my meeting today. There were 2 barbers working and they were free (there were no other customer). One barber told me to come tomorrow as he was not comfortable giving me the haircut and insisted to come back tomorrow when Alex is in. When i asked the other barber Adi who was playing on the phone to give me a haircut he said no with a straight face. I used to get my haircut from him everytime until I switched to Alex. ‘ i do not want to cut your hair’ he said. When i asked why and requested again as it was urgent he made an excuse saying he has an appointment and asked me to come back tomorrow.

I am really disappointed with this behaviour when i have been a loyal customer from last 2 years and when i was In need i was turned down. I will never come back to the shop again and my review is honest feedback and i stand by it.

Thanks Jag.’

(k) After receiving the above email, Mr Ari spoke to the Applicant in relation to the complaint. He said words to the effect of:

Mr Ari:	'We had a customer complaint yesterday who told me he came in and you refused to cut his hair even though you were on your phone and didn't have a customer.'
The Applicant:	'What time was this? They're lying.'
Mr Ari:	'Eddie, the customer has no reason to lie. He said you told him you had an appointment but then went back on your phone. Do you understand how bad that looks in front of our customers specially the ones that have been with us for a while? No one is allowed to be on their phone while they are at work and customers are in the shop.’

(l) There is no issue that the Applicant was the second Barber referred to in the above email. In the hearing the Applicant denied he refused to cut the customer’s hair, and stated that at the time he had said he was going on his lunch break. This is an example of a situation where contemporaneous documents have influenced my preference for the evidence of the Respondent’s witnesses.

(m) On or about 28th of October 2020, Mr Ari was contacted by Mr Zac Adams, a Security Guard with Centre Management. Mr Adams advised Mr Ari that a complaint had been received from a female worker in the shopping centre, who claimed the Applicant was harassing her and giving her unwanted attention. On that day Mr Ari spoke with Applicant and the following words were said:

Mr Ari:	'Your behaviour is not acceptable, and you never want to take responsibility for your actions If this continues, I will terminate you.’
The Applicant:	'Dana I promise to change things'.

(n) Mr Ari asked the Applicant to take a week off work and reflect on his actions. Mr Ari contacted the Applicant by telephone on Friday 6 November 2020, and asked him to return to work for the weekend. The Applicant returned to work on 7 November 2020, and in a telephone conversation on that day words to the following effect were said:

Mr Ari:	'I consider with everything that has happened that there will be no more issues going forward.’
The Applicant:	'Yes you have nothing to worry about.’
Mr Ari:	'Just speak to me when problems arise and think about your actions before you do them.'

(o) On the Applicant’s first day back in the Store after his week of absence on 7 November 2020, Mr Ari received a further complaint by email from a regular client. That email was as follows:

‘Hi my father came in on Saturday around 4pm to get a hair cut

Entered the store was greeted by jimmy, jimmy sat him down where he was going to get his haircut once he sat down Jimmy put the cap and tape on his neck and told him that he was going to cut his hair.

My father said he would rather get his haircut by Eddie so when Eddie came over he very rudely and aggressively ripped off the cap and tape of my fathers neck and told him to sit on another chair very rudely and my father Is 56 years of age. My father ended up leaving and didn't get the haircut and we won't be coming back and we used to come every week to the shop

Thankyou’

(p) On the morning of Monday, 9 November 2020, Mr Ari attended the Store to speak to the Applicant about his behaviour. The following conversation occurred:

Mr Ari:	'Morning, let's go grab a coffee we need to have a serious chat '
The Applicant:	'What's the problem?'
Mr Ari:	'Let's walk outside to talk in private and if you want you can have someone as support for yourself. They can hear everything that we talk about.'
The Applicant:	'I don't need anyone tell me what's the problem? I will record your voice instead.'
Mr Ari:	'You're not allowed to record my voice, whatever we talk we write it down and we will sign it.'
The Applicant:	'I am not signing anything, I will go see my solicitors about this.'

(q) The conversation thereafter continued to occur in the Store, and in the presence of Mr Al Hellani.

Mr Ari:	'You are causing too much issues at this store, I am going to offer you a job in another store in Blacktown. You're going to go there.'
The Applicant:	'No I don't want to work for you anymore, not here or anywhere else, I'm done.' 'Finish my job, here! Get rid of me'
Mr Ari:	'No I am not going to get rid of you, I want to help you but not here, in a different store. Let's go back to the store so we have a witness.'

Mr Ari and the Applicant re-entered the Store and the following words were said:

Mr Ari:	'Look boys, Eddie is not going to be here anymore. I am going to transfer him to another store.’
The Applicant:	'No I am done, I'm leaving.’
While leaving, the Applicant said:	'I am going to see my solicitors about this.’
Mr Ari:	'Do whatever you like because I did not do anything wrong, it's your choice. You have a job, and you should stay today and work'.

The Applicant then left the Store and never returned.

(r) The Applicant subsequently made a claim for a workplace injury (the WC Claim) described as ‘major depressive disorder, single episode, unspecified’ that was said to have occurred on 9 November 2020. Liability for the WC Claim was accepted on 16 February 2021.

On 10 November 2020, the Applicant sent Mr Ari the following email, to which Mr Ari did not respond:

‘Hi Dana,

I notice on my payslip again this week that you have taken out annual leave, I have not applied for this. Can you please ensure this is corrected. Since you had no evidence you should be just paying me my normal pay.

Also can you please email me all the details for the Blacktown job? Will I still be manager at this store?’

(s) On 16 November 2020, the Applicant sent Mr Ari the following email, to which Mr Ari did not respond:

‘Hi i dana

I send you 3 email and text message about, My holiday pay you us and I didn't apply for that!

Can you please respond my Email ?

And also information about new shop you said (details and potential)’

(t) On 17 November 2020, the Respondent’s Solicitor, One Law Group Pty Ltd, wrote to the Applicant. That letter included the following:

‘We act for D&Z Men's Hairdressing Pty Ltd t/a The Men's Grooming (Employer).

Through the Employer's director, Dana Ari, we have received the following instructions:

…

1.3 During your Period of Employment, you have received numerous complaints in relation to your inappropriate conduct and poor attitude, both from customers and also centre management (Instances of complaints). Mr Ari has spoken to you several times in relation to these and has given you verbal warnings that should such conduct continue, your employment may be terminated.

1.4 On 9th November 2020, after a discussion you had with Mr Ari concerning a customer complaint who had written an email to him about your aggressive behaviour towards his elderly dad, and Mr Ari's reasonable direction that you re-locate to another store in order to remedy the situation, you refused to follow instructions and told Mr Ari that you do not want to work for him anymore. Shortly thereafter, you left the shop.

Instances of complaints

In relation to matters under paragraph 1.3 above, we are instructed follows:

1.5 Approximately two years ago, you received a complaint from a female customer who had brought her kids to the shop to get haircuts. You made inappropriate and unsolicited comments to this female customer and offered a ride to this person. This female customer's husband later contacted Mr Ari and threatened to take personal action if it occurred again. The centre management was also informed about this incident. This customer including her kids never returned to the shop.

1.6 Approximately a year ago, another instance occurred whereby a female working at the Stanhope Village centre complained to centre management about your inappropriate comments and conduct towards her.

1.7 On 27 October 2020, the centre management again received a complaint from a female about your inappropriate conduct and stating that she had been harassed by you at the centre. The centre management raised this with Mr Ari and requested that he has a discussion with you.

On 28 October 2020, Mr Ari spoke with you in relation to the most recent incident highlighted above and told you how your inappropriate conduct is destroying his reputation and the business. You are well aware that the Employer has a number of other The Men's Grooming businesses and subsequently, any inappropriate conduct by employees can detrimentally affect this name and goodwill. During this discussion Mr Ari warned you that you are at risk of immediate dismissal, but you pleaded with him to give you another opportunity. By way of resolve (sic.), Mr Ari asked that you take a week off to reflect on your actions, and until he has had some time to speak to centre management about your pattern of inappropriate conduct.

We understand you were on holidays from 29 October to 6 November 2020. Mr Ari then asked you to return to work from 7th November 2020 and trusted that you will conduct yourself in an absolutely professional manner given the record. Regrettably, Mr Ari received another complaint from a customer that was discussed above at paragraph 1.4 which we must add stated that they will never be returning to the shop. We are instructed that on another occasion, you refused to give a customer a haircut and instead remained on your phone. This customer also wrote a written complaint to Mr Ari and stated that he will not be returning to the shop. On these occasions when you were spoken to by Mr Ari, we are instructed that you never took responsibility and always blamed others including the customers.

Mr Ari spoke with you on 9th November 2020 in relation to the particular incident above and decided to take reasonable action by sending you to another shop located at Blacktown. During the discussion, you were offered by Mr Ari to have a support person present which you declined. Although the Blacktown store is only a short distance from your place of residence and you are familiar with this shop, you refused to go to the Blacktown shop and instead stated that you do not want to work anymore. Shortly thereafter, you left.

Termination of employment

Based on your conduct as highlighted generally above, we are instructed to write to you and advise that your employment with the Employer is terminated for serious misconduct immediately as at the date of this letter. No further notice is required to be given to you in this instance under Div 11 of the Fair Work Act 2009 (Cth).

In reaching this decision Mr Ari has taken into account the numerous times which he has verbally warned you and spoken to you in relation to your conduct and repeated customer complaints.’

(u) Pursuant to the WC Claim, the Applicant received payments of his full weekly pay for 13 weeks from 9 November 2020 (eight days before his termination), until 7 February 2021. The Applicant thereafter received gross weekly payments that are $164.56 gross less than his ordinary weekly pay.

(v) The Applicant was paid by the Respondent until 17 November 2020.

Jurisdictional Objection - Applicant not Dismissed

[12] The Respondent objects to the application on the ground that the Applicant was not dismissed within the meaning of s 386 of the FW Act. The Respondent submits that the Applicant voluntarily resigned from his employment on 9 November 2020.

[13] In Bupa v Tavassoli, 1 the Full Bench of the Commission, after a consideration of authorities regarding termination at the initiative of the employer and forced resignation, observed:

‘Having regard to the above authorities and the bifurcation in the definition of ‘dismissal’ established in s 386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1)There may be a dismissal within the first limb of the definition in s 386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the ‘heat of the moment’ or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although ‘jostling’ by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2)A resignation that is ‘forced’ by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s 386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.’

[14] The Full Bench referred, inter alia, to Mohazab v Dick Smith Electronics Pty Ltd, 2where the Full Court of the Industrial Relations Court of Australia observed:

‘In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:

‘ … a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’

[15] I do not consider that there was not a dismissal as alleged by the Respondent. The comments and actions of the Applicant on 9 November 2020, were clearly expressed in the heat of the moment. I consider that from 9 November 2020, there was an obligation on the Respondent to clarify or confirm with the Applicant after a reasonable time that the employee genuinely intended to resign. That obligation was reinforced by receipt from the Applicant of the email of 10 November 2020, and further reinforced by the email of 16 November 2020. Each of those emails clearly indicated that the Applicant was considering the transfer previously outlined by the Respondent.

[16] I also seriously doubt that the Respondent ever considered, between 9 and 17 November 2020, that the Applicant had resigned. If the Respondent had held such a belief, it would not have sent the letter it did in fact send terminating the employment for serious misconduct on 17 November 2020. I find that the Applicant did not resign on 9 November 2020, and that the Applicant was dismissed by the Respondent on 17 November 2020, by the letter of that date.

Harsh, Unjust or Unreasonable

[17] I must consider the question of whether the Applicant’s dismissal was ‘harsh, unjust or unreasonable’ and therefore an unfair dismissal, pursuant to the considerations outlined in s.387 of the Act. Dealing with the matters to be taken into account by the Commission in determining whether the dismissal was unfair.

[18] Section 387 of the Act identifies the matters that the Commission must take into account in deciding whether a dismissal was ‘harsh, unjust or unreasonable:’

(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.

(a) Valid Reason

[19] As the Full Bench found in Sydney Trains v Hilder: 3

‘The principles applicable to the consideration required under s 387(a) are well established, but they require reiteration here:

(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.

(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.

(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).

(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).

(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee’s contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).

(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.

(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).

(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.

(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.’

[20] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.

[21] The letter of 17 November 2020, by which the Applicant was terminated, outlined the history of the inappropriate conduct and poor attitude of the Applicant. I have found that the instances of inappropriate conduct and poor attitude relied upon by the Respondent occurred. There existed a reason for the exercise of the right to terminate the employment related to the facts of the matter. 4 I therefore conclude that there was a valid reason for the termination.

(b)/(c) Notification/ Opportunity to Respond

[22] The Applicant was not notified of the reasons for termination prior to that termination taking effect. While the reasons were specified in the letter of termination of 17 November 2020, and raised with the Applicant when each incidence of inappropriate conduct and poor attitude occurred, the Applicant was not notified, and unable to respond to those incidents cumulatively constituting misconduct and being the basis for his termination of employment.

(d) Support Person

[23] The Applicant was offered the opportunity to have a support person on 9 November 2020.

(e) Warnings

[24] While it is clear that the Applicant had previous counselling with Mr Ari, that is not a relevant consideration under s.387(e). As the Full Bench observed in Larcombe v Bis Industries Limited: 5

‘Thirdly, s.387(e) of the Act relates to warnings for unsatisfactory performance. The Decision appears to conclude that it was not appropriate to take into account under this head, the severity of past disciplinary action (the demotion). That appears manifestly correct. Moreover, we are not persuaded that there is an arguable case of error arising from the Commissioner’s apparent decision not to take the severity of past disciplinary action into account. The Commissioner’s reasons for so doing were that the disciplinary action was not challenged at the time and it was now not appropriate for him to try to ‘balance the ledger’ by taking a matter not previously challenged into account. No arguable appellable error from that reasoning is disclosed. The scope of the consideration under s.387(e) is well settled and does not require further clarification by this Full Bench. The Appellant’s prior disciplinary history is a matter the Commissioner was entitled to take into account under s.387(h). That the Commissioner may have taken prior warnings about conduct into account under s.387(e) instead of (h) does not enliven the public interest nor do the other matters raised by the Appellant as to s. 387(e) of the Act attract the public interest.’

(f/g) Size of the Business/Human Resources

[25] The Respondent is a relatively small company without any dedicated Human Resource capability. This is a factor that must be accorded weight in my overall assessment of whether the dismissal was harsh, unjust or unreasonable.

(h) Other Relevant Matters

[26] Neither party submitted that there were other relevant matters to be considered in my assessment of whether the dismissal was harsh, unjust or unreasonable. However, Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[27] Section 387(h) is the relevant provision for consideration of an assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal. As outlined to in the analysis of valid reason above, I consider the degree of misconduct of the Applicant to be significant. It was wilful and deliberate behaviour by the Applicant that was inconsistent with the continuation of his contract of employment.

[28] The Applicant received repeated counselling and warnings regarding his conduct. On 28 October 2020, the Applicant was warned that if his behaviour continued, he would be terminated. The Applicant nonetheless continued to conduct himself in a less than appropriate manner.

[29] The Applicant’s conduct caused imminent and serious risk to the reputation and profitability of the Respondent’s business. I find that actual negative impacts to reputation and profitability of that business had already occurred. In that circumstance, summary dismissal was a proportionate response to the conduct that I have found occurred.

Conclusion on Fairness

[30] On an overall assessment of the relevant factors to be considered, I do not consider that the dismissal of the Applicant was harsh, unjust or unreasonable. The dismissal occurred after numerous instances of inappropriate conduct and poor attitude of the Applicant. Such instances were promptly discussed with the Applicant as and when they occurred, and the Respondent’s expectations were reinforced. Unfortunately, the Applicant chose to repeatedly conduct himself in an inappropriate manner, threatening the reputation of the Respondent and resulting in his dismissal.

Would the Commission Order the Payment of Compensation if Unfairness were Found?

[31] Having found that the dismissal was not was harsh, unjust or unreasonable, there is no need to consider remedy pursuant to s.392. In the circumstance, however, where the Applicant has made the WC Claim, and received payments pursuant to that claim, I do not consider it otiose to address whether an order for compensation would have been made, and if so in what amount, were the dismissal to have been found to be harsh, unjust or unreasonable.

[32] The first step in the calculation of compensation is an estimate of the remuneration the employee would have received, or been likely to receive, if the employer had not terminated the employment when it did. 6 In light of the numerous instances of inappropriate conduct and poor attitude of the Applicant, and the Applicant’s recalcitrant demeanour towards complying with Mr Ari’s instructions, the absolute maximum likely length of future employment would be no more than three weeks.

[33] The next step is to deduct monies earned since termination. Workers compensation payments are deducted but not social security payments. Pursuant to the WC Claim, the Applicant received payments of his full weekly pay for 13 weeks from 9 November 2020 (eight days before his termination), until 7 February 2021. The Applicant thereafter received gross weekly payments that are $164.56 gross less than his ordinary weekly pay. As such, the Applicant has been entirely compensated for the likely length of future employment and the remuneration the employee would have received, or been likely to receive, if the employer had not terminated the employment when it did. It would even appear that the Applicant received double pay for the period from 9 to 17 November 2020. No other factors outlined in s.392 would affect the hypothetical calculation of compensation.

[34] Were I to have found that the dismissal of the Applicant was harsh, unjust or unreasonable, the Applicant would nonetheless not have received any order for compensation.

Conclusion

[35] The Applicant was dismissed by the Respondent pursuant to s. 385 of the Act. The dismissal of the Applicant was, however, not harsh, unjust or unreasonable. Even if the dismissal of the Applicant was harsh, unjust or unreasonable, the Applicant would nonetheless not have received any order for compensation. The Application is dismissed.

DEPUTY PRESIDENT

Appearances:

E Atash on his own behalf.
E Oliver counsel for the Respondent.

Hearing details:

2021.
Sydney.
April 7.

Printed by authority of the Commonwealth Government Printer

<PR730557>

 1   [2017] FWCFB 3941, at [47].

 2 (1995) 62 IR 200.

 3   [2020] FWCFB 1373, at [26].

 4   Miller v University of New South Wales (2003) 132 FCR 147, at [13].

 5   [2017] FWCFB 4545, at [34].

 6   Sprigg v Paul’s Licensed Supermarkets (1998) 88 IR 21, at P. 29.1.