Eric Sim v Australian Pilot Training Alliance
[2022] FWC 1843
•22 JULY 2022
| [2022] FWC 1843 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Eric Sim
v
Australian Pilot Training Alliance
(U2022/1968)
| COMMISSIONER LEE | MELBOURNE, 22 JULY 2022 |
Application for an unfair dismissal remedy – summary dismissal – Small Business Fair Dismissal Code does not apply – applicant’s conduct does not constitute valid reason for dismissal – no valid reason for dismissal – applicant unfairly dismissed – determination to be made regarding remedy.
On 15 February 2022, Mr Eric Sim (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Australian Pilot Training Alliance (Respondent). The Applicant seeks compensation in lieu of reinstatement.[1]
A hearing was conducted on 6 July 2022. The Applicant was represented by Mr Andrew Molnar of Australian Federation of Air Pilots (AFAP). The Respondent was represented by Mr Omar Sada, a lawyer who was given permission to appear. The Applicant provided evidence on his own behalf. The Respondent did not lead any witness evidence.
Background and Evidence
The Applicant commenced employment with the Respondent in February 2020 as a pilot instructor. He was initially employed on a casual basis, then in May 2020 on a part time basis, and then in November 2020 on a full-time basis.[2] The Respondent summarily dismissed the Applicant on 25 January 2022 for serious misconduct. The background to the dismissal is as follows.
On 4 November 2021, Ms Rebecca Earls (General Manager) emailed staff, including the Applicant, informing them that government payments had ended and that there would be a change to their payment arrangements.[3] On 6 November 2021, after making an enquiry about his renumeration to Mr Naser Qushair (CEO), the Applicant was informed that he would be returning to part-time employment.[4]
On 11 November, the Applicant was conducting a flight lesson when he received an email from Ms Earls informing him that he had been stood down from his all of his duties, and that he might be invited back for an interview at a later date depending on business circumstances.[5] After receiving this email, the Applicant finished off some administrative work relating to the flight lesson, gathered his belongings and left the premises.[6] The Applicant submits that after arriving home:
“I then realised that I may have left the computer at work logged in to my SMART account and the computer itself may not have been locked.
I panicked because I was aware of how extensive my permissions were on the SMART system and logged in on a device, I had access to at the time, my mobile phone. I then attempted to remove my comprehensive privileges from the SMART system. I logged in and navigated to the page where the permissions were located. The permissions page itself was somewhat difficult to navigate through as there is an abundance of information displayed on a relatively small screen. When I managed to remove my own privileges, I then proceeded to logout of the SMART system.”[7]
By way of background, the Respondent runs its operations through a system called SMART. The Respondent made the following submissions as to the significance of the SMART system for the company:
“The Australian Pilot Training Alliance is a flight training organisation that runs its operations through a system called SMART
The SMART system keeps the Company compliant by way of the Civil Aviation Safety Authority.
It monitors such things as flight duty times, keeps training files and other sensitive information for student which goes hand in hand with the Company’s privacy policy, it holds all staff data including medical clearances, flight crew licences, security clearances, working with children checks. It holds aircraft maintenance releases, where without having access to releases the flight instructors nor students can fly.
The system also holds all the maintenance records of all planes so that the Company can adequately review the planes condition on a daily basis prior to an Instructor or student flying that day.
Overall, the SMART system is the main hub for flight training, and being restricted from this program causes a risks to the overall wellbeing of the Company, employees and student. Furthermore, an issue with the system in turn grounds the operations of the Company”.[8]
During the proceedings, Mr Sim provided some insight as to what permissions are:
“Permissions are just the level of access that you have. So, some users of the SMART Program have access to certain features and they are permitted to change you or not be permitted to view certain items on that program.”[9]
There is a dispute as to whether the Applicant intentionally removed the permissions of a number of employees, including the CEO and the General Manager, from the Respondent’s SMART system. The Applicant denies the allegation that he intentionally removed the permissions.[10] His evidence is that the removal of the permissions was “accidental or unintentional”, and there was no valid reason for his dismissal.[11] I will make a finding as to whether the Applicant intentionally removed the permissions later in this decision.
The dismissal
On 12 November 2021, the Applicant received an email from Mr Qushair with the subject line “you need to explain this before I take it legal”. The email inferred that the Applicant needed to explain why the permissions were removed from the SMART system.[12] The Applicant responded as follows:
“I was removing administration permissions from my SMART profile on a mobile device after being stood down yesterday. I had no idea this error had occurred and I sincerely apologise for this technical glitch. I will get this rectified on a desktop computer as soon as possible and will let you know once it has been completed.
Again, I am sorry that this technical error occurred as I did not have access to a desktop computer at that point in time to properly remove those permissions from myself.”[13]
The Applicant states that:
“When I tried to restore the permissions, I discovered my access had been revoked. I then contacted the SMART held desk to have the issues rectified and found out that the issues had already been fixed.”[14]
On 21 November 2021, the Applicant received an email from Mr Maurice Toneatto (another Flight Instructor) which was sent to the flight school students. The email made clear that the Applicant was “unlikely to resume [his] role”, and that there would be “new instructors coming on board”.[15]
On 30 November 2021, Mr Qushair sent an email to staff reminding them of their contractual obligations regarding confidentiality, non-disparagement, non-solicitation and post-employment restraints.[16]
On 30 November 2021, the AFAP sent a letter to Mr Qushair on the Applicant’s behalf. This letter raised a number of issues regarding the Applicant’s payment and stand down as well as concerns about action taken by the Respondent that was said to be inconsistent with his contract of employment, such as the direction that Mr Sim go back to part-time work 2 days per week[17]
On 3 December 2021, the Applicant received an email from Ms Earls which attached a letter from the Respondent’s Employment Relation Advisor, Mr Omar Sada. The letter stated as follows:
“Invitation to a disciplinary meeting
The purpose of this letter is to formally advise you that a number of allegations of serious misconduct have recently been brought to our attention.
The allegations are set out below:
i.It is alleged that on 11 November 2021 you willfully and deliberately engaged in breaching your contractual obligations. Specifically, it is alleged that you accessed the SMART system and removed permissions for a number of employees including that of the CEO and General Manager. This behaviour led to the CEO and other employees from being able to access the SMART system. If substantiated, this allegation is considered serious misconduct under the Fair Work Regulations. Such conduct is inconsistent with the continuation of your contract of employment and has the potential to cause a serious and imminent risk to the reputation, viability or profitability of the employer's business.
If proven these matters may result in the termination of your employment without notice. Prior to any decision being made, and to enable a full and detailed investigation of this matter, we request your attendance at a disciplinary meeting which has been specifically convened to provide a suitable opportunity for you to respond to these particular allegations.
This disciplinary meeting is to be conducted on line at 11 :00am on 3 December 2021 via Microsoft teams.
You are expected to make every effort to attend this meeting and are placed on notice that the Company reserves the right to make a determination in your absence if you fail to attend this meeting for whatever reason.
I will have sole responsibility for the conduct of this meeting, together with any resulting decision which is to be made.
You are of course welcome to bring a support person to this meeting should you choose.
All matters and information relating to these allegations are confidential and you are directed not to discuss them with any other person without my express prior consent. Any failure by you to maintain confidentiality may lead to further disciplinary action.
If you have any enquiries in relation to this matter, please contact me on 0426 81 81 81 or alternatively you can email me on [email protected]”[18]
On 7 December 2021, the Applicant received an email from Mr Sada, with the subject line “Breach of Contractual Obligations”. The email stated as follows:
“I refer to the above mentioned matter and confirm that I act on behalf of APTA.
We have evidence that you have tried to contact students of APTA and persuade them to leave APTA and move over to another school by the name of Learn to Fly.
You are in direct breach of your contractual obligations with APTA by doing this. This stops now or we will commence legal proceedings against the both of you for any loss that the company incurs due to your malicious activity.
We are further looking into a number of students that have already left APTA to join Learn to Fly. If substantiated, we will be commencing legal proceedings against you for the loss incurred in relation to those students.
This is your first and final warning.”[19]
On 9 December 2021, AFAP sent the following email to Mr Sada on behalf of the Applicant:
“Eric Sim - Alleged Breach of Contractual Obligations
We refer to your email to Mr Sim of the 7th of December 2021 with the subject "Breach of Contractual Obligations", and our letter to APTA on behalf of Mr Sim of the 30th of November 2021.
We note your allegation in the email that Mr Sim has attempted to solicit students of Australian Pilot Training Alliance ("APTA") away from the company, in breach of his employment contract.
Mr Sim strenuously denies this allegation, noting in particular that he has not been provided with the evidence in support of this allegation to which the letter refers, nor the opportunity to respond to it.
Consistent with our letter to APTA referred to above, we reiterate again that Mr Sim has and will continue to observe all of his obligations to APTA arising from his employment contract.
We note in the email your threat of the issue of legal proceedings against Mr Sim.
Considering Mr Sim's denial of these allegations, we consider that the pursuit of such proceedings would be entirely lacking in substance. We confirm that Mr Sim otherwise reserves his rights.
We await your response to our letter above.”[20]
A meeting was then held on 16 December, with the Applicant, Mr Qushair, Mr Sada, and Mr Simon Miller (Industrial Advisor, AFAP) present. During the meeting, the allegations in the letter dated 3 December 2021 were put to the Applicant. The Applicant states that he “responded by explaining [his] actions on the 11th of November 2021 were unintentional and that [he] only wanted to remove [his] own permissions.”[21] At the conclusion of that meeting, Mr Sada informed the Applicant that he could expect to receive a letter that afternoon confirming the outcome of the disciplinary process.[22] The Applicant did receive a letter, but not until a month later on 25 January 2022. The letter stated as follows:
“Confirmation of Termination
We refer to our letter concerning an allegation of misconduct dated 1/12/2021.
A subsequent disciplinary meeting was convened on 15/12/2021, for the purposes of allowing you an opportunity to respond to this allegation of misconduct.
The allegation, together with our findings, are noted following:
It is alleged that on 11 November 2021 you willfully and deliberately engaged in breaching your contractual obligations. Specifically, it is alleged that you accessed the SMART system and removed permissions for a number of employees including that of the CEO and General Manager. This behaviour led to the CEO and other employees from being able to access the SMART system. If substantiated, this allegation is considered serious misconduct under the Fair Work Regulations. Such conduct is inconsistent with the continuation of your contract of employment and has the potential to cause a serious and imminent risk to the reputation, viability or profitability of the employer's business.
You responded that you have gone into the system to remove permissions for yourself. Upon removal of permissions, it some how removed permissions for the CEO and General Manager. You noted that you emailed the CEO the following day to notify him off this, and also opened up a support ticket to SMART (the system creators) to fix the issue. You stated that you had no intention of logging on and removing permissions.
We have evidence from the Developers, who investigated the matter and confirm that an accident of this nature is unlikely. It was further stated by the developers that in order to remove permissions or roles, you must tap/click the individual icon attached to the employee and manually remove them.
In the circumstances, and for the reasons outlined above, we maintain the view that it is appropriate that your employment should be terminated due to a serious misconduct.
We therefore advise that your employment termination is effective immediately.
Your outstanding and accrued (if any) entitlements will be calculated and paid within the next 14 days.
A separate letter will confirm the amount and components of that payment.”[23]
During the hearing, the Applicant gave evidence on his own behalf. No witnesses gave evidence on behalf of the Respondent. The Applicant’s evidence at the hearing included the following:
· The Applicant confirmed that it was not his intention to deliberately remove permissions from the Respondent’s SMART system for employees other than himself.[24]
· He confirmed that he was the one who originally added the permissions that were on his SMART account.[25]
· He confirmed that when he was removing the permissions, he was doing it on his mobile phone because he did not have access to a computer at the time.[26]
· He confirmed the process of removing permissions as follows:
“Can you just explain how you removed those permissions?‑‑‑I logged into my SMART Account and then I went into the permissions page and removed the permissions from my name.
And is it just a click button on the side, or how is it – how do you remove those permissions, or how did you go about removing those permissions on the phone?‑‑‑I went to my name and I tapped the permissions.
And so, when you tapped the permissions, does a box come up, or just when you tap the permissions, it deletes?‑‑‑So, when you have the permissions, the icon is highlighted, and when you tap them again to remove the permissions, it becomes greyed out.
So, you have to click a number of times; we can say two times before that permission is removed?‑‑‑Just the one.
Sorry, Mr Sim, I don't understand. So, you go to the permission and you tap it once and it's removed. So, you just have to tap on it once and it's removed?‑‑‑Correct.”[27]
· He confirmed that the “permissions” determine the level of access one has to the internal database of the company.[28]
The Applicant also provide unchallenged evidence that at the time of the dismissal, there were approximately 20 employees.[29] This evidence was given in response to the claim in the Respondents F3 that at the relevant time there were 14 employees. The Respondent provided no evidence to support their claim there was 14 employees and did not address me on the issue at all at the hearing. In the circumstances, the unchallenged evidence is that the Respondent was not a small business employer at the time of the dismissal.
The Respondent relied heavily on the report of Mr Ben Childs (Developer, Systems Engineer) as evidence that the removal of permissions by the Applicant was not accidental. That report included the record of an exchange that Mr Childs had with the Applicant:
“Thank you for reaching out.
Your ticket comes straight to the development team, and not outsourced to a third party. Someone from our team will respond shortly. We review and investigate all tickets thoroughly, with priority given to the most critical issues first. If you have any further information to assist us, please feel free add a new reply. In the mean time, you may find what you're looking for in our Documentation.
…
Good afternoon Eric,
You have been deleted from the organisation, which is why you're able to access it.
If you believe this was in error, please discuss with APTA administrators directly.…
Hi Ben, being removed from the organisation is not a mistake. I only attempted to login to reverse what my mobile device had done. If the permissions within APTA have been reset and the technical error from my mobile device has been rectified, I have no further business logging in to my SMART profile.
…
Hi Eric,
Thanks, I appreciate that you attempted to fix the mistake, but that's no longer necessary as this has since been rectified. I'm sorry to hear that you won't be logging in in the future, but if you do find you join another organisation that utilises Smart FOM in the future, please remember that you're able to login with this account and change the e-mail address to a personal one, should that be necessary.
Take care.…
As always, thanks Ben for cleaning up our messes.”[30]
This conversation confirms the Applicant’s evidence that he took action to rectify the mistake once he was made aware of it. There is nothing in the exchange to support the claim that the Applicant had deliberately removed the permissions. It is evident that he took prompt action to rectify the mistake.
The part of the report that is described as the “Opinion” of Mr Childs reads as follows:
“Opinion:
While Eric claims that this was an accident as the result of a device malfunction, the development team believes that this is not something that is likely. To be able to remove a permission or roles, you must tap/click the individual icons on these permissions and roles. Running your finger down a touch screen would likely not trigger this, though it would more than likely depend on the device in use.
The combination of permissions and roles, as well as personnel, that were affected by this incident also does not suggest that this was an accident.
Finally, the fact that the permission to view the Activity Log was also removed ‐ a portion of the system which logs the actions of an individual.”[31]
As noted above, Mr Childs was not made available for cross examination. The Applicant’s representative submitted that I should put very little weight on the document in the circumstances where he did not have an opportunity to cross examine Mr Childs.[32] Mr Sada made submissions that it was a matter for the Commission as to how much weight to place on the document in the circumstances.[33] I have no evidence as to the professional expertise of Mr Childs, beyond the submissions of the Respondent’s representative as to his role in developing the system. Mr Childs was not available to be cross examined on his opinion. In the circumstances I admitted the Report of Mr Childs into evidence and have had regard to its contents, however, for the foregoing reasons I have placed little weight upon it.
Submissions
The Applicants made the following submissions:
“In the circumstances where any removal of permissions was accidental and unintentional, the Applicant submits that there was no valid reason for him to be dismissed either with or without notice.
…the Respondent could not have considered the removal of permissions to be of such gravity so as to justify dismissal without notice. The alleged misconduct occurred on 11 November 2021 and the Respondent had investigated the incident on 12 November 2021. Apart from a meeting with Mr Sim on 16 December 2021, there was no further investigation of the incident that has been raised. The outcome of dismissal was imposed on 25 January 2022, more than a month and half after the incident.
In circumstances where there was a delay of over a month and half in resolving the matter, the removal of permissions could not have been viewed as warranting dismissal without notice. If dismissal without notice was warranted it would be expected that the matter would have been resolved far earlier.
The Applicant submits that the Respondent has used the SMART system incident to terminate his employment to avoid having to deal with the issues raised by the Applicant and the Australian Federation of Air Pilots on 6 November 2021 and 30 November 2021 respectively, those issues being underpayments and being stood down in a manner not permitted by the FW Act. The raising of those issues is not a valid reason.
In relation to the other criteria set out in section 387 of the FW Act, the Applicant acknowledges that he was provided with an opportunity to respond to the reason provided by the Respondent, that he was permitted a support person at the meeting on 16 December 2021. Unsatisfactory performance does not appear to be relevant. Finally, the Respondent utilised the resources of an external law firm to effect the dismissal. Accordingly, the procedures followed should be of a high standard.”[34]
The Respondent made the following written submissions in relation to the dismissal:
“Serious Misconduct as defined by section 12 of the Act is a two-limb test, whereby
(a)the actions of the employee must be wilful or deliberate so that it is inconsistent with the continuation of the contract of employment and
(b)conduct that causes serious and imminent risk to the health or safety of a person, or the reputation, viability or profitability of the employer’s business.
…
On November 11 2021, there were actions taken by the Applicant which caused the CEO and other senior staff to be restricted from having access to the SMART system.
A report was filed to SMART by the General Manager at the time, and the SMART development team investigated the situation.
Once this report was issued to the Company, a subsequent Invitation to a Disciplinary
meeting was provided to the Applicant prior to any decisions being made by the Company.This meeting was a form of procedural fairness and allowed the Applicant an opportunity to respond to the Allegations.
The Meeting was held on 15 December 2022 and a finding of Serious Misconduct was made on 25 January 2022.
The length of delay between the initial meeting and termination was due to the Christmas/New Years period.
Based on the actions of the Applicant and his responses going hand in hand with the specialist knowledge report provided by the Systems Engineers at SMART, we believe that the termination is justified and not unfair.”[35]
Consideration
When can the Commission order a remedy for unfair dismissal?
Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from their employment. There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent. I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.
Initial matters
Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
Section 394(2) requires an application to be made within 21 days after the dismissal took effect. It is not disputed and I find that the Applicant was dismissed from his employment on 25 January 2022 and made the application on 15 February 2022. I am therefore satisfied that the application was made within the period required in subsection 394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
I have set out above when a person is protected from unfair dismissal. It is not in dispute and I am satisfied that at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period. Furthermore, it was not in dispute and I find that, at the time of dismissal, the Applicant was covered by an award, being the Air Pilots Award 2020. I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
The Respondent indicated on the Form F3 that it had 14 employees at the time the Applicant was dismissed. The Applicant disputed this and made submissions that there were at least 15 employees employed by the Respondent at the time of the dismissal.[36] The Applicant filed a witness statement which listed approximately 20 people which were employed by the Respondent. That evidence has not been challenged and there is nothing to indicate that the individuals listed were not employees of the Respondent at the time of the dismissal.
As such, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis).
I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.
Was the dismissal a case of genuine redundancy?
It was not in dispute, and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise. I am therefore satisfied that the dismissal was not a case of genuine redundancy. Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[37] I set out my consideration of each below.
Section 387(a) – Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[38] and should not be “capricious, fanciful, spiteful or prejudiced.”[39] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[40]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[41] “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. 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.”[42]
The Applicant has given sworn evidence in these proceedings that he did not deliberately remove the permissions from the employees, other than himself. He was challenged on that evidence on cross examination and was unshaken in his evidence. He was a responsive witness, and his accounts of the events were consistent with the documentary evidence, in particular the conversation recorded in the report of Mr Childs. I found him to be a credible witness overall and have no reason to doubt his evidence.
In determining whether on the balance of probabilities, whether or not the Applicant willfully and deliberately removed the permissions, I must weigh the sworn evidence of the Applicant that he did not do it deliberately against the untested opinion of Mr Childs. As set out earlier and for the reasons there given, I place little weight on the opinion evidence of Mr Childs. I place significantly more weight on the sworn evidence of the Applicant. On this basis alone, I am not satisfied on the balance of probabilities that the Applicant deliberately removed the permissions from the other employees.
In any event, the opinion of Mr Childs is inconclusive. He states that running a finger down a touch screen would “likely not trigger this though it would more than likely depend on the device in use”.[43] Firstly, that opinion does not rule out that it could be done by mistake, and then further qualifies that view by indicating that it more than likely depends on the device in use. As Mr Childs was not available, I do not know what he means by “the device in use”. He may mean a smaller device, like a smart phone that the Applicant was using, makes it more likely that it could have been done by mistake, but this is mere speculation.
Similarly, the opinion that the “combination of permissions and roles, as well as personnel, that were affected by this incident also does not suggest that this was an accident” does not assist, as there is no explanation from Mr Childs as to why that combination should weigh toward a finding the action was deliberate. I only have the submission by Mr Sada as to what to make of it.
The evidence supports a finding that the Applicant did not deliberately remove the permissions from the SMART system. It was an error that he made and once he became aware of the error, the Applicant took immediate steps to try and rectify it. I am not satisfied that the Applicant is guilty of the misconduct alleged. This is not in view a sound and defensible reason for dismissal. It is not a valid reason.
Nor am I satisfied that the mistake the Applicant made had an effect on the enterprise that had the potential to cause a serious and imminent risk to the reputation, viability or profitability of the employer’s business. It is apparent that the permissions that were removed were restored the very next day.[44] Mr Sada agreed there was no evidence as to what the impact of the removal of the permissions was.[45]
In all the circumstances, I find that there was no valid reason related to the Applicant’s conduct. This weighs in favour of a finding the dismissal was unfair.
Section 387(b) – Was the Applicant notified of the valid reason?
Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[46] As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[47]
Section 387(c) – Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal, there needs to be a finding that there is a valid reason for dismissal.[48] As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[49]
Section 387(d) – Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal. This is also a neutral consideration.
Section 387(e) – Was the Applicant warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
Section 387(f) and (g) – To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal and to what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
In the circumstances these matters can be dealt with together. The Respondent made no submissions that the size of its enterprise or absence of human resource specialists or expertise was likely to impact on the procedures followed in effecting the dismissal The Applicant submitted that the Respondent utilised the services of an external law firm to effect the dismissal and the procedures followed should be of a high standard.[50] In the circumstances this is a neutral consideration.
Section 387(h) – What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. The Applicant was dismissed summarily. His dismissal on that basis was disproportionate given there was not a valid reason for dismissal, and he was deprived of payment of notice. This weighs in favour of a finding the dismissal was harsh.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in s.387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[51]
There was no valid reason for the dismissal. The Applicant was not guilty of the alleged misconduct. This weighs in favour of a finding the dismissal was unfair as it was unjust. The summary dismissal was disproportionate as there was not a valid reason for dismissal. This weighs in favour of a finding the dismissal was harsh. Other factors are either neutral or not relevant. Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of the Applicant was unjust and harsh.
Conclusion
I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act.
Remedy
As foreshadowed at the hearing, I do not have sufficient material before me to consider the appropriate remedy, if any. The matter will be listed for mention hearing on Tuesday, 26 July 2022 to deal with further programming of the matter.
COMMISSIONER
Appearances:
A Molnar, for the Applicant.
O Sada, for the Respondent.
Hearing details:
2022.
Melbourne (via Microsoft Teams):
July 6.
[1] Applicant Outline of Argument at Digital Court Book (DCB) page 30, [2].
[2] Ibid [3].
[3] Attachment A to Witness Statement of Eric Sim at DCB page 38.
[4] Witness Statement of Eric Sim at DCB page 33, [5]-[6] and Attachment B at DCB page 40.
[5] Witness Statement of Eric Sim at DCB page 34, [7] and Attachment C at DCB page 41.
[6] Witness Statement of Eric Sim at DCB page 34, [8].
[7] Ibid [8] - [9].
[8] Respondent Outline of Submissions at DCB page 81, [3]-[7].
[9] Transcript at PN116.
[10] Transcript at PN60.
[11] Applicant Outline of Argument at DCB page 31, [12].
[12] Witness Statement of Eric Sim at DCB page 34, [10] and Attachment D at DCB page 42.
[13] Witness Statement of Eric Sim at DCB page 34, [11] and Attachment E at DCB page 43.
[14] Witness Statement of Eric Sim at DCB page 34, [12].
[15] Witness Statement of Eric Sim at DCB page 34, [13] and Attachment F at DCB page 45.
[16] Witness Statement of Eric Sim at DCB page 35, [14] and Attachment G at DCB page 46.
[17] Witness Statement of Eric Sim, Attachment H at DCB page 48.
[18] Witness Statement of Eric Sim, Attachment I at DCB page 54.
[19] Witness Statement of Eric Sim, Attachment J at DCB page 55.
[20] Witness Statement of Eric Sim, Attachment K at DCB page 56.
[21] Witness Statement of Eric Sim at DCB page 20, [35].
[22] Ibid.
[23] Witness Statement of Eric Sim, Attachment L at DCB page 57.
[24] Transcript at PN60.
[25] Transcript at PN92.
[26] Transcript at PN103.
[27] Transcript at PN104 - PN108.
[28] Transcript at PN117.
[29] Witness Statement of Eric Sim at DCB page 36, [24].
[30] Respondent Outline of Submissions, Annexure B at DCB page 86.
[31] Ibid at DCB page 87.
[32] Transcript at PN18.
[33] Transcript at PN14.
[34] Applicant Outline of Argument at DCB page 31, [12]-[16].
[35] Respondent Outline of Submissions at DCB page 81 - 82, [2]-[14].
[36] Applicant Outline of Argument at DCB page 30, [7].
[37] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[38] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[39] Ibid.
[40] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[41] Edwards v Justice Giudice [1999] FCA 1836, [7].
[42] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[43] Respondent Outline of Submissions, Annexure B at DCB page 87.
[44] Transcript at PN157.
[45] Transcript at PN157 - PN159.
[46] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[47] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[48] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41].
[49] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[50] Applicant Outline of Argument at DCB page 31, [16].
[51] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].
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