Evgeny Vlasov v Momillions Pty Ltd
[2023] FWC 2348
•17 OCTOBER 2023
| [2023] FWC 2348 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Evgeny Vlasov
v
Momillions Pty Ltd
(U2023/4918)
| COMMISSIONER JOHNS | MELBOURNE, 17 OCTOBER 2023 |
Application for an unfair dismissal remedy – dismissal unfair – compensation ordered.
Introduction
On 5 June 2023, Mr Evgeny Vlasov (Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy in respect of his dismissal by Momillions Pty Ltd (Employer/Respondent).
On 21 June 2023, the Employer filed a response to the unfair dismissal application. It did not raise any jurisdictional objections.
The application was subject to an unsuccessful staff conciliation on 10 July 2023. Consequently, the matter was allocated to my Chambers for determination on 11 July 2023.
The matter was listed for a mention/directions hearing on 18 July 2023.
On 18 July 2023, the Applicant appeared on his own behalf and Ms Penny Stylianou appeared for the Respondent in her capacity as the Director. After resolving some preliminary matters, both parties agreed to me attempting to conciliate the matter (on the condition that neither party would object to me ultimately determining the matter should the conciliation be unsuccessful).
The conciliation was successful and the parties agreed to settle the matter. The terms were confidential. However, on the following day, Mr Mo Melville (Ms Stylianou’s partner) contacted my Chambers via telephone and advised that the Respondent was no longer prepared to settle the matter as agreed between the parties. The Respondent was asked to confirm in writing that it was reneging from the settlement.
On 24 July 2023, the Applicant provided the signed terms of settlement via email.
On 26 July 2023, the Employer confirmed via email that it does not wish to proceed with the settlement.
Consequently, on 31 July 2023 I conducted a further mention/directions hearing and set the matter down for determination.
Conference or Hearing
On 18 July 2023, I sought submissions from the parties about whether the Commission should conduct either a conference (section 398) or a hearing (section 399) in relation to the matter.
Taking account the fact that both parties were self-represented and what would be the most effective and efficient way to resolve the matter, I decided to conduct a determinative conference.
The unfair dismissal application was set down for a one-day conference before the Commission via video using Microsoft Teams on 13 September 2023.
The determinative conference
On 31 July 2023, I issued directions in furtherance of the application which required the Applicant to file his material first by 14 August 2023. He did not do so. Accordingly, the matter was listed for a further mention/direction hearing on 21 August 2023 to address the Applicant’s non-compliance.
On 21 August 2023, I issued amended directions after having conferred with both parties about the timetable. The amended directions were duly complied with by both parties. Consequently, in coming to this decision I have had regard to the following materials:
| Exhibit | Document title | Date |
| 1 | Form F2 | 05-06-2023 |
| 2 | Form F3 | 21-06-2023 |
| 3 | The Applicant's outline of argument: Merits | 24-08-2023 |
| 3.1 | Termination email | 19-05-2023 |
| 4 | The Respondent's outline of argument: Merits | 01-09-2023 |
| 4.1 | Statement of Sukh | 01-09-2023 |
| 4.2 | Statement of Ashleigh Norwood | 01-09-2023 |
| 4.3 | Document titled "Photo evidence of pancakes made by Eugene and taken home" | 01-09-2023 |
| 5 | The Applicant's reply submissions | 08-09-2023 |
| 5.1 | Copy of email titled "Crepes" | 20-04-2023 |
At the determinative conference, the Applicant represented himself and gave evidence on his own behalf. The Respondent was represented by both Mr Mo Melville and his partner, Ms Penny Stylianou. The Respondent called two (2) witnesses as follows:
(a) Ms Ashleigh Norwood – Kitchen Staff
(b) Ms Sukhmeet Kaur – Kitchen Staff.
All witnesses made themselves available for cross-examination.
The Respondent’s director, Mr Mo Melville, did not file a witness statement or give evidence. Noting his central role in the matter I questioned the decision not to do so. Mr Melville explained that he did not think that he needed to file a witness statement for himself. He thought he would be able to give evidence on the day of the determinative conference. Having provided clear directions on 31 July 2023 about the filing of witness statements, I was not prepared to allow Mr Melville to give evidence without him having provided the Applicant with, at least, an outline of his intended evidence. It would have been unfair to ambush the Applicant in such a way. Notwithstanding, I allowed Mr Melville to cross-examine the Applicant and to put to the Applicant evidentiary matters that Mr Melville might otherwise have included in a witness statement. I deal with that evidence below.
Background
The following matters were either agreed between the parties or not otherwise substantially contested:
a)On 19 September 2022, the Applicant commenced his employment with the Respondent.[1]
b)The Applicant was employed as a chef on a full-time basis.
c)The Applicant was paid around $35.00 per hour.
d)There is no evidence that the Applicant was performance managed during his employment, nor did he receive any warnings in relation to his conduct.
e)After work on Sunday, 14 May 2023, the Applicant and Mr Melville had a telephone conversation about the Applicant’s employment.[2] However, there is some dispute as to the content of that conversation which forms the contest surrounding the effective date of dismissal (discussed below).
f)In the week commencing 15 May 2023 the Applicant was rostered to work Tuesday – Sunday (that it is say, he was not rostered to work on Monday, 15 May 2023).
g)On Monday, 15 May 2023, the Applicant contacted the Respondent and advised that he had twisted his ankle while mowing the lawn and will not be able to work for a few days.[3]
h)The Applicant did not provide a medical certificate. Nor did the Respondent require one of him.
At 3.15pm on Friday, 19 May 2023, the Applicant sent an email to the Respondent attaching a resignation letter. The Applicant provided 1 weeks’ notice.
j)At 7:11pm on Friday, 19 May 2023, the Respondent replied as follows: [4]
‘Evening Eugene,
As we hadn't heard from you for 5 days we have moved forward with new team member. After receiving your email which didn't follow the unfit for work protocol and not receiving a docs certificate. As a result after 5 days with no correspondence from you your employment is deemed abandoned.
Please note we will be finalising your employment from your last day of work which was last Sun the 14th of may.
Penny will process all of your entitlements accordingly.
We very sincerely appreciate everything you have brought to the Momentum team especially with the skill shortage and sincerely wish you the best of luck.’
The Applicant submits he was unfairly dismissed on 19 May 2023 and seeks an order that he be compensated for a further two weeks’ pay.
The Respondent contends that the employment ended on 14 May 2023 by the provision of 1 week’s notice (i.e. so that the effective date of dismissal would be 21 May 2023). However, it further contends that the Applicant failed to work out the 1 week’s notice given to him on 14 May 2023.
I deal with the competing contentions about the effective date of dismissal below.
Protection from Unfair Dismissal
An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.
Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:
‘382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(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.’
There is no dispute, and the Commission, as presently constituted, is satisfied, the Applicant has completed the minimum employment period, and is covered by an enterprise agreement. Consequently, the Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal.
I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the FW Act.
Was the dismissal unfair?
A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:
‘385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.’
Was the Applicant dismissed?
A person has been unfairly dismissed if the termination of their employment comes within the definition of ‘dismissed’ for purposes of Part 3–2 of the FW Act.
There is no dispute, and the Commission, as presently constituted, is satisfied, the Applicant has been dismissed. However, there is an issue to be resolved about when the dismissal occurred.
The Respondent contends that the dismissal occurred on Sunday, 14 May 2023 with a proposed effective date of termination being Sunday, 21 May 2023. However, it then says that, because the Applicant did not work during the notice period the effective date of dismissal was 14 May 2023. The Applicant contends that the dismissal occurred on Friday, 19 May 2023.
As outlined in the background above, there was a telephone conversation between the Applicant and Mr Melville on 14 May 2023. The Applicant submitted as follows during the determinative conference about the content of that conversation:[5]
‘Ms Stylianou: Okay. Did Mo dismiss you on 14 May?
‑‑
Applicant: ‑No, he did not. There was no verbal, no – any written, nothing to that effect (indistinct).Ms Stylianou: Did you have a conversation with Mo on 14 May?
‑‑
Applicant: ‑Yes, I had, yes.Ms Stylianou: And what were the discussions during that conversation?
‑‑
Applicant Okay, the nature of the conversation was Mo told me – it's pretty late in the evening and I was sitting down with my family in the middle of the dinner when he called me, and he said, 'Are you really happy for this to go on like this?' This was rough‑ly what he said. And my understanding was he was referring to the argument we had later in the day with slow service and how I asked him not to put pressure on us because we were busy as it is, running in and out of the kitchen to get to the fridge. So, I had no idea where he was – or what he was talking about. So he just goes, 'Are you happy for this to go on like that?' But I said, 'What do you mean?' He said, 'Well, there's been some friction, some misunderstandings. Look, I've got another chef lined up. It would be best for everyone involved if you just left employment. You haven't been – you haven't taken any holidays, so why won't you just go on a holiday?' I said, 'Listen, I'm not ready to go on a holiday and I really don't want to go on holiday.' But in the end we agreed that I'll have some time to think about it, what I want to do. But he was – he was really trying to push me out at that work. He said straight up, 'I've got another chef lined up. If you don't go now, like, I might lose him. He might find another job.' So, I said, 'Okay, let me think about it,' because I was thinking quitting the employment at the time, anyway. It was just too much. So, I said, 'One week or two weeks, let me think about it and I'll come back to you later.' That was the end of the conversation.Ms Stylianou: And when were you supposed to get back to Mr ‑‑‑Melville?
Applicant: The agreement was I will get back to Mr Melville to announce my decision, what I want to do, on Monday, the following Monday.
Ms Stylianou: So, that was the 15th?
‑‑
Applicant: ‑It would have been 15th, yes.Ms Stylianou: So, you're stating on the record that Mo didn't dismiss you?
‑‑
Applicant: Correct. There was no – no mention of dismissal. The agreement was I'll let him know on Monday what I want to do, if I want to take two weeks, one week, or maybe not‑ resign, at all.Ms Stylianou: And why did you not contact Mr Melville on the Monday the 15th?
‑‑
Applicant: ‑I did contact him. I did contact him but for a different matter, because I was mowing my lawn and I sort of done my – my ankle, so I let him know at 4.30 in the afternoon that I need to take a few days off because my foot was not quite right. I mean, had he dismissed me the previous Sunday, why I would even be bothering writing anything as I fact if I was dismissed then.Ms Stylianou: So, again, you're stating on the record that Mo did not dismiss you on 14 May?
‑‑
Applicant; ‑Correct, nothing was mentioned at all.’
The evidence of Mr Melville during the determinative conference about the content of that conversation was as follows:[6]
‘MR MELVILLE: Yes, so on the 14th I had a discussion with Eugene after work. So, Eugene's denying that that discussion happened where I finalised his employment (indistinct).
THE COMMISSIONER: Mr Melville, maybe you weren't listening. He admits that he had a conversation with you after work on the 14th.
MR MELVILLE: Yes.
THE COMMISSIONER: He admits that you told him words to the effect that you thought the employment relationship should end. He denies that he that you actually terminated him - - -
MR MELVILLE: Can I interrupt you there, John?
THE COMMISSIONER: He denies that you actually terminated him on that day. That's his evidence.
MR MELVILLE: Yes, so this is where all the – this is where all the discussions are breaking down. He was dismissed for stealing. He was made well aware of that. And, again, I showed compassion and said, 'I'll give you, you know, tonight to have a chat to someone, and give me a call tomorrow night.' He didn't call me. So that was Sunday. Then we got the email on Monday, saying that he'd sprained his ankle, no problems. We didn't hear it from him again until the following Friday. So, that's where the – you know, that's where the indiscrepancy is here.
THE COMMISSIONER: Mr Melville, Mr Melville, this is an opportunity to ask questions, not to make a statement.
MR MELVILLE: Okay, so did the conversation on Sunday the 14th, did I not state to you on the record that your employment was finalised?
‑‑
Applicant; ‑No.
Mr Melville: Okay, so the discussion just didn't happen? That's what you're stating on the record?
THE COMMISSIONER: No, Mr Melville, that – listen, he's not saying a conversation didn't happen. He's been very honest in giving evidence about the fact that a conversation did happen. He just doesn't agree that you told him - - -
MR MELVILLE: Okay, in the conversation - - -
THE COMMISSIONER: He doesn't agree that you told him his employment ended during that conversation. That's the evidence.
MR MELVILLE: I understand that, but that's not the discussion. It was a statement, it wasn't a discussion. I said, 'This relationship, it's run its course.' That was my statement. 'This is the reason why. Have a discussion with your family and come back to me tomorrow evening.' He agreed to do it. He just didn't respond until the following Friday.’
The Respondent’s two witnesses attested in their statements that Mr Melville informed them that he would be calling the Applicant to terminate his employment on 14 May 2023.[7] During the determinative conference, both of the witnesses conceded that they were not part of the conversation and thus did not hear any part of it.[8] This is clearly hearsay and I have had no regard to it. Therefore, the only evidence before me is that of the Applicant and Mr Melville. They were the direct participants in the conversation.
The Applicant impressed me as a witness of truth. He readily made concessions in relation to allegations of misconduct made against him (see below). He made no attempt to deny his behaviour. I do not doubt his honesty.
Mr Melville was less impressive. He was argumentative. He attempted to bagger the Applicant. Although he did not file any witness evidence on his own behalf he had the opportunity to put his version of events to the Applicant during cross-examination.
A previous Full Bench of the Commission has observed as follows:[9]
‘[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd as follows:
“[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable (G J McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78 at 79; Burton Group Ltd v Smith [1977] IRLR 351 at 354). The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 767-768; Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115 at 126; Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 at 677; Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 at [99]).”
[18] A notice of termination may validly operate notwithstanding that it is stated to take effect subject to a condition, provided that the notice is expressed with sufficient certainty so that conditional date of termination is ascertainable, the condition upon which the termination becomes operative has been fulfilled and the employee is in a position to know that the condition has been satisfied.’
Nothing about the alleged termination on 14 May 2023 was unambiguous. At its best Mr Melville says he spoke about the need for the employment relationship to end. He says he discussed with the Applicant about when the employment might end. He invited the Applicant to call him on Monday, 15 May 2023 to discuss the matter further. The consistency in the evidence about the conversation on 14 May 2023 was that the finalisation of the termination was conditional on the Applicant contacting Mr Melville to confirm the details of the exit. In its form F3, the Respondent also noted during this conversation that the Applicant was also asked how many weeks’ notice he required.[10] In light of the same, the Applicant could not have been in a position to know when the dismissal would become operative. Therefore, I am not satisfied that the dismissal took effect on 14 May 2023 as contended by the Respondent. As a matter of law it did not.
On 19 May 2023 the Applicant attempted to resign with one week’s notice. In response he was told that the employment had already ended. For the reasons above, it had not ended on 14 May 2023.
What then occurred on 19 May 2023 was an unequivocal statement by the Respondent that the employment relationship had ended. The Respondent did not accept the resignation. It did not allow the Applicant to work out the notice that he provided. It did not make a payment in lieu of the notice that the Applicant had provided.
For these reasons, I find that the dismissal rather took effect on 19 May 2023, triggered by the email from the Respondent.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (the Code).
The Respondent did not contend that the Code applied. Therefore, this is not a relevant consideration.
Was the dismissal a genuine redundancy?
The Respondent did not submit I should dismiss the application because the dismissal was a case of genuine redundancy. Therefore, this is also not a relevant consideration.
Harsh, unjust or unreasonable
Having been satisfied of each of s.385(a),(c)-(d) of the FW Act, the Commission must consider whether it is satisfied the dismissal was harsh, unjust or unreasonable. The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the FW Act:
‘387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); 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.’
The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:
‘.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’
I am under a duty to consider each of these criteria in reaching my conclusion.[11]
I will now consider each of the criteria at s.387 of the FW Act separately.
Valid reason - s.387(a)
The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal.[12] The reasons should be ‘sound, defensible and well founded’[13] and should not be ‘capricious, fanciful, spiteful or prejudiced.’[14]
The reasons proffered by the Respondent for dismissal were alleged misconduct and poor work performance.
Consideration
In relation to the alleged misconduct, the Respondent relied on five (5) instances of alleged stealing:[15]
‘The first incident took place in February where he commenced instructing the FOH staff to make him drinks without paying for them.
There was another incidence of theft that took place 20th April where the applicant made a batch of pancakes (these were not on the menu & the applicant was not asked to make these) and then took these home.
There were 2 further incidences that took place where the applicant made 2 burritos and took them home without paying for them and also took home a container of icecream/sorbet without paying for it.’
The Applicant denied the allegations of stealing. However, he did make concessions about one (1) burrito and the batch of pancakes/crepes in the following context:[16]
‘Applicant: Regarding the stolen buritos.
Working at Momentum, chefs do not get a brake, lunch brake or any other kind of break other then a quick dash to the bathroom. Not even, when we worked on our own for 11 hours a day when chef Toby quit and there was nobody to replace him at the time.
There is simply no time for a break. And so again, it is a normal and accepted practice at the Momentum among chefs to make themselves a quick meal without having to pay for it, whenever there is a bit of a breather. So I dont see how me taking a burito home would be considered stealing, when it was my lunch that I did not have time to eat during my shift. Furthermore, I would generally only eat a meal that was ment to go to the customer, but was somehow messed up and had to be remade. That was to reduce waste. In general, I would only have 2 or 3 meals in a week, so not even every day. Im not exaclty sure why again am I being singled out like that.
…
Finally, regarding the theft of the crepes on the 20th of april, and the assosiated photographic evidence:
Around the time of the alleged stealing, the management was contemplating the idea of creating a new menu, and Mr. Melville on several occasions seeked an input from all the chefs.Accordingly, drawing on my experience from a previous employment, I suggested that crepes could become popular, and are also extreamly cheap to produce. They are also very versatile, as they can be served both as a savoury dish, as well as a dessert.
And so I have quickly made a small batch to run some plating and presentation ideas by the management. Mr. Melville was present, and fully aware of what I was doing.
I then took some pictures and sent them in an email to both Mo and Penny. In fact, these are my own pictures from that email to Penny that are now being presented as photo evidence of me stealing these crepes. I find it hard to believe that anybody would go to the trouble of plating the dish and taking pictures of it, if the intent was to steal, presumably quietly. Please see attached original email that I've sent to Penny for the complete set of pictures. In the email itsef I'm saying to Penny that I've made a small batch of pancakes, and would like to run this idea by her (please see original email attached)’
Overall, there was no evidence from the Respondent to substantiate its allegations of stealing. Whilst the Applicant made the above two concessions, in context his conduct does not amount to stealing.
The Respondent had every opportunity to file and serve cogent evidence to support allegations of stealing. It did not. Bold statements alleging such serious conduct are not enough to establish the truth of them. I reject that there was any valid reason associated with the Applicant’s conduct.
Likewise, in relation to the allegations of poor work performance, the Respondent had every opportunity to file and serve cogent evidence to support allegations of poor performance. It did not. Consequently, I reject that there was any valid reason for dismissal associated with the Applicant’s poor performance.
Consequently, I find that there was not a valid reason for the dismissal.
Notification of the valid reason - s.387(b)
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[17] in explicit terms[18] and in plain and clear terms.[19] In Crozier v Palazzo Corporation Pty Ltd[20] a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations FW Act 1996 stated the following:[21]
‘[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.’
Consideration
In light of my conclusion of there being no valid reason for dismissal, this factor is not relevant. In any event, even if the above two alleged reasons were valid, there was no evidence provided by the Respondent to demonstrate such notification being given.
I find the Applicant was not notified of the reason for the dismissal.
Opportunity to respond - s.387(c)
An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[22]
Consideration
There is no evidence before me demonstrating that the Applicant was provided with such an opportunity.
I find the Applicant was not given an opportunity to respond to the reason for the dismissal.
Unreasonable refusal by the employer to allow a support person - s.387(d)
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
Consideration
The Applicant did not request a support person. Therefore, this is a neutral consideration.
Warnings regarding unsatisfactory performance - s.387(e)
Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.[23]
Consideration
There is no evidence before me about any warnings given to the Applicant.
I find the Respondent did not warn the Applicant about their unsatisfactory performance before the dismissal.
Impact of the size of the Respondent on procedures followed - s.387(f)
The size of the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.
The size of the Respondent’s enterprise likely did impact the procedures followed.
Consideration
I find the size of the employer’s enterprise did impact on the procedures followed in effecting the dismissal. However, I treat this as a neutral consideration.
Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
The absence of dedicated human resource management or expertise in the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.
Consideration
I find the absence of any such management or expertise did impact on the procedures followed by the Respondent in effecting the dismissal. However, I treat this as a neutral consideration.
Other relevant matters - s.387(h)
Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. Neither party made submissions about other relevant matters I should consider. I have not been able to identify any.
Conclusion
Having considered each of the matters specified in s.387, the Commission, as presently constituted, is satisfied the dismissal of the Applicant was unjust and unreasonable.
The dismissal was unjust because the Applicant was not guilty of the alleged misconduct.
The dismissal was unreasonable because the evidence before the employer did not support the conclusion. This must be the case, because no such cogent evidence was put before the Commission.
Accordingly, I find the Applicant’s dismissal was unfair.
Remedy
Section 390 of the FW Act sets out the circumstances in which I may make an order for reinstatement or compensation:
‘390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The Commission may make the order only if the person has made an application under section 394.
(3) The Commission must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.’
I have already dealt with the issues at s.390(1)(a)–(b) above. The Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal pursuant to s.382 of the FW Act and the Applicant was dismissed unfairly. Accordingly, the Commission is required to determine whether to order the reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate, an order for compensation if it is satisfied such an order is appropriate in all the circumstances.
Reinstatement
The Applicant seeks compensation as the primary remedy. Regardless of the remedy sought by the Applicant, s.390 of the FW Act requires I first determine whether reinstatement is appropriate before I may consider an order for compensation.
The Applicant and the Respondent submitted in their submissions and also during the determinative conference before me that reinstatement would not be entertained by either party.
Consideration
In Regional Express Holdings Ltd T/A Rex Airlines[24] a Full Bench of Fair Work Australia considered what factors may be taken into account when considering if reinstatement is inappropriate under s.390(3)(a) of the FW Act:[25]
‘[26] Whenever an employer dismisses an employee for misconduct, assuming the employer is acting honestly, there is an implied loss of trust and confidence in the employee. If it is subsequently found that the termination was harsh, unjust or unreasonable it is appropriate to consider whether the relationship can be restored if the employee is reinstated. That question cannot be answered solely by reference to the views of management witnesses. All of the circumstances should be taken into account. In this case there are a number of relevant matters. They include the fact that not all of the conduct alleged against the respondent has been proven, the respondent’s apparently unblemished record in the performance of his flying duties over a period of 14 years, the fact that the misconduct is not directly related to the performance of the respondent’s professional duties as a first officer and Rex’s failure to pursue any substantial disciplinary action against another pilot who, it is alleged, has been guilty of misconduct at least as serious as that of which the respondent was accused. The significance of the last consideration is that the pilot in question is still carrying out the full range of his duties, despite allegations of conduct of a kind which, in the respondent’s case, is said to have led to an irrevocable loss of trust and confidence. Assuming a positive approach on both sides we find there is a reasonable chance that the employment relationship can be restored with the necessary level of mutual trust.’
In the circumstances the Commission, as presently constituted, is satisfied that I should order reinstatement is inappropriate.
Having decided reinstatement is not inappropriate in this case, I must decide the terms in which an order may be made.
Compensation
Section 390(3)(b) provides the Commission may only issue an order for compensation to the Applicant if it is appropriate in all the circumstances.
The Applicant submits that an order for compensation is appropriate in all the circumstances of this case because he was fired without notice and the chance to start looking for another job.[26]
The Respondent submits that an order for compensation is not appropriate in all the circumstances of this case because:[27]
‘On 15/05 instead of receiving a call from Eugene to discuss his dismissal we received an email stating he had “sprained” his ankle and would require a few days off work. There was no medical certificate to corroborate his absence from work nor to advise how many days off he would require. Now without being a medical expert, I do believe you require a medical expert such as a GP to diagnose a “sprained” ankle. Again with my limited knowledge, and only based on research, it can take between 10-14days for a “sprained ankle to heal. I believe given all this information Eugene had no intention of returning to his employment, to work out his notice period. As the employee failed to work his notice period, and no medical certificate was provided, we could have withheld 1 weeks worth of pay (based on his time of service) from him. However instead we chose not to do this, as we felt this to be unfair. Eugene was paid all monies owed to him in full.
The applicant has advised that 3 months on from his dismissal he has yet to find employment and is currently receiving jobseeker payments. Again, in my opinion, at a time when all industries are so short of staff, at a time when unemployment is at its lowest, I find it difficult to believe that the applicant is exhausting all possible avenues to find employment, particularly coming from an industry where skilled staff are in high demand and in every café window there is a sign stating “staff wanted”.
The Seaford Hotel is currently seeking kitchen staff. The Langwarrin hotel is currently seeking kitchen staff. Frankston RSL is currently seeking kitchen staff (which is walking distance from our café). The cinema complex which is located 100m from our venue, with multiple venues are all seeking kitchen staff.’
Having found that the dismissal was both unjust and unreasonable I am satisfied that an order for the payment of compensation is appropriate.
The Commission, as presently constituted, is satisfied that an order for compensation is appropriate in all the circumstances of this case.
Section 392 of the FW Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered:
‘392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(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; and
(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; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.’
The method for calculating compensation under s.392 of the FW Act was dealt with by a Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge[28] (Bowden). In that decision the Full Bench set out the order in which the criteria and other factors should be applied, taking into account authority under the Workplace Relations FW Act 1996 in Sprigg v Paul’s Licensed Festival Supermarket[29] and Ellawala v Australian Postal Corporation[30]. I have adopted the methodology utilised in Bowden in determining the amount of a payment of compensation.
I will now consider each of the criteria in s.392 of the FW Act.
Remuneration that would have been received: s.392(2)(c)
The Applicant’s remuneration with the Respondent was on a full time basis at $35.00 an hour.
I should now determine the period of time the Applicant would have remained employed by the Respondent, or would have likely remained employed with the Respondent, had he not been dismissed.
The Applicant attempted to resign on 19 May 2023 with one week’s notice. Therefore, had the resignation run its course the Applicant would have remained employed with the Respondent for a further week until the 26 of May 2023. The Applicant agreed with this proposition during the determinative conference,[31] but the Respondent did not on the basis that a sprained ankle takes 10-14 days to heal and thus the Applicant could not have actually worked his notice period.[32] There was no expert evidence led in support of such an argument by the Respondent and it was conceded that it was merely on the basis of ‘research’.[33]
I find that the Applicant would have continued to be employed by the Respondent for one (1) week had he not been dismissed. The amount the Applicant would have received is therefore $35.00 per hour multiplied by 38 hours (i.e. $1,330.00). There is no evidence that the Applicant had used all of his personal sick leave. If, because of the sprained ankle he could not work, he would still have been entitled to personal sick leave pay.
Remuneration earned: s.392(2)(e)
I find the Applicant earned $0.00 in the week following the dismissal.
Income likely to be earned: s.392(2)(f)
In the present matter this is not a relevant consideration.
Other matters: s.392(2)(g)
I am satisfied that there are no other relevant matters.
Viability: s.392(2)(a)
I find an order for compensation in the amount proposed will not affect the viability of the Respondent’s enterprise.
Length of service: section (s.392(2)(b))
I find that the Applicant’s period of service with the Respondent, being some eight (8) months, should not affect the amount of compensation to be ordered.
Mitigating efforts: s.392(2)(b)
In considering whether the Applicant has taken steps to mitigate the loss suffered as a result of the dismissal I should take into account whether the Applicant acted reasonably in the circumstances.[34]
The Applicant submitted that he has been applying for jobs and this is corroborated by the Respondent in making grievances against the Applicant for naming them as a reference leading to various phone calls.[35]
I find that the Applicant has made efforts to mitigate their loss suffered as a result of the dismissal.
Misconduct: s.392(3)
I have not found any misconduct by the Applicant that contributed to the dismissal.
Shock, Distress: s.392(4)
I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.
Compensation cap: s.392(5)
I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the Applicant, or to which the Applicant was entitled, for any period of employment with the employer during the 26 weeks’ immediately before the dismissal, or half the amount of the high income threshold immediately prior to the dismissal.
The high income threshold immediately prior to the dismissal was $162,000.00.
The amount the Applicant would have earned, or to which the Applicant was entitled, for the 26 weeks’ period immediately prior to the dismissal was $34,580.00.
The amount of compensation I will order does not exceed the compensation cap.
Payment by instalments: s.393
I will order the Respondent to pay to the Applicant an amount of 1 week’s pay within 21 days.
Conclusion
The Commission, as presently constituted, is satisfied that the Applicant was protected from unfair dismissal, that the dismissal was unfair and a remedy of compensation is appropriate in the amount of $1,330.00.
An order will be issued with this decision [PR766184].
COMMISSIONER
Appearances:
Mr E Vlasov on his own behalf
Ms P Stylianou & Mr M Melville on behalf of the Respondent
Hearing details:
2023
Melbourne (by Video using Microsoft Teams)
13 September.
[1] Digital Tribunal Book (DTB), Exhibit 1, p 4; see also DTB, Exhibit 2, p 11.
[2] DTB, Exhibit 3, p 3l; see also DTB, Exhibit 4, p 57.
[3] DTB, Exhibit 1, p 4; see also DTB, Exhibit 2, p 15.
[4] DTB, Exhibit 3.1, p 38.
[5] Transcript of the proceedings, PN96-103.
[6] Transcript of the proceedings, PN117-130.
[7] DTB, Exhibit 4.1, p 60; see also DTB, Exhibit 4.2, p 62.
[8] Transcript of the proceedings, PN183-184 & PN203-209.
[9] Mohammed Ayub v NSW Trains[2016] FWCFB 5500, [17]-[18].
[10] DTB, Exhibit 2, p 15.
[11] Sayer v Melsteel[2011] FWAFB 7498.
[12] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
[13] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
[14] Ibid.
[15] DTB, Exhibit 4, p 47.
[16] DTB, Exhibit 5, p 64-66.
[17] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
[18] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[19] Previsic v Australian Quarantine Inspection Services Print Q3730.
[20] (2000) 98 IR 137.
[21] Ibid at 151.
[22] RMIT v Asher (2010) 194 IR 1, 14-15.
[23] Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
[24] [2010] FWAFB 8753.
[25] Ibid at [26].
[26] DTB, Exhibit 3, p 34.
[27] DTB, Exhibit 4, p 57.
[28] [2013] FWCFB 431.
[29] (1998) 88 IR 21.
[30] Print S5109.
[31] Transcript of the proceedings, PN225-226.
[32] Transcript of the proceedings, PN263-266.
[33] DTB, Exhibit 4, p 55.
[34] Biviano v Suji Kim Collection PR915963 at [34].
[35] DTB, Exhibit 4, p 35; see also DTB, Exhibit 5, p 56.
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