Frank Weinert v The Trustee for Twin Bridge Security Discretionary Trust

[2021] FWC 500

[2021] FWC 500

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Frank Weinert
v
The Trustee for Twin Bridge Security Discretionary Trust
(U2020/14129)

COMMISSIONER PLATT ADELAIDE, 8 FEBRUARY 2021

Application for an unfair dismissal remedy.

[1] On 27 October 2020, Mr Frank Weinert (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with The Trustee for Twin Bridge Security Discretionary Trust (Twin Bridge Security).

When can the Commission order a remedy for unfair dismissal?

[2] Section 390 of the 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.

[3] 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?

[4] Section 382 of the 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.

When has a person been unfairly dismissed?

[5] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.

The Conference

[6] There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing.

[7] After taking into account the views of the Applicant and the Respondent and the fact that they were both unrepresented and unfamiliar with the unfair dismissal jurisdiction, I considered it appropriate to hold a Determinative Conference for the matter (s.399 of the Act).

Witnesses

[8] Mr Weinert gave evidence on his own behalf together with Ms Julie Broadbent.

[9] The following material was submitted by Mr Weinert:

•  Form F2 Application 1

•  Written submission by Mr Weinert 2

•  Witness Statement of Mr Weinert 3

•  Bundle of documents concerning Mr Weinert’s medical condition including a certificate restricting the number of hours that could be worked each week 4

•  A document prepared by Mr Weinert detailing calls and text messages between him and Mr Laury Bais 5

[10] The following material was submitted by Twin Bridge Security:

•  Form F3 Employer Response 6

•  Written Submission 7

•  Terms of Settlement in matter U2020/10516 which had been signed by Mr Weinert but not by the Respondent 8

•  Email from Mr Nelson to Mr Bais dated 29 August 2020 concerning Mr Weinert’s work performance. 9 As Mr Nelson was not present to give evidence, this document was not received as evidence of the facts contained therein – only that the email had been received.

•  Medical Certificate dated 8 September 2020 concerning restrictions of Mr Weinert’s capacity to work 10

•  A spreadsheet detailing the hours worked by Mr Weinert during the period July 2019 to 2 October 2020 11

[11] Further material was submitted after the hearing concluded, unfortunately this information did not contain an independent telephone call record and did not add any relevant probative material to that previously provided.

Background

[12] The background to the matter gleaned from the evidence given by the parties is largely uncontroversial and summarised below:

•  Mr Weinert’s primary income (approximately $1,200 net per fortnight) was received from Centrelink in the form of a full-time carer’s payment in respect of care and assistance provided to Ms Broadbent which commenced approximately 11 years ago.

•  Mr Weinert advised that his carer’s responsibilities required that his absence from Ms Broadbent’s location be for no more than 25 hours per week. Mr Weinert advised Mr Bais of these requirements prior to his employment and it was agreed that Mr Weinert could work a maximum of 20 hours per week taking into account travelling time of a maximum of 5 hours per week.

•  Mr Weinert commenced employment in August 2017 as a part-time Security Guard working 20 hours per week.

•  Mr Weinert was allocated work by Mr Laury Bais (Managing Director of Twin Bridge Security) who would ring Mr Weinert in advance and advise of the work location and commencement time.

•  Mr Weinert travelled to each tasking from his residence in Pooraka, SA. Mr Weinert was initially regularly tasked to perform work at Woolworths in the Elizabeth Shopping Centre.

•  Mr Weinert was previously dismissed by Twin Bridge Security on 28 July 2020. This dismissal was challenged by Mr Weinert and resolved through conciliation in August 2020. The resolution resulted in Mr Weinert being re-employed with some modifications to his employment status with Mr Weinert employed in a ‘standby capacity.’ 12 This appears akin to a casual engagement.

•  In September 2020, as a result of an ongoing medical condition, Mr Weinert was advised by his medical practitioner that he could only work 2 x 5 hour shifts per week. 13

•  The parties subsequently agreed that Mr Weinert would be employed on a casual basis and offered shifts (in line with his medical restrictions) on a as needed basis.

•  Mr Bais had a list of employees available to work, as a result of his length of service Mr Weinert was at the top of the list. Having received a job tasking, Mr Bais would telephone the employees in order of the list, if he could not contact the employee within a reasonable period of time, he would offer the work to the next person on the list.

•  Mr Weinert received JobKeeper payments from Twin Bridge Security from June 2020 to the time of his dismissal.

•  After a number of weeks of not being able to allocate Mr Weinert work, Mr Bais decided to end the employment relationship.

•  Mr Weinert was dismissed on 7 October 2020.

[13] Exhibit R6 was compiled by the Respondent and details the hours worked by Mr Weinert from July 2019. The document reveals the following:

•  In the period between 19 July and 28 February 2020, Mr Weinert worked an average of 14.15 hours per week.

•  There were no hours worked in March 2020, which appears to be the period where Mr Weinert did not work for the Respondent.

•  In the period between 3 April 2020 and 29 May 2020, Mr Weinert worked an average of 25.12 hours per week.

•  In the period between 5 June 2020 and 2 October 2020 Mr Weinert worked an average of 6.06 hours per week and did not work at all for 4 weeks.

[14] Having heard the evidence it became apparent that the key issue in dispute was that Mr Weinert is alleged to have either failed or refused to answer his mobile phone when calls were made to him by Mr Bais to offer work Mr Bais believed that was as a result of Mr Weinert receiving JobKeeper payments regardless of the performance of work. Mr Bais advised that he warned Mr Weinert that if he did not make himself available for work, he would be dismissed. Mr Weinert denied receiving any warning and denied not answering calls from Mr Weinert. Mr Weinert denied the accusation that he was refusing to perform work as a result of receiving JobKeeper payments.

[15] The disputed evidence is a matter that largely had to be resolved on the basis of credit. The telephone records submitted by Mr Weinert were not copies of call records provided by a telecommunication provider. The ‘record’ was a document prepared by Mr Weinert. I cannot be sure about its completeness. Mr Weinert was invited to provide a copy of the telephone records after the conclusion of the hearing but did not do so. Conversely Mr Bais did not provide any copies of his telephone records. Provision of the telephone call records would have provided independent evidence of the communications between the parties but unfortunately it is not available to me. I am not prepared to rely on the ‘records’ provided to determine when Mr Bais rang Mr Weinert.

[16] I was advised that Mr Weinert suffers from a learning disability, but no medical evidence was provided. I found that on occasion questions posed to Mr Weinert needed to be expressed more simply in order to allow him to respond. Mr Weinert would advise me when he did not understand the question. I have taken this into account when assessing Mr Weinert’s evidence. I was satisfied that Mr Weinert could comprehend the questions asked.

[17] Having reviewed the evidence in its entirety, it appears that Mr Weinert was employed for two separate occasions in the period between August 2018 and 7 October 2020. There appears to have been a break in the employment where Mr Weinert determined to seek employment with another employer. Mr Weinert did not change employers but was employed by the Respondent after a 4 week break. It appears that this ‘interruption’ did not break Mr Weinert’s service. 14

[18] Some of the answers given by Mr Weinert whilst giving evidence were inconsistent. For example, Mr Weinert contended that he was not warned about refusing to accept shifts. 15 However, Mr Bais presented evidence that on 5 October 2020 Mr Weinert was advised “This is a written notice for the following reason. Continued unavailability to work without good reason … We acknowledge your sick certificate, changing you from 25 hours per week, including travel, to 10 hours a week, for the rest of your working life, but you haven’t made yourself available to do any work at all. We have tried to call you at least seven times over the past four weeks and each time you fail to answer or call back.” Mr Weinert acknowledged that he had received this message, and that he had been informed that his failure to make himself available for work was an issue.16

[19] Mr Weinert advised that when Mr Bais rang or messaged home - his name would be displayed on his telephone.

[20] Mr Weinert denied that Mr Bais rang him to offer him work 17 or communicated the need for him to attend shifts.18

[21] The explanation given by Mr Weinert for refusing to work on 7 October 2020 19 because Ms Broadbent’s grandchildren were visiting, was implausible. Mr Weinert has no carer’s obligation in respect of Ms Broadbent’s relatives.

[22] Similarly, the suggestion that when Mr Bais rang, he could have been in the toilet or the shower 20was unconvincing. I would have expected that Mr Weinert could have returned Mr Bais’ call as soon as he became aware of it.

[23] Mr Bais was a more impressive witness who was prepared to make concessions even where it was contrary to his interests. His evidence was that he accepted Mr Weinert’s working restrictions including the reduction to 10 hours per week and sought to work with them so as to support Mr Weinert. 21 Mr Bais’ evidence was that Mr Weinert was at the top of the list for standby work and that if a shift was available he would ring Mr Weinert first and if he didn’t answer, he would call a further two or three times. If no answer was received, he would go to the next person on the list.

[24] I have determined to prefer the evidence given by Mr Bais over that given by Mr Weinert where it conflicts, and in particular in respect to Mr Bais trying to offer shifts to Mr Weinert.

[25] I am not persuaded that Mr Weinert’s call ‘records’ contained all of the telephone attempts made by Mr Bais.

[26] I find that Mr Weinert did not appropriately respond to calls made by Mr Bais. Whilst it appears that this period coincided with the provision of JobKeeper payments, there is no clear evidence that this was the basis for Mr Weinert not responding to Mr Bais’ calls and/or not making himself available to perform work.

[27] I find that Mr Weinert’s conduct was inconsistent with his commitment to make himself available to perform work, and impeded Mr Bais meeting the operational requirements of the business.

Has the Applicant been dismissed?

[28] A threshold issue to determine is whether the Applicant has been dismissed from their employment.

[29] Section 386(1) of the Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

[30] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

[31] There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent on 7 October 2020.

[32] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the Act.

Initial matters

[33] Under s.396 of the 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?

[34] Section 394(2) of the Act requires an application to be made within 21 days after the dismissal took effect.

[35] I have found that Mr Weinert was dismissed from his employment on 7 October 2020. The application was made on 27 October 2020. I am therefore satisfied that the application was made within the period required in subsection 394(2) of the Act.

Was the Applicant protected from unfair dismissal at the time of dismissal?

[36] I have set out above when a person is protected from unfair dismissal.

Minimum employment period

[37] It was not in dispute and I find that the Applicant was an employee, who commenced their employment with the Respondent and worked on a regular and systematic basis for at least 6 months (the relevant minimum employment period for an employer who is not a small business) prior to the dismissal. I am therefore satisfied that, at the time of dismissal, Mr Weinert was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.

[38] 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?

[39] The Respondent identified on the Form F3 Employer Response that on the day of the dismissal it employed 30 persons. Accordingly, I find that the Respondent was not a small business employer within the meaning of s.23 of the Act at the relevant time.

[40] I am satisfied that the Small Business Fair Dismissal Code does not apply.

Was the dismissal a case of genuine redundancy?

[41] 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.

[42] I am therefore satisfied that the dismissal was not a case of genuine redundancy.

[43] 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?

[44] Section 387 of the 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.

[45] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 22

[46] I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

[47] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 23 and should not be “capricious, fanciful, spiteful or prejudiced.”24 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.25

[48] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination. 26 “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.”27

[49] On the information before me, at the time of the dismissal Mr Weinert was engaged as a casual employee, albeit on a regular and systematic basis. 28 I accept that it was agreed that Mr Weinert would work 10 hours per week if work was available, noting that the COVID-19 Pandemic had some impact on the work available. I accept that Mr Bais raised his concerns that Mr Weinert was not making himself available for work. I have found that Mr Weinert did not appropriately respond to calls allocating work from Mr Bais and this conduct adversely impacted the Respondent’s allocation of work. In addition, it was a breach of a commitment made by Mr Weinert.

[50] I find that Mr Weinert’s conduct in failing to respond to calls allocating work was a valid reason for the dismissal.

[51] Whilst there was some evidence about Mr Weinert’s work performance, there is insufficient material before me to support a valid reason for dismissal on this ground.

Was the Applicant notified of the valid reason?

[52] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 29 and in explicit30 and plain and clear terms.31

[53] Mr Weinert was advised of his employer’s concerns that he was not making himself available for work prior to the dismissal.

[54] The circumstances of Mr Weinert not responding to Mr Bais’ telephone calls prevented Mr Weinert from being formally advised of the reason for the dismissal prior to it occurring.

[55] In all the circumstances, I find that the Applicant was not notified of the reason for his dismissal.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[56] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 32

[57] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 33 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.34

[58] The circumstances of Mr Weinert not responding to Mr Bais telephone calls prevented Mr Weinert from being formally provided with an opportunity to respond to the reason for the dismissal.

[59] Having regard to the matters referred to above, I find that the Applicant was not given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[60] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[61] In all the circumstances, 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, noting however, that no formal discussion took place.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[62] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[63] Having regard to the matters above, I find that the size of the Respondent’s enterprise was not likely to impact on the procedures followed in effecting the dismissal.

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?

[64] In all the circumstances, I find that the absence of dedicated human resource management specialists in the Respondent’s enterprise had an impact on the procedures followed in effecting the dismissal because of his unfamiliarity with disciplinary processes.

What other matters are relevant?

[65] Section 387(h) of the Act requires the Commission to take into account any other matters that the Commission considers relevant. I do not believe that Mr Weinert’s intellect or communication issues are at such a level to be relevant matters. There were no other relevant matters.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[66] I have made findings in relation to each matter specified in s.387 of the Act as are relevant.

[67] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable. 35

[68] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable. I am not persuaded that the impact of the procedural failures should render the dismissal harsh, unjust, or unreasonable.

Conclusion

[69] Not being satisfied that the dismissal was harsh, unjust, or unreasonable, I am not satisfied that the Applicant was unfairly dismissed. The Applicant’s application is therefore dismissed. An Order 36 reflecting this Decision will be issued.

COMMISSIONER

Appearances:

F Weinert on his own behalf.

L Bais on behalf of the Respondent.

Hearing details:

2020.
Adelaide:
December 16.

Printed by authority of the Commonwealth Government Printer

<PR726589>

 1   Exhibit A1

 2   Exhibit A2

 3   Exhibit A3

 4   Exhibit A4

 5   Exhibit A5

 6   Exhibit R1

 7   Exhibit R2

 8   Exhibit R3

 9   Exhibit R4

 10   Exhibit R5

 11   Exhibit R6

 12   See Exhibit R3

 13   A copy of a medical certificate to this effect dated 8 September 2020 was included in Exhibit A4

 14   Transcript PN500-506

 15   Transcript PN653-654

 16   Transcript PN680-686

 17   Transcript PN768

 18   Transcript PN557, PN770

 19   Transcript PN750-765

 20   Transcript PN1088-1091

 21   Transcript PN808

 22   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]

 23   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373

 24   Ibid

 25   Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685

 26   Edwards v Justice Giudice [1999] FCA 1836, [7]

 27   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]

 28   See PN236-247

 29   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151

 30   Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)

 31   Ibid

 32   Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75]

 33   RMIT v Asher (2010) 194 IR 1, 14-15

 34   Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7

 35   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]

 36   PR726590