James Francis Camenzuli v Companion Systems Pty Limited
[2024] FWC 489
•17 MAY 2024
| [2024] FWC 489 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
James Francis Camenzuli
v
Companion Systems Pty Limited
(U2023/5840)
| COMMISSIONER HUNT | BRISBANE, 17 MAY 2024 |
Application for an unfair dismissal remedy
On 30 June 2023, Mr James Francis Camenzuli made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed from Companion Systems Pty Limited (the Respondent), and that his dismissal was harsh, unjust or unreasonable.
On 14 August 2023, the Respondent filed a Form F3 Employer Response to the application. It did not raise a jurisdictional objection.
Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing on 19 October 2023. A second day was required on 2 November 2023. Mr Camenzuli was granted permission to be represented by Mr C Watters of counsel, instructed by Ms Rachel Davenport of Affinity Lawyers. The Respondent was granted permission to be represented by Ms Gemma Adams of GLR Law.
The following people gave evidence and were cross-examined:
· Mr Camenzuli;
· Mr Rod Killick, General Manager;
· Mr Terry Nay, Operations Manager; and
· Mr Gabriel Alkan, Principal Consultant of Specialist HR.
I granted leave for Mr Camenzuli and the Respondent to be represented on account of the complexity of the matter. I was satisfied that granting leave would assist with the efficiency of the matter being heard, and that it was sufficiently complex to warrant representation.
Relevant Legislation
Section 394 of the Act provides:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Further, ss.385 & 387 provides as follows:
“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.”
“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 dismissal of Mr Camenzuli canvasses, to some degree, a purported or potential redundancy. A person is not protected from unfair dismissal if the dismissal was a case of genuine redundancy. Genuine redundancy is defined under s.389 of the Act which provides as follows:
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
EVIDENCE AND SUBMISSIONS OF THE APPLICANT
Evidence of Mr Camenzuli
Mr Camenzuli commenced employment with the Respondent on 17 August 2009, initially engaged as IT Support and Customer Service. Near the end of his employment, Mr Camenzuli held the role of Platform Experience Manager. His salary was $127,323 plus superannuation.
Mr Camenzuli’s day-to-day tasks included, inter alia:
· Marketing and communications supervising;
· Issuing marketing material;
· Updating customer lists;
· Liaising with developers;
· Product development;
· Connecting with clients to provide assistance, and obtain feedback; and
· Conducting and participating in gap analysis meetings.
The Respondent sells software in the construction industry to allow clients to maximise their project management objectives. When he commenced working for the Respondent, the business was a small operation with only approximately three other employees. In the nearly 14 years he worked for the Respondent, he worked his way up from an introductory support role to a training and supervisory role, to a position in the management team towards the end of his employment.
Mr Camenzuli considered that he demonstrated a high calibre of skill which brought value to the Respondent. He was considered the face of the company to most of the Respondent’s client due to the face-to-face experience, training and selling products to clients over a significant number of years.
To the best of his knowledge, there are now around 25 to 30 full-time employees. There are no dedicated HR employees within the Respondent’s business.
Mr Camenzuli had a good record of employment with the Respondent and was at no time the subject of any warnings in relation to his employment.
The Respondent is owned by Mr Matthew Camenzuli who is the cousin of Mr James Camenzuli’s father. Accordingly, Mr Camenzuli and Mr Matthew Camenzuli are first cousins, once removed. In answering questions from me, Mr Camenzuli, the applicant, speculated that there had been a falling out between his father and Matthew regarding political matters, but he was not able to prove it.[1] Mr Camenzuli stated that Matthew’s views are anti-COVID, anti-lockdowns, and he disapproves of people working from home.
In December 2022, Mr Camenzuli and his wife relocated from Sydney to the Gold Coast with their young family. The move had been contemplated for around one year, and Mr Camenzuli had sought Mr Killick’s permission to be able to work from that location. He was told by Mr Killick that Matthew had approved the relocation, so long as Mr Camenzuli could attend the Parramatta office three to four times per year.
It is noted that Mr Matthew Camenzuli chose not to give evidence as to the reasons for the dismissal.
5 June 2023
On 5 June 2023, Mr Killick rang Mr Camenzuli and asked him to attend a meeting with Mr Alkan, the Respondent’s external HR Consultant on 7 June 2023. Mr Killick also sent the following email:
“Dear James,
As discussed, we are currently having one of our consultants reviewing business operations in light of current market trends and industry downturn.
The intension (sic) is to meet and consult staff to understand their role in the organisation.
For this reason, can you make yourself available at 12pm or 3pm this Wednesday at Zarraffa’s Coffee near your residential.
Please confirm your time preference back via email and I will pass on.
You will be meeting with Gabriel Ph [redacted]
Thanks
Rod”
It became clear in the hearing that Mr Alkan had drafted the email for Mr Killick to send to Mr Camenzuli, as Mr Alkan repeatedly misspelt the word ‘intention’ in his written correspondence.
7 June 2023
Mr Camenzuli attended the meeting with Mr Alkan on 7 June 2023 at a nearby coffee shop very close to his home. He and Mr Alkan had briefly worked on a recruitment project some years earlier, which Mr Camenzuli described as them not parting on good terms. In evidence, Mr Camenzuli stated that if he had known the meeting was planned to propose his position being made redundant, he would have liked his wife to have attended as his support person, and he would not have agreed to the meeting taking place at his local coffee shop.[2]
During the meeting, the following points, inter alia, were discussed:
· the Respondent was experiencing a downturn, and Mr Camenzuli’s job was at high risk;
· Mr Camenzuli was offered an additional $5,000 payment if he accepted a voluntary redundancy;
· he would be provided a Deed of Settlement and Release, which would need to be accepted by 9 June 2023;
· he was to return office property, including the laptop and mobile phone and the phone number (which he has been using in his personal capacity for at least 10 years);
· at the end of the meeting, he was provided the opportunity to either continue working or stop working and return home;
· he responded that he wished to continue working as he had a number of client matters on foot;
· he was asked to check his calendar to confirm his availability for a follow up meeting on 9 June 2023 at approximately 12:30pm; and
· while he checked his calendar on his phone to confirm he could attend the meeting with Mr Alkan, he noted that his access had been cut off. Mr Alkan said that is the process, so go home and clean the laptop and they would meet on 9 June 2023.
In oral evidence, Mr Camenzuli stated that he informed Mr Alkan that he’d be prepared to take a pay cut to stay with the business as he wanted to grow old with the company. Mr Alkan responded:[3]
“Look, you know, if you want to take a pay cut what would you consider a pay cut? What, five per cent? 10 per cent? 20 per cent? That’s not much of a pay cut. You’re a cost cutting exercise.”
Mr Camenzuli realised at that point that the Respondent wanted all of his wage gone. A break was called in the meeting where Mr Camenzuli contacted his wife and his father. Mr Alkan also made a phone call.
In oral evidence and in answering questions from me, Mr Camenzuli said that Mr Alkan stated that he should go buy a new phone and go home and clean off the laptop. That evening, he spoke with a friend who suggested he should buy an Aldi SIM card.
During the meeting, Mr Camenzuli considers that he was outspoken in respect of the company-issued mobile phone. He informed Mr Alkan that he would need more time than a day and a half to purchase a new phone and new SIM card. When Mr Camenzuli returned home to commence cleaning off the laptop, he discovered he had been locked out of the Respondent’s systems. He rang Mr Alkan who was surprised at this news.
At 4:15pm that afternoon, Mr Alkan sent the following email to Mr Camenzuli:
“Hi James,
As discussed in today’s meeting, please see attached.
Although you have agreed verbally today, if you still wish to proceed with the voluntary redundancy package kindly return the attached to me signed today and ensure the company items are handed over to me by Friday afternoon.
Note as an alternative to the above as relayed today, the company will consider your feedback and I will meet you at 12pm Friday 9 June 2023 at the same Café to discuss your possible options and the formal outcome in respect to possible redundancy of your role.
Regards,
Gabriel Alkan | Principal Consultant”
The attached was a document titled “Deed of Settlement and Release” dated 7 June 2023. It had been signed by Mr Killick, purportedly as a Deed and said to be signed pursuant to s.127 of the Corporations Act 2001. As it turns out, Mr Alkan had prepared the purported Deed and asked Mr Killick to execute it on 7 June 2023. Mr Killick is not a Director or Company Secretary of the Respondent and does not have capacity to execute a deed pursuant to s.127 of the Corporations Act 2001 unless the Respondent’s constitution otherwise permits that to occur.[4]
The purported Deed provided recitals, including, incorrectly that Mr Camenzuli and a company representative (consultant) met on 7 May (sic) 2023 to discuss the consultation process of Mr Camenzuli’s role being made redundant. The recitals note that Mr Camenzuli has voluntarily opted for his role to be made redundant.
The recitals further note company-issued property will be returned by Mr Camenzuli and states that he had agreed to return the company-issued laptop and phone.
The terms provide for the following payment within seven days of execution of the Deed in exchange for a mutual release of all claims:
· 12 weeks’ redundancy pay;
· 4 weeks’ pay in lieu of notice;
· $5,000; and
· all statutory entitlements.
The terms state the following:
“6.1 The Employee acknowledges that before signing this Deed, he has been advised by the Company that he should seek independent legal advice in relation to the terms of this Deed.”
He was also issued with an indicative payout figure if he were to be made redundant. The 12 weeks’ redundancy pay and 4 weeks’ notice was a value of around $39,000.
Mr Camenzuli noted that whilst the Deed provided that he could obtain independent legal advice, Mr Alkan’s correspondence sought the Deed to be signed and returned that day. It had been sent to him late in the afternoon. He was also expected to return company property by lunchtime, two days later. Mr Camenzuli considered this was not a reasonable amount of time.
On 7 June 2023 at 4:36pm, Mr Camenzuli sent the following text message to Mr Matthew Camenzuli:
“Hi Matt, I rung to discuss getting access to my laptop to remove all personal effects and applications – if you could give me a call to discuss that would be appreciated.”
Mr Camenzuli did not receive a return call or text response.
In oral evidence it became apparent that Mr Camenzuli spoke with Mr Killick on the telephone that evening. In Mr Killick’s oral evidence, he said that Mr Camenzuli wanted to discuss the issue and he replied that he was happy to discuss it with him ‘later’, but could he please go through Mr Alkan.[5] Mr Killick agreed that Mr Camenzuli did not call him again.
8 June 2023
On 8 June 2023, Mr Camenzuli went to JB Hi-Fi at 9:00am and purchased a new phone. He had not needed to buy a phone for himself in around a decade as he had been permitted to use the company-issued phone for personal use, including when travelling overseas. The cost of the phone was $750. He then purchased an Aldi SIM card. He then commenced ‘cutting-over’ which means to transfer contacts into the new phone, deal with two-factor authentications and letting contacts know of his new, personal mobile phone number.
He had to inform his children’s school and daycare of his new number. Mr Camenzuli lives in a gated community and access is by way of a resident’s phone number. If visitors wish to enter the gated community, a phone call is made to Mr Camenzuli’s telephone and that of his wife (he is not sure in which order). This all needed to be organised in order to be permitted into the community and to allow invited guests into the community.
On the morning of 8 June 2023, Mr Alkan sent Mr Camenzuli the following email, titled “Redundancy Consultation Meeting”:
“Dear James,
As discussed with you yesterday, the business is experiencing a downturn whilst also facing a troubling economy. As a result the business is forced to review operations.
The business is strongly considering a cost saving initiative involving the potential restructure of its operations. We are also exploring options pertaining to the breakdown of the various tasks performed and the redistribution of those tasks and duties amongst other existing roles within the team.
A preliminary decision has been reached by the business to action the cost saving initiative and therefore your employment with the business may be made redundant however a final decision has not yet been reached as the business has allowed for the consultation to take place yesterday, time to review your feedback before a final decision is made.
As discussed yesterday and further confirmed via email I will meet you tomorrow at 12pm (Friday 9 June 2023) at same Café. You are entitled to have a support person attend the meeting.
We take this opportunity to bring to your attention and remind you that the information which you have acquired, or to which you have had access during, or in the course of your employment is strictly confidential and must not be divulged in any manner whatsoever.
You have been privy to confidential and sensitive information whilst working in the Company, and the data that you have had access to should be treated with the highest confidentiality and not be breached in any manner whatsoever or used for personal gain outside of the Company without the explicit written permission of the Management.
Your employment sets out your employment obligations in relation to confidentiality, acknowledgements, inventions and non-competition.
Should your position be made redundant you must forthwith return to us any employer property in your possession including, office door pass, lift key [redacted], mobile phone & charger, laptop and dock [redacted], any local external hard drives or storage that contains information related to Companion Systems.
Considering our discussions to date I note you have indicated hesitation to return company property, specifically the laptop and mobile phone. Please note these are to be on your procession during the scheduled meeting tomorrow and ready to handover in the event your role is made redundant.
As discussed with you yesterday failure to handover these items if required by me tomorrow may warrant summary termination of employment. In the event you do not attend tomorrow’s meeting the decision will be emailed to you.
Mr Gabriel Alkan
HR Consultant
Acting for and on behalf of Companion Systems Pty Ltd”
Mr Camenzuli was surprised to read the email he had been sent, including the threat of summary termination of employment if he did not hand over company items by midday the following day, or attend the meeting. In oral evidence he stated the following:
Mr Camenzuli: And I rung him and said, ‘Mate, what’s going on?’ I said, ‘Everything’s just proceeding forward and like I only just received this yesterday afternoon.’ I was running around. I’ve just purchased all the phone and everything like that as you’ve suggested and I’ve still got to set it up, cut it over and deal with cutting over to this new phone.’
………………….
……that was where a lot of my time was chewed up. I rung Gabriel to tell him as such and that I wanted to sign the voluntary redundancy. I made – I stressed that several times to him. But in the deed it specifically said for me to seek legal advice. And I said I still hadn’t had a chance to ring around for any lawyers or anything like that. So I was basically – just sort of said, ‘Look, that’s the process. That’s the process effectively.’ So I ended up hanging up from that phone call. Kept setting up got the bulk of it, the phone set up and operational. You know enabling the SIM and all that sort of stuff. You know it’s now just after lunch and then I sort of stopped cutting over and then I actually started ringing lawyers to find anyone available to have a chat with.
Mr Camenzuli stated that he was able to obtain a 30-minute consultation with Mr Angus Gordon, Managing Director of Affinity Lawyers on 9 June 2023.
In oral evidence given during the hearing, Mr Camenzuli stated that Mr Matthew Camenzuli had travelled to the Gold Coast on 7 June 2023, and Mr Killick on 8 June 2023, as they had an important meeting with a client on 8 June 2023. They were approximately 15 minutes away from Mr Camenzuli. In answering questions from me, Mr Camenzuli gave the following evidence:[6]
Mr Camenzuli: ……if that was to happen I would have expected that Rod and Matt would have – you know – come and told me since they were already up here on the Thursday anyway. They were visiting a client.
Commissioner: Where? Sorry. Tell me more about that. On Thursday 10th – sorry, Thursday 8 June?
Mr Camenzuli: Yes, which was my birthday. Rod and Matt had flown up to see a client. I believe it was GemLife who are located 15 minutes down the road from me. You know? And that’s probably – you know – since they were already up here, rather than – you know – sending this third party person who we’d never used in this capacity before. We’ve only had one – I’ve only ever had one dealings with him just prior which was – let’s just say a very bad experience – and, you know, I would have expected that – you know – they could have – you know, since Matt was or probably – I think Matt flew up the day before. You know?
Commissioner: You think he flew up on the 7 June?
Mr Camenzuli: I believe so. He normally tends to fly the day before so there’s never any issues. Just to have the Sydney company – the company practise to say that he – you know – surprises with air lines and that sort of stuff. You know, then pulling me aside and telling me this. You know? So I could – you know – deal with them directly or hear it from them directly probably would have yielded much different results.
Commissioner: In somewhere other than a café?
Mr Camenzuli: Yes. That would have been nice. But look, I am work from home. So, the options would have been at my house. You know? Or somewhere else public. Like I don’t know where.
Commissioner: Or a serviced office?
Mr Camenzuli: Look, we - - -
Commissioner: They could have hired a service office and met with you privately, couldn’t they?
Mr Camenzuli: Look, they – honestly – yes, look they could have. I’m a very practical person. I probably wouldn’t waste the money on something like that myself. Right? But, look, there are a lot of different ways that it could have gone about. Let’s just put it down to that.
Mr Camenzuli stated that he tried to obtain an extension to returning the mobile phone by midday Friday, but Mr Alkan refused the extension.
Frustrated at dealing solely with Mr Alkan, a HR consultant, and having been refused an extension by Mr Alkan to return the telephone later than midday Friday, Mr Camenzuli sent the following email to Mr Matthew Camenzuli and Mr Killick at 6:00pm on 8 June 2023:
“Matt/Rod,
A Deed of Settlement and Release has been issued to my personal email at 4:15pm yesterday Wednesday 7 June 2023 following a meeting with Gabriel Alkan of Specialist recruitment yesterday at 12pm.
In the meeting Gabriel has advised me that he is authorised to act on behalf of Companion Systems.
In the meeting I was advised that my position with Companion Systems was at high risk of being made redundant and an offer was made for me to accept a voluntary redundancy package by COB or to meet on Friday 12pm to discuss the possibility of redeployment within the business. I was advised that this decision was made due to a downturn of business in the building industry and the current performance of the company. During the meeting no information was provided for the option of redeployment. Upon attempting to check my Calander during the meeting my access was already terminated and upon arriving home to log into my computer, my local computer access had already been terminated also.
After the meeting with Gabriel at 12pm. I have attempted to contact you both to request an extension of time to:
· consider my options;
· seek legal advice in accordance with Clause 6.1 of the Deed of Settlement and Release; and
· cut over all my banking access, property access (to get into my gated community) and other multifactored authenticated accounts linked to the phone.
Given my 14 Year long tenure with this company, I am taken aback to receive a phone call from Gabriel advising that no extension of time will be considered, that any further attempts by me to request an extension will be deemed harassment and will put at risk the settlement.
Can you confirm that everything above is correct and that no extension will be granted?
If the company wants the return of the hardware (excluding the phone) in the interim, it can be picked up from my home address at a mutually arranged time on [redacted].
Kind Regards,
James”
Neither Mr Matthew Camenzuli nor Mr Killick contacted Mr Camenzuli.
9 June 2023
Mr Camenzuli met with Mr Alkan at midday at the same café near his home. During this meeting, Mr Camenzuli was informed that there were no other opportunities for redeployment and he would be made redundant in the circumstance he returned all company property.
Mr Camenzuli provided the cleaned laptop to Mr Alkan. His evidence is that he had reset the laptop to factory settings as he did not want the Respondent to have access to any of his personal data which had been stored on the computer, including photos, bank details and other personal information. Mr Camenzuli knew that this method was safe and would not damage any intellectual property. The intellectual property on the laptop was stored remotely in OneDrive and accordingly, the Respondent was not at a loss when the laptop was reset. He had already been cut off from accessing material on the laptop – this occurred on 7 June 2023.
Mr Camenzuli has previously reset his laptops on two occasions when they had the ‘blue screen of death’. His evidence that it would take at most a couple of hours to set it back up. This is because all the technical and access configuration are stored on the server or in the Network Admin’s OneNote notebook.
He informed Mr Alkan that he needed more time to return the mobile phone.
Mr Alkan informed him that he had been dismissed.
Later that afternoon, Mr Alkan sent correspondence to Mr Camenzuli by way of email entitled “Separation of Employment”. The correspondence is extracted in full below:
“Dear James,
This letter is provided to you in addition to the redundancy consultation meeting held with you on the 7 June 2023 and subsequent consultation letter emailed to you on 8 June 2023.
As expressed previously, the business is experiencing a downturn. As a result the business is forced to review business operations and costs. Please note this decision is not a reflection of your performance.
The business notified you on 5 June 2023 that a meeting would take place on 7 June 2023.
On 7 June 2023 I made clear in our meeting that your position was at risk of being made redundant and that a final decision would take place on 9 June 2023.
I note that during our consultation process you did request the business create a new role for you, unfortunately this suggestion was not accepted by management. In addition a list of alternative roles could not be provided to you as the business was not recruiting given the circumstances stated above.
As per my letter to you on 8 June 2023 I wrote about your reluctance to return company items, specifically the laptop and mobile phone. I also stressed your employee obligations.
During the meeting held on 9 June 2023, you were advised that after consultation, consideration of your feedback and redeployment, unfortunately there were no alternative roles that we could offer you.
During our meeting today 9 June 2023 you refused to hand over the company mobile phone. I informed you to reconsider as the potential consequence could result in summary dismissal. After a short break you decided to not hand over your mobile phone.
Please note that due to your actions we now reserve the right to reclassify or relabel the separation of employment. After speaking with management we have decided to consider the following:
- assessing the employment separation terms/reclassification of termination
- provide you until COB 14 June 2023 to have the company mobile phone returned to the Parramatta Office (note if you decide to take up this offer kindly email me back the express post tracking number)
- refer this matter to the police in respect to company property theft
- readjust your payout amount in line with separation terms/classification
Moving forward I will now handover to management all the other company items you returned to me to ensure no misuse is identified.
To be clear, had all company items been returned and handed over to me, the intension (sic) of today’s meeting was to continue with the redundancy process and classify the separation of employment and your role as redundant. This being said we now as mentioned above reserve our right to reclassify or relabel the separation of employment. We intend to inform you of the final label/classification no later than 16 June 2023.
If you have any question in regards to this letter you can contact me directly on my mobile.
Once again we remind you of your post-employment restrictions as made clear to you verbally and in writing.
Finally we thank you for your valuable contribution during your employment with us.
Mr Gabriel Alkan
HR Consultant
Acting for and on behalf of Companion Systems Pty Ltd”
At 10:41pm that evening, Mr Camenzuli sent the following email to Mr Mathew Camenzuli and Mr Killick:
“Matt/Rod,
I have met with Gabriel Alkan of Specialist Recruitment today at 12pm as instructed.
Following on from our meeting today, I have received the Separation of Employment letter via email this afternoon. The letter advises that the business had notified me on Monday 5th of June 2023 that a meeting would take place on Wednesday 7th June 2023. I would like to make it clear that I was not made aware of the real intention of the meeting until it took place on the 7th of June.
In the Separation of Employment letter, it is stated that I requested that the business create a new role for me, this is factually incorrect. I was informed that the business was considered how it could redeploy me (in line with the best practices) and I was asked for my thoughts and feedback.
The letter also states I was relucent to hand over company items and I refused to hand over my mobile phone. For sake of clarity, I expressed intentions to return all items to the company, I simply requested more than the 24hrs that was given to me. I note that the phone service has been terminated, this was brought to my attention this afternoon when I returned home and I was unable to enter through the gate of my complex.
My understanding of the Separation of Employment letter is that:
· I have not been made redundant today;
· I have not been terminated today; and
· that you are currently considering whether you will provide an extension of time to COB 14th of June to return the phone
On the later point please advise by COB Monday 12th June if the company has considered and agreed to allow me to return the phone by COB 14th of June, so I can send this via registered post as requested on Tuesday morning. However, please note that this will be at your own risk, if you wish to arrange other more secure means of transport, please advise by COB Monday 12th June.
During this whole process I have offered the desire to negotiate and to request a short extension to handing over the phone. I offered to make myself available to the business, though these claimed difficult times to further assist the business, as required and at no additional/reoccurring cost. Understand that a lot of intellectual property is tied up inside me due to my longevity of employment, the variety of roles and projects that I had held / been involved with. Gabriel again advised me he is acting on direct orders from the business and claimed that there was no negotiation and no extension allowed.
Please be advised all requested company items have been returned to Gabriel in working order. Gabriel has confirmed in our meeting today that he was satisfied with what has been provided to him today with the exception of the mobile phone.
On a final note, it is disappointing that Companion Systems would treat a valuable and performing employee in such a distressing way as this. Where this employee has not only been there from such an early moment in the company’s history but who has gone above and beyond for the business time and time again. After 14 years of loyal and valued service, I am not afforded any opportunity of a farewell, not offered any thanks or gratitude from the business and no opportunity to say my farewells.
Kind Regards,
James”
Mr Camenzuli did not receive a response from Mr Matthew Camenzuli or Mr Killick.
12 June 2023
On 12 June 2023, Mr Camenzuli attempted to call Mr Nay through Facebook Messenger. He then sent him the following message:
“Hi Terry, let me know when is a good time to give you a buzz on messenger?”
Mr Nay agreed to a call. They spoke for 12 minutes. During this call, Mr Camenzuli informed Mr Nay that the company laptop has been reset and said words to the effect of:
“I know that when an employee’s leaves, you are required to look through the device … When you log into the device, you will have unrestricted access to my Google Drive’s which contains all my personal and sensitive information as well as my logged in browser account which contains all my passwords.”
13 June 2023
On 13 June 2023, Mr Camenzuli sent the following message to Mr Nay:
“Hi Terry,
The files that I’m after from my OneDrive are;
In “James Work” I have the following:
*Personal Development (has all the notes and things we went through)
* 1-1 James Camenzuli
* Agile (I believe this has my notes on Agile processes0
In the main level of my OneDrive:
*Photography course notes (OneNote)*Please delete “zHome Backup” (this is my home nas that I had backed up to OneDrive – 175gb)
Mr Nay responded:
“I can’t action this yet. I am under strict instructions not to do anything without Matt’s approval. You need to request anything like this through Matt or Gabriel.”
14 June 2023
At 12:56pm on 14 June 2023, Mr Camenzuli went to an Australia Post outlet with his wife and sent by registered post the mobile phone to the Respondent’s Parramatta office. At 7:13pm that night he sent the following email to Mr Matthew Camenzuli and Mr Killick, attaching the Australia Post receipt and tracking number:
“Matt/Rod,
I never heard back about anything stated in my below correspondence, including about if you wanted to arrange any other more secure means of transporting the mobile back to the office.
I have posted the mobile phone via registered post today. Please find attached a copy of the Australia Post receipt with the tracking number.
Kind Regards,
James”
15 June 2023
On 15 June 2023, at 10:43am, Mr Alkan sent the following letter to Mr Camenzuli by way of email, titled “Separation of Employment by way of Summary Dismissal”:
“Dear James,
I wrote to you on the 9 June 2023 detailing the separation of employment.
As per my letter to you on 8 June 2023 I wrote about your reluctance to return company items, specifically the laptop and mobile phone. I also stressed your employee obligations.
During our meeting today 9 June 2023 you refused to hand over the company mobile phone. I informed you to reconsider as the potential consequence could result in summary dismissal. After a short break you decided to not hand over your mobile phone.In my letter to you on 9 June 2023 I explained that the company reserves it’s the right to reclassify or relabel the separation of employment. I also listed the four considerations management would be making as per the below:
- assessing the employment separation terms/reclassification of termination
- provide you until COB 14 June 2023 to have the company mobile phone returned to the Parramatta Office (note if you decide to take up this offer kindly email me back the express post tracking number)
- refer this matter to the police in respect to company property theft
- readjust your payout amount in line with separation terms/classification
Unfortunately we did not receive the company mobile phone back at the Parramatta office by COB 14 June 2023, in addition you did not provide a tracking number as requested. I note you have emailed Rod and Matt after COB 14 June 2023 indicating a tracking number attached however that has come up as malware.
Please note on 14 June 2023 I handed over all company items to management. Upon a desktop assessment it was identified that you have reset the laptop and erased all company intellectual property. In addition management was informed by Terry that you contacted him on 12 June 2023 explaining that you have reset the laptop. You also wrote to Terry via Facebook requesting certain material.
I now write to you informing you of management decision to label the separation of employment conducted on 9 June 2023 as summary dismissal based on your serious misconduct highlighted above.
You will be paid out all statutory entitlements which includes annual leave and long service leave.
As I have made clear to you management have requested that I manage all correspondence with you in respect to this matter, as such if you have any questions in regards to this letter or previous letters you can contact me directly on my mobile.
Considering you have breached your employment and post-employment restrictions we reserve our right to have this matter referred to our legal team for further action and if necessary the police.
Mr Gabriel Alkan
HR Consultant
Acting for and on behalf of Companion Systems Pty Ltd”
Mitigation
Mr Camenzuli commenced new employment on 28 August 2023. His salary is $105,000 excluding superannuation.
On 28 September 2023, he was approached by the HR Manager of his new employer. The HR Manager informed him that she had received a telephone call from Ms Megan Macallister of Specialist HR. Ms Macallister wanted to know the HR contact, their contact details, asked for confirmation of Mr Camenzuli’s employment status and salary, and declared that Mr Camenzuli had given permission for Specialist HR to request this information of his new employer.
Mr Camenzuli noted that the HR Manager asked him:
· Who is Megan Macallister?
· What is Specialist HR?
· Why are they asking for confirmation of your employment status and salary?
· Did you provide consent for Specialist HR to contact our office to request confirmation about your employment status and salary?
Mr Camenzuli responded:
“Specialist HR represent my previous employer in a Fair Work matter.
I did not give them any permission to involve my new job in any of this. I have been very intentional in keeping my new life completely separate (even avoiding providing my new number) from anything to do with this matter.”
At 11:54am that day, the HR Manager received the following email from Ms Macallister:
“Hello [name],
I write on behalf of Specialist HR, based in Sydney, and I am seeking to confirm some details for James Camenzuli who has given his permission for us to contact you.
Specifically, would you please confirm the following:
1. Title of position that James currently holds with [company].
2. The date that he commenced employment with [company].
3. James’ current salary.
4. Please specify whether the salary is a base salary or a salary package.
Thank you so much and I appreciate your prompt response.”
Mr Camenzuli was upset by the actions of Specialist HR in contacting his new employer and falsely claiming that it was with his permission. He had only been with his new employer for one month, was within his probationary period and had to reveal this litigation.
After hearing from Mr Alkan during the hearing, I directed the Respondent to produce evidence of correspondence between Mr Alkan and Ms Macallister. The material demonstrates the following.
Ms Macallister has her own HR consulting business in Cairns. On 25 September 2023, Mr Alkan sent Ms Macallister the following email:
“Hi Megan,
It’s me again!
Could I outsource a reference check to you?
Below are details:
Employee name: James Camenzuli
Position: ANZ Key account manager
Company: [name]I would like position, start date with company and current salary confirmed through their HR department.”
On 27 September 2023, Ms Macallister acknowledged the email, apologised there had been a power outage and asked if that was all of the information Mr Alkan wanted. He replied:
“Hi Megan,
Not a problem. Yes just a basic reference for this one.”
On 28 September 2023, Ms Macallister emailed Mr Alkan:
“Hi Gabriel,
Just updating you. The HR department is proving tricky to get through to. After leaving several messages, I have been given an email address to send the request to. I am hoping to receive a response today.”
At 1:39pm that day, and despite falsely having informed the HR Manager that she had Mr Camenzuli’s permission to contact his new employer, Ms Macallister sent the following email to Mr Alkan:
“Hi again,
They want James’ approval in writing to disclose confidential information. Do you have that please?”
Mr Alkan responded:
“Hi Megan
I don’t have that.
It appears they aren’t making it easy, let’s just leave it for now.
Feel free to charge me for your time.”
Mr Camenzuli’s submissions
Mr Camenzuli submitted that the dismissal was an unfair dismissal pursuant to s.385(b) of the Act in that the dismissal was harsh, unjust and/or unreasonable, taking into account the considerations under s.387 of the Act.
The Respondent terminated Mr Camenzuli for purported serious misconduct because it alleges that:
“…the Applicant’s actions in relation to the company laptop and smartphone is self-evidently a wilful and deliberate theft which posed a serious threat to the reputation, viability or profitability of the Respondent’s business, and indeed to continuation of the employment”.
Mr Camenzuli submitted that the Respondent did not provide a lawful and reasonable direction regarding the return of the company property in that the Respondent did not afford him reasonable time to remove his personal information and property from the devices.
Mr Camenzuli noted that an employer must have a valid reason for dismissing an employee, related to the employee’s capacity or conduct. A valid reason is one which is:
“…sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of 170DE(1) [now 387(a)].”[7]
The Briginshaw principle has established, inter alia, that findings of serious misconduct require stronger evidence, and that “…inexact proofs, indefinite testimony, or indirect references…” are insufficient to reach such a conclusion.[8]
An employee dismissed for alleged unsatisfactory performance must be given a warning and it is not a warning at law unless it satisfies the following:
“… The purpose of a warning about unsatisfactory performance must be to identify the performance that is of concern and must make it clear that a failure to heed the warning places the Applicant’s employment at risk. Such a warning gives an employee an opportunity to improve in those areas identified as requiring improvement. An integral part of such a warning must be to clearly identify the areas of deficiency, the assistance or training that might be provided, the standards required and a reasonable timeframe within which the employee is required to meet such standards.”[9]
Mr Camenzuli submitted, in respect to the considerations under s.387 of the Act, as follows:
· on the basis of the factual matrix, there was no valid reason for his summary dismissal;
· he was not notified of a valid reason because there was no valid reason;
· he was not provided with any proper opportunity to respond;
· section 387(d) was circumvented by the Respondent and denied to him;
· at the time of the dismissal, there was no lawful or reasonable warning about unsatisfactory performance, nor was there any warning that complied with the test set out above in McCarron v Commercial Facilities Management Pty Ltd T/A CFM Air Conditioning Pty Ltd [2013] FWC 3034;
· the Respondent was large enough to engage specialist HR representatives and accordingly, there is no reason that the Respondent should have contravened the unfair dismissal protections; and
· section 387(g) of the Act is not applicable as this is a large company that engaged a HR representative.
It was submitted that the conduct of the Respondent is such that it is self-evident that it had falsely contrived a manner of making Mr Camenzuli redundant, and thereafter opportunistically summarily terminated his employment. Mr Camenzuli does not believe that the summary dismissal was warranted in the circumstances where he had demonstrated repeated attempts to return the mobile phone and laptop upon extraction of his own personal data.
Further, Mr Camenzuli maintained his belief that the demands made by the Respondent were an outrageous affront and were a disgraceful and opportunistic attempt to avoid paying redundancy payout and his termination entitlements.
Sham Redundancy
Mr Camenzuli takes issue with the Respondent’s submissions in respect of the redundancy consideration on the basis that the Respondent has not provided any evidence:
· of its claims that it had been affected by “economic headwinds and market conditions which were beginning to affect the commercial viability of the business”;
· that it conducted an operational review or plans for a restructure aside from the mere conjecture that such a review had occurred;
· that it “immediately” consulted with Mr Camenzuli upon the occurrence of some purported operational review; and
· that it properly considered redeploying Mr Camenzuli within the company.
In Harby, Beaumont DP expressed the following relevant principles in respect of the Respondent’s obligations:
“WA Shed Commercial bears the onus of providing on the balance of probabilities that the redundancy was due to changes in operational requirements. If it is wrong to describe there being an onus of proof on WA Shed Commercial, which I do not consider to be the case, it remains that there must, in any event, be material before me which satisfies me that there were genuine operational reasons for WA Shed Commercial no longer requiring Mr Harby’s job to be performed by anyone.
While the redundancy letter of 1 July 2019 speaks of the ‘[C]ompany’s decision to restructure its operations’ to ‘ensure the future success of the business,’ there is no other evidence before me apart from the assertion in the letter.
It is unnecessary to labour the point further. WA Shed Commercial has not presented any documentary or other evidence to this Commission in response to Mr Harby’s application. In these circumstances, the only conclusion open to me is that Mr Harby’s dismissal was not a case of genuine redundancy. Therefore, I turn to consider whether his dismissal was unfair.”
On the above basis, it is submitted that the Respondent’s submissions fail to prove on the balance of probabilities that the redundancy was genuine in the absence of evidence to prove that Mr Camenzuli’s job was made redundant.
In Robert Walker McInnes v WGC Crane Group Pty Ltd [2023] FWC 2062, it was expressed at [45] that:
“…There must be an appropriate evidentiary basis for the Commission’s findings and the relevant facts are usually peculiarly within the knowledge of the employer respondent rather than the dismissed employee…”
To this end, it is submitted that the Respondent has failed to demonstrate in any evidentiary or substantive capacity that Mr Camenzuli’s job was no longer required to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.
Mr Camenzuli argued that the case of Bizzaca v Westelect Services Pty Ltd T/A Westelect Services [2018] FWC 4842 assists with defining the standard of change to operational requirements which is necessary to establish that a job is no longer required within a workplace. In Bizzaca, the Explanatory Memorandum of the Fair Work Bill 2008 was also relied upon to provide examples of a downturn in trade:
“To be satisfied the dismissal was a case of genuine redundancy, the Commission must be satisfied the role was no longer required to be performed by anyone in the business because of operational requirements.
The Act does not define the term ‘operational requirements’. It is a broad term that permits consideration of many matters including the state of the market in which the business operates and the application of good management to the business. Further examples include a downturn in trade that reduces the number of employees required, and the employer restructuring the business to improve efficiency, including the redistribution of tasks done by a particular person between several other employees resulting in the person’s job no longer existing.”
Moreover, Beaumont DP in Bizzaca refers to the case in Kekeris v A. Hartrodt Australia Pty Ltd T/A A. Hartrodt[2010] FWA 674, which outlines the test to be followed:
“…The test is not however whether the duties survive. Paragraph 1548 of the Explanatory Memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of the previous job persist but are redistributed to other positions. The test is whether the job performed by the applicant still exists”.
The case of Ulan Coal Mines Ltd v Howarth [2010] FWAFB 3488 was also referred to in Bizzaca, to affirm the test that “it should be noted it is the ‘job’ that is no longer required to be performed, rather than the ‘duties’.”
Mr Camenzuli further cites the case of Mohanan v China Southern Airlines Limited [2015] FWC 6421, where Sams DP provides:
“…possible examples of a change in the operational requirements of an enterprise:
· a machine is now available to do the job performed by the employee;
· the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or
· the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.”
With respect to an obligation to consult, Mr Camenzuli submitted that the Business Equipment Award 2020 (the BE Award) was applicable to his position based on the duties described in Schedule A of the BE Award being consistent with the duties performed by him, including:
“• manage personal work priorities and professional development;
· provide leadership in the workplace;
· establish effective workplace relationships;
· facilitate work teams;
· manage operational plans;
· manage workplace information systems;
· manage quality customer service;
· ensure a safe workplace;
· promote continuous improvement;
· facilitate and capitalise on change and innovation;
· develop a workplace learning environment;
· manage the establishment and maintenance of a workgroup network;
· manage meetings;
· plan or review administration systems; and
· manage business document design and development.”
The BE Award’s consultation process for major workplace change is outlined under clause 29, which is produced below:
“29. Consultation about major workplace change
29.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i)the introduction of the changes; and
(ii)their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and
(c) commence discussions as soon as practicable after a definite decision has been made.
29.2 For the purposes of the discussion under clause 29.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
29.3 Clause 29.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
29.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 29.1(b).
29.5 In clause 29 significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
29.6 Where this award makes provision for alteration of any of the matters defined at clause 29.5, such alteration is taken not to have significant effect.”
In the alternative, Mr Camenzuli submitted that the Clerks Private Sector Award 2020 (the Clerks Award) is applicable based on the duties described in Schedule A of the Clerks Award being consistent with the duties performed by him:
“• providing specialised advice and information on the organisation’s products and services;
· responding to clients, the public or suppliers’ problems within own functional area utilising a high degree of interpersonal skills;
· applying computer software in order to:
(i) create new files and records;
(ii) maintain computer based records management systems;
(iii) identify and extract information from internal and external sources; or
(iv) use advanced word processing or keyboard functions;
· applying specialist terminology and processes in professional offices;
· exercise some discretion and judgement in the selection of equipment, services or contingency measures;
· work within known time constraints;
· provide multiple specialised services to customers (including complex sales, service advice for a range of products or services, and difficult complaint and fault inquiries); and
· exercise a limited amount of leadership over less experienced employees.”
Clause 38 of the Clerks Award provides the consultation process in respect to major workplace change:
“38. Consultation about major workplace change
38.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and
(c) commence discussions as soon as practicable after a definite decision has been made.
38.2 For the purposes of the discussion under clause 38.1(b) , the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
38.3 Clause 38.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
38.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 38.1(b).
38.5 In clause 38 significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
38.6 Where this award makes provision for alteration of any of the matters defined at clause 38.5, such alteration is taken not to have significant effect.”
In Piper v Pacific Coast Contractors Pty Ltd T/A Hope Estate Wine Group [2014] FWC 2891, Mr Camenzuli noted the Commission examined the consultation provisions of the applicant’s relevant award and found:
“It was not sufficient for an employer to simply inform an employee of its decision; there must be a genuine discussion directly with the employee, with particular reference to the nature of the changes, its expected effects and how any adverse impacts on an employee, could be mitigated.”
Further, in the 2001 decision of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodaphone Network Pty Ltd, PR911257, it was demonstrated that:
“Consultation is not perfunctory advice on what is about to happen, consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision marker.”
Mr Camenzuli also made reference to the Full Bench decision in Consultation Clause in Modern Awards [2013] FWCFB 10165, where the Full Bench provided guidance on the meaning of the word “consult”:
“The word ‘consult’ means more than the mere exchange of information. As Young J said in Dixon v Roy: ‘the word “consult” means more than one party telling another party what it is that he or she is going to do. The word involves at the very least the giving of information by one party, the response to that information by the other party, and the consideration by the first party of that response.”
Mr Camenzuli submitted that there is a required standard to be met in respect of consultation and the Respondent failed to meet those standards in the circumstances where Mr Camenzuli offered to accept a pay cut or be redeployed.
The kind of topics which should be addressed in consultation was outlined in the decision of Snooks v Blake’s Feast [2023] FWC 113:
“Consultation should include:
(a)business structure;
(b)the number of employees in senior leadership positions;
(c)roles required;
(d)tasks to be undertaken;
(e)client books for the next 5 months; and
(f)forecast revenue over the next 5 months.”
It was submitted that the Respondent had failed to consult with Mr Camenzuli in accordance with the relevant Award and had failed to consult in general to the required standard.
Mr Camenzuli submitted the Respondent had targeted him as he was the only employee whose position was allegedly redundant. The Respondent has demonstrated that it did not properly consult with Mr Camenzuli on the basis that there have been other employees hired to work for the Respondent in the few months since Mr Camenzuli’s employment was terminated.
With respect to redeployment opportunities, it was submitted that the Respondent did not properly consider his offer for a pay decrease or to be redeployed within the company.
Unreasonable directions and summary dismissal
Mr Camenzuli submitted that he did not refuse to return the devices but was rightfully requesting reasonable time to be able to extract his own data, purchase a new phone and SIM plan, and reconfigure the programming of the new phone to gain access to his home in a gated community. In light of the above, the logical finding is that there would be an intermixing of data on the devices between Mr Camenzuli’s information and the company’s information including that there was a combination of personal and professional contacts stored on the phone and SIM card.
Mr Camenzuli submitted it is reasonable to expect that the above steps would take time to implement and that the Respondent’s deadlines were not reasonable in the following circumstances:
· he was directed not to work and therefore was cut off from his access to the devices to remove his data;
· he had to take time to purchase new devices;
· he was contemporaneously attempting to seek legal advice; and
· he was in shock and upset by the sudden behaviours and attitude of the Respondent after his 14-year employment.
Closing submissions
In written closing submissions, it was noted that in evidence given to the Commission, Mr Alkan stated that the dismissal took effect on 9 June 2023 and it was a summary dismissal, yet Mr Killick gave evidence that he was made redundant on 9 June 2023 which was converted to a summary dismissal on 15 June 2023.
Mr Camenzuli noted that the Respondent had assumed that he had sent malware by email to the Respondent on 14 June 2023, when in fact he had supplied the Australia Post tracking number of the mobile phone he had posted, as requested.
Mr Camenzuli further noted that in oral evidence it was revealed that both Mr Matthew Camenzuli and Mr Killick were on the Gold Coast, approximately 15 minutes away from Mr Camenzuli’s home on 8 June 2023, during the same time that they were refusing to communicate with Mr Camenzuli about his departure from the Respondent after 14 years of dedicated service.
It was submitted that Mr Matthew Camenzuli’s failure to give evidence in these proceedings amounts to a failure of the Respondent to call a material witness, and the Commission is entitled to draw an adverse inference from the failure to call Mr Matthew Camenzuli as set down in the High Court decision in Jones v Dunkel.[10]
Mr Camenzuli argued that much of the failed redundancy negotiations and consequent unfair dismissal occurred because of the conduct of Mr Alkan. Among other reasons, this is because Mr Alkan gave advice to the Respondent about the meeting with Mr Camenzuli in a coffee shop to inform him about a pending redundancy. Further, Mr Alkan refused to grant an extension for Mr Camenzuli to seek legal advice concerning execution of the Deed and/or extension to allow Mr Camenzuli time to purchase and transfer data to a new mobile phone from his work mobile phone.
Mr Alkan gave evidence that Mr Camenzuli was dismissed on 9 June 2023 for not returning his company phone, even though Mr Killick authorised an extension of time to return the phone until 14 June 2023. Under cross-examination, Mr Alkan described Mr Camenzuli’s behaviour on 7 and 9 June 2023, whilst discussing the potential redundancy, as hostile. That evidence does not appear in Mr Alkan’s statement, nor in the Respondent’s submissions, nor was it put to Mr Camenzuli during cross-examination by the Respondent’s representative. Accordingly, it is submitted that Mr Camenzuli was deprived of an opportunity to respond to the claim that he displayed ‘hostility’ and contrary to the rule in Browne v Dunn (1893) 6 R 67 at 70.
Mr Alkan gave further evidence that:
“…the employee spent all of the 8th trying to break into his laptop that had been suspended, suspended his access, why he would spend all the 8th clearing the laptop rather than genuinely work on trying to transfer contacts and any (indistinct) authentications from his company mobile phone to another mobile phone.”
Mr Camenzuli submitted that such evidence is completely contrary to the Respondent’s own and privately engaged IT expert who provided a written report that Mr Camenzuli spent a total of 41 minutes between 11:39am and 12:20pm on the laptop on 8 June 2023 - not the whole day.
In closing submissions, Mr Camenzuli was critical of Mr Alkan’s evidence to the Commission and his conduct in instructing Ms Macallister to make enquiries with his new employer under the guise of a reference check. He submitted that Mr Alkan acted dishonestly and vexatiously, a matter relevant to costs in litigation of this type.
Remedy
Mr Camenzuli asserted that the evidence adduced during the hearing shows that but for the Respondent unfairly dismissing him, Mr Camenzuli would have agreed to, signed, and been paid a voluntary redundancy amounting to 12 weeks salary (tax free), 4 weeks (taxed) and $5,000.00 voluntary redundancy incentive.
That did not occur, and accordingly, Mr Camenzuli submitted that given 14 years of service as an exemplary employee, and having established that he was unfairly dismissed, he is entitled to the statutory maximum cap of 26 weeks salary calculated to be: $63,661.52 gross plus superannuation of $6,360.60 (total $70,022.12).
EVIDENCE AND SUBMISSIONS OF THE RESPONDENT
Evidence of Mr Rod Killick
Mr Killick is the General Manager of the Respondent and was directly involved in the processes surrounding the termination of Mr Camenzuli.
Mr Killick stated while the Respondent’s business had been operating for some time, the housing industry sector has been facing considerable economic headwinds and market conditions. This has caused businesses across the sector to re-evaluate their business models, to rationalise their business operations, and to cut overheads where possible. The Respondent’s business is no different in this regard.
The Respondent conducted an operational review at the start of June 2023, and concluded Mr Camenzuli’s position was potentially redundant. The Respondent did not proceed with redundancy immediately, and instead sought to handle Mr Camenzuli with care, both to see if there were any other options available, and otherwise to see what Mr Camenzuli’s views would be prior to taking any conclusive action.
The Respondent instructed Mr Gabriel Alkan of Specialist HR as the Respondent’s HR/IR Consultant to commence consultation with Mr Camenzuli. Mr Killick stated the Respondent remained informed of the ongoing events by way of Mr Alkan’s updates, and at all times the Respondent duly considered all material being provided before instructing Mr Alkan on what steps to take next.
Mr Killick noted in the Respondent’s field, the Respondent largely operates upon the value of its services and intellectual property. The Respondent therefore expressed to Mr Alkan the extremely important need to secure, and otherwise control the flow of and access to sensitive and propriety company information and systems.
Mr Killick considered one of the most dangerous threats in such circumstances to be a disgruntled employee (especially one as senior as Mr Camenzuli) destroying or leaking such propriety data. He considered such an event could constitute a security and privacy breach, which could become an existential threat to the company.
He considered such events not uncommon in the field, and so the Respondent had an obligation to take steps to avoid such a threat. In the Respondent’s field, the simplest way to ensure this is to lock down system access to the given employee and to give them paid leave during the consultation process. System integrity is therefore ensured, and access can therefore be restored or removed completely depending on the outcome. Mr Killick noted that securing the system in this way is in no way a final decision and can be reversed if the employee is to be retained after consultation.
Mr Killick was not present, but he was informed by Mr Alkan that when he met with Mr Camenzuli on 7 June 2023, Mr Camenzuli broadly did not react positively. Mr Killick considered that while this is perhaps to be expected given the difficult news being given, Mr Camenzuli was allegedly particularly outspoken in expressing his views on the matter surrounding his ongoing use of the company devices for personal use.
As part of this process, the Respondent authorised Mr Alkan to enter negotiations over terms of a potential voluntary redundancy package. Draft terms of this package were reviewed and executed by Mr Killick himself, to be presented to Mr Camenzuli for his consideration.
As was discovered during the hearing of this matter, and the later production of documents at my request, Mr Alkan sent the prepared deed to Mr Killick at 3:51pm on 7 June 2023. Mr Killick signed and returned it to Mr Alkan at 4:12pm and requested Mr Alkan inform him when the deed had been signed by Mr Camenzuli.
Over the following days, Mr Killick was kept abreast of developments, including the various correspondence. Mr Killick considered it was important to the Respondent, and indeed in line with Mr Alkan’s advice, that the Respondent ensure that all communication was made in an orderly and structured manner and in writing, for the protection of all parties including Mr Camenzuli.
During the hearing it became evident that Mr Killick had spoken with Mr Camenzuli on the phone on the evening of 7 June 2023. In cross-examination, Mr Killick stated that he would have been ‘happy’ to discuss with Mr Camenzuli issues ‘later’. I then had the following dialogue with Mr Killick:
Commissioner: Mr Killick, your evidence, earlier, was that you also said to him, on that night, ‘I’m happy to discuss with you later’?
Mr Killick:Yes, well, James is wanting to go into all sorts of other events, right, that are possibly outside this matter, right, that I’m not in a position for him to make - what was coming out of his mouth was not a matter for me to be discussing at that particular time. I had to be able to close that phone call off.
Commissioner: When could he discuss with you later, he’s dismissed by Friday, isn’t he, and you won’t answer his emails?
Mr Killick: No, I clearly said to him we would answer through Mr Alkan.
Commissioner: This is your evidence that you gave earlier, I wrote it down, you said, ‘I’m happy to discuss with you later’?
Mr Killick:Yes, not - there was a lot in that - there was a lot in that phone - - -
Commissioner: Okay. Was it meant to mean only through a third party but not through you again?
Mr Killick:He was wanting to - look, James was very upset at the time of - - -
Commissioner: I’m just interested in your statement to him?
Mr Killick:Yes, my statement to him was, could we please communicate through Mr Alkan, and I will communicate - - -
Commissioner: But you also said, ‘I’m happy to discuss with you later’. Were you?
Mr Killick:If he wanted to discuss something personal with me later, that was that - that’s what that was about.
Commissioner: What’s more personal that, ‘I’ve lost my job. I’m about to lose my job’?
Mr Killick:He may want to be able to speak to me in relation to a reference. Many times I’ve had staff, people that are made redundant, that I’ve been a reference for.
Commissioner: Okay, so after he’s dismissed, is that what he is meant to conclude from that statement? So you weren’t happy to - - -?
Mr Killick:No, through this process, through this process. Through this process.
Commissioner: But you were saying that he’s harassing Mr Matthew Camenzuli, because he’s calling him. So he’s not allowed to call you, is he?
Mr Killick: I answered his call - - -
Commissioner: Yes, but any more - - -? ‑
Mr Killick: - - - to help - yes, I answered his call and asked, if it’s in relation to this matter could it go through Mr Alkan.
Commissioner: Yes. But if your evidence to the Commission earlier is, ‘I’m happy to discuss with you later’, you didn’t want to have any oral discussions with him later, did you?
Mr Killick: In relation to this matter, I wanted it to all go through Mr Alkan.
Mr Killick’s evidence is that the Respondent did not appreciate Mr Camenzuli seeking to regularly ignore the Respondent and Mr Alkan’s instructions to the point of emailing the Respondent ‘day and night with his various concerns.’ When the Respondent received correspondence from Mr Camenzuli, it would be forwarded to Mr Alkan and he was instructed to inform Mr Camenzuli to only go through him.
Mr Killick considered that Mr Camenzuli involving several senior managers in the process (and leaving Mr Alkan out) had the potential to cause miscommunication and misunderstandings and may have led the Respondent to give incorrect advice. Mr Killick considered that the Respondent was always acting to ensure communications was confined to ensure proper and clear understanding.
During the hearing it became evident that Mr Killick and Mr Camenzuli were 15 minutes away from Mr Camenzuli on 8 June 2023 while they were on the Gold Coast visiting a client. When asked if it would have been appropriate to meet with Mr Camenzuli given the 7 June 2023 meeting the day before, Mr Killick said it would not be appropriate to meet with 10 people to discuss redundancy if he was not going to make 10 people redundant.[11]
During the hearing, Mr Killick was asked what he thought of the 8 June 2023 email Mr Camenzuli had sent him at [44] where Mr Camenzuli had:
· Stated that there had not been, to-date, any discussion regarding redeployment;
· Stated that he has attempted to contact both Mr Killick and Mr Matthew Camenzuli;
· Sought an extension of time to consider his options;
· Sought an extension of time to seek legal advice in accordance with the terms of the proposed deed;
· Sought an extension of time to cut over his banking access, property access to his gated community and other multifactored authenticated accounts linked to his phone;
· Sought confirmation that no extension will be granted and advised he was taken aback to learn that his request will be deemed harassment;
· Offered to return all items other than the telephone in the interim.
Mr Killick stated that he skim read the email and forwarded it to Mr Alkan.[12]
Mr Killick considered the matter on the morning of 9 June 2023 with all the information he had to date. The Respondent reviewed the matter as a whole, including primary considerations as follows:
· The economic and operational needs of the business;
· The findings of the Respondent’s operational review;
· That Mr Camenzuli’s role was becoming unnecessary;
· That there were no suitable opportunities for Mr Camenzuli so far as redeployment was concerned; and
· Mr Camenzuli’s input and feedback, including:
· His comments at the various meetings;
· His desire to remain with the business;
· His concerns regarding his personal devices; and
· His other demands as communicated by email and messages.
The Respondent was also presented with:
· Mr Alkan’s input and feedback, such as his observations of Mr Camenzuli’s conduct and behaviour, and his professional views regarding the Respondent’s obligations; and
· That by this point, the Respondent had noted that Mr Camenzuli’s conduct was becoming increasingly unstable, and that he was not complying with the Respondent’s various directions.
The Respondent concluded that Mr Camenzuli would need to be made redundant pending his return of all company assets, or Mr Camenzuli otherwise would possibly be subject to summary dismissal due to theft. Mr Killick instructed Mr Alkan to attend the meeting scheduled for later that day to present the Respondent’s findings to Mr Camenzuli.
Mr Alkan informed Mr Killick that the meeting with Mr Camenzuli went ‘quite poorly’ and that Mr Camenzuli had refused to return his company smartphone, among other concerns. Mr Killick then instructed Mr Alkan to terminate Mr Camenzuli’s employment, and to correspond with him to the effect of giving Mr Camenzuli a final chance to return the property before further escalatory action.
The letter of 9 June 2023 at [51] was sent to Mr Camenzuli by Mr Alkan. It provided the Respondent’s pondering for Mr Camenzuli to return the mobile phone by COB 14 June 2023 to the Parramatta office and provide the express post tracking number. The letter postured that the Respondent might report the matter to the police for theft and not make a termination payment.
At 10:41pm that evening, Mr Camenzuli sent an email to Mr Killick and Mr Matthew Camenzuli at [52]. Mr Killick described the email as ‘highly bitter and unpleasant’ and ignoring ongoing instructions to correspond with Mr Alkan on HR matters. Mr Killick forwarded the email to Mr Alkan to be addressed. In cross-examination, Mr Killick conceded that there was nothing unpleasant about Mr Camenzuli’s email.[13]
The email, in fact, called for Mr Killick and Mr Matthew Camenzuli to respond if they did want the phone to be sent back by mail by 14 June 2023, or if they would prefer a more secure means of transport, and if so, could that be communicated to Mr Camenzuli by 12 June 2023.
The email further put to Mr Killick and Mr Matthew Camenzuli that there had been matters in the 9 June 2023 letter sent by Mr Alkan, namely:
· Mr Camenzuli had not been made aware of the nature of the 7 June 2023 meeting; and
· Mr Camenzuli had not requested that a new role be made for him.
In cross-examination, Mr Killick confirmed Mr Camenzuli’s concerns were correct, but he wanted him to raise them with Mr Alkan and not with himself.
In evidence given during the hearing, Mr Killick originally said that he understood that Mr Camenzuli wanted to keep the company-issued mobile phone. The following evidence was given:[14]
Commissioner: Just on that, I notice the evidence you gave earlier, Mr Killick, I wrote it down, it’s on transcript, he wanted to keep his personal devices. Is that what you think - do you mean forever?
Mr Killick: At that time, when this was all happening?
Commissioner: You’ve now given evidence twice that he wanted to keep his phone?
Mr Killick:Yes. At the day of Wednesday, when this is happening, I understand that he wanted to keep his phone.
Commissioner: What does that mean? What did you understand it to mean?
Mr Killick:That he wanted – for James to keep the device and the phone number.
Commissioner: Do you mean for all of time?
Mr Killick: For all of time.
Commissioner: Is that what you believed?
Mr Killick; At that time.
Commissioner: When did you believe otherwise?
Mr Killick: As to further consultation and/or communication went on.
Commissioner: Well, when and what did you then believe? If you believe that he wanted to keep the actual phone unit and the phone number, at what point did you think otherwise?
Further, Mr Camenzuli’s email makes it clear he had sought an extension of time to obtain legal advice and time to move information onto a new phone. All reasonable requests. Again, he was ignored and informed that if he further requested an extension, it would be deemed harassment.
He asked his direct manager and owner of the business if that was correct and was Mr Alkan correct in that no extension would be granted to him. Instead, he was ignored by them. The Respondent, in my view, capriciously and spitefully ignored Mr Camenzuli. It is not entitled to wave him away like an annoying child and say to him only deal with Mr Alkan. It might be a lawful course of action, but it is not a reasonable course of action.
Mr Camenzuli was not unstable, nor was he engaging in harassing behaviour.
As I understand it, if Mr Camenzuli had returned the phone on 9 June 2023, he would have been made redundant because Mr Killick considered that his role was becoming unnecessary and there were no suitable opportunities for redeployment. If that had been necessary to determine, which it is not on account of the summary dismissal, I do not consider I would have been satisfied that all of the criteria in s.389 of the Act would have been met. There are significant flaws in the Respondent’s evidence on all three limbs of s.389, and it would be the Respondent’s burden to satisfy the Commission that all of the considerations at s.389 had been met.
There is presently no evidence that the Respondent no longer required Mr Camenzuli’s job to be performed by anyone because of changes in the operational requirements of the enterprise other than for Mr Killick’s evidence as to how he felt on 9 June 2023 which is unfortunately infected by his evidence in relation to his feelings in respect of Mr Camenzuli’s conduct.
If there was an examination required as to a relevant award applying, and if one did apply, the consultation objections would not have been satisfied. Firstly, because the consultation obligations require the employer to have made a definite decision to make major changes, and consultation must then follow. With no definite decision made, it seems, until the morning of 9 June 2023, consultation did not follow. Further, the consultation period would have been entirely inadequate given Mr Camenzuli’s length of service and seniority.
The redeployment considerations would equally not be satisfied given Mr Alkan’s failure to report to Mr Killick and Mr Matthew Camenzuli the offer made by Mr Camenzuli to take a pay reduction, and his written communication that he expected a meeting of 9 June 2023 to canvass redeployment opportunities. That is before we hear evidence as to whether the Respondent has any associated entities, and without Mr Matthew Camenzuli giving evidence, that remains unknown as to his various business interests.
The Respondent’s reason for the dismissal on 9 June 2023 is curiously not aligned between the evidence given by Mr Killick and Mr Alkan. Mr Killick considers the dismissal on 9 June 2023 was a redundancy; Mr Alkan says it was a summary dismissal because the phone was not returned. They both gave emphatic evidence that the employment ended that day.
The Respondent can’t have a bob each way. The letter to Mr Camenzuli of 9 June 2023, is as equally bizarre as the letter of 8 June 2023. If Mr Camenzuli’s employment ended on 9 June 2023, it ended for a particular reason. If the phone was returned by 14 June 2023, the Respondent would be entitled to exercise its discretion to make a payment to Mr Camenzuli equal to the redundancy payment, if it wished, but it does not change what happened on 9 June 2023.
So, we come back to why was Mr Camenzuli dismissed on 9 June 2023? He was dismissed because he did not return the phone and Mr Killick incredulously considered that he was engaging in harassing and unstable conduct.
It had nothing to do with the condition of the laptop, because the termination was communicated during the meeting at the café. The Respondent had not reviewed the condition of the laptop at that point in time.
I will reflect on all other post-9 June 2023 conduct in my considerations in s.387(h) of the Act.
Having determined that the reason for the dismissal on 9 June 2023 was because Mr Camenzuli did not return the phone on that date, and he was considered to be engaging in harassing and unstable conduct, I am not satisfied that there was a valid reason for the dismissal.
For all of the reasons given above, I consider it was reasonable for Mr Camenzuli to request an extension of time in respect of the return of the mobile phone. Mr Killick was satisfied by 8 June 2023, or the morning of 9 June 2023 that Mr Camenzuli did intend on returning it and did not wish to retain it for all of time.
I do not accept that it was a lawful and reasonable instruction given by the Respondent for Mr Camenzuli to return the mobile phone by 12:00pm on 9 June 2023 on account of the length of time he had used the company-issued mobile phone for personal use and the actions he needed to take to cut-over and attend to multi-factor identification.
I am satisfied that Mr Camenzuli was not engaging in harassing and unstable conduct.
Accordingly, I am not satisfied that there was a valid reason for the dismissal.
s.387(b) – whether the person was notified of that reason
Mr Alkan informed Mr Camenzuli at the meeting of 9 June 2023 that if he did not return the mobile phone, it would be considered theft. He made a phone call to Mr Killick and returned to inform Mr Camenzuli that his employment was terminated and he would receive a letter.
It’s likely that Mr Alkan informed Mr Camenzuli at that meeting that he was being dismissed for failing to return the mobile phone. He did not inform Mr Camenzuli of the other reason for the dismissal; that the Respondent considered he was engaging in harassing and unstable conduct.
In the written communication of 9 June 2023, Mr Alkan then informed Mr Camenzuli the Respondent would then reconsider reclassifying or labelling the dismissal as a redundancy if he returned the mobile phone by 14 June 2023. The letter included the Respondent considering a course of action to contact the police for theft of company property, even though Mr Killick’s evidence is that he was aware that Mr Camenzuli was not going to retain the phone.
The letter of 9 June 2023 is incredulous and ridiculous. I am not satisfied that Mr Camenzuli was notified of all of the reasons for the dismissal.
s.387(c) – whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
Mr Camenzuli was attempting to communicate with his employer but he was being ignored and instead forced to deal with Mr Alkan. I have found that Mr Alkan did not pass on all of the Mr Camenzuli’s inquiries or suggestions.
Mr Camenzuli was never informed that he was considered to be harassing Mr Killick or Mr Matthew Camenzuli. He was never informed in writing that he must not make any attempts to communicate with Mr Killick or Mr Camenzuli.
I am satisfied that Mr Camenzuli was requested to return the mobile phone on 9 June 2023, so he was afforded an opportunity to respond in respect of that request.
s.387(d) – any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal
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.
There is no positive obligation on the employer to offer an employee the opportunity to have a support person. The Explanatory Memorandum, Fair Work Bill 2008, at [1542] states the following:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”
In the circumstances, I find that the Respondent did not unreasonably refuse to allow Mr Camenzuli to have a support person present.
s.387(e) – was there a warning of unsatisfactory work performance before dismissal
The written communication to Mr Camenzuli dated 8 June 2023 informed him that if he did not return the phone at the meeting on 9 June 2023, if he was indeed going to be made redundant on that day, it may warrant summary termination of his employment.
s.387(f) – whether the respondent’s size impacted on the procedures followed and s.387(g) – whether the absence of a dedicated human resource management specialist impacted on the procedures followed
The Respondent had engaged Mr Alkan, a HR Consultant to assist in the redundancy discussions with Mr Camenzuli.
The Respondent placed its faith in Mr Alkan in the absence of an internal HR function. I consider the astonishingly poor advice given by Mr Alkan impacted on the procedures followed by the Respondent.
s.387(h) – other matters
I consider it necessary to have regard for the post-dismissal conduct of Mr Camenzuli, noting the High Court decision in Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21 (4 June 1931), [(1931) 45 CLR 359 at pp. 373, 377‒378] (Shepherd). Shepherd is authority for the proposition that facts justifying dismissal, which existed at the time of the dismissal, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.
I wish to make it clear that in examining the post-dismissal conduct of Mr Camenzuli it will be necessary to traverse the post-employment conduct of the Respondent and Mr Alkan, but in doing so, it shall bear no weight on my consideration at s.387(h) of the Act. My only consideration with respect to s.387(h) is whether any post-dismissal conduct of Mr Camenzuli adds to the consideration as to whether the dismissal was harsh, unjust or unreasonable.
Following the 9 June 2023 meeting and the letter issued to Mr Camenzuli, while he was threatened with being reported to the police for theft (all the while Mr Killick considered he would return the phone after he had finished doing what he needed to do), Mr Camenzuli was informed that the Respondent was considering allowing him until COB 14 June 2023 to return the mobile phone.
Mr Camenzuli communicated by email late that night to Mr Killick and Mr Matthew Camenzuli, requesting they advise him by COB 12 June 2023 if the company has, indeed considered and allowed him to return the phone by COB 14 June 2023. The way it had been put by Mr Alkan in the 9 June 2023 letter was equivocal, so Mr Camenzuli was looking for a concrete answer. None was provided because Mr Killick and Mr Camenzuli failed to respond to him. When the email was forwarded to Mr Alkan and he communicated with Mr Camenzuli on 10 June 2023, he didn’t answer Mr Camenzuli’s reasonable question either.
Not even Mr Camenzuli’s notation of how he had been a loyal employee and had not been afforded a farewell could elicit a response from Mr Killick or Mr Matthew Camenzuli.
On 12 June 2023 and 13 June 2023, Mr Camenzuli corresponded with Mr Nay, a notorious stickler for the rules. I am satisfied that Mr Camenzuli was not trying to obtain inappropriate material through the back door; he was aware that Mr Nay would seek approval before releasing any personal information to him. The information he sought was all clearly personal and should have appropriately been provided to Mr Camenzuli. If Mr Killick and Mr Matthew Camenzuli were ignoring him, he appropriately used some ingenuity to request that Mr Nay seek approval on his behalf.
The Respondent curiously submitted that Mr Camenzuli harassed several employees at this time. The only evidence is that of Mr Nay, and I consider that Mr Nay’s evidence was most helpful to Mr Camenzuli to demonstrate that Mr Camenzuli was not acting inappropriately at all. Mr Nay is to be commended for his fair and balanced evidence.
Having not heard back from the Respondent, at around lunchtime on 14 June 2023, Mr Camenzuli attended an Australia Post outlet with his wife. His evidence is that she filmed him placing the mobile phone in the sachet and the phone was sent to the Respondent.
Admittedly, beyond COB, Mr Camenzuli sent an email to Mr Killick and Mr Matthew Camenzuli, advising that he had posted the mobile phone by registered post that day, and he noted that he attached the Australia Post tracking number to the email.
What happened next is nothing short of shocking. Mr Killick’s evidence before the Commission, including after receipt of Mr Camenzuli’s witness statement and hard copy of the Australia Post tracking receipt is that Mr Camenzuli sent the Respondent malware in the email of 14 June 2023. Mr Killick repeated it in his witness statement, it was in the Respondent’s submissions, it was in the 15 June 2023 letter, and Mr Killick gave oral evidence that Mr Camenzuli had sent malware.
Curiously, in oral evidence, Mr Killick stated that he did read the email of 14 June 2023 on 15 June 2023, but considered that it contained malware because of a quarantine notification.
How Mr Killick could persist in giving evidence to the Commission on 2 November 2023, when Mr Camenzuli filed his witness statement on 11 September 2023, attaching the Australia Post tracking receipt is beyond comprehension. It only became clear to him in cross-examination, when it was pointed out to him that it had simply been a quarantine notification that he conceded that he had incorrectly assumed it was malware.
Mr Alkan gave similar, combative evidence that Mr Camenzuli had sent malware to the Respondent. He gave the following oral evidence on 19 October 2023:
“No, it’s very clear, sir, that he sent this malware on the 14th……”
………
“He sent an email to the company with malware, a virus.”
It appears to me that it had not dawned on Mr Alkan to read all of Mr Camenzuli’s attachments to his first witness statement. He appeared to me to learn in the witness box that Mr Camenzuli had been to the post office on 14 June 2023 and sent the mobile phone. He was incredibly fixated on the phone not having been received by the Respondent on 14 June 2023, but gave no credit whatsoever to Mr Camenzuli for having sent the mobile phone by registered post on 14 June 2023, informing the Respondent of the fact and as per the Respondent’s request attaching a tracking number.
In the 15 June 2023 letter sent from Mr Alkan, Mr Camenzuli was accused of sending malware and not providing a tracking number.
I am satisfied that Mr Camenzuli did not send malware to the Respondent, and he did send a tracking number. The mobile phone was sent on 14 June 2023 and reached the Respondent one or two days later. In respect of my s.387(h) consideration, the fact that the phone reached the Respondent one or two days late is not material. New South Wales enjoyed a public holiday on 12 June 2023, and there is no guarantee that even if he had sent the phone on 12 or 13 June 2023, it would have reached the Respondent’s offices by 14 June 2023.
The fact that the phone has been set to factory settings is also not material, despite the Respondent’s submissions. Mr Camenzuli had made concerted efforts to request an extension of time to obtain all relevant information from his phone and it had been cut off by Friday, 12 June 2023. He had insufficient time to do everything that was necessary to remove his personal information from the phone, noting that he had, in that short window of time been buying a new phone, a SIM card, corresponding with the Respondent and attempting to obtain legal advice. If the Respondent had provided a reasonable extension to him, as per his request, I am satisfied that he would have obtained the personal information he wished to extract and would have handed the phone to the Respondent without the need to have it set to factory settings.
In respect of the laptop being reset to factory settings, again, I do not consider this weighs in favour of inappropriate conduct now known to the Respondent following the dismissal. Much ado has been made of the laptop being reset to factory settings. It is expected that the bulk of any relevant information would be saved on OneDrive. I consider Mr Camenzuli had a suitable reason for having set the laptop to factory settings on 8 June 2023 in anticipation of the meeting on 9 June 2023, and in fact he was told by Mr Alkan to clean it. When he returned home he discovered he could not do so as he was locked out.
I do not consider there is any post-dismissal conduct of Mr Camenzuli’s that weighs against a finding that the dismissal was harsh, unjust and unreasonable. This includes his communication at 10:41pm on 9 June 2023 which had been labelled by Mr Killick as bitter and unpleasant, but which he accepted in cross-examination was not. I find the communication which was written post-dismissal was courteous and more gracious than the Respondent’s reciprocal conduct.
I have had regard to Mr Camenzuli’s length of service of 14 years and note it was a long period of time.
Conclusion
I have determined that there was no valid reason for the dismissal.
I consider that the Respondent did not inform Mr Camenzuli of all of the reasons for the dismissal.
I have determined that Mr Camenzuli was not given an opportunity to respond to all of the reasons for the dismissal, however he was given an opportunity to respond in respect of the instruction to return the mobile phone.
There was no unreasonable refusal by the Respondent to allow Mr Camenzuli a support person.
Mr Camenzuli was provided a warning in respect of not returning the mobile phone in the event that he was going to be made redundant on 9 June 2023, which he did not know until the meeting of 9 June 2023.
The Respondent’s enterprise is not small. I note that there was an absence of a dedicated human resource specialist which did impact on the procedures followed, however this is somewhat mitigated by the specialist advice the Respondent sought to obtain from Mr Alkan. I have not been impressed at all by the advice given by Mr Alkan to the Respondent or his conduct in effecting the dismissal.
I determine that Mr Camenzuli’s dismissal was harsh, unjust and unreasonable. Having satisfied myself that the dismissal was harsh, unjust and unreasonable, pursuant to s.385(b) of the Act, I find that Mr Camenzuli was unfairly dismissed.
Remedy
Section 390 of the Act reads as follows:
“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 FWC may make the order only if the person has made an application under section 394.
(3) The FWC 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.”
Mr Camenzuli is a person protected from unfair dismissal for the Act’s purposes and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether he can be reinstated.
I am satisfied that it is inappropriate to order reinstatement due to the irrevocable break down of the employment relationship between the parties.
I now turn to consideration of compensation.
Compensation
Section 392 of the Act provides:
“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.”
Authorities
The approach to the calculation of compensation is set out in a decision of a Full Bench of Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket.[25] That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;[26] Jetstar Airways Pty Ltd v Neetson-Lemkes;[27] and McCulloch v Calvary Health Care (McCulloch).[28]
I have had regard to the above authorities, and I have considered the submission of each party.
The effect of the order on the viability of the respondent
Mr Camenzuli submitted that the Respondent is a large employer with significant resources who used those responses to terminate an employee without grounds and wilful disregard to the law.
There is no evidence to suggest that an award of compensation would affect the viability of the Respondent’s enterprise.
The length of Mr Camenzuli’s service
Mr Camenzuli had approximately 14 years of service with the Respondent. It is a long period of time.
The remuneration that Mr Camenzuli would have received, or would have been likely to receive, if he had not been dismissed
Mr Matthew Camenzuli elected against giving evidence in these proceedings and I find it appropriate to draw a Jones v Dunkel[29] inference. On Mr Killick’s evidence, Mr Matthew Camenzuli did not like his employees working from home, and whilst he had permitted Mr Camenzuli to relocate to the Gold Coast, I consider that if he had been called to give evidence, he would have likely given evidence of his dissatisfaction in having Mr Camenzuli working from home. If I am wrong about that, on account of the Brisbane-based sales employee being permitted to work from home, I consider that there would have been evidence Mr Matthew Camenzuli would have given in respect of the family falling-out that he would have preferred not to have given, and which constituted a reason for the dismissal.
I am fortified in this view because of Mr Matthew Camenzuli’s failure to show to Mr Camenzuli the courtesy of meeting with him on 8 June 2023 to discuss a proposed redundancy.
In the absence of any evidence of a restructuring of the business, there being not a single email put by Mr Killick before the Commission to assist in the Respondent’s submissions that Mr Camenzuli alone, as the single employee across the entire business needed to be made redundant, I consider that the proposition of Mr Camenzuli needing to be made redundant in June 2023 was a sham. On the balance of probabilities, I conclude that Mr Matthew Camenzuli wished to remove Mr Camenzuli due to family disputations, and he was to be offered a redundancy with a $5,000 sweetener in exchange for a release not to pursue any claims against the Respondent. Mr Alkan was brought in to execute the dismissal while Mr Killick and Mr Matthew Camenzuli’s hands remained clean.
I consider that but for the orchestration of the dismissal, which I have found to be unfair, Mr Camenzuli would have remained employed by the Respondent until 31 December 2023, that being a period of 29 weeks. At this point, it is likely the relationship would have deteriorated between Mr Camenzuli and Mr Matthew Camenzuli such that Mr Matthew Camenzuli would have strategically and lawfully removed Mr Camenzuli from the business by way of a settlement, noting that Mr Matthew Camenzuli does not spend a great deal of his time working within the business.
At a rate of $2,448.52 per week, I find that Mr Camenzuli would have earned $71,007.08 in those 29 weeks. He would have been entitled to superannuation at the rate of 10.5% up until 30 June 2023, and 11.0% for the period 1 July 2023 to 31 December 2023. That is an amount of:
3 weeks x $2,448.52 @ 10.5% = $771.28
26 weeks x $2,448.52 @ 11.0% = $7,002.77
Total: = $7,774.05
The efforts of Mr Camenzuli (if any) to mitigate the loss suffered because of the dismissal
Mr Camenzuli properly mitigated his loss by securing new employment which commenced on 28 August 2023. However, the remuneration for the new employment is less than what Mr Camenzuli was receiving during his employment with the Respondent.
Mr Camenzuli’s salary at this new employment is $105,000.00 gross, plus superannuation, per annum.
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
In the period between 28 August 2023 and 31 December 2023, when I determine the employment with the Respondent would have ceased, Mr Camenzuli earned 18 weeks’ salary at the rate of $105,000 per annum. That is an amount of $36,346.15 gross. He would have been entitled to an amount of $3,998.08 in superannuation.
The amount of any income reasonably likely to be so earned by Mr Camenzuli during the period between the making of the order for compensation or the actual compensation
This factor is not relevant in the circumstances of this matter.
Other relevant matters
Mr Camenzuli submitted that the conduct of the Respondent should be met with the harshest response, as it was intentionally contrived and undertaken to deprive Mr Camenzuli financially. I agree that the Respondent’s conduct was reprehensible.
If Mr Camenzuli had been made redundant by the Respondent, and despite my findings that it would not have been a bona fide redundancy on account of what I consider to be the true reasons for the dismissal, the Respondent was preparing to make the redundancy payment and an amount close to $5,000 tax-free to Mr Camenzuli. That alone would have been an amount near to $35,000 paid tax-free, it would seem.
The Commission is unable to award a tax-free payment to Mr Camenzuli and it is not appropriate to try and put Mr Camenzuli in a similar position if he had been provided with a tax-free payment by the Respondent, whether it was lawful or not.
On account of Mr Camenzuli doing a very good job at mitigating his loss, finding a job within around 10 weeks, albeit at a lesser rate of pay, the award of compensation payable to Mr Camenzuli is reduced on account of his earnings with his new employer. This rewards the Respondent’s improper conduct, however I must ensure that there is not double-dipping.
Regrettably, the award of compensation I will make to Mr Camenzuli is less than he would receive if he had been made redundant by the Respondent and if it had taxed his payment as a bona fide redundancy (which I am not satisfied that it is).
Misconduct reduces amount
I do not consider that Mr Camenzuli engaged in any misconduct either prior to the dismissal or post-dismissal which came to the Respondent’s attention. I have already provided my views in respect of the condition of the laptop and the mobile phone.
Shock, distress etc. disregarded
I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Mr Camenzuli by the manner of the dismissal.
Compensation Cap
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 the high income threshold immediately prior to the dismissal.
The high income threshold immediately prior to the dismissal was $162,000.00, and the amount for 26 weeks was $81,000.00. The amount of compensation the Commission will order does not exceed the compensation cap.
Payment by instalments
No submissions were made by the Respondent that any award of compensation should be made by instalments and I am not satisfied it is appropriate to make an order for payment by instalments.
Order of compensation
I have determined that Mr Camenzuli would have earned remuneration in the amount of $71,007.08 in wages and amount of $7,774.05 in superannuation.
In that same period, Mr Camenzuli has earned an amount of $36,346.15 in wages and an amount of $3,998.08 in superannuation.
The award of compensation is therefore $71,007.08 less $36,346.15 = $34,660.93 in wages, and $7,774.05 less $3,998.08 = $3,775.97 in superannuation.
The Respondent is to pay to Mr Camenzuli the following amounts within 14 days:
(a) $34,660.93 taxed as required by law; and
(b)$3,775.97 into Mr Camenzuli’s superannuation account.
An order [PR775128] giving effect to this decision will be published.
Post Script
My concerns in respect of Mr Alkan and Ms Macallister’s conduct in September 2023 in representing to Mr Camenzuli’s new employer that Mr Camenzuli had provided his permission for a reference check when he had not clearly had no bearing on my decision in this matter. I do, however, condemn the conduct in the strongest possible terms.
COMMISSIONER
Appearances:
C Watters, Counsel, with permission, instructed by R Davenport of Affinity Lawyers for the Applicant.
G Adams of GLR Law, with permission, along with R Killick, General Manager for the Respondent.
Hearing details:
2023.
Brisbane.
19 October.
2 November.
Final written submissions:
28 November 2023.
[1] Transcript, at PN624.
[2] Transcript, at PN569.
[3] Transcript, at PN549.
[4] Corporations Act 2001, s.127(4).
[5] Transcript, at PN2030.
[6] Transcript, at PN570 – 575.
[7] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) IR 371, 373.
[8] Briginshaw v Briginshaw (1938) 60 CLR 336.
[9] James McCarron v Commercial Facilities Management Pty Ltd T/A CFM Air Conditioning Pty Ltd [2013] FWC 3034 at [32].
[10] [1959] HCA 8; 101 CLR 298.
[11] Transcript, at PN1763.
[12] Transcript, at PN2025.
[13] Transcript, at PN1961.
[14] Transcript, at PN2288.
[15] Transcript, at PN2074 – 2100.
[16] Transcript at PN1119.
[17] Transcript, at PN923.
[18] Transcript, at PN1281 to 1299.
[19] Transcript, at PN2129-2130 & PN2427-2428.
[20] [2023] FWC 121 at [88]; citing Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21.
[21] [2018] FWCFB 3989 at [69]-[71]; citing earlier cases such as Lane v Arrowcrest Group P/L (1990) 43 IR 210 at 237-238.
[22] (1995) 185 CLR 410, [465].
[23] Sayer v Melsteel [2011] FWAFB 7498 at [20].
[24] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[25] (1998) 88 IR 21.
[26] [2013] FWCFB 431.
[27] [2013] FWCFB 9075.
[28] [2015] FWCFB 2267.
[29] [1959] HCA 8; 101 CLR 298.
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