[2021] FWC 6172

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jamie Robert Wilson
v
Radcorp Pty Ltd
(U2021/3481)

COMMISSIONER HUNT

BRISBANE, 21 OCTOBER 2021

Application for an unfair dismissal remedy - jurisdictional objection - small business fair dismissal code - code not complied with - jurisdictional objection dismissed - dismissal from employment found to be harsh, unjust and unreasonable - compensation ordered.

[1] On 22 April 2021, Mr Jamie Wilson made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from Radcorp Pty Ltd (the Respondent) on 4 April 2021 was harsh, unjust or unreasonable.

[2] Attached to Mr Wilson’s Form F2 - Unfair Dismissal Application is a series of text messages between Mr Wilson and Mr Rodney Eatough, Director of Radcorp Pty Ltd (Mr Eatough, Mr R. Eatough). On 4 April 2021, Mr Wilson received a text message from Mr Eatough which had been sent on 3 April 2021, but not received by Mr Wilson until 4 April 2021 which reads:

“Because of your refusal to follow directions and withhold you (sic) services your ongoing employment is no longer required as of today Saturday 3rd April. RWE”

[3] Prior to the matter being allocated to me, a staff member of the Fair Work Commission (the Commission) served the application on the Respondent and sought a completed Form F3 to be completed by the Respondent. A conciliation before a Commission staff member was scheduled. The following correspondence was sent between Mr Eatough and a staff member of the Commission:

(a) 6 May 2021:

“I haven’t got time to have the phone conference, and I don’t think he was unfairly dismissed and in actual fact he terminated his employment.

I won’t be answering your demands to have the correspondence back in 7 days, and if you are unhappy with this you can take me to court.

Thanking You

Rod Eatough - Radcorp Pty Ltd”

(b) 6 May 2021

“Good afternoon Mr Eatough,

Thank you for your email.

Please note the conciliation is an informal and voluntary process giving parties the opportunity to try to resolve the matter. Please be advised that if you do not wish to participate in conciliation, the Fair work Commission will make no judgement on you as an individual or the company. However, the matter will be referred to a formal hearing with a Member of the Tribunal for arbitration. Please note that any decision or order made by the Member may be made available to the public.

Please feel free to contact us on 1800 759 566 if you would like to discuss this further. Alternatively, you can find additional information on our website at the following link; 10 May 2021

“Mate I don’t care what you do I am sick & tired of be threatened by you mob. I have been in the business of growing tomatoes for 52 years. Have any of you employed ANYBODY? Have any of you ever had a payroll of $250,000.00/ week? The first person I employed was in 1970 and he was paid $40 for 40 hours and that was above the award. I have never tried to under pay any employee! I got my ethnic from my father who was a wharfie on the Bowen Port for 40 odd years. They were a militant lot but if it were not for them the shipping companies would have screwed the arse off them. The wharves were looked down upon but when they gained an increase or better conditions it usually flowed on to other labourers who were to gutless to take on the employers.

Rod Eatough - Radcorp Pty Ltd”

[4] On 11 May 2021 the application was allocated to me. On 12 May 2021 I directed the Respondent to file a Form F3 by no later than 17 May 2021. I listed the matter for a directions hearing on 18 May 2021.

[5] On 14 May 2021, the Respondent filed a Form F3. The Respondent declared that only three employees were employed at the date of Mr Wilson’s dismissal. The reason for the dismissal was:

“He refused to work when asked.”

[6] Mr Eatough completed the Form F3 on behalf of the Respondent. He included:

“When he refused to come to work on the 2nd April ’21 I decided to terminate his employment.”

[7] Despite claiming to employ only three employees, Mr Eatough did not tick any of the boxes in the Form F3 to raise a jurisdictional objection, importantly, that the dismissal was in accordance with the Small Business Fair Dismissal Code (the Code).

Directions issued

[8] I held a directions hearing on 18 May 2021. During the hearing there was some discussion as to whether the Respondent is a small business, and whether it has associated entities controlled by Mr Eatough. It became necessary to issue directions requiring the Respondent to provide evidence on this issue. I directed the Respondent to provide the following evidence and submissions by 8 June 2021, and provided the relevant sections of the various acts to the parties:

“(a) A witness statement for each of the witnesses the Respondent intends to call at the hearing including any documentary material upon which the Respondent intends to rely.

(b) Evidence (documentary) relevant to the corporate entities operated or jointly operated by Mr Roderick Eatough and the number of employees employed under each of those entities. This includes employees of any status, including casuals. The entities include but are not limited to Radcorp Pty Ltd, Soyax Pty. Ltd. and other entities to which Mr Eatough is a director or operator in any capacity. This material is to be sent in clean copies. If the Respondent wishes for any information to be redacted it is to identify which information and why it should be redacted. The Commissioner will then consider this submission and whether it is to be redacted before serving it on the Applicant.

(c) Submissions addressing whether the Respondent is a small business employer (s.23 Fair Work Act 2009 and ss.50AA and 50AAA Corporations Act 2001) and if so whether the Respondent complied with the Small Business Fair Dismissal Code.

(d) Submissions addressing why the Respondent says the Applicant was not unfairly dismissed. The submissions must respond to each of the criteria in s.387 Fair Work Act 2009.”

Evidence of the Respondent regarding the number of employees employed

[9] On 2 June 2021, the Respondent filed material and various witness statements. One of the submissions provided for a table of five employees and the following statement:

“Wilson was on a salary that finalised on the 18th April ’21 and then he could have gone on as a casual. If you consider the above it will show that Wilson was a greedy person and you can see that the other 4 person on as casuals never earned or enjoyed much pay for public holidays and he had an extra week off and earned twice as much as the others.

[signature of Mr Eatough]

NO FARMERS

NO FOOD”

[10] The pay record information declared that three employees were employed by Radcorp Pty Ltd, and eight employees were employed by Soyax Pty Ltd.

[11] Mr Eatough completed the Code Checklist on 26 May 2021. His responses included:

“5. Did you dismiss the employee for some other form of serious misconduct?

Yes. He refused to work.

8. Did you dismiss the employee because of the employee’s unsatisfactory conduct, performance or capacity to do the job?

9. Did you dismiss the employee for some other reason?

Yes. He refused to come to work on Friday so I sent him a text message Sat 3^rd April and dismissed him. See his text message “OK I appreciate that but I still won’t work the holiday this weekend as I don’t know what’s happening.”

10. Did the employee voluntarily resign or abandon his or her employment?

Yes. On the 1^st April Jamie sent me a text saying he will not work the holidays that weekend. Remember that he was still completing his 2^nd year on salary which was to end 18^th April ’21 and then he could have gone on to be paid by the hour as a casual.”

[12] On 3 June 2021, the following correspondence was sent from my chambers:

“Supplementary direction for Respondent

The Commissioner has reviewed the materials filed by the Respondent on 2 June 2021, and seeks the below further information:

1. A witness statement of Mr Eatough, in first person, describing the entities he is involved in, by no later than 4:00pm Friday, 18 June 2021.

2. The statement will need to include detail of:

a. All of the work performed by people on the farm(s), explaining each of the roles of the employees.

b. And if there are any contractors performing services, detail of the work performed by them, what the contracting services are and produce invoices for the period March 2021 for each contractor providing services.

The Commissioner advises the purpose of this information is for the Commission to understand if these are truly contractors or the Commission could determine they are employees.”

[13] On 18 June 2021, Mr Eatough filed the following witness statement detailing the nature of his business relationships and the entities he was involved in:

“I Roderick William Eatough are the Directors of Both entities Radcorp Pty Ltd & Soyax Pty Ltd. My wife and myself find this rather discriminately which is our general opinion when you get to the age of 74 people think you are stupid. The main issue with this individual is :- He was on a salary until the 24th April 2021 and refused to work. He was paid all entitlements up until that point and had an extra week off. This is becoming like an episode out of the Salem Witch Trials.

Radcorp Employed 3 people in March:

Carol Edwards - Office Manager, duties include all aspects of account's Creditors & Debtors, Payroll, Consignments and all aspects of office works.

Clayton Eatough - Farm Manager, duties are running the farm, organising the laying of plastic, planting, picking etc.

Jamie Wilson - In March he was doing general farm duties. In his statement NO: 6 This is not correct because on one accession I had to speak to him about his conduct towards other people.

Soyax employed 8 people in March:

Mohammad Ahmad - Maintence for the machinery

Peng Kheong Yap - Irrigation & Fertilising

Jason Crawford - Tractor Driver and Farm Duties

Railene Strang - General Farm Duties Planting etc

Peter Riley - Tractor Driver & Farm Duites

Korbin Fitzgerald - General Farm Duties

Scott Garland - Gerneral Farm Duites

Philip McRae - Tractor Driver and General Farm Duites'

Contractors:

SKM Pty Ltd - Mainly employed for the pruning, Stringing & Planting plus General farm Duties when needed (lnvoice's attached)

JRD Ag Consulting - consultant for our Q & A. [lnvoice's attached)

PS: Note that we employ many contractors in addition to these IE: Plumbers, Electrical, crop Monitoring' Agrono Fert, Mechanical etc.”

[14] I viewed the invoices from SKM Pty Ltd and JRD Ag Consulting and note that in respect of SKM Pty Ltd, the invoices included labour, product (plants) and GST was charged. In respect of JRD Ag Consulting, the invoices included labour for a variety of work performed including Q&A, insurance, grow data and painting. GST was charged by JRD Ag Consulting.

[15] By email dated 24 June 2021, the Respondent was advised that if any further witness statements were to be filed by the Respondent, it was necessary to do so by 25 June 2021.

[16] On 1 July 2021, Ms Rachel Carson, advocate for Mr Wilson, filed Mr Wilson’s witness statement, her own witness statement, together with submissions. These were also served on the Respondent.

[17] On 6 July 2021, Mr Eatough provided a two-page document titled “Reply to Wilson and Carson statements”. Within the reply document, Mr Eatough stated the following:

“Dear Commissioner Hunt (with respect Commissioner Hunt WRCH)

In reply to Jamie Wilson & Rachel Carson's Witness Statements.

You WRCH said you were challenged understanding of Companies Soyax & Radcorp, is this because you don't understand the farming business? Radcorp use SKM Pty Ltd to supply people to prune, string, plant, de string, stake, pick and supply labour as required. When I engage other (many contractors to do work on the farm I don't SUDDENLY say by the way your people have to be on my books for pay purposes (RUBBISH). We employ Top of The Crop (TOTC) to pick pack and do other tasks like staking, de staking, planting none of these people are on Radcorp's books.

WRCH I can't understand why you are trying to categorize us as a Small or Large company because I don't think it matters to the price of eggs which size we are!

WRCH you have whipped Carson's into a flurry of lies & statements in which she has no knowledge of the workings of Soyax & Radcorp.

.……

…….

WRCH I see in your summing up Wilson has never been chastised or spoken to about unsatisfactory performance or behaviour is complete RUBBISH. I have touched on this previously but not highlighted the warning I gave him back in 2019. It seems to me WRCH you are completely biased about this dismissal I also noted that their request for an extension of time was frivolous.

..…..

……

As you can see from the text Wilson was getting excited about this and Clayton ended up telling him not to text him, Wilson was well aware of the importance that the plastic had to be laid over Easter as we were running out of time as we were behind in this task (due to the weather). My reply to Wilsons text that would be OK I will be in Bowen next Wednesday I was using reverse physiology and thought he may have relented and worked the Friday & Saturday of Easter.

Because he did not work on the Friday and Saturday and the fact that he had been warned previously I thought it was appropriate that he finish his employment with Radcorp especially after he had a week off after he returned from his nine weeks off that he was entitled to and was paid for the week he had off.”

[18] Following receipt of the Respondent’s correspondence of 6 July 2021, which had not been served on Mr Wilson, the following correspondence was sent from my Chambers to the parties:

“Dear parties,

The Commissioner notes receipt of the Respondent’s material of today’s date. The material has been attached to this email by way of service to the Applicant.

The Commissioner wishes to make it clear that the material filed by the Applicant on 1 July 2021, with attachments on 4 July 2021 is entirely the work of the Applicant and his support person, Ms Rachael Carson. In fact, the Commissioner only read this material today.

Where the Respondent has, throughout its submission of today’s date, referred to WRCH (with respect Commissioner Hunt), the Respondent is to advise if the Respondent incorrectly thought that Commissioner Hunt has prepared this material?

The Commissioner further notes the Respondent has asserted the following: “It seems to me WRCH you are completely biased about this dismissal I also noted that their request for an extension of time was frivolous.” The Commissioner asks the Respondent, is the Respondent making an application of apprehended bias or actual bias, and if so, the Respondent is required to make clear, in written submissions why such an application is made. If necessary, the Commissioner will convene a hearing on this discrete issue. The Respondent’s material relevant to the allegation of apprehended bias or actual bias is required to be filed and served by no later than 4:00pm Thursday, 8 July 2021. A telephone hearing will be listed for 1:00pm Friday, 9 July 2021 if the application is pressed.

The Commissioner notes that the Respondent queries why there is much focus on whether the Respondent employed 15 employees or more at the time of the dismissal. To be clear, the Commissioner must, as a requirement, satisfy herself if the Respondent is a small business employing 14 or less employees at the time of the dismissal. If the Respondent is a small business, an examination under the Small Business Fair Dismissal Code (the Code) will be applied. If the Commissioner is satisfied the Respondent complied with the Code, the application will be dismissed. If the Commissioner is satisfied the Respondent did not comply with the Code, the Commissioner will determine if the dismissal is unfair pursuant to s.387 of the Act.

If the Respondent is not a small business, the Commissioner will determine if the dismissal is unfair pursuant to s.387 of the Act.”

[19] On 7 July 2021, the following was sent by the Respondent:

“Dear Commissioner Hunt [with respect Commissioner Hunt WRCH)

In reply to your email 6^th July

WRCH, I made a mistake with the witness statements in regards to the Response to Submissions etc and I also wish to withdraw my opinion WRCH was bias.”

Hearing

[20] On 12 July 2021, a hearing was listed by telephone. After hearing from the parties, I decided to hear the matter as a determinative conference. Mr Wilson appeared, together with Ms Carson, with Mr Wilson calling in from Scotland. Mr Eatough appeared for the Respondent together with Mrs Sandra Eatough.

[21] I repeated for the benefit of the parties the reason why the Commission must determine the size of the Respondent as of 4 April 2021; to determine if the Code applied on account of the Respondent employing 14 or fewer employees.

Legislation

[22] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

[23] Section 396 of the Act sets out the following:

“The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.”

[24] As set out above in s.396 of the Act, a consideration as to whether the dismissal was harsh, unjust or unreasonable cannot occur if the dismissal was consistent with the Code pursuant to s.388 of the Act. If the Commission is satisfied that the Respondent employed fewer than 15 employees as of 4 April 2021, the Respondent is a small business.

[25] Section 388 of the Act provides:

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[26] The Code provides as follows:

“Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to the Fair Work Commission, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[27] The effect of s.385(c) of the Act is that when a dismissal is consistent with the Code, it is not an unfair dismissal and the application must then be dismissed. If the dismissal is not consistent with the Code, the Commission must then consider whether the dismissal is unfair on the basis of the general criteria in s.387 of the Act. The Code deals with “summary dismissal” on the ground of serious misconduct and “other dismissal” on the basis of the employee’s conduct or capacity to do the job.

[28] Section 387 of the Act sets out the criteria that must be considered when determining whether a dismissal was unfair:

“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.”

Mr Eatough’s evidence

[29] Mr Eatough’s evidence is that he employed Mr Wilson on a yearly basis, where Mr Wilson would work additional hours during the year, but then be entitled to a nine-week paid holiday in the off-season. The second year of employment was due to end around 24 April 2021.

[30] Mr Wilson had been seeking Australian citizenship, however he then decided to return home to Scotland. It is Mr Eatough’s evidence that Mr Wilson was expected to see out his permanent contract until around April 2021, after which time he could become a casual employee.

[31] Mr Eatough gave evidence that in early 2019, Mr Wilson was being disrespectful, was “out of control” and needed to be talked to. At this time, Mr Eatough reminded him that his behaviour needed to improve otherwise he would be dismissed.

[32] Mr Eatough stated that in late 2020 or early 2021, Mr Wilson had declared that he was staying for a third year, which Mr Eatough accepted. Mr Wilson did not inform Mr Eatough personally that he had decided to return to Scotland in June 2021, although Mr Eatough’s evidence is that he heard this on the grapevine.

[33] Mr Eatough stated that it was important for the Respondent to lay plastic over the harvest during Easter 2021; this needed to be done due to the weather. He stated that he does not ordinarily require employees to work public holidays, however it was important that it be done. Mr Wilson was seeking additional payment for working the public holidays over Easter, and Mr Eatough was not pleased about this.

[34] Mr Eatough considered that Mr Wilson had been paid an extra weeks’ pay in February 2021 when he required one week off work after he had been off work for nine weeks’ leave. He stated the following in the Form F3:

“Salary started 25th April ’19 which carried onto ’20 then onto 1st April 2021. As you can see he hasn’t completed his second 12 month which would be 25th April ’21. But has received two lots of annual leave of 9 weeks. Plus when he returned on the 22nd Feb ’21 he worked for one day & had the rest of the week off.

Which he has been paid a total of 19 weeks.

When he refused to come to work on the 2^nd April ’21 I decided to terminate his employment.”

[35] Text messages were sent between Mr Wilson and Mr Eatough, and Mr Wilson and Mr Clayton Eatough, reproduced below:

(a) 29 March 2021:

Mr Wilson to Mr R. Eatough: Hey rod was just wondering if I was able to come off the salary since I won’t be here the whole season?

(b) 30 March 2021:

Mr Wilson to Mr C. Eatough: Hey Clayton I asked rod a couple of weeks ago and then again last night about me coming off the salary as I won’t be here the full season but he hasn’t got back to me yet was just wondering what you thought about it too?

Mr Wilson to Mr C. Eatough: Do you need me to call you back I left my phone in the truck

Mr C. Eatough to Mr Wilson: No

Mr Wilson to Mr C. Eatough: Have I to start recording my hours again this week or not, I’m not really sure what’s happening anymore and feel it’s a bit unfair that I’m working the same amount of hours as everyone else and being paid less

Mr C. Eatough to Mr Wilson: You can talk to Rod about this. Your doing alright. You picked up a weeks pay on your first week back when you were sick and couldn’t work. So I’m out of pocket for that week.

Mr Wilson to Mr C. Eatough: Iv tried twice. And in the weeks afterwards iv been taking less pay home while working the same hours as most other people. Il test rod but if he doesn’t answer and I’m still on salary this week then I won’t be working the public holiday as I would be earning way less than anyone else working

Mr C. Eatough to Mr Wilson: That is what a salary is about. Your wage has little do with anyone else. Yer you only see it to suit yourself.

Mr Wilson to Mr C. Eatough: Nah doesn’t suit myself, suits yous to pay me less money and me to keep to coming to work on holidays and extra hours

Mr C. Eatough to Mr Wilson: That’s how a salary works. You don’t get it both ways.

Mr Wilson to Mr C. Eatough: I won’t be there the next 4 days if im still on the salary What benefit to me does staying on salary have?

Mr C. Eatough to Mr Wilson: You can talk to Rod about this. Don’t send me anymore messages regarding this. We aren’t in business for your benefit.

Mr Wilson to Mr C. Eatough: Ok well don’t expect me there tomorrow then

(d) 1 April 2021:

Mr Wilson to Mr R. Eatough: Hi rod iv asked Clayton about the salary and he’s told me to ask you again, iv been asked to work over the Easter holidays but would be earning way less then everyone else who is working while doing the same hours and same job, I don’t really think that’s fair and if I’m not on the same pay as the others

Mr R. Eatough to Mr Wilson: I will be in Bowen next Wednesday & will discuss this with you then.

Mr Wilson to Mr R. Eatough: Ok I appreciate that but I still won’t work the holidays this weekend as I don’t know what’s happening

Mr R. Eatough to Mr Wilson: That is ok with me, come to work Wednesday as I will be in Bowen by then and will talk to you then.

Mr Wilson to Mr R. Eatough: Ok thanks, again I appreciate that, see you Wednesday

(e) 2 April 2021:

Mr R. Eatough to Mr Wilson: You have let us down by refusing to work today and tomorrow because we really need to get plastic laid to keep to our planting schedule, however we will get there. The weather forecast is lousy and BOM are predicting heavy rain and flooding from Rockhampton south.

Mr Wilson to Mr R. Eatough: I wasn’t refusing to work, just refusing to work for less pay than everyone else, if I was getting paid the same I would have been there

Mr R. Eatough to Mr Wilson: I suppose you have forgotten after 9 weeks paid leave you then took another week off & was paid no questions asked or a medical certificate provided by you, not bad if you work for an unreasonable employer?

Mr Wilson to Mr R. Eatough: The holiday pay is what levels my hours that I accumulated over the previous season not the upcoming one. I can get a medical certificate if that’s what’s needed.

(f) 4 April 2021:

Mr R. Eatough to Mr Wilson: Because of you refusal to follow directions and withhold you services your ongoing employment is no longer required as of today Saturday 3^rd April. RWE.

[36] In oral evidence given during the determinative conference, Mr Eatough stated that when he sent Mr Wilson the text on 1 April 2021 advising that it was OK if he didn’t work the public holidays, he was using reverse psychology. Mr Eatough thought Mr Wilson might reconsider and come to work over Easter. He stated that the text message he sent to him on 1 April 2021 was not intended to give permission for him to be excused from work.

[37] He stated that the workers who did work over Easter only ended up working Good Friday and Easter Saturday.

[38] Regarding the week that Mr Wilson took after immediately after returning from a nine-week period of annual leave, Mr Eatough stated that it was a very hot period and humidity was 90%. Mr Eatough learned that Mr Wilson had returned to work but was unwell; Mr Eatough said if he was that unwell an ambulance should be called for him. Mr Eatough stated that Mr Wilson never personally informed him that he was unwell.

[39] If it is necessary to determine s.387 considerations, Mr Eatough put the following in the way of submissions during the determinative conference:

(a) Mr Eatough did not think the request to Mr Wilson to work public holidays was over the top. He had only been back at work for one month, and Mr Eatough considered that he shouldn’t have been comparing his pay rate to that of others. He considered that Mr Wilson was motivated by “pure and utter greed”;

(b) Mr Eatough noted that Mr Wilson had been informed by text message that he had been dismissed;

(d) Mr Eatough submitted that there was no meeting with Mr Wilson and therefore no refusal of a relevant support person;

(e) Mr Eatough submitted that there had been conduct issues in 2019 and Mr Wilson had been told he was out of order. Since that time, Mr Eatough conceded that Mr Wilson’s conduct had improved;

(f) Mr Eatough stated that he works out employment issues himself and he does not obtain employment advice;

(g) Regarding the considerations at s.387(h), Mr Eatough submitted that the Respondent is a primary producer, working on very slim margins.

Mr Wilson’s evidence

[40] Mr Wilson stated that from mid-March 2021, he informed Mr R. Eatough and Mr C. Eatough that he would be returning to Scotland in June 2021. At this time, he questioned his salary as he believed he had fulfilled his contract and should have, by that time, been put onto an hourly rate of pay.

[41] He was asked by both men if he could stay for the season to which he replied that he could not. Mr Wilson stated that he could not wait another 10 months to return home.

[42] Mr Wilson was frustrated by the lack of a response he received regarding the above issue. On 1 April 2021 he was asked to work over Easter, constituting four public holidays. After receiving Mr R. Eatough’s text message saying it was OK, and it would be discussed the following Wednesday in Bowen, Mr Wilson considered he had his employer’s knowledge, awareness and acceptance that he was not working over Easter. The last message he had sent to Mr R. Eatough was:

“Ok thanks, again I appreciate that, see you Wednesday”

[43] Having received the text message sent by Mr R. Eatough on 3 April 2021, not received until 4 April 2021, it is Mr Wilson’s contention that it cannot be relied upon by the Respondent to constitute a proper reason for his dismissal.

[44] Mr Wilson contended that Mr R. Eatough harbours bitterness and resentment towards him.

[45] During the determinative conference, Mr Wilson stated that after his nine-week annual leave period over late 2020 and early 2021, when he returned on or around 21 February 2021, towards the end of the day he began to be ill. He informed Mr C. Eatough that he was ill. He normally reported into Mr C. Eatough. Mr Wilson attended upon a doctor who told him to take a few days’ rest. He sent a text message informing Mr C. Eatough of his absence.

Ms Carson’s evidence

[46] Ms Carson’s evidence went largely to the people she worked with while working for the Respondent. She named a number of people who worked for SKM Pty Ltd.

Mr Wilson’s submissions

Is the Respondent a small business?

[47] Mr Wilson noted that four people are paid by SKM Pty Ltd, performing farm work. They work under the direction of Mr Peng Kheong Yap in his capacity of farm manager.

Application of Small Business Fair Dismissal Code (the Code)

[48] Mr Wilson noted that at no time did the Respondent submit that he was dismissed for any of the matters raised as serious misconduct in the Code. Instead, it was claimed by the Respondent that Mr Wilson was dismissed for refusing to work. It was submitted that the text messages between Mr Wilson and Mr R. Eatough demonstrate there was no refusal to work and instead, there was agreement reached for Mr Wilson not to attend for work over Easter; it would be discussed the following Wednesday.

[49] It was submitted that Mr R. Eatough could not have believed on reasonable grounds that Mr Wilson’s conduct is sufficiently serious to warrant immediate dismissal when he had agreed that he did not need to attend for work. Further, it was submitted that as Mr Wilson was a permanent employee, he was entitled to have the public holidays off work without loss of pay.

Section 387 considerations

[50] The following was submitted:

(a) There cannot have been a valid reason when Mr R. Eatough said it was OK for Mr Wilson not to work over Easter and it would be discussed the following Wednesday;

(b) Mr Wilson was notified of the reason for dismissal but not until after the dismissal had taken effect;

(d) There was no meeting and therefore no refusal of a support person;

(e) The dismissal was not related to unsatisfactory performance;

(f) The Respondent’s enterprise is sufficient in staff and funding that it would be able to follow procedures properly. It was accepted there is no human resources specialist;

(g) Regarding the considerations at s.397(h), Mr Wilson had worked on the farm for five years with an unblemished record. It was submitted the impact of dismissal on Mr Wilson should be taken into consideration, as he was due to depart Australia nine weeks later and would have been at a severe disadvantage trying to find suitable work for the short period of time.

[51] It was submitted that there was a sudden turnaround by the Respondent; firstly Mr Wilson was given approval not to attend for work over Easter and then that became the reason for the dismissal. It was submitted that Mr R. Eatough has used inappropriate language when describing Mr Wilson, including calling him lazy and greedy on numerous occasions before the Commission.

Remedy

[52] Mr Wilson submitted that reinstatement is inappropriate, noting he is living in Scotland. He submitted that he should be awarded compensation for nine weeks being the period between his dismissal and his departure from Australia.

Consideration

Is the Respondent a small business?

[53] I am satisfied Mr R. Eatough’s interests extend to Radcorp Pty Ltd and to Soyax Pty Ltd. I am satisfied that these entities employed only 11 employees as of 4 April 2021.

[54] Having regard to the work performed by SKM Pty Ltd and JRD Ag Consulting, I am satisfied that these entities perform contracting services to the Respondent and are not associated entities. The employees of SKM Pty Ltd and JRD Ag Consulting do not count towards the number of employees of the Respondent. Accordingly, as there are only 11 employees employed by the Respondent and its associated entities, it is a small business. It is necessary to consider if the Respondent complied with the Code.

Did the Respondent believe that Mr Wilson had engaged in conduct sufficiently serious to justify immediate dismissal?

[55] Whether the Respondent, and namely Mr R. Eatough genuinely held the belief that Mr Wilson’s conduct on justified immediate dismissal is a question of fact. 1

[56] Mr R. Eatough was, no doubt, upset with Mr Wilson. He was faced with inclement weather, a four-day weekend and an employee who appeared to have another three or so weeks left to run on his annualised salary asking not to work the public holidays without additional pay. Mr Eatough harboured resentment, demonstrated in his text messages to Mr Wilson that he had taken nine weeks of annual leave and then been unwell on the week he returned to work.

[57] Both Mr R. Eatough and Mr C. Eatough unreasonably had regard for Mr Wilson’s absence on his return to work after the long period of leave. They considered that the week off work due to illness was a terrible inconvenience, and one for which Mr C. Eatough did not feel the Respondent should have had to pay Mr Wilson. Paid sick leave is an entitlement for permanent employees such as Mr Wilson. He was entitled to paid leave for his absence, yet Mr R. Eatough and Mr C. Eatough made an extraordinarily big deal about the issue as though Mr Wilson was shirking. Simply, he was unwell and entitled to payment for his absence.

[58] During the determinative conference I took Mr Eatough through section 114 of the Act, explaining that permanent employees are entitled to public holidays off work, with payment, and may reasonably refuse a request to work public holidays. Mr Eatough confirmed he had not earlier had regard to s.114 of the Act. There was no evidence before the Commission of any other arrangement contractually requiring Mr Wilson to work particular public holidays having regard to the annualised salary paid to him.

[59] I also took Mr Eatough through clause 27 of the Horticulture Award 2020, providing for substitution of public holidays if worked, and agreement reached with an employee. Mr Eatough stated that he had only recently learned of the clause with the award

[60] Even having regard to the above matters, Mr R. Eatough’s text messages to Mr Wilson on 1 April 2021 are clear and unambiguous. He stated to Mr Wilson that it was OK that he did not attend for work over Easter, and a discussion would be held the following Wednesday.

[61] Where Mr Eatough stated in evidence that he was using reverse psychology on Mr Wilson, in the hope that he would attend for work, Mr Eatough’s evidence is not accepted. It is absurd and contemptuous. Mr Wilson advised he would not be working over Easter and Mr Eatough replied, “That is OK with me.” There are no clearer words that could have been used. Mr Wilson had Mr Eatough’s clear permission not to attend for work over Easter.

[62] It seems after a day’s work on 2 April 2021, being Good Friday, Mr Eatough’s position on the matter changed. He sent two text messages to Mr Wilson, the first advising he had let them down by refusing to work. Mr Eatough had no regard to the fact that only the night earlier he had given permission for Mr Wilson not to attend for work over Easter.

[63] In dismissing Mr Wilson on 3 April 2021, not read by Mr Wilson until 4 April 2021, Mr Eatough could not have believed that Mr Wilson engaged in conduct sufficiently serious to warrant summary dismissal. Mr Eatough was the author of the text message only a short time before confirming Mr Wilson would not attend for work over the Easter period.

Was the Respondent’s belief based on reasonable grounds?

[64] I am not satisfied that Mr Eatough believed that Mr Wilson had engaged in conduct sufficiently serious to justify immediate dismissal, and therefore it is not necessary to determine if any such belief was based on reasonable grounds.

[65] If it were necessary to do so, I would not find it was based on reasonable grounds. Mr Wilson was entitled, as a permanent employee to reasonably refuse a request to work public holidays pursuant to s.114 of the Act. There is nothing before the Commission to suggest that his annualised salary included working a particular number of public holidays without additional payment.

[66] If Mr Eatough considered that there was three weeks left of the annualised salary to run before Mr Wilson could have requested to go to casual employment, none of this is clear in the evidence before the Commission. There is no evidence of any discussions of this type, explaining to Mr Wilson that he had still had additional hours of work to perform over the year to have ‘paid’ for the nine weeks of annual leave he had been afforded in December, January and February.

[67] I am not satisfied the Respondent complied with the Code. The jurisdictional objection is dismissed.

Was the dismissal harsh, unjust or unreasonable?

[68] A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:²

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[69] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter.³

s.387(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)

[70] When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly.”

[71] Mr Wilson informed Mr Eatough he would not be working the Easter public holidays, as requested. Instead of a discussion occurring as to whether his refusal was reasonable having regard to s.114 of the Act, Mr Eatough informed him:

“That is ok with me, come to work Wednesday as I will be in Bowen by then and will talk to you then.”

[72] The reason given for the dismissal is Mr Wilson’s refusal to follow directions and withholding his services. As I have earlier stated, Mr Eatough’s text message to Mr Wilson on 1 April 2021 was clear and unambiguous. Mr Wilson did not refuse to follow directions, nor did he withhold his services. He advised he would not be working the public holidays; this was accepted.

[73] I find that Mt Eatough’s dismissal of Mr Wilson was not sound, defensible or well founded. It was fanciful and spiteful. His suggestion that he was trying to use reverse psychology on Mr Wilson makes no sense at all. Mr Wilson is not a mind-reader and could not have had any comprehension that Mr Eatough’s email of 1 April 2021 meant that if he didn’t attend for work, he would be dismissed.

[74] For all of the above reasons, I am not satisfied there was a valid reason for the dismissal.

s.387(b) - Whether the person was notified of that reason

[75] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,⁴ and in explicit⁵ and plain and clear terms.⁶

[76] Mr Wilson was informed of the reason for the dismissal in the text message received by him on 4 April 2021. I note the date was Easter Monday. I consider that Mr Wilson was informed of the reason 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

[77] Mr Wilson was not provided with an opportunity to respond to the reason for the dismissal prior to the dismissal. While Mr Eatough sent a harsh text message on 2 April 2021, chastising Mr Wilson for letting the Respondent down and refusing to work, he was not informed that the Respondent was considering dismissing him.

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

[78] Mr Wilson was dismissed by way of text message. Accordingly, there was no discussion relating to the dismissal. There was no unreasonable refusal by the Respondent to allow Mr Wilson a support person because no meeting occurred.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[79] Mr Wilson was last warned about unsatisfactory work performance some years prior to the dismissal. Mr Eatough conceded that Mr Wilson had worked well in recent years.

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

[80] I have had regard for the Respondent’s activities and the nature of the Respondent’s business, being a family-run business. Mr Eatough’s lack of human resource management experience is evident. I consider that the small size of the Respondent’s business and the absence of an employed dedicated human resource management specialist impacted on the procedures followed.

s.387(h) Other matters

[81] I note the contempt both Mr R. Eatough and Mr C. Eatough had for Mr Wilson’s absence from work in February 2021 on paid personal leave. The attitude of both men regarding Mr Wilson’s absence on medical grounds is concerning. Mr R. Eatough gave evidence that he was aware the conditions were very hot, with high humidity. Mr Wilson had been away from work for a period of nine weeks and when he returned, he was ill at work. He obtained medical advice and informed Mr C. Eatough, his usual supervisor that he needed to be off work for a few days.

[82] Regrettably, in April 2021, both Mr R. Eatough and Mr C. Eatough were admonishing Mr Wilson for taking this time off work at a cost to the Respondent. Both men should familiarise themselves with the National Employment Standards within the Act. If, in February 2021 they didn’t require a medical certificate as evidence of the absence, they should not have been complaining of not having received one in April 2021.

[83] I note Mr Eatough’s evidence that he was not directly aware of Mr Wilson’s plans to return to Scotland. On 29 March 2021, Mr Wilson sent him the following text message, “Hey rod was just wondering if I was able to come off the salary since I won’t be here the whole season?” If Mr Eatough was not aware of Mr Wilson’s plans to make himself unavailable for most part of the season, he was made aware of Mr Wilson’s plans on receipt of this text message.

Conclusion

[84] I have determined that there was not a valid reason for the dismissal.

[85] I consider that Mr Wilson was informed of the reason for the dismissal.

[86] I am not satisfied Mr Wilson was given an opportunity to respond to any reason related to his capacity or conduct.

[87] There was no unreasonable refusal by the Respondent to allow Mr Wilson a support person because no meeting occurred.

[88] There was no relevant prior unsatisfactory work performance before the dismissal.

[89] I consider that the small size of the Respondent’s business and the absence of an employed dedicated human resource management specialist impacted on the procedures followed.

[90] I have had regard to the other matters I consider are appropriate to take into consideration.

[91] I determine that Mr Wilson’s dismissal was harsh, unjust and unreasonable.

Remedy

[92] 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.”

[93] Mr Wilson 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.

[94] Mr Wilson does not seek reinstatement due largely to the fact that he is now resident in Scotland. I am satisfied that it is inappropriate to order reinstatement.

[95] I now turn to consideration of compensation.

Compensation

[96] 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

[97] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket.⁷ 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;⁸ Jetstar Airways Pty Ltd v Neeteson-Lemkes⁹ and McCulloch v Calvary Health Care (McCulloch).¹⁰

[98] I have had regard to the above authorities, and I have considered the submissions of each party.

The effect of the order on the viability of the respondent

[99] No submissions have been made on this issue. There is no evidence before me that the compensation to be awarded would affect the viability of the Respondent.

The length of Mr Wilson’s service

[100] Mr Wilson had approximately 4.5 years’ service. This is not an extensive period of time.

The remuneration that Mr Wilson would have received, or would have been likely to receive, if he had not been dismissed

[101] I have determined that Mr Wilson would have remained employed for a further period of nine weeks until he left Australia to return to Scotland. Following the determinative conference, the Respondent confirmed Mr Wilson’s weekly wage was $983.30 gross. The amount is $8,849.70 gross.

The efforts of Mr Wilson (if any) to mitigate the loss suffered because of the dismissal

[102] Mr Wilson provided evidence of his airline ticket having been booked in March 2021. He departed Australia in June 2021. I accept it would have been difficult for Mr Wilson to have found suitable employment to cover this short period of time when he would have been reasonably obliged to inform prospective employers of his upcoming departure.

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

[103] Mr Wilson did not receive any remuneration from the time of his dismissal until his departure from Australia.

The amount of any income reasonably likely to be so earned by Mr Wilson during the period between the making of the order for compensation and the actual compensation

[104] This factor is not relevant in the circumstances of this matter.

Other relevant matters

[105] I have had regard to the fact that Mr Wilson would have been entitled to a minimum of three weeks’ notice on dismissal which was not paid to him.

Misconduct reduces amount

[106] Section 392(3) of the Act requires that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

[107] The section requires that consideration be given by the Commission, amongst other things, as to whether a person’s misconduct contributed to the decision to dismiss an employee even if the Commission has found that there was no valid reason for the person’s dismissal. However, if there was no valid reason for the dismissal that may be relevant to the Commission’s decision as to the appropriate amount by which the amount of compensation should be reduced.¹¹

[108] I am not satisfied that Mr Wilson engaged in any misconduct. Accordingly, no deduction is made.

Shock, distress etc. disregarded

[109] 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 Wilson by the manner of the dismissal.

Compensation Cap

[110] 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.

[111] The high income threshold immediately prior to the dismissal was $153,600, and the amount for 26 weeks was $76,800. The amount of compensation the Commission will order does not exceed the compensation cap.

Payment by instalments

[112] I do not consider it appropriate to make an order for payment by instalments. The Respondent has been in operation for some time and would have appropriate assets to make the payment in full to Mr Wilson by the date ordered.

Order of compensation

[113] I have determined that the Respondent is to pay to Mr Wilson the amount of $8,849.70 gross less tax as required by law within 14 days of the date of this decision.

[114] In addition, the Respondent is to pay superannuation on the amount of $8,849.70 at the rate of 9.5% (as it was prior to 1 July 2021), being an amount of $840.72 into Mr Wilson’s superannuation fund.

[115] An Order of compensation [PR735103] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2015] FWCFB 5264, at [43].

2 (1995) 185 CLR 410, [465].

3 Sayer v Melsteel[2011] FWAFB 7498 at [20].

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

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

6 Ibid.

7 (1998) 88 IR 21.

8 [2013] FWCFB 431.

9 [2014] FWCFB 8683.

10 [2015] FWCFB 2267.

11 Crawford v BHP Coal Pty Ltd [2017] FWC 154, [345] – [346]; Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762, [83].

Jamie Robert Wilson v Radcorp Pty Ltd

[2021] FWC 6172

21 OCTOBER 2021

DECISION