Jaskirat Singh v Foamex Group Pty Ltd

[2020] FWC 5592

[2020] FWC 5592

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jaskirat Singh
v
Foamex Group Pty Ltd
(U2020/2932)

COMMISSIONER BISSETT MELBOURNE, 29 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] Mr Jaskirat Singh (Applicant) has made an application seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009. The Applicant was employed by Foamex Group Pty Ltd (Respondent) in its factory in suburban Melbourne. The Applicant commenced employment with the Respondent on 1 September 2017. His employment was terminated on 21 February 2020 following an incident at the factory location.

[2] At the commencement of the hearing the Applicant sought and was granted permission to be represented by a lawyer. In granting permission I was satisfied that the Applicant was unable to represent himself effectively (s.596(2)(b) of FW Act).

[3] At the commencement of the matter, having heard from the parties, I decided that it was appropriate the matter be dealt with by hearing (s.399 of the FW Act).

THE INCIDENT

[4] On 19 February 2020 the Applicant was unwell with a “rash and itching” on his body. He attended the doctor that day and was given a medical certificate for the period 19-21 February 2020. 1 That day he sent a text message to his supervisor (Ms Kim Briggs) with a photo of the medical certificate advising that he would not be attending work due to his illness. The Applicant said he also sent the certificate to Mr Kane Morris, his manager. He said he also spoke to Mr Morris who, he says, forced him to come in the following day (20 February 2020) for a meeting.

[5] The Applicant said that he was not taking any medication for his illness (a viral fever and itchy skin) on 19 February 2020 except for Panadol as he was waiting for test results. He also said that he had not consumed any alcohol that day.

[6] On questioning from the Bench the Applicant said he telephoned Mr Morris 4-6 times on 19 February 2020. He said he spoke to Mr Morris (and Mr Tony Katsigiannis) about his situation with his supervisor which was why Mr Morris wanted him to come in the next day to talk about it. He said he kept calling Mr Morris back so he could tell him he could not come in the next day because of his illness but the call kept disconnecting. The Applicant at first said he did not have any idea if he texted Mr Morris to tell him this but then said he could remember sending a text message although he did not have the message on his phone.

[7] The Applicant said he decided to visit the factory on 19 February 2020 because the phone kept disconnecting when he tried to call Mr Morris and he did not want to come in the following day as he was sick.

[8] The Applicant said he visited the factory on 19 February 2020 at about 2.30 or 3.00pm, arriving by Uber. When there he spoke to Mr Katsigiannis about his medical condition and how he was not being treated fairly by Ms Briggs.

[9] When he left the factory the Applicant said Mr Adam Wassouf was waiting for him. He said Mr Wassouf spoke to him but he did not speak to Mr Wassouf because the Applicant was going to his Uber. The Applicant said that when he was standing with (or near) Mr Wassouf he lifted his shirt and “scratched his body parts.” The Applicant said he did not know why Mr Wassouf was waiting for him.

[10] The Applicant did not attend the workplace on 20 February 2020. On 21 February 2020 he received a letter in which he was advised his employment had been terminated. 2

[11] The Applicant said that on 24 February 2020 he received an email from the Respondent indicating that he needed to attend the police station to hand in his work keys. When he arrived at the police station he said he was arrested because he had made threats to kill his manager.

[12] The Applicant denied that on 19 February 2020 he was a carrying a knife or that he showed a knife to Mr Wassouf or that he told Mr Wassouf he was going to kill Kane [Morris].

[13] On cross examination the Applicant said the meeting with Mr Katsigiannis went for 30-40 minutes. He said that he told Mr Katsigiannis about his medical condition and that he could not attend a meeting the following day. He said that on 19 February 2020 his supervisor Kim spoke to him early in the morning and told the Applicant to “do whatever you want to do” and that her behaviour “was not good” to him.

[14] Mr Adam Wassouf was working with the Respondent through a recruitment agency as a casual employee at the time of the incident. He had worked for the Respondent for a short while and knew the Applicant through work and considered them “work friends” but they did not socialise outside work. He said that on 19 February 2020 he heard the Applicant arguing in the office as he was leaving work. He waited outside for the Applicant to come out of the building as he wanted to know if the Applicant was alright. Mr Wassouf said he asked the Applicant if anything was wrong but got no reply. He said the Applicant lifted his shirt to show him something but Mr Wassouf could not see what it was. As they reached the gate he said the Applicant again lifted his shirt and pulled out a knife and said “I’m going to kill Kane [Morris]”. Mr Wassouf knew who Mr Morris was and was aware that he was not at the factory at the time.

[15] Mr Wassouf said he told the Applicant not to do anything stupid. The Applicant poked his tongue out at Mr Wassouf, put the knife back down his trousers and then got into a black car with a driver and drove off.

[16] Mr Wassouf said he was not particularly worried about his safety or the safety of anyone at work at the immediate time as the Applicant had driven off.

[17] Mr Wassouf went home and when he arrived at work the next morning told Ms Briggs (his supervisor) what had happened.

[18] Mr Tony Katsigiannis is the Manufacturing Manager. He said that on 19 February 2020 both Kane Morris and Kim Briggs brought to his attention that they had received text messages and phone calls from the Applicant including that he intended to leave his employment with the Respondent. He said both Mr Morris and Ms Briggs were concerned at the number of text messages and calls they had received from the Applicant.

[19] Mr Katsigiannis said he and Mr Morris called the Applicant. It appeared to him that the Applicant was under the influence of alcohol as he was slurring his words, he was very hard to understand and he was not making any sense. Mr Katsigiannis and Mr Morris advised the Applicant that he was not in a state to talk and if he wanted to discuss matters he could come in the next day when he was in a better state.

[20] Mr Katsigiannis said that at about 3.00pm that day he was told that the Applicant was at the office. Mr Katsigiannis went to see him. He said that the first thing he noticed was that the Applicant could barely stand, his speech was slurred and it was difficult to understand him. He said the Applicant raised complaints about not being offered overtime when other parts of the factory were getting overtime. Mr Katsigiannis said it was explained to the Applicant that overtime was only worked where there was a business requirement to do so. Mr Katsigiannis then told the Applicant that he was not in a state to discuss the matter and it could be discussed the following Monday when the Applicant returned to work.

[21] Mr Katsigiannis said that the following morning he was told by Mr Morris (who had apparently been advised by Ms Briggs) that one of the casual employees (Mr Wassouf) had seen the Applicant as he was leaving the site on 19 February 2020 and that the Applicant had shown that person a knife and said he was going to kill Kane.

[22] Mr Katsigiannis told Mr Morris to contact the police and then told Mr Justin Kelsey, General Manager of the Respondent what had happened.

POLICE REPORT

[23] The incident of the Applicant apparently displaying a knife and threatening to kill Mr Morris was reported to the police. Each of Mr Wassouf, Mr Katsigiannis and Mr Morris made statements to the police. The statements of Mr Wassouf and Mr Katsigiannis are not dissimilar to those given in these proceedings.

[24] Mr Morris did not give evidence in these proceedings and currently has an interim intervention order against the Applicant.

[25] I indicated during the hearing that I would have regard to the statement of Mr Morris to the police 3 in relation to 19 and 20 February 2020. Nothing in that statement is contrary to the direct evidence in these proceedings and I am satisfied I can have regard to it as a contemporaneous account of what occurred on 19 February 2020.

[26] In his statement to police Mr Morris said that at 12.48pm and again at 1.22pm on 19 February 2020 he received calls from the Applicant. He said the Applicant was slurring his words and did not sound well. The Applicant kept repeating to Mr Morris “I need to see you, I need to see you”. He said he told the Applicant to have a sleep and come in the next morning at 9.00am to talk.

[27] Mr Morris said he received another call at 1.34pm and a further at 2.01pm. After this call he told the Applicant he did not have time to keep taking his calls and he would talk to him the following day. He said that he told the Applicant he was going to block his number. Mr Morris said he received two more calls from the Applicant which he ended and he then blocked the Applicant’s number.

[28] Mr Morris said he was told the next morning by Ms Briggs what she had been told by Mr Wassouf. Mr Morris considered this conduct of the Applicant to be out of character for him.

PRELIMINARY MATTERS

[29] I am satisfied that the application for relief from unfair dismissal was made within the statutory timeframe, the Applicant is protected from unfair dismissal, the dismissal was not a redundancy and the Small Business Fair Dismissal Code does not apply (s.396 FW Act). It is also not in dispute that the Applicant was dismissed from his employment (s.385 FW Act).

[30] Section 385 of the FW Act sets out those matters of which the Commission must be satisfied in determining if a person has been unfairly dismissed. In order to determine such a matter it is necessary to consider if the dismissal of the Applicant was harsh, unjust or unreasonable.

HARSH, UNJUST OR UNREASONABLE

[31] Section 387 of the FW Act sets out those matters to be considered in deciding if a dismissal is harsh, unjust or unreasonable. It provides:

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.

[32] I have considered each of these matters below.

(a) whether there was a valid reason for dismissal related to capacity or conduct

[33] In Selvachandran v Peterson Plastics Pty Ltd 4 his Honour, Northrop J said:

In its context in subsection 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 subsection 170DE(1). At the same time the reason 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 each treated fairly…

[34] It is incumbent upon the Commission in a matter that involves misconduct to determine for itself, on an objective basis, if the conduct relied on for the dismissal did occur. 5 The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct.6

[35] The standard of proof in determining if the conduct did occur is the balance of probability. 7 However, in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd 8 it was held that

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. 9

[footnotes omitted]

[36] That is, whilst the standard of proof does not change by virtue of the conduct sought to be proven, where the conduct is of a more serious nature more robust evidence may be required.

[37] Given the evidence as to the state of the Applicant and his erratic behaviour (calling Mr Morris 6 times and attending the workplace that day to explain why he could not attend the next day because he was unwell) I am not satisfied the Applicant’s recollection of his actions on 19 February 2020 day are wholly reliable.

[38] The weight of evidence supports a conclusion that the Applicant was not well on the 19 February 2020. In addition to the medical certificate the Applicant said he had a viral infection. Further, I accept that the evidence of Mr Katsigiannis that the Applicant did not appear well, was slurring his speech, appeared to be under the influence of alcohol and was not making any sense when Mr Katsigiannis spoke to him that day. I also accept that the Applicant poked his tongue out at Mr Wassouf which, in Mr Wassouf’s words, didn’t seem right.

[39] The Applicant’s written evidence statement is that he was “forced” to come into work on 20 February 2020 10 but he then said, in his oral evidence, that he was “asked” to come in the following day by Mr Morris to discuss his concerns. That the Applicant was “forced” to attend on 20 February 2020 is not supported by the evidence of Mr Katsigiannis or the statement made by Mr Morris to the police on 20 February 2020 and I prefer this evidence and statement to that of the Applicant. I am therefore satisfied that Applicant was not “forced” to attend work on 20 February 2020 but that he was told he could come in and discuss his concerns by Mr Morris or should return the following Monday by Mr Katsigiannis .

[40] The Applicant was dismissed for serious misconduct in relation to the incident of 19 February 2020, in particular for having a knife and threatening to kill Mr Morris.

[41] The direct evidence in relation to this matter comes from the Applicant, Mr Wassouf and CCTV footage. 11 Mr Wassouf said he saw a knife and the Applicant denied he had a knife.

[42] The CCTV footage was shot from behind the Applicant and from some distance. It is clear from the CCTV footage that the Applicant lifted his shirt – the Applicant says to scratch himself while Mr Wassouf said the Applicant pulled a knife out. It does appear from the CCTV footage that the Applicant, when lifting his shirt, has his attention directed to Mr Wassouf 12 off to his right. Given the Applicant’s evidence that he did not talk to Mr Wassouf it is unclear why he would have his attention directed to where Mr Wassouf was standing and not in the opposite direction to his Uber ride if he was, as he said, heading to that vehicle.

[43] I accept the evidence of Mr Wassouf that the Applicant did engage with him as they were leaving the premises on 19 February 2020. This evidence is supported by the CCTV footage. To this extent I do not accept the evidence of the Applicant that he did not speak to Mr Wassouf.

[44] I am satisfied that Mr Wassouf saw something of concern to him in the actions of the Applicant while leaving the site. However, the evidence before me does not allow me to conclude, to the degree of satisfaction required, that on the balance of probabilities that the Applicant did have a knife or that he showed it to Mr Wassouf on 19 February 2020. This is not to suggest that I discount this as a possibility but, given the seriousness of the allegation, I do not consider I have evidence of sufficient strength to allow me to conclude that the Applicant did have a knife.

[45] I do not consider, as was suggested by the Applicant, that Mr Wassouf gave misleading evidence to the Commission or that he did so for any ulterior purpose. Mr Wassouf had nothing to gain by giving evidence and did so even though not employed by the Respondent.

[46] This knife is, however, only one aspect of the Applicant’s conduct. The other matter is that the Applicant threatened to kill Mr Morris. Whether he had a knife, whilst it may have some bearing on any threat made, is not of itself determinative of such a threat having been made.

[47] I am satisfied that it is reasonable to infer that the Applicant was not happy with Mr Morris on 19 February 2020. The Applicant wanted action taken against his supervisor who he considered was not treating him fairly, he had raised this issue in the past and it had not been dealt with.

[48] The Applicant was also not happy that his calls to Mr Morris kept dropping out (although I prefer the explanation given by Mr Morris in his police statement that he told the Applicant he did not have time to keep taking his calls and would block him). He was clearly distressed enough at not being able to discuss his issues with Mr Morris to attend the workplace that day to explain why he could not attend the next day and to complain about overtime issue and his supervisor. Further, the Applicant considered that he was being forced by Mr Morris to come into work on 20 February to have a meeting when he was sick.

[49] My conclusion on this is reinforced by an email/submission to the Commission filed by the Applicant on 10 August 2020 where he said:

Respected sir/mam, This is starting point of my unfair dismissal relevant of my case . when I raised my voice against the discriminative behaviour of supervisor with the workers regarding the allotment of overtime at workplace.And then she say jess do whatever u want to do. Then I informed to manager about her behaviour.plz get rid from this lady …[sic]

[50] The Applicant did not receive a satisfactory response (in his mind) when he discussed the issue of his supervisor and overtime allocation with Mr Katsigiannis wo told him he would discuss it with the Applicant the following week when he returned from his absence.

[51] In these circumstances I am satisfied that the Applicant did express to Mr Wassouf while leaving the workplace on 19 February 2020 a threat to kill Mr Morris. Whether the Applicant meant his threat is not to the point. While Mr Wassouf did not act on this information that day he did consider the comments serious enough to report it to his supervisor the next day who then passed that information to Mr Morris.

[52] The decision of the Applicant to attend the workplace on 19 February 2020 is inexplicable. He was unwell, he had a medical certificate placing him off work for 3 days. Whilst the Applicant may have had some complaint in relation to receiving (or not) overtime it is not clear, and the Applicant did not satisfactorily explain, why he had to attend the workplace on 19 February 2020 to have that matter resolved. The issue of the allocation of overtime did not need to be resolved that day.

[53] I am satisfied that the threat, particularly in circumstances where the Applicant was behaving erratically, provided a valid reason for the dismissal of the Applicant.

(b) & (c) whether the person was notified of that reason and given an opportunity to respond

[54] Mr Katsigiannis was involved in the decision to dismiss the Applicant from his employment. He gave evidence that there was no contact made with the Applicant after 19 February 2020 and that the decision to dismiss the Applicant was taken after he spoke to Mr Wassouf and after seeking advice from the Ai Group, an employer organisation. Mr Katsigiannis said the decision was taken following a discussion between himself, Mr Kelsey, Mr Morris and Ms Smith from HR/payroll.

[55] In the circumstances I am satisfied that the Applicant was not advised of the reason for his dismissal or given an opportunity to respond prior to being notified of his dismissal on 21 February 2020.

[56] Whilst I appreciate the gravity of the situation the Respondent considered it was facing and that it did seek advice from an employer organisation before dismissing the Applicant, it is not clear why no thought was given to seeking the Applicant’s version of what had happened, particularly in circumstances where the CCTV footage was not conclusive as to whether the Applicant did have a knife, where the Applicant was clearly unwell and where Mr Morris considered the conduct of the Applicant to be out of character. This could have been done quickly and without bringing the Applicant on site.

[57] In circumstances where the CCTV evidence was not objectively clear the denial of any opportunity to the Applicant to explain himself is concerning.

(d) any unreasonable refusal to allow a support person

[58] As there was no meeting with the Applicant there was no refusal – reasonable or otherwise – to allow a support person to be present.

(e) if the dismissal related to unsatisfactory performance

[59] The Applicant was not dismissed for performance reasons. This is, therefore, not a relevant consideration.

(f) & (g) the degree to which the size of the employer’s enterprise and absence of dedicated human resources expertise would be likely to have impacted on procedures in effecting the dismissal

[60] The Respondent is a medium size business with about 100 employees across two sites in Melbourne.

[61] Mr Katsigiannis gave evidence that, prior to taking any action against the Applicant, it sought advice from Ai Group who advised that, in the circumstances, it would be better not to bring the Applicant on site for a face to face meeting in relation to his conduct.

[62] Whilst the Respondent appears to have limited human resources expertise it clearly has access to external advisors (Ai Group) who, either because they were not asked or did not think to mention, do not appear to have provided any advice on procedural issues in relation to how the Respondent would give effect to the dismissal of the Applicant.

[63] I do note that the Respondent does have a Performance and Misconduct Policy (Policy) which states, in section 5:

5. Disciplinary procedure

5.1 The procedures outlined below are intended as a guide only to the disciplinary procedures which may be implemented by Foamex. In every case, Foamex will determine the actual disciplinary procedure to be adopted in its discretion and in consideration of the circumstances of the case as a whole. Nothing in this Policy prevents Foamex from issuing a final warning at any stage of the process. Similarly, nothing in this Policy prevents Foamex from dismissing an employee at any stage of the procedure set out in this Policy if Foamex deems this action is warranted, for example in circumstances involving an employee committing serious or wilful misconduct.

[emphasis added]

[64] That part of the Policy has the effect of overriding other aspects of the disciplinary procedure including an investigation and disciplinary interview required prior to any decision as to disciplinary action being taken.

[65] To the extent it might be said that the Respondent did not comply with its own Policy this does appear to be the case. The Respondent formed the view the Applicant had engaged in serious misconduct and acted in accordance with its policy. I do not consider that this is contrary to my finding above with respect to procedural fairness.

[66] Whilst the Respondent’s actions were swift in reaction to what Mr Wassouf said he saw, it was in accordance with the policy in operation at the site.

[67] For these reasons I do not consider the Respondent’ size of access to human resources expertise affected, one way or the other, how the dismissal was brought about.

(h) other matters

[68] I accept that the Applicant had a medical certificate for 19-21 February 2020 and was unwell.

[69] The Applicant said, and I accept, that he was advised he should attend the police station on 24 February 2020 to return his work keys and that he did so. On arriving there he was arrested. He has subsequently been charged in relation to the incident. A court case is pending.

[70] The Respondent and/or Mr Morris reported the matter to the police. The advice that came back to the Respondent (whilst not clear whether it was direct or via Mr Morris) was that the Respondent should have no contact with the Applicant and should, instead, leave that to the police. Mr Katsigiannis acted on this advice and did not engage with the Applicant.

[71] Mr Morris was concerned for his own welfare as a result of the incident and took out an interim intervention order against the Applicant which remains in place.

[72] The Respondent was concerned at the threat being made against one of its employees and engaged a security guard for two weeks following the incident to improve the safety of its employees.

Was the dismissal harsh, unjust or unreasonable?

[73] In Byrne v Australian Airlines Ltd 13 it was held that

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. 14

[74] The determination of whether a dismissal is harsh, unjust or unreasonable must be based on a consideration of all of those matters in s.387 of the FW Act as set out above.

[75] The reaction of the Respondent to the incident as Mr Wassouf relayed it was swift and decisive. After some internal discussion it dismissed the Applicant for serious misconduct, engaged a security guard and reported the matter to the police.

[76] I have found that there was a valid reason for the dismissal of the Applicant. Whilst the Applicant’s threat was not made directly to Mr Morris it was made not long after he left a meeting (at which Mr Morris was not present) where his speech was slurred, he was not steady on his feet and it was suggested he was in no state to talk and his concerns should be discussed on his return to work from his sick leave.

[77] The existence of a valid reason however is not by itself an answer to a claim that a dismissal harsh, unjust or unreasonable. It is only one of several matters that must be taken into account in making such a determination.

[78] I have also found above that there was an absence of procedural fairness in that the Applicant was not given an opportunity to provide any response to the concerns of the Respondent. Had I found that the Applicant was carrying a knife I would not consider the process adopted by the Respondent in moving to summarily dismiss the Applicant without further process necessarily harsh, unjust or unreasonable. The Applicant had attended the workplace in the state described. The report to the Respondent the next morning was that, on leaving the workplace, the Applicant showed a knife to another employee and made a threat to kill Mr Morris. Given this report and the knowledge of the decision makers of the Applicant’s state the day before, the Respondent’s decision to terminate without further discussion was not unreasonable in those circumstances that confronted it.

[79] This case however demonstrates the danger in not seeking an employee’s version of an incident in circumstances where there is no independent verifiable evidence of what did occur and summary dismissal is being considered. As I said above I do not consider that Mr Wassouf has sought to mislead anyone in his evidence but I do not consider the CCTV footage unambiguously supports what he said he saw. In these circumstances the prudent approach would be to have asked the Applicant what did happen. The various versions of events could then be weighed up and a decision made as to the disciplinary outcome. Further, advising an employee of concerns and giving the employee a chance to respond does not preclude a summary dismissal outcome. The denial of such an opportunity to the Applicant is of concern.

[80] The only valid reason for dismissal I have found was the threat against Mr Morris. This occurred in circumstances where the Applicant was in a confused state, slurring his words and not in a state to engage in rational discussion. As Mr Morris said in his statement to the police of 20 February 2020 the actions of the Applicant were out of character. The actions of the Applicant should have been considered through this lens. There was no reason the actions of the Applicant could not have been put to him and he be given an opportunity to respond. This could have been done by phone to minimise any assessed risk to others in the workplace and could have been done relatively quickly. For this reason the Applicant should have been given an opportunity to put his side of the story.

[81] On fine balance I therefore consider that the dismissal of the Applicant was unreasonable as the Applicant was denied procedural fairness and unjust in that summary dismissal appears disproportionate to the conduct I have found the Applicant engaged in.

UNFAIRLY DISMISSED

[82] For these reasons I am satisfied the Applicant was unfairly dismissed.

REMEDY

[83] The Applicant does not seek reinstatement but rather seeks compensation of the maximum amount.

[84] In these circumstances I am satisfied that reinstatement is inappropriate and compensation should be considered.

[85] Section 392 of the FW Act sets out those matters to be taken into account in determining compensation.

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.

[86] While I acknowledge that the Applicant had been employed by the Respondent for a number of years and that his conduct was “out of character” I do not consider, had his employment not been terminated, that he would have remained employed by the Respondent for any longer than another 4 weeks. Whilst the Applicant was unfairly dismissed there remains conduct which I found the Applicant did engage in which provided a valid reason for his dismissal. This conduct would still have been subject to investigation by the Respondent and, I am satisfied, would have resulted in dismissal following a fair process where he was given an opportunity to respond to the matter of the threat I am satisfied he made. Additionally, I am satisfied that the dissatisfaction expressed by the Applicant in relation to his supervisor and what he considered the unfair allocation of overtime would have seen a breakdown in the relationship between the Applicant and the Respondent such that his employment would be terminated by him, the Respondent or mutually. The evidence before me would not allow me to conclude that the Applicant’s supervisor would be dismissed to appease the Applicant.

[87] The Applicant’s lost earnings for this four week period is therefore $3,572.00 ($23.50 per hour).

[88] I make no deduction from this amount for contingencies noting that any suspension during a formal investigation is with pay.

[89] I am satisfied that the Applicant has sought other employment in an effort to mitigate his loss and that he has had no earnings following his dismissal.

[90] I am however satisfied that the amount I would otherwise order in compensation should be reduced as the conduct of the Applicant contributed to the decision to dismiss him.

[91] In this case I am satisfied that the compensation should be reduced to zero. The Applicant’s conduct that I have found to have occurred contributed to the response of the Respondent and ultimate decision to summarily dismiss him. I accept that the Applicant was unwell on 19 February 2020 and his personal leave continued to 21 February 2020. However, there was no reason for him to have continued to telephone Mr Morris (particularly so after he was told the matter could be discussed the following day which was not unreasonable given his insistence as to resolving the matter) or to have attended the workplace in the state he was in on 19 February 2020.

[92] The Applicant had access to the mobile telephone number of Mr Morris. He could have sent a text message to say he was on personal leave and could not come in the next day but would like to discuss the matter when he was well and returned to work. Nothing was going to happen in the interim. The Applicant was not at work so could not be unfairly (as he saw it) denied overtime in the interim and would not have to interact with Ms Briggs.

[93] The Applicant’s conduct on 19 February was irrational on its own. The evidence of Mr Wassouf supports my decision. It was the cause of his dismissal.

[94] I therefore do not intend to award the Applicant any amount of compensation. Suffice it to say that there is no need in these circumstances to consider ss.392(4)-(6) of the FW Act.

DISPOSITION

[95] I am satisfied that the Applicant was unfairly dismissed.

[96] I have determined that no compensation should be awarded.

COMMISSIONER

Appearances:

J. Zhou for the Applicant

J. Kelsey for the Respondent

Hearing details:

2020.
Melbourne by video.
September 17.

Printed by authority of the Commonwealth Government Printer

<PR723702>

 1   Court book p63.

 2   Court book p71.

 3   Court book p136.

 4 [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373].

 5   Edwards v Justice Giudice [1999] FCA 1836.

 6   King v Freshmore (Vic) Pty Ltd, 17 March 2000, Print S4213.

 7   Briginshaw v Briginshaw [1938] HCA 34.

 8 [1992] HCA 66.

 9   Ibid per Mason C.J., Brennan, Deane and Gaudron JJ.

 10   Court book p49.

 11   Exhibits A1 and A2.

 12   Exhibit A2.

 13 [1995] HCA 24.

 14 Ibid at [128].