Jason McNally v Neale Taylor Plumbing Pty Ltd T/A Neale Taylor Plumbing & Gas
[2014] FWC 4486
•4 JULY 2014
[2014] FWC 4486 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason McNally
v
Neale Taylor Plumbing Pty Ltd T/A Neale Taylor Plumbing & Gas
(U2014/4467)
DEPUTY PRESIDENT BARTEL | ADELAIDE, 4 JULY 2014 |
Application for relief from unfair dismissal
Introduction
[1] Jason McNally (the applicant) has made application pursuant to s.394 of the Fair Work Act 2009 (the Act), seeking a remedy in relation to his dismissal from Neale Taylor Plumbing Pty Ltd T/A Neale Taylor Plumbing & Gas (the employer or the respondent) on 24 January 2014.
[2] The applicant commenced employment with the respondent on 10 August 2012. The applicant resides in Australia on a sub class 457 visa and the respondent sponsored his employment after the applicant lost his previous job. The applicant was a qualified plumber in England, and on commencement with the respondent undertook additional training to obtain his Australian trade qualification. This was completed on 24 September 2013.
[3] The matter proceeded by way of a determinative conference pursuant to s.398 of the Act.At the conference, Mr Adrian Richards, paid agent, sought permission to appear for the respondent. Permission was denied on the basis that the application did not involve complex or technical issues. I also took into account that the applicant was unrepresented and it was my view that fairness between the parties would be better served by declining permission for representation.
[4] The applicant gave evidence as did Mr Neale Taylor, Director of the respondent business. Mr Malcolm Bassham, Plumbing Supervisor, also gave evidence for the respondent. Mr Bassham’s evidence was uncontroversial as far as it related to his role in the respondent’s business and his witness statement. 1 He was asked questions in relation to a statement completed by his son, who also works for the respondent, but as Mr Bassham noted he is unable to answer in relation to those matters. Several statements filed by the respondent, including that of Mr Bassham’s son, were not admitted on the basis that the authors of the statements were not present to be questioned. Both the applicant and Mr Taylor filed various documents prior to the conference which were admitted as evidence and will be referred to as relevant in the discussion that follows.
The statutory framework
[5] The respondent is a small business employer within the meaning of the Act 2 and the Small Business Fair Dismissal Code (the Code) applies:
“Small Business Fair Dismissal Code
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 Fair Work Australia, 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.”
[6] The applicant is a person protected from unfair dismissal, having completed service in excess of the minimum employment period of 12 months 3 and being covered by a modern award.4
[7] Section 396 of the Act sets out the initial matters to be considered by the Fair Work Commission (the Commission) in determining an application for an unfair dismissal remedy as follows:
“396 Initial matters to be considered before merits
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;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[8] The application was made within the statutory time frame of 21 days and there was no suggestion that the dismissal was a case of genuine redundancy. As noted, the applicant is a person protected from unfair dismissal. As such, the issue that falls for determination in the first instance is whether the dismissal was consistent with the Code.
The facts
[9] On 28 October 2013 Mr Taylor spoke to the applicant about the way the bathroom had been left at a job undertook at Packer Drive, Highbury.The applicant described leaving a footprint in the bathroom but Mr Taylor said that the problem was the general untidiness of the bathroom and that it had to be cleaned up before the client would pay the bill.
[10] On 29 October 2013 the applicant was presented with two written warnings. The first warning identified unacceptable behaviour in the following areas. The applicant’s response is set out under each item. 5
Carrying out allocated jobs
This referred to a job attended by the applicant to fix a hot water service. The applicant lit the pilot light, believing this to be the only issue, and left the job. This did not address the actual problem with the service and Mr Taylor was concerned that the applicant failed to undertake a thorough check to identify the cause of the problem.
The applicant accepts that he was at fault in this matter, but argued that he had only recently competed his training and that a warning in the circumstances was excessive.
Company vehicle
While the issue of concern was not explicitly stated in the warning letter, it referred to the requirement under the Company Vehicle Policy to maintain the company vehicle in a clean and tidy state.
The applicant acknowledges that his vehicle was untidy but stated that it was not as messy as other plumbers’ vehicles. He also stated that he had never seen the Company Vehicle Policy.
Cleaning up after jobs
The warning letter stated:
“On a number of occasions we have requested you to clean up on the site completion of Jobs. This is a major part of the service provided by Neale Taylor Plumbing & Gas and it is imperative that you tidy up the area when you finish a Job at all times.”
The applicant stated that:
● He had been spoken to only once about this issue, that being the Packer Drive job, and that was on the previous day;
● He was not given the opportunity to improve between the time of the verbal and written warnings; and
● He had purchased a vacuum cleaner to assist in maintaining premises in a clean state.
Completing Job Sheets
The applicant was reminded of the importance of entering relevant details on the Job Sheets and including the job number on Job Sheets, invoices for purchases and delivery dockets.
The applicant stated that:
● This was the first time the matter had been raised; and
There was difficulty obtaining job numbers from the office at times.
Unacceptable handwriting
The applicant was requested to take more care with his handwriting to avoid errors in invoices presented to clients. He was reminded to include all materials in the Job Sheets.
The applicant stated that:
● This was not a matter that warranted a warning; and
● If his handwriting was messy he was probably rushing to get to the next job.
Disregarding standard company procedures
The letter stated that the Company Procedures and Policies are set to ensure that certain standards are maintained and for Occupational Health and Safety purposes and should be adhered to at all times.
The applicant responds that:
● He has not sighted any policies other than a mobile phone policy; and
● He received no training or prior advice about non-compliance with policies.
[11] The applicant was invited to seek further clarification from Mr Taylor on any part of the letter.
[12] Mr Taylor provided documentation that shows that the applicant did in fact receive a range of policy and procedure documents. 6 In relation to the applicant’s response to the first item in the warning letter, Mr Taylor stated that the applicant as a qualified plumber should not require training but should know that he was required to thoroughly check all possible causes of the problem.
[13] At the same time as the applicant was given the First Formal Warning, he was also given a Second Formal Warning, as follows:
“RE: SECOND FORMAL WARNING
This letter is to confirm that you have been given a formal warning concerning the following unacceptable behavior (sic):
1. Packer Drive, Highbury:
At 3.30pm on Friday 25th October Malcolm received a telephone call from the Real Estate Agent regarding the above Job and the way in which the Bathrooms were left.
Please read the attached email.
We have spoken to you about this before and now it has become a serious matter. We need to again remind you of your responsibility to Neale Taylor Plumbing & Gas regarding our criteria. You must take this on board, our Company relies on return business and leaving Customers’ homes in a mess is not acceptable and very disappointing to Neal Taylor personally. It is his livelihood along with all other employees of the Company.
We highly recommend you re-assess your work attitude regarding the way you leave Job Sites.
2. Disregarding Standard Company Procedures:
Company Procedures and Policies are set to ensure a certain standard is maintained by the Company and its Employees and this is the case with most Companies. Policies are also set for safety reasons under Codes for Occupational Health and Safety and should be adhered to at all times.
Please revisit the Procedures and Policies you signed when commencing employment with the Company to remind you of the standards required.
As a qualified member of the team at Neale Taylor Plumbing & Gas it is expected that you work within the guidelines of the Company and carry out your duties according to the Procedures set.
If you are not clear on any matter raised during our discussion or in this letter, please speak to me about clarification at the earliest opportunity.
As advised we will be monitoring your behaviour (sic) during the forthcoming weeks and will review the situation with you again at a date to be arranged.”
[14] The evidence indicates that the email referred to in the letter, which was not put in evidence, was from an officer of the real estate company managing the property and it indicated that the applicant was not to attend the Packer Drive site anymore. The applicant noted that he was approached by Mr Taylor some 11 days after he had received the email so it “didn’t sound too serious”. 7 The applicant made the point that this was the third occasion he had been warned about the same incident.[15] In relation to Company Policies and Procedures, there were no details provided of any alleged non-compliance. In answer to a question as to which policies had been breached by the applicant, Mr Taylor was unable to point to any, other than the vehicle policy. 8
[16] Contrary to the indication in the warning letter, there was no further review of the situation undertaken with the applicant.
[17] There was a discussion between the applicant and Mr Taylor at the time the warnings were issued, which included the applicant asking whether he was going to be dismissed if there were further incidents and Mr Taylor responded “Not necessarily but it can be”. 9
[18] The next relevant event took place at the respondent’s Christmas party. The applicant stated that:
“I worked in October all the way through to the Christmas party on 20 December. I hadn’t had any further written warnings or verbal warnings, and at the beginning of the Christmas party I was told by Neale [Taylor] that he’d be extending my visa for a further eight months in August, and then after that they would assess how the business and I were going.” 10
[19] The existing work visa was due to expire in February 2014. The applicant indicated that he took some comfort from Mr Taylor’s advice and felt reassured that Mr Taylor was satisfied with his performance. Mr Taylor stated that he considered the visa extension for some time but by 20 December 2013 had decided to honour the original commitment he gave to the applicant to sponsor his visa to August 2014. I note that the respondent took steps to follow through with this but then withdrew his sponsorship nomination at or around the time that the applicant was dismissed.
The dismissal
[20] On 24 January 2014 the applicant was given a letter of dismissal signed by Mr Taylor in the following terms: 11
“RE: TERMINATION OF EMPLOYMENT
Since our meeting with you on 28 October 2013 to review your employment with Neale Taylor Plumbing Management has been monitoring your general behaviour and work ethics during working hours.
At the close of this meeting you will be required to remove all personal tools and items from the Company vehicle and leave it at the Workshop.
You will also be required to return to the office any items of uniform, Company mobile phone and accessories (including charger), completed job sheets, all Company stationary and tools you may have remaining in your possession.
Your normal pay for last week was deposited into your account as usual on Thursday and once the above items have been received by the Management, a cheque for any entitlements due will be forwarded to you.”
[21] The applicant subsequently received 2 weeks pay in lieu of notice of termination.[22] As is apparent, no reason was given for the termination of employment in the letter. There was a brief discussion at the time the letter was handed to the applicant, where Mr Taylor said that the employment arrangement was not working out. 12
[23] Documents filed by Mr Taylor and his evidence to the Commission indicate that the trigger for the applicant’s dismissal was an email received that day. 13 The email was from an officer of Raine and Horne Real Estate who managed a property at Valley View where plumbing work was undertaken by the applicant. The relevant portion of the email is set out below:
“One of you (sic) plumbers attended to one of our work orders to clear some heavily blocked drains at ....Valley View. Once this job was completed I received a call from my tenant to advise the plumber had informed her that the drains were heavily blocked with tree roots, and that the Property Manager should contact SA Water to have the tree out the front of the property removed as this was the cause. Once I had received this information I contacted Malcolm [Bassham] as I have never heard of SA Water being able to chop down a tree free of charge due to blocked drains. Malcolm politely informed me that this is not correct and that he would discuss this further with the plumber. I have since received numerous phone calls from my tenant wondering when SA Water will be attending, to the point that she has attempted to contact SA Water herself but could not get through as she is not the account holder.
I would appreciate in future if your plumbers could please discuss future issues with the Property Manager or the Plumbing Supervisor before giving incorrect information to our tenants.
As this is not the first issue I have experienced with this plumber, I would like to request that this plumber no longer attends to jobs sent through from Raine & Horne ...”
[24] Mr Taylor conceded that he did not investigate the matter by speaking to the tenant to verify what the applicant told her or by giving the applicant an opportunity to put his position on what he said to the tenant. 14 The applicant disputes that there were any previous issues as referred to in the above email. He maintains that he gave the correct advice to the tenant.
Other matters relied upon by the respondent
[25] Mr Taylor relied on a range of invoices of work undertaken by the applicant 15 to support his view that his performance was inadequate. These invoices recorded work undertaken at 14 locations, where further work purportedly had to be undertaken by way of a call back because the initial work was inadequate in one or more respects.
[26] It is sufficient to record the following findings on the evidence: 16 Some of the invoices, and the associated evidence of Mr Taylor, support a conclusion that call backs were required by others or by the applicant to rectify or complete work he had originally undertaken, in relation to 9 jobs. In one of these jobs the applicant returned to complete the work on the same day and did not claim overtime on the basis that he was at fault. The invoices span the period from September 2013 to March 2014 and some of the call backs occurred prior to the written warnings being issued in October 2013. Indeed, two of the invoices were identified in those warnings. A further two call backs, where the applicant accepts that he was at fault, occurred in January 2014.17
In relation to the 5 remaining jobs (“the disputed invoices”), the applicant indicated that he did not undertake the original work or was unable to recall whether he undertook the original work or not. One of the disputed invoices relates to January 2014. 18 There is insufficient evidence to make a finding in relation to the disputed invoices because the original invoices relating to the work undertaken were not put in evidence or because the handwriting on the original invoice was not that of the applicant.
[27] Mr Taylor relied upon the applicant’s attendance at “tool box” meetings as a form of training provided by the employer. The tool box meetings were a reference to announcements made to the plumbers as a group when they attended to collect their allocated jobs at the start of the day, and were essentially reminders of the employer’s expectation that the plumbers should be professional in their work and in their dealings with customers. In answer to a question from the Commission, Mr Taylor acknowledged that these matters were issues for other plumbers from time to time, which is why the matters were raised in this forum. He did state however that these matters were raised individually with the applicant as well. 19
[28] Mr Taylor also relied upon an exchange of SMS messages between the applicant and another (unknown) person 20 as a further reason for dismissal. This exchange came to light after the applicant’s dismissal but occurred on 22 January 2014, when the applicant was on sick leave. The messages are as follows:
“Applicant: Not working today, stiff neck, phone call was easy tho, I suppose he isn’t allowed to question me is he? Never done it before, lol.
Other person: So what’s on the cards for today mate??
Applicant: Get in the roof find rafters to hang wooden struts to, (what’s the easiest way you recon) then motivate bill to do some work!”
[29] The applicant’s explanation was that he had a stiff neck and that this was the first time he had rung in to advise he was absent on sick leave. His reference to “bill” is a reference to his partner’s father, who was going to undertake the work for him. 21
[30] Mr Taylor did not reply to the applicant’s evidence on this matter. The applicant’s text messages give rise to a reasonable suspicion that he was not entirely genuine in taking the sick leave, however there is insufficient evidence to support an adverse finding against him.
Consideration
The Code
[31] The requirements of the Code in cases other than summary dismissal are as follows:
● The employee must be advised why they are at risk of being dismissed;
● The reason for dismissal must be a valid one based on the employee’s capacity or conduct;
● The employee must be warned verbally or in writing that there is a risk of dismissal if performance does not improve;
● The employee must be given an opportunity to respond to the warning;
● The employee must be given a reasonable opportunity to rectify the problem; and
● Where dismissal is contemplated, the employee is entitled to have another person present to assist.
Procedural matters
[32] I have treated the first and second warnings as a single warning as they were issued on the same day. This is not a case where further matters have come to light after the first warning was prepared and no other reason was advanced to justify the issuing of two warnings. As such it is appropriate to view the dismissal as taking place after a single written warning had been issued.
[33] The warning letters invited the applicant to contact Mr Taylor if he sought clarification of matters within the letters, but he was given no opportunity to present his view on the subject matter of the warnings.
[34] As a result of the applicant questioning Mr Taylor at the time the warnings were issued, I am satisfied that he would have been aware that any repeat of the matters referred to in the warning letters may lead to dismissal.
[35] As to the dismissal, the applicant was denied the opportunity to respond to the concerns of the employer and consequently was denied the opportunity to obtain assistance in relation to the decision taken by the employer.
Was there a valid reason for dismissal related to the applicant’s capacity or conduct?
[36] The evidence shows that the reasons relied upon by the employer relate to the capacity of the applicant. Capacity includes the employee’s ability to do the work he/she was employed to do and the test is whether the work was performed satisfactorily when looked at objectively.
[37] As the letter of termination did not advise the reason for dismissal, other than by implication that it concerned the applicant’s “general behaviour and work ethics”, I have considered the reasons advanced by Mr Taylor at the hearing:
● The email dated 24 January 2014 from Raine and Horne Real Estate; and
● The applicant’s performance on the job, evidenced by the number of call backs required.
[38] In relation to the first matter, the employer proceeded on the basis of what he was told by Raine and Horne as to what they had been told by a tenant as to what she had been told by the applicant. No attempt was made to ascertain the applicant’s view as to whether he agreed with the comments attributed to him, and if so, why he had expressed those views.
[39] A valid reason is one which is sound, defensible or well founded. 22 Without some further inquiry, the conclusion reached by Mr Taylor was not open to him on the basis of the email he received, which was hearsay upon hearsay. There is insufficient evidence before the Commission to conclude that the applicant provided misinformation to the tenant as alleged in the email. As such I conclude that this was not a valid reason for dismissal.
[40] In relation to the call backs, the applicant concedes there were occasions where he was at fault and follow up work was required to be undertaken as a result. Taking into account the close down over the Christmas period, at least two instances of unsatisfactory work arose over a period of approximately 3 weeks in January 2014. One of the difficulties in assessing the seriousness of this level of call back is the fact that there is no evidence as to the total jobs undertaken by the applicant or of the level of call backs relating to the work undertaken by other plumbers. Nonetheless, I accept that this is less than satisfactory performance.
[41] There were 7 occasions after the warnings were issued in October 2013 where the applicant’s work required follow up attendances. In circumstances where customers and/or property managers had previously expressed concerns, the employer was entitled to view these matters seriously.
[42] I conclude that these matters were not raised with the applicant by the employer at the time that they occurred. However I also find that it is more likely than not that the applicant was aware of these instances - he worked in a small business and worked with the other plumbers on certain jobs and it is likely that these matters would come up in conversation.
[43] I do have some concerns as to the proportionality of the dismissal. As Mr Taylor’s evidence indicates, had it not been for the email of 24 January 2014 from Raine and Horne the applicant would not have been dismissed at this time based on call backs to jobs he had undertaken.
[44] Nonetheless it is the Commission’s role to form an objective view of the applicant’s performance on the evidence before it. On balance I find that there was a valid reason for the dismissal connected to the capacity of the applicant.
Was the dismissal consistent with the Code?
[45] In view of my findings concerning the general lack of natural justice afforded to the applicant in the disciplinary process leading up to and including dismissal, I conclude that the employer has not complied with the Code.
Was the applicant unfairly dismissed?
[46] Section 385 of the Act identifies the requirements to be met in order for a person to be deemed to have been unfairly dismissed, as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[47] Having determined that the dismissal was not consistent with the Code, the Commission is required to decide whether the dismissal was harsh, unjust or unreasonable. Section 387 of the Act identifies the matters to be taken into account:“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.”
Was there a valid reason for the dismissal?
[48] As discussed above, I conclude on balance that there was a valid reason for dismissal related to the applicant’s performance.
Whether the person was notified of that reason?
[49] The notification of the reason/s for dismissal is to be provided in advance of the termination in order to provide an opportunity for the employee to plead their case against dismissal. 23 As such the reasons must be articulated in sufficient detail to enable the employee to avail them self of this opportunity. In this case, the reasons for dismissal were advised verbally in general terms when the letter of termination was given to the applicant.
Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person?
[50] There is no evidence that the applicant was given the opportunity to respond to the warnings issued to him. In some respects the warning letters were explicit as to the issue complained of (e.g. particular jobs were cited), in other respects they were minor and should have been subject to discussion rather than a formal warning (e.g. bad handwriting) and in other cases were non-specific or invalid (e.g. a failure to comply with policies and procedures).
[51] Had the employer followed through with the advice in the second warning that a meeting would to be held to review the applicant’s performance, a different view may have been reached on the opportunity afforded to the applicant to respond to the issues raised by the employer.
Was there an unreasonable refusal to allow the applicant to have a support person present?
[52] As there was no notice of the dismissal it follows that the applicant was denied the opportunity to have a support person present.
Was the applicant warned about unsatisfactory performance before the dismissal?
[53] The applicant was warned, albeit that some aspects of the warnings were unsatisfactory for the reasons outlined above.
The impact of the size of the employer’s enterprise and the absence of dedicated human resource management specialists or expertise on the procedures followed in effecting the dismissal
[54] These are relevant considerations. The employer is a small business employer with no human resources expertise within the business.
Any other relevant matters
[55] I have taken into account that no remedial action was implemented by Mr Taylor to address what he saw as the ongoing performance issues with the applicant. In particular, there was a lack of training and no follow up review with the applicant in accordance with the second written warning.
[56] I have also taken into account Mr Taylor’s advice to the applicant on 20 December 2013 that he would extend his sponsorship of the applicant’s visa to August 2014. In the absence of any other comment as to his performance at the time, the applicant reasonably concluded that any concerns Mr Taylor held as to his performance were not significant.
Conclusion
[57] A dismissal may be unjust because the employee was not guilty of the alleged misconduct; unreasonable because the evidence or material before the employer did not support the conclusion; or harsh on the employee due to the economic and personal consequences resulting from being dismissed, or because the outcome is disproportionate to the gravity of the misconduct. 24
[58] I consider that the flaws in the procedure adopted by the employer have impacted on the opportunity provided to the applicant to improve his performance. Taking into account the circumstances of the employer as set out in s.387(f) and (g) of the Act, I have accorded these matters lesser weight, save for one matter. The employer’s failure to engage in any discussion with the applicant to review his performance as per the second warning letter is a matter of more significance, especially in light of the advice given to him in December 2013 concerning his visa extension and a further review of his performance in August 2014.
[59] In this context, the failure of the employer to formally raise the call backs with the applicant as and when they occurred between October 2013 and the dismissal in January 2014 is also relevant. I consider that, in these circumstances, dismissal was a disproportionate response to the applicant’s performance issues; that is, it was not within the range of reasonable responses open to the employer. 25
[60] The employer’s decision not to extend its sponsorship of the applicant’s visa, contrary to the advice Mr Taylor provided in December 2013, meant that the applicant had only 8 days after his dismissal until his visa expired. There was insufficient time for him to find new employment and a new sponsor. He decided to enrol in TAFE which allowed him to stay in Australia on a study visa, but he had to take out a personal loan of $11,500 to cover the training costs. I consider that the manner of the dismal created hardship for the applicant above and beyond the general hardship usually associated with a dismissal. I have concluded that the dismissal was harsh.
Remedy
[61] The provisions of the Act place primacy on reinstatement of the employee as the appropriate relief where a dismissal is found to be harsh, unjust or unreasonable. The reasons for refusing an order for reinstatement may include a loss of trust and confidence in the employment relationship, where such is soundly and rationally based 26 or the inability of the employee to resume the employment.
[62] The applicant does not seek reinstatement and I am satisfied that his current migration status means that reinstatement is impracticable. In these circumstances the Act requires the Commission to consider whether compensation should be awarded, and if so the quantum of compensation. Sections 392 and 393 of the Act deal with compensation as follows:
“392 Remedy—compensation
Compensation
(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.
393 Monetary orders may be in instalments
To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”
[63] There are certain gaps in the evidence that prevent consideration of some of the matters that the Commission is required to take into account, as set out in the above sections of the Act. I will return to these matters shortly.
[64] On the evidence before the Commission I am able to make the following findings:
● The applicant was dismissed on 24 January 2014 and subsequently received two weeks’ pay in lieu of notice. As such, he has been paid to 7 February 2014;
● The applicant had approximately 17 months service as at the date of dismissal;
● The applicant is ineligible to receive social security payments because of his migration status. As at 5 June 2014, when this matter was heard, he had earned 5 weeks of $200.00 per week doing part time sales work, and this work and income was continuing; and
● I am satisfied that the applicant has taken reasonable steps to mitigate his loss in the context of his migration status and the limitations that this has imposed.
[65] In order to finalise the compensation issue, further information is required. This includes details of applicant’s wage rate prior to his dismissal and the parties’ positions on the quantum of compensation generally, having regard to the matters in s.392 of the Act as set out above. Details of a Directions conference to progress this matter will be advised to the parties shortly.
DEPUTY PRESIDENT
Appearances:
The Applicant in person
The Respondent in person
Hearing Details:
2014
Adelaide:
5 June
1 Ex R14
2 As defined in s.23 of the Act.
3 Sections 382 and 383 for an employee of a small business employer.
4 Plumbing and Fire Sprinklers Award 2010, MA000036
5 Exhibit AL
6 Ex R13
7 PN389-396
8 PN818-827
9 PN429
10 PN149
11 Attached to the Form F2
12 PN150
13 Ex R10 (J); PN508-509
14 PN520-529
15 Ex R7
16 PN198-299; PN578-696
17 The jobs identified in Invoice No/s 83 and 04.
18 Invoice No. 66. The call back work relates to a large site of 40 units where three plumbers were working. The invoice does not identify whose work was being rectified by the call back.
19 PN464; PN473
20 Ex R8
21 PN178
22 Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 at 373
23 Crozier v Palazzo Corporation Pty Ltd, (2000) 98 IR 137 at 151
24 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.
25 Miller v University of New South Wales (2003) 132 FCR 147 at [64]
26 Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186;
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