Jaydin Lee v Hybrid PG Pty Ltd atf Hybrid Property Group
[2023] FWC 2900
•3 NOVEMBER 2023
| [2023] FWC 2900 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jaydin Lee
v
Hybrid PG Pty Ltd atf Hybrid Property Group
(U2023/1393)
| COMMISSIONER HUNT | BRISBANE, 3 NOVEMBER 2023 |
Application for an unfair dismissal remedy – employer offered permanent employment, accepted by employee – employer treated employee as a casual employee – minimum employment period met – dismissal unfair – compensation awarded
On 21 February 2023, Mr Jaydin Lee made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that he had been dismissed from his employment with Hybrid PG Pty Ltd atf Hybrid Property Group (the Respondent) and that his dismissal was harsh, unjust and unreasonable.
On 20 February 2023, Mr Kerrin Gooley, Mr Lee’s stepfather, made a similar application under s.394 of the Act, alleging that he had also been unfairly dismissed from his employment with the Respondent. Both matters were allocated to my Chambers, and on 31 March 2023, I caused an email to be sent to Mr Lee, Mr Gooley and the Respondent outlining a proposal to join the matters based on the similar circumstances of the applications. The parties did not object to the proposal, and as such, the matters were dealt with together. A Decision in respect of Mr Gooley’s application has been separately issued in [2023] FWC 2901.
On 1 March 2023, the Respondent filed a Form F3 Employer Response to the application. The Respondent did not specifically identify any jurisdictional objections it held in relation to Mr Lee’s application, however suggested that Mr Lee did not meet the minimum employment period and was not terminated on the Respondent’s initiative. If Mr Lee was terminated on the Respondent’s initiative, the Respondent further indicated that the dismissal was a case of genuine redundancy.
As it eventuated, Mr Lee’s employment came to an end on 23 February 2023, as evidenced by the time and wages records later produced by the Respondent in these proceedings.
Directions were issued for the filing of evidence and submissions in relation to the jurisdictional issues and the merits of the application and the matter was listed for hearing on 29 May 2023. Mr Lee appeared and represented himself. The Respondent was represented by Mr Patrick Cooper, Chief Executive Officer. Mr Gooley also appeared at the hearing in relation to his application, and was represented by his father, Mr Kelvin Gooley. Due to the nature of the matter, I considered it appropriate to conduct the matter as a determinative conference.
A further determinative conference was convened on 29 June 2023. I excused Mr Lee’s attendance on this day as he was working with a new employer. The continued determinative conference on that day largely dealt with Mr Gooley’s matter, but I consider it appropriate to have regard to what was discussed on that day to assist with my determination in Mr Lee’s matter.
Relevant Legislation
Section 394 of the Act provides:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) Fairness as between the person and other persons in a similar position.”
Further, ss.385 and 387 provide as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a)the person has been dismissed; and
(b)the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Sections 382 and 383 of the Act state:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b)one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i)the time when the person is given notice of the dismissal;
(ii)immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
Section 384 relevantly states:
“384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i)the time when the person is given notice of the dismissal; and
(ii)during the period of service as a casual employee, the employer had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.”
Section 22 provides the definition of “service” and “continuous service”. It relevantly states:
“22 Meanings of service and continuous service
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i)a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or
(ii)a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii)a period of leave or absence of a kind prescribed by the regulations;
(c) any other period of a kind prescribed by the regulations.”
Section 386 of the Act relevantly states:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
Section 389 of the Act states:
“Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
Minimum Employment Period
The Respondent noted that it employed 80-100 employees at the time Mr Lee’s employment came to an end. Accordingly, pursuant to s.383(a) of the Act, the minimum employment period is 6 months.
Mr Lee’s first day of employment with the Respondent was on 19 August 2022. He performed work at the Respondent’s business, AllClean Premium Linen Hire and Laundering Service in Burleigh Heads, Queensland. The Respondent has another local business, its aviation laundering business known as ‘Dover Warehouse’. The two businesses are in close proximity.
The Respondent’s aviation business provides laundry services to various businesses, including Qantas.
Mr Lee is 18 years old.
Mr Lee was issued with an employment agreement declaring him to be a full-time employee. It is apparent that Mr Lee signed the employment agreement on 22 August 2022, witnessed by his Acting Supervisor, Ms Shree Stevens. Mr Lee produced the signature page to the employment agreement on 8 May 2023 to the Commission after discovering it in his bedroom. Mr Lee finally produced the full copy of his employment agreement on 29 September 2023.
Mr Lee’s oral evidence during the determinative conference is that when Ms Stevens witnessed his signature to the employment agreement on 22 August 2022, she took a photocopy of it and returned it to him. She said she would forward it to management for processing.
In reply evidence given during the determinative conference, Mr Cooper said that Ms Stevens was an ‘employment agency worker’. Mr Cooper pondered why Mr Lee did not provide the signed contract to Ms Nic Cooper, Operations Manager. Mr Lee said that Mr Gooley had also provided his signed contract to Ms Stevens which was apparently processed by the Respondent. He stated that his control over the situation was giving it to Ms Stevens, she made a photocopy and said she would forward it to management.
The employment agreement provided for Mr Lee to be paid $27.50 as a Senior Team Member. In summary it provided for:
· Full-time, permanent employment;
· A minimum of 38 hours per week;
· Four weeks’ annual leave per annum;
· 10 days personal leave per annum;
· Other leave in accordance with the Act;
· Paid public holidays;
· 1 weeks’ notice of termination within the probationary period; and
· 4 weeks’ notice of termination following completion of the probationary period.
On Tuesday, 21 February 2023, Mr Lee let his supervisor, Mat, know that he was unable to attend for work that day due to illness.
At 9:39am that morning, Ms Cooper sent a text message to Mr Lee, informing him that there were no hours of work for him that week, and she would contact him on Sunday if there were hours available the following week.
Mr Lee responded, “What do you mean by this, aren’t I full time?”
Ms Cooper replied at 11:17am, “Correct sorry I didn’t know you had a contract.”
Mr Cooper then messaged Mr Lee at 12:08pm, stating that he had not received a signed contract from him, so the system had him recorded as a casual employee. Mr Cooper informed him that he would let him know next week’s hours by Friday.
Mr Lee replied with a photo of his contract and a message that he will agree to those hours for that week, but he is still full time, as per the contract.
Mr Cooper responded that Mr Lee had not signed the contract, did not return the contract and he was not going to argue with him.
The pay records the Respondent produced provide the following days and hours worked. It is noted that the first column is ‘week ending’, however Mr Lee’s first pay slip demonstrates he was paid for 30 hours of work on 22 August 2022, for the period 15 August 2022 – 21 August 2022. In the table below, Mr Lee would only be entitled to 6 hours’ pay for that period on account of working 6 hours on Friday, 19 August 2022. I suspect there is an issue with the Respondent’s record keeping.
| Week ending | Mon | Tue | Wed | Thur | Fri | Sat | Sun | Total |
| 21 August 2022 | 6 | 6 | 6 | 6 | 6 | 0 | 0 | 30 |
| 29 August 2022 | 8 | 7 | 7.5 | 0 | 0 | 0 | 7.5 | 30 |
| 5 Sep 2022 | 7 | 7 | 8 | 8 | 0 | 0 | 0 | 30 |
| 12 Sep 2022 | 7 | 7 | 8 | 8 | 0 | 0 | 0 | 30 |
| 19 Sep 2022 | 7 | 7 | 8 | 8 | 0 | 0 | 0 | 30 |
| 26 Sep 2022 | 7 | 7 | 8 | 8 (public holiday) | 0 | 0 | 0 | 30 |
| 3 Oct 2022 | 7 | 7 | 8 | 8 | 0 | 0 | 0 | 30 |
| 10 Oct 2022 | 7 (public holiday) | 7 | 7 | 7 | 8 | 0 | 0 | 36 |
| 16 Oct 2022 | 7.5 | 7.5 | 7.5 | 7.5 | 7.5 | 0 | 0 | 37.5 |
| 23 Oct 2022 | 7.5 | 7.5 | 7.5 | 7.5 | 7.5 | 0 | 0 | 37.5 |
| 30 Oct 2022 | 7.5 | 7.5 | 7.5 | 7.5 | 7.5 | 0 | 0 | 37.5 |
| 6 Nov 2022 | 7.5 | 7.5 | 7.5 | 7.5 | 7.5 | 0 | 0 | 37.5 |
| 13 Nov 2022 | 7.5 | 7.5 | 7.5 | 7.5 | 7.5 | 0 | 0 | 37.5 |
| 20 Nov 2022 | 7.5 | 7.5 | 7.5 | 7.5 | 7.5 | 0 | 0 | 37.5 |
| 27 Nov 2022 | 12 | 12 | 12 | 12 | 12 | 7.5 | 0 | 67.5 |
| 4 Dec 2022 | 10 | 11 | 9.5 | 11 | 10 | 0 | 0 | 51.5 |
| 11 Dec 2022 | 8.5 | 8.5 | 9 | 9.5 | 8.5 | 7.5 | 0 | 51.5 |
| 18 Dec 2022 | 9 | 8 | 9 | 10 | 9 | 0 | 0 | 46.5 |
| 25 Dec 2022 | 8.5 | 9 | 8.5 | 8.5 | 8.5 | 0 | 0 | 43 |
| 30 Dec 2022 | 7.5 (public holiday) | 7.5 (public holiday) | 7.5 | 7.5 | 8 | 0 | 0 | 38.5 |
| 10 Jan 2023 | 8.5 | 8.5 | 8.5 | 8.5 | 8.5 | 0 | 0 | 42.5 |
| 15 Jan 2023 | 7.5 | 7.5 | 7.5 | 7.5 | 7.5 | 0 | 0 | 37.5 |
| 22 Jan 2023 | 6 | 5 | 6 | 6 | 5.5 | 0 | 0 | 28.5 |
| 29 Jan 2023 | 8 | 8 | 7 | 8 (public holiday) | 7 | 0 | 0 | 38 |
| 5 Feb 2023 | 7 | 8 | 7 | 9 | 7.4 | 0 | 0 | 38.4 |
| 13 Feb 2023 | 7.5 | 8 | 7 | 8 | 7 | 0 | 0 | 37.5 |
| 20 Feb 2023 | 7.5 | 8 | 7.5 | 7.5 | 7.5 | 0 | 0 | 38 |
There is an annotation at week ending 25 December 2022: “Jaydin under the impression he is full time asking for Annual Leave?”
It is noted that for the 7.5 hours of work performed by Mr Lee on Sunday, 28 August 2022 in his second week of employment, he was paid at an ‘overtime rate’ of $56.025, not attracting superannuation. The Respondent is half correct in having paid an appropriate penalty rate to Mr Lee for performing work on a Sunday. If the hours constitute the ordinary hours for the week, they should also attract superannuation.
In late January 2023, Mr Lee’s rate increased to $28.01 per hour.
Mr Lee made his application for unfair dismissal on 21 February 2023, the very day Mr Cooper informed him the Respondent considered he was a casual employee. In his Form F2, he stated that he was notified of his dismissal on 21 February 2023 but said he was “still working for the Company at this time.”
As to the reason for the dismissal, Mr Lee answered:
“The Employer stated that I have never been a Full Time Employee and have had all my hours taken from me even though I’m under the assumption I am still full time.”
As to why he considers the dismissal to be unfair, he answered:
“I went over the 6 months probation period. There was also no 1 week notice of termination. The employer states I was a casual worker from the start although I signed a contract and the supervisor at the time has sent the contract to the employer by email.”
In the Form F3 completed by Mr Cooper, he stated that Mr Lee commenced on 22 August 2022. In answering what date the employer notified Mr Lee of his dismissal, Mr Cooper answered:
“The employee is casual and has no notice period, the employee was offered a full time role but never accepted or signed the contract and was never paid or received entitlements as full time employee.”
As to what date the dismissal took effect, Mr Cooper responded:
“No work available due to shortage.”
No jurisdictional objections were made in the Form F3. In response to the reasons for the dismissal, Mr Cooper responded:
“The has been a downturn in turnover and the Applicants department role is in oversupply and no longer sustainable casual hours.”
As to the Respondent’s response to the application, Mr Cooper answered:
“The Applicant is not a full time employee, the employee was a Casual worker. The applicant was never paid for annual leave, sick leave or public holidays so was not a full time employee. He was offered a contract but never accepted it nor do he ever sighed it or return it so remained as a casual.
The Applicant did not consistently attend work and was also operating in a deceptive and misleading manner his conduct in the workplace was also disruptive as he was being prompted by his step father who is also submitting a claim against the Respondent.”
Mr Cooper made a statement in these proceedings. He stated that Mr Lee was offered a full-time position, but he did not sign and return the contract.
He stated that Mr Lee was employed as a casual employee, with his hours capped at 37.5 hours per week. Mr Lee was not paid personal leave in the event that he was unwell. He was not paid annual leave. Mr Cooper mused why he had not applied for annual leave if he believed he was a full-time employee. It would appear Ms Cooper had not informed Mr Cooper of the fact that around Christmas 2022, Mr Lee was, in fact questioning his entitlement to annual leave.
Curiously, Mr Cooper stated that Mr Lee was never paid overtime, albeit he was paid a Sunday penalty rate for the one Sunday shift worked in August 2022. This is despite Mr Lee working well above 38 hours some weeks; one week he worked 67.5 hours.
Mr Cooper stated that Mr Lee was not paid for public holidays and if he did, it was because he was working on the public holiday. Mr Cooper then assumed that Mr Lee was not paid penalty rates for any of the public holidays he worked.
Mr Lee gave oral evidence that he was, in fact, paid for public holidays not worked by him. He stated that he did not work Monday, 26 December 2022 or Tuesday, 27 December 2022 (being a substitute public holiday), but was paid for those dates. To the best of his recollection, he did not work on Australia Day in 2023 and was paid for that date.
Mr Cooper stated that he had sent two emails to Mr Lee offering re-employment as a casual employee. On 22 April 2023, Mr Cooper emailed Mr Lee as follows:
“Jayden [sic]
As per our discussions with the member if you would like to return back to work at Hybrid for seven hours a day, Mon to Fri or 35 hours a week to complete sorting and assist with other duties as required then we can offer you are role as we have been advised we will be picking up another airline.
The hours will be approximately 8am-3pm or as required by the manager.
I’m happy to be offer you this casual position.
Please let me know.
Regards”
On 2 May 2023, Mr Cooper emailed Mr Lee as follows:
“Hi Jayden [sic],
Please acknowledge receipt of email please and respond to my email please.”
During the determinative conference before me on 29 May 2023, Mr Lee identified that those emails were not received by him as Mr Cooper had incorrectly spelt his name ‘Jayden’ in the email address when Mr Lee’s name is ‘Jaydin’. Mr Cooper had successfully been including Mr Lee on the Respondent’s correspondence to the Commission using his correct email address, including on 21 April 2023.
The Respondent confirmed that the Dry Cleaning and Laundry Industry Award 2020 (the Award) covered Mr Lee in his role.
Evidence of Mr Jordan Fishpool
Mr Jordan Fishpool made a statement in support of Mr Lee. He was not required for cross-examination.
Mr Fishpool was the store manager of the Respondent’s AllClean business between 21 October 2022 – 22 January 2023. Mr Fishpool stated that he was employed as a casual, alongside three other casual employees. The full-time employees at the time were Mr Lee and ‘Annie’.
Mr Fishpool stated that both Mr Lee and Annie were entitled to paid public holidays and paid sick leave. Mr Lee did not work public holidays and he was paid for those days.
Mr Fishpool claims to have been underpaid by the Respondent an amount of over $5,000 which he is pursuing.
Has Mr Lee met the minimum employment period?
Mr Lee was offered a full-time employment contract which he signed and had witnessed by his Acting Supervisor. His evidence is that his Acting Supervisor made a photocopy, provided a copy to him, then emailed the executed agreement to management. I accept Mr Lee’s evidence that this occurred on or around 22 August 2022. That it supposedly did not make its way to senior management within the Respondent is not of Mr Lee’s doing. The fact that Ms Stevens was an employment agency worker is irrelevant. Mr Lee was entitled to the assurance that having signed the contract, and being provided a copy, the offer made by the Respondent to him had been accepted by him and communicated to the Respondent.
Mr Lee agreed to work for the Respondent for $27.50 per hour as a full-time employee. The Award provides for 38 ordinary hours per week. The Respondent failed to provide to Mr Lee the hours prescribed by the Award. Unsurprisingly, it would appear that the Respondent is exposed to an underpayment of wages claim in respect of failing to provide to Mr Lee 38 hours of work each week. This is a matter Mr Lee may choose to pursue in a court of competent jurisdiction if he so wishes.
Mr Lee accepted the written contract put to him by the Respondent. Without good conscience, the Respondent considers that because Mr Lee was offered the pay rate of $27.50 per hour and failed (according to it) to return the signed contract, it could employ him at the same rate of pay, without a casual loading added to the amount and be free of paying annual leave, personal leave and public holidays not worked. It is a fanciful and unconscionable position put by the Respondent.
Despite Mr Cooper’s assertion that Mr Lee was not paid for public holidays not worked, the time and wages records later produced by the Respondent demonstrate that he was paid for public holidays not worked.
I find that Mr Lee was a full-time, permanent employee of the Respondent.
Having found that Mr Lee was employed as a full-time, permanent employee, and that his period of employment commenced on 19 August 2022, Mr Lee is entitled, pursuant to the Award, for payment for all usual working days. On account of Mr Lee working typically Monday to Thursday from August 2022 to early October 2022, the Fridays that he did not work need to be considered with regard to s.22 of the Act and the meaning of service and any excluded period. An excluded period does not count as service.
Section 22 of the Act prescribes relevantly that any period of unauthorised absence does not count as service, nor does any unpaid leave or unpaid authorised absence.
In the weeks where Mr Lee did not work a minimum of 38 hours, I consider that this was due to the Respondent’s failure to provide to Mr Lee his contractually agreed 38 hours of work. I am unable to accept that the Respondent’s failure to meet its obligations to provide 38 hours of work counts for the balance between the hours worked and 38 hours as an ‘unauthorised absence’ or a ‘period of unpaid leave or unpaid authorised absence’.
Those hours short of 38 per week were not worked because of the Respondent’s conduct in not providing to Mr Lee the full complement of hours he was required to work pursuant to his contract and the Award. He is, in my view, entitled to receive payment for those hours, even when the Respondent did not require him to work those hours. They cannot, accordingly, be a period of unpaid leave or an unpaid authorised absence.
Where the Respondent complained in the Form F3 that Mr Lee did not consistently attend work, this is not evidenced in the time and wages records produced by the Respondent at the Commission’s direction. There is no evidence that Mr Lee took any time off on account of illness or injury. Mr Lee would, having around six months’ service an entitlement by that stage to approximately five days of personal leave. There is no evidence before the Commission that Mr Lee took any time off work, other than Mr Lee speculating during the determinative conference that he might have taken approximately two days off work. In any event, there is no period of time greater than five days which would then count towards an excluded period and therefore not count as continuous service. Mr Lee’s performance of work was, as the table at [29] demonstrates, solid and consistent.
The period of service was 19 August 2022 to 23 February 2023. I am satisfied that there is no period within that time that would count as an excluded period. Accordingly, I am satisfied that on the date the employment ended, Mr Lee had a period of at least six months’ service and has met the minimum employment period.
The Respondent’s jurisdictional objection is dismissed.
Was Mr Lee dismissed?
The Form F3 completed by the Respondent does not state the date of dismissal. The questioned is answered as follows:
“The employee is casual and has no notice period, the employee was offered a full time role but never accepted or signed the contract and was never paid or received entitlements as full time employee.”
The Respondent stated that there had been a downturn in business and Mr Lee’s role is in ‘oversupply’. Further, the Respondent stated that Mr Lee had been deceptive and misleading, together with being disruptive and was being ‘prompted’ by his stepfather.
Mr Lee worked until 23 February 2023 and was not provided with any hours of work by the Respondent having regard to the position it took that he was not entitled to any hours of work being, what it considered, a casual employee.
I am satisfied that incorrectly contending that it had no obligation to provide work to Mr Lee beyond 23 February 2023, the Respondent dismissed Mr Lee on this date. The Respondent’s jurisdictional objection is dismissed.
Was the dismissal a case of genuine redundancy?
Section 389 of the Act requires all three limbs to be satisfied in order for a dismissal to be genuine redundancy.
With respect to the consultation obligations required at s.389(1)(b) of the Act, the relevant clause within the Award requires the matters to be put in writing to allow discussions to occur about the likely impact of a decision to make a role redundant. It is an express term. None of this occurred.
In light of the conclusion reached, it is unnecessary to determine s.389(1)(a) and s.389(2) of the Act. The Respondent’s jurisdictional objection is dismissed.
Protected from unfair dismissal
Having satisfied myself that there are no jurisdictional matters preventing Mr Lee from bringing his claim for unfair dismissal, I find that he is protected from unfair dismissal.
Consideration
Was the dismissal harsh, unjust or unreasonable?
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:[1]
“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.”
I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter.[2]
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)
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.”
However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[3]
In understanding why Mr Lee was dismissed, I consider it necessary to canvass why Mr Gooley was dismissed as I consider the matters are related for the reasons that will become clear below.
Relevant to Mr Gooley’s application, Mr Gooley sent Ms Cooper a text message on 10 February 2023 requesting that his accrued leave hours be included on his next payslip.
On 11 February 2023, Mr Cooper emailed Mr Gooley, and blind copied in one or two other employees (as I understand), as follows:
“Dear Valued Employee,
Due to a significant downturn in ordering volumes and requirements from our major client Qantas, Hybrid has been forced to make a number of structural changes to our existing employment structures.
It is with deep regret therefore that we advise you that your Full Time position with Hybrid PG Pty Ltd has been terminated with one weeks notice effective today 11 February 2023.
We are however able to offer you a Casual Position where you will be notified weekly of your hours on the Friday before in advance. This will allow us greater flexibility given the uncertainty of orders associated with the aviation industry.
All entitlements owing to you will also be paid with your final pay with your employment structure then reverting to a Casual Basis/Classification.
Should you have any queries please do not hesitate to contact Nic Cooper our Operations Manager.”
Mr Gooley stated that he did not receive the above email. On 14 and 15 February 2023, Mr Gooley sent emails to Ms Cooper chasing up his superannuation payments.
On 15 February 2023, Mr Gooley received an email from Mr Cooper titled “Leave and super”. Mr Gooley then wrote the following email to Mr Cooper on 16 February 2023:
“I refer to your email titled “ Leave and super” sent to me on Wednesday the 15th of February. In this email you write “ Further to my previous email that you may have missed, you have now been re classified to Casual”
I would like to confirm that the employment contract that commenced on the 8th of August 2022 that was signed by Yourself, myself and witnessed by Sheree Stevens, states I was on a 6 month probation period which should have expired on the 8thth of February 2023. As I have not received any formal communication on unacceptable work performance during my probation period and I do not acknowledge receiving any communication from you or any official representative of the company in relation to change of employment during the probation period, then I believe I am engaged as per the company letter of offer.
So for the record, I would like to officially inform you I do not voluntarily accept the offer of a casual employment arrangement and ask that the employment agreement of 38 hours per week as offered by you and accepted by me in the agreement titled “Full time employment contract” dated the 11th of August 2022 is honoured.”
On 16 February 2023, Mr Cooper replied to Mr Gooley as follows:
“Kerrin
This has nothing to do with your performance nor a probation period there has been a down turn in business and several staff have been changed to casual. we cannot longer afford to have as many people on full-time at the moment and we are over supplied in the sorting area.
If you do not want to accept this offer to change to Casual, then kindly accept this is one weeks formal notice that you can finish up next Friday with Hybrid Aviation thank you for your service.”
On 17 February 2023, Mr Gooley responded to Mr Cooper as follows:
“Hi again Patrick,
As in my last email, I don't volunteer to change my status from full time to casual, however, please send through my hours for next week as mentioned, you would let me know my hours Friday for next week.
I would also like to take this time to mention, there was no formal one week's notice by yourself or another representative of Hybrid, to inform me of these employment status changes and secondly, no one consulted with me, what impacts this may have on myself or my family. There was no discussion between Myself and Hybrid regarding the changes and the impacts it may have.”
Mr Cooper responded the same day to Mr Gooley:
“Kerrin
Thanks for your email.
You have been provided notice.
No one has asked you to volunteer going to casual it’s is your right to say no that’s fine.For the purpose of clarity we have sustained a downturn in requirements from our clients and a number of our employees have been advised that we can no longer offer full time hours.
You have received your notice and you have now received your payslip for your entitlements.
You appear to be becoming across as problematic and wanting to be difficult about this matter, one minute you email me and then take yourself off and call Fairwork and then come back again and raise another issue.
You have your notice, and you will receive your entitlements in this Thursdays pay run -your classification has been changed.
If you don’t want to to go Casual then I have no option to terminate your employment with one weeks notice from today.
I will advise you by close of business today of your hours for next week either take it or leave it, however it is pretty clear where you are going with this.”
Later that afternoon, Mr Cooper emailed Mr Gooley the following email with casual hours to be worked the following week:
“Hi Kerrin
Sorry for the reply as Qantas only give us the weekly requirements late Friday.
Your hours next week will be as follows:
1. Wed 8-2pm
2. Friday 8-3pm
Please let me know.”
That night, Mr Gooley replied to Mr Cooper as follows:
“Hi Patrick
Thank you for the correspondence in relation to the available hours for me next week. As these are the only hours you are offering me and as you state, “take it or leave it”, I will take these hours as I have a family to provide for. I am both saddened and disappointment that I was not consulted in this matter and the option being forced upon me will have a major impact on my family and I.
I will report for work as requested by you on Wednesday at 8.00am. For the record, by reporting to work on Wednesday at 8.00 am as my first shift for the week, please do not assume I accept being reduced to casual employment, nor do I accept or agree with the manner in which this matter has been forced upon me with absolutely no consultation in relation to the impact this change will have on my family and I.
Patrick, I have worked hard for your business and always taken pride in doing the best I can for the business, no matter what the task is I was doing. I believe the lack of respect shown to me and the intimidation and bullying being demonstrated by you as a company director is unacceptable at all levels.
Thank you for taking the time to read my response.”
Mr Gooley worked the two casual shifts that week and was sent the following email by Mr Cooper on 24 February 2023, the same day that Mr Cooper completed the Form F3 Employer Response in Mr Gooley’s unfair dismissal application:
“Kerrin,
Your hours for next week are as follows:
8am-12pm- Mon to Fri
Please confirm thank you have a lovely weekend.
Many thanks”
In evidence produced late in the proceedings, the Respondent’s consolidated hours of work at each of the two locations is as follows:
Date Dover Warehouse AllClean Warehouse 10 January 2023 450.5 114.5 15 January 2023 416 245.5 22 January 2023 403 220.5 29 January 2023 432 246 5 February 2023 421 234.40 13 February 2023 428 218.5 20 February 2023 420 221
On the evidence before the Commission, there was not a significant downturn in the number of hours required to be worked by employees across the two premises around the second or third week of February 2023. Noting the reasons why Mr Lee was dismissed was, according to the Respondent, there had been a downturn in business and Mr Lee’s role was in oversupply.
I consider the true reason for Mr Lee’s dismissal, as outlined in the F3 was that Mr Cooper considered Mr Lee:
· did not consistently attend work;
· was operating in a deceptive and misleading manner;
· his conduct in the workplace was disruptive; and
· he was being prompted by his step father.
Mr Lee did consistently attend work. The Respondent has not said the conduct or actions that constitute a deceptive and misleading ‘manner’. The Respondent has not said what he was doing to be disruptive, and the Respondent has not said what he was being prompted to do by Mr Gooley.
There was no evidence put forward by the Respondent that any of the above accusations are true. I am satisfied that Mr Cooper took exception to a number of issues with Mr Gooley, and effectively punished Mr Lee through association.
Having found that Mr Lee did not engage in any improper conduct, was entitled to permanent hours of work, and there was no shortage of work for him to perform, I find that there was not a valid reason for the dismissal relating to Mr Lee’s capacity or conduct.
s.387(b) - Whether the person was notified of that reason
Ms Cooper initially informed Mr Lee his ‘casual’ hours would be reduced and communicated to him. When he questioned that, Mr Cooper communicated with him that he was not considered a full-time employee by the Respondent, and he was not going to argue with him.
Mr Lee was not informed of the reasons for the dismissal declared by Mr Cooper in the Form F3.
s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
Mr Lee was not afforded any opportunity to respond to any reason for the dismissal.
s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person. The Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542] states the following:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”
There was no discussion regarding the dismissal other than the Respondent communicating that there were no more hours for Mr Lee on account of the Respondent’s assumption that he was a casual employee.
s.387(e) - Was there a warning of unsatisfactory work performance before dismissal
There is no evidence of Mr Lee being warned of unsatisfactory performance before the dismissal.
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
According to the Respondent, it employs between 80 and 100 employees. It is not a small employer.
In the determinative conferences before me canvassing both Mr Lee and Mr Gooley’s unfair dismissal claims, Mr Cooper was rude and discourteous to Mr Lee and Mr Gooley, and at times Mr Kelvin Gooley, but particularly towards Mr Gooley and Mr Kelvin Gooley. These are a few of his distasteful one-liners:
“If I sat down and read the Act I’d get nothing done.”
“Are we here for a witch hunt?”
“I’ve offered Mr Lee his job back twice and he hasn’t bothered to extend me the courtesy to respond. I’m at a point where this looks like a cash grab and a reluctance to work.
“Guilty as charged” in response to me informing him of the consultation obligations in the Award need to be in writing.
“You seem to be going over the same thing, spinning wheels”.
“You can interpret it any way you want.”
“You’re wasting everyone’s time.”
“When I’m dealing with idiots.”
“Can we just get on with it please”.
In my view, Mr Cooper has little interest in meeting the full complement of his human resources responsibilities to his employees. There is an absence of a dedicated human resource management specialist within the Respondent, and I accept this impacted on the procedures followed.
s.387(h) Other matters
Mr Lee is a young person and was an impressive, humble witness. I have had regard to his excellent work attendance.
I have had regard for Mr Lee’s length of service of just over six months and note that it is not a long period of time.
Conclusion
I have determined that there was no valid reason for the dismissal.
I consider that the Respondent did not inform Mr Lee of the reasons for the dismissal.
I have determined that Mr Lee was not given an opportunity to respond to the reasons for the dismissal.
There was no unreasonable refusal by the Respondent to allow Mr Lee a support person.
Mr Lee was not issued any warnings of unsatisfactory work performance before the dismissal.
The Respondent’s enterprise is not small. I accept that there was an absence of a dedicated human resource specialist which did impact on the procedures followed.
I determine that Mr Lee’s dismissal was harsh, unjust and unreasonable. Having satisfied myself that the dismissal was harsh, unjust and unreasonable, pursuant to s.385(b) of the Act, I find that Mr Lee was unfairly dismissed.
Remedy
Section 390 of the Act reads as follows:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
Mr Lee 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.
Mr Cooper sent two offers to Mr Lee by email, offering him further work following his dismissal. Those emails did not reach Mr Lee on account of the incorrect email address used by Mr Cooper.
During the directions hearing on 14 April 2023 before me, Mr Cooper said he had offered him reduced hours, but this had been declined by Mr Lee. Mr Cooper said, “…not much more I can do.”
Mr Kelvin Gooley requested Mr Cooper put such an offer in writing, as Mr Lee would like some casual hours. Mr Cooper responded, “Ask him, he’s sitting next to you.” Mr Lee correctly responded that he did not have a recollection of being offered work by Mr Cooper. Mr Cooper responded, “Didn’t receive that either? OK.”
Mr Lee has now found other work. I am not satisfied that Mr Cooper would treat Mr Lee appropriately in the workplace if he returned. I am satisfied that it is inappropriate to order reinstatement.
I now turn to consideration of compensation.
Compensation
Section 392 of the Act provides:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c)the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d)the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e)the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f)the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b)half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b)if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
Authorities
The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket.[4] 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;[5] Jetstar Airways Pty Ltd v Neeteson-Lemkes;[6] and McCulloch v Calvary Health Care (McCulloch).[7]
I have had regard to the above authorities, and I have considered the submission of each party.
The effect of the order on the viability of the respondent
No submissions were made relevant to this issue. There is no evidence to suggest that an award of compensation would affect the viability of the Respondent’s enterprise.
The length of Mr Lee’s service
Mr Lee had just over six months’ service. This is not a long period of time.
The remuneration that Mr Lee would have received, or would have been likely to receive, if he had not been dismissed
There was no reason to dismiss Mr Lee from his employment. If Mr Cooper had an issue with Mr Gooley, there is no lawful reason for it to reflect upon Mr Lee. Mr Cooper made clear his disdain for Mr Lee in the Form F3 Employer Response, stating that Mr Lee had operated in a deceptive and misleading manner, yet offered up no evidence at all. Further, he stated that Mr Lee was being prompted by Mr Gooley, but did not say how or what he was supposed to have done.
Mr Cooper treated Mr Lee as though he was fully expendable on account of Mr Cooper’s incorrect assertion that Mr Lee was a casual employee.
I am satisfied that Mr Lee would have been likely to continue in his employment for a period of six weeks if he had not been dismissed. This is an amount of 38 hours x $28.01 x 6 weeks = $6,386.28.
The efforts of Mr Lee (if any) to mitigate the loss suffered because of the dismissal
Mr Lee stated that he had been applying for job with BWS, Pizza Hut and Hungry Jacks. I am not satisfied that Mr Lee made strident efforts to mitigate the loss suffered because of the dismissal. He is a fit 18-year-old man and could have, in my view, made better attempts to find any suitable work, including casual work.
I accept that Mr Lee may not have easily found permanent employment paying as much as $28.01 at his young age. I do, however, consider it appropriate to make a deduction of one week from the amount to be awarded to him on account of his failure to take on some casual employment in the six weeks from when he was dismissed.
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
Mr Lee did not earn any remuneration within the six weeks between his dismissal and the period in which I have found it appropriate to award compensation.
The amount of any income reasonably likely to be so earned by Mr Lee during the period between the making of the order for compensation and the actual compensation
This factor is not relevant in the circumstances of this matter.
Other relevant matters
I do not consider that there are any other relevant matters.
Misconduct reduces amount
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.
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.[8]
I do not find that Mr Lee engaged in any misconduct that would reduce the amount to be awarded to him.
Shock, distress etc. disregarded
I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Mr Lee by the manner of the dismissal.
Compensation Cap
I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.
The high income threshold immediately prior to the dismissal was $162,000, and the amount for 26 weeks was $81,000. The amount of compensation the Commission will order does not exceed the compensation cap.
Payment by instalments
This is not a relevant consideration.
Order of compensation
I have determined that Mr Lee would have been employed for a further period of six weeks, which is an amount of $6,386.28. I consider it appropriate to make a deduction of one week in the amount of $1,064.38 to reflect Mr Lee’s efforts in attempting to mitigating his loss.
The Respondent is to pay to Mr Lee the following amounts within 14 days:
(a)$5,321.90 taxed as required by law; and
(b)10.5% superannuation (as it then was in the 2022/2023 financial year) being an amount of $558.80 into Mr Lee’s superannuation account.
An order [PR767968] giving effect to this decision will be published.
COMMISSIONER
Appearances:
J Lee, on his own behalf
P Cooper, for the Respondent
Hearing details:
Brisbane.
Video by Microsoft Teams.
2023.
29 May.
Brisbane.
Video by Microsoft Teams.
2023.
29 June.
[1] (1995) 185 CLR 410, [465].
[2] Sayer v Melsteel[2011] FWAFB 7498 at [20].
[3] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[4] (1998) 88 IR 21.
[5] [2013] FWCFB 431.
[6] [2014] FWCFB 8683.
[7] [2015] FWCFB 2267.
[8] Crawford v BHP Coal Pty Ltd [2017] FWC 154, [345] – [346]; Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762, [83].
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