[2020] FWC 3819

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

John Lautaimi
v
Pabs Furniture Rentals Pty Ltd
(U2020/2700)

DEPUTY PRESIDENT SAMS

SYDNEY, 31 JULY 2020

Application for an unfair dismissal remedy – dismissal of truck driver/removalist – allegations of poor behaviour – dismissed for misconduct – customer complaints – earlier complaint for rude and intimidating behaviour – conflicting evidence – satisfied valid reason for dismissal – procedural unfairness – no reasonable opportunity to respond to allegations – dismissal unreasonable without proper investigation – compensation at lower end of the scale – order made.

[1] Mr John Lautaimi (the ‘applicant’) was employed as a Truck Driver/Removalist with Pabs Furniture Rentals Pty Ltd (the ‘respondent’). The applicant commenced employment on 20 August 2014 and was employed under the terms of the General Retail Industry Award 2010 (the ‘Award’) on a base salary of $60,000 per annum. The applicant was dismissed for misconduct following a number of incidents of alleged poor behaviour towards customers and staff of the respondent, culminating in an incident on 18 February 2020 which resulted in the Managing Director of the respondent, Mr Jason Wyllie, verbally dismissing the applicant summarily on the afternoon of the incident. Amongst other things, Mr Wyllie’s notes of the meeting with the applicant that day read as follows:

‘The employer should also put the specific allegations to the employee and advise the employee that his/her employment may be terminated if an adequate explanation is not forthcoming.

18-2-20 We have had Maria from M2 lodge a complaint about your behaviour towards her. She said that you where (sic) rude to her and made racists (sic) comments towards her. She is emailing a letter of complaint about this matter

We have previously had the same complaint made about your behaviour towards Melody from concrete property styling and her customers. Racists (sic) and rude comments

Vicky lodged a serious complaint about your behaviour towards her during an (sic) heated argument

Customers request that we don’t send you to their jobs because they don’t like your behaviour, they say your rude and difficult to deal with.

…

We have spoken about these behavior issues and each time I have informed you that you are not [to] be rude to customers in any way and if you do your employment at Pabs will be terminated.’

During the meeting, the applicant denied any wrongdoing. Shortly thereafter, Mr Wyllie advised the applicant that his employment had been terminated.

[2] The applicant filed an application with the Fair Work Commission (the ‘Commission’), pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) for an unfair dismissal remedy; namely, payment in lieu of notice, pro-rated long service leave, and compensation for ‘the trauma of the dismissal’. A conciliation before a Fair Work Conciliator was conducted on 7 April 2020. However, settlement of the claim was unable to be achieved and the matter was remitted to me for arbitration. In accordance with my usual practice, I held a telephone conference with the parties on 30 April 2020, where the matter was again unable to be resolved. I issued directions for a hearing on 24 June 2020. Due to COVID-19 restrictions, the hearing was conducted by telephone. At the hearing, the applicant appeared for himself with a support person, Mr Brent Cooper, and Mr Wyllie appeared for the respondent.

Preliminary findings

[3] In accordance with s 396 of the Act, the Commission is required to make findings on a number of preliminary matters. These are:

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

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

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

[4] At this juncture, I determine that:

(a) The applicant was dismissed at the initiative of the employer (s 385);

(b) The applicant is a national system employee and the respondent is a national system employer (ss 13, 14, 380);

(c) The applicant’s unfair dismissal application was lodged within the 21-day statutory time limit prescribed by s 394(2)(a) of the Act (s 396(a));

(d) The applicant had completed the minimum employment period of 6 months, having been employed for over 5 years (ss 382(a) and 383);

(e) The employment of the applicant was governed by a Modern Award (s 382(b)(i)); and

(f) Neither of sub-sections (c) or (d) of s 396 the Act are relevant to this application.

[5] It follows that there is no dispute that the applicant was a person protected from unfair dismissal. Consequently, the only question which falls for determination by the Commission is whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’ (s 385(b)) within the meaning of s 387 of the Act and, if so, what remedy, if any, should be awarded by the Commission, pursuant to ss 391 and 392 of the Act. I shall return to these considerations later.

THE EVIDENCE

[6] The following persons gave written and/or oral evidence in the proceeding:

• the applicant;

• Mr Nick Faraj, former Driver – Pabs Furniture Rentals;

• Mr Jason Wyllie, Managing Director – Pabs Furniture Rentals;

• Ms Marina Sossai, Administration Manager – Pabs Furniture Rentals;

• Mr Gerald ‘Irish’ McGonnell, Furniture Removalist – Pabs Furniture Rentals;

• Ms Maria Manrique – customer;

• Ms Natalie Fryer – customer; and

• Ms Vicky Muscat – customer.

[7] Mr Wyllie relied on an extract of the respondent’s Discrimination Policy, which it was said the applicant had breached. It reads:

‘2.2 Discrimination

All employees must respect the rights, sex, age, race and cultural differences of individuals. Employees must not discriminate against or harass a colleague or customer or any other person in the course of their duties.

If an employee does not follow the standards set out in this Policy Manual then they may be subject to disciplinary action including immediate dismissal.’

For the applicant

[8] The applicant commenced employment with the respondent on 20 August 2014. As a Driver/Removalist, he said there were often challenges in his job in finding ‘legal’ parking spots and keeping track of schedules. He claimed that despite the inevitable challenges and stresses within the role, he had maintained composure at all times.

[9] On 18 February 2020 (the day of his dismissal), the applicant commenced work at 9:00am at the home base, having loaded up a truck with Mr McGonnell and another employee named ‘Jacob’, for a delivery to a customer, Ms Fryer. At approximately 9:15am, he received a call from ‘Jess’, the applicant’s supervisor, to advise that Ms Fryer would be running late for the delivery. He responded by saying ‘ok, we will wait’. Upon arriving at the building at approximately 9:30am, there were a number of parking and access issues to the site, so he and his colleagues waited on the road for a ‘long time’. The applicant was concerned about where the truck was parked, and that they would be late for the other four jobs scheduled after the current job. At 10:53am, he called Ms Fryer to see where she was, as she still had not arrived. She said that she was not coming, and that Ms Manrique (of the same company of Ms Fryer) would be coming to style the apartment, and that she would arrive once she picked up the key from the owner’s real estate agent.

[10] At around 11:15am, the applicant was advised that the roller shutter door to the building had been opened, so he moved the truck and parked inside the building. He then asked Mr McGonnell and ‘Jacob’ to relay the furniture to outside the elevator while they waited. When the truck was about ¾ unloaded, Ms Manrique arrived at the building. He confronted Ms Manrique and asked why she was late. He claimed she ignored him. He told Ms Manrique that it would be easier for her to move her car closer to the elevator, and she advised that she was told by the Building Manager that she should park elsewhere. He said ‘ok’ and started walking back to the truck. At this point, he noticed that all of the furniture was cleared from the elevator. When unloading the furniture in the apartment, he said to his colleagues ‘I’ll go pack the truck up, we’re already late for our next jobs, meet me down at the truck when you finish off up here’. In the apartment, he saw Ms Manrique hanging up a picture. She had her back facing him, and he never spoke to her.

[11] When going back downstairs, he told Mr McGonnell to tell the Building Manager that as they were leaving, the roller door could be closed. At 12:16pm, he then advised his supervisor that they were on their way to the next job. Mr McGonnell then got in the truck and they left. Neither of his colleagues mentioned anything about Ms Manrique being upset or crying.

[12] The applicant said that when he arrived back at home base at around 3:00pm, his supervisor said to him ‘what happened today? Jason wants to see you’. He denied it took him 30 minutes to report to Mr Wyllie. When he met Mr Wyllie in his office, he advised him that he had received a complaint from a customer about the first delivery. He tried to explain his version of events, but Mr Wyllie ignored him. He alleged that Mr Wyllie was aggressive and continually swearing at him.

[13] The applicant claimed he then said ‘Why are you not listening to my side of the story, how long have I worked for you, this is why I get up in the morning, I love my job and the people I work with’. Mr Wyllie then proceeded to give him a piece of paper. He did not understand its contents, and as Mr Wyllie continued to yell at him, he did not read it until later that night. Mr Wyllie continued to ignore him. He got up and was walked out of his office. He went downstairs, emptied his locker and left.

[14] Attached to the applicant’s evidence was a phone log which outlines the calls made on by the applicant’s mobile between 13 and 20 February 2020.

[15] In cross examination, the applicant denied harassing any of the respondent’s customers, particularly Ms Manrique. He said that he did not see Ms Manrique enter or leave the apartment. The only time he spoke to her was when they he told her to move her car closer to the elevator when they were crossing paths in the moving process.

[16] He confirmed that Mr Wyllie and yelled and swore at him during the meeting of 18 February 2020. He believed Mr Wyllie did not like him working for the Company. He said that it was not explained to him that he was going to lose his job immediately. However, he accepted that given the tone of the meeting, he knew this could be inevitable. He reiterated that Mr Wyllie never asked for his version of events.

Mr Nick Faraj

[17] In his short witness statement, Mr Faraj described the encounter between the applicant and Ms Muscat about what is assumed to be the events of 5 November 2019. It is set out in full below:

‘I worked for Pabs for one month as a driver, I happened to be with John that day when the incident with Vicky happened. I was at the time of the incident I heard John and Vicky talking and then I heard Vicky shouting and swearing’.

[18] At this juncture, I note that Mr Faraj did not provide his contact details to the applicant for him to be contacted to give oral evidence at the proceedings. During the hearing, I advised the parties that this statement would have limited weight, as he was unavailable for cross examination.

For the respondent

Mr Jason Wyllie

[19] On the day of the applicant’s dismissal, Mr Wyllie said that he received a customer complaint about the applicant’s behaviour towards the customer. He asked the applicant to have a ‘serious’ meeting with him about the customer complaint. The applicant did not ask for a support person to attend this meeting. He explained to the applicant that he may be dismissed if a ‘good’ explanation was not forthcoming. He spoke to the applicant about the alleged behaviour and said that it was unacceptable to speak to customers in the manner alleged. He asked the applicant for his side of the story, and the applicant simply denied any wrongdoing. This was similar to that which he has done in the past in similar circumstances. Mr Wyllie then proceeded to dismiss the applicant, and processed his final pay on 19 February 2020, together with a separation certificate.

[20] In cross examination, Mr Wyllie said that he had received a series of previous complaints leading up to the 18 February 2020 incident, where he had spoken to the customers directly. The complaints concerned the applicant’s rude behaviour towards the customers. Regarding the complaint made by Ms Manrique, although he had not spoken to her directly, Ms Manrique’s boss, Ms Fryer, had made complaints about the applicant’s behaviour in the past. He said that Ms Manrique had confided in the accounts manager of the respondent, ‘Anna’, who told him about the events on 18 February 2020.

[21] When asked about who he had spoken to about the incident on 18 February 2020, Mr Wyllie said he had spoken to Ms Fryer, in addition to ‘Anna’, the accounts manager, and ‘Jess’, the applicant’s supervisor. He confirmed he did not have an opportunity to speak with Mr McGonnell or ‘Jacob’.

[22] Mr Wyllie was then asked about whether he had any email contact from the client or the customer and confirmed that this did not occur until later in the evening of 18 February 2020. When asked whether he dismissed the applicant before he had evidence and reaffirmed that he had earlier spoken to ‘Anna’ about the events.

• Gerald McGonnell

[23] In his short witness statement, Mr McGonnell said that he began working with the respondent in August 2018. He had witnessed the events which occurred on 18 February 2020. He said that the team were meeting a customer for the purpose of delivering rental furniture. When they arrived at the building, he said the customer was running about 20 minutes late. When she arrived, he said that the applicant said words to the effect of ‘why are you late’ and ‘you can’t read English’. He thought this was rude and intimidating.

[24] Mr McGonnell said that as a result of the applicant’s comments to the customer, she became upset and cried. He had to console her. He did not report this to his manager, because he feared that the applicant would get angry with him.

[25] In response to Mr McGonnell’s statement, the applicant denied that the customer was about 20 minutes late. He stated that it was around 11:30am when the customer arrived, after waiting there since approximately 9:30am. He also denied having observed Ms Manrique when she arrived. The first time he saw her was when he was walking back towards the truck. Mr McGonnell and ‘Jacob’ were not present. He denied that he spoke to her aggressively, or that he made any remarks about her ability to speak English.

[26] In cross examination, Mr McGonnell said that they arrived at the building at 11:00am. and that he parked outside the property about an hour before they were supposed to meet the client, at approximately 10:00am. He said he was ‘pretty sure’ that he saw Ms Manrique at the same time as the applicant and ‘another offsider’. He said that the three of them were waiting outside, so they could gain entry to the premises. He also said that he first saw Ms Manrique in her car, while the applicant was helping unload the truck.

[27] When asked about the allegedly rude and intimidating comments made by the applicant, he said that the applicant firstly asked her why she was late and that he wanted an explanation. He accepted that he was not in the room when the alleged racist comments were made, but as he was walking into the apartment, he heard the tail end of the conversation when the applicant racially abused the customer and she started crying.

• Natalie Fryer

[28] In her witness statement, Ms Fryer said that she is a regular customer of the respondent and has always had a ‘great relationship’ with the delivery team. She had become aware that the applicant was ‘increasingly disrespectful, rude and sometimes harassing my employee, Maria Manrique’.

[29] On 18 February 2020, she said that the applicant and Mr McGonnell were meeting with Ms Manrique to deliver furniture for a styling job at an apartment. On this day, the applicant had harassed Ms Manrique. When Ms Fryer arrived at the property, she observed Ms Manrique was crying. Ms Manrique and Mr McGonnell explained to her that the applicant had been rude in ignoring her requests as to where to place furniture, made belittling and patronising remarks about her ability to read English, and caused undue stress on Ms Manrique for being late to the apartment. Ms Manrique then disclosed to her that this harassment had been going on for ‘months’, citing numerous occasions when this had occurred (supported by Mr McGonnell).

[30] Ms Fryer said that Ms Manrique was ‘frightened and shaking’. She was so distressed, that had she known this behaviour had been occurring, she would never have had the applicant on the delivery team and would have asked the respondent to refrain from using him. She then immediately contacted Ms Sossai and Ms Artemis, employees of the respondent, to request the applicant be removed from all jobs with her organisation and she made a formal complaint requesting that the applicant’s behaviour be addressed.

[31] In response to Ms Fryer’s witness statement, the applicant said that he never saw her arrive at the site after the last pieces of furniture were taken up to the apartment. This meant that he cannot comment on Ms Manrique’s emotional state. Although he was not there, he queried how Ms Fryer, Ms Manrique and ‘Jacob’ could have had a discussion, given the timeframe of the events.

[32] The applicant also denied ignoring requests from Ms Manrique about where to place furniture, as he only addressed Mr McGonnell and ‘Jacob’ during this time. In response to his alleged ‘patronising remarks’, the applicant said that ‘as a full-blooded Niuean who has encountered racism throughout my life’, he was highly offended that such an accusation was made against him. He made no such comments about Ms Manrique’s ability to read English.

[33] In response to Ms Manrique being late to the site, the applicant said that Ms Fryer was clearly aware that she was late. His supervisor rang him on the way to the site advising that Ms Fryer would be late. It would be a fair assumption that someone from the respondent’s office would have had a conversation with Ms Fryer with confirmation that he and his colleagues were on the way and that Ms Fryer would have advised that she was running late. He said that he rang Ms Fryer at 10:53am, being 1 hour and 23 minutes after arriving at the apartment, only to be advised that she was not coming and that Ms Manrique would be attending on her behalf, and was still on her way.

[34] Ms Fryer was not required for cross examination.

• Maria Manrique

[35] In lieu of a witness statement, Ms Manrique provided a copy of her email to Ms Fryer dated 10:25pm 18 February 2020, which reads as follows:

‘Hi Nat,

1. As I told you today, I’m not feeling comfortable working with John because he makes comments that I find very rude, I feel like he is always making fun of things that I do and the way I speak, and I was always trying to ignore him to maintain a good working relationship. But today Irish told me it was enough, that John shouldn’t be talking to me that way and disrespecting me, and he asked me to please tell you what was happening. That’s when I realised it wasn’t ok what John was doing and decided to let you know what he said.

2. This started to happened since I started working with you, sometimes when I had to be by myself in a property because you were in a meeting or the storeroom, he asked me multiple times why you weren’t there and why you left me alone doing the job and made indirect comments about me not being able to do the job without your help. When I asked him to place the furniture in a certain place, he often decided not to listen to me and locate it wherever he wanted, making me feel like I didn’t have enough authority to give him directions.

3. In December, before you went on your trip, I don’t know if you remember we went together to Pabs because you wanted to show me the furniture we needed for the jobs I was doing by myself and with Zoe, and while we were walking with Anna in the warehouse, John was walking behind us for a long time recording us with his cell phone, I don’t know who he was recording or why he was doing it, but it made me feel very uncomfortable that someone whom I don’t know was recording everything we were doing when he had no reason to do it.

4. On January 29, after styling [site address provided], I went to Marrickville Metro and saw John from afar, at that moment I wasn’t sure if he had seen me, but then he started walking towards me, and just when he was in front of me I greeted him, but I didn’t receive any response, he kept walking and when he passes by my side he pushed me with his shoulder without turning to see me and without apologizing. At that moment it was clear to me that he did this on purpose to bother me, but again, I decided to ignore his actions.

5. Today, when we were styling the apartment at [site address provided], from the moment I arrived he was making annoying comments. He complained about me “arriving late”, he said they were waiting for me for 2 hours, when the other boys had told me that they arrived only 20 minutes before me, and when I arrived he was still parking the truck. All the time we were in the apartment he was complaining, he said they were late, and that they had to do another job after that one, and because of me, they were going to finish late. He also asked about you multiple times again and asked me why you weren’t there and why you left me by myself. When the boys were leaving, I went down with them to the car park, and he asked me if I knew where the building manager’s office was because they had to let him know they were leaving, to which I replied that I didn’t know but that I had seen him enter through that door, I pointed out a door that didn’t have any sign, or at least I didn't see it, to which John replied: “now it turns out that I have to teach you to read in English?”. After this, I was very angry, so I went to my car and I started to cry because I couldn’t believe someone was talking to me that way and that was when Irish came and told me what I told you at the beginning of this email.

6. I didn’t want to cause any problems, that’s why I didn’t tell you all this before, but I think nobody deserves to be treated this way because if he is treating me like this, he probably is doing it with other people as well. All the other boys from Pabs are always very nice, respectful, helpful and I really enjoy working with them, but I can't continue to ignore what John has been doing all these months.

[36] In response to Ms Manrique’s statement, the applicant said that she ‘had a perception towards me that I was always making fun of her or was rude to her or did not respect her ability to do her job’. He said he had tried to help her as much as she could, as she was new to the job. As he had worked with Ms Fryer for over five years, he offered suggestions and said words to the effect of ‘this is how Natalie would do it’. He never intended to undermine Ms Manrique and had never made inappropriate comments towards her. He also said he never refused a direct request from Ms Manrique about where to place furniture.

[37] In response to point 3 of Ms Manrique’s email, the applicant said that the video was ‘a bit of harmless fun’ and ‘one of several videos Pabs staff made of our day to day activities’. He apologised if this had made Ms Manrique feel uncomfortable.

[38] In response to point 4, the applicant said he had no recollection of the alleged encounter. He said he would have never intentionally ignored Ms Manrique – had he seen her, he would not have deliberately bumped into her with his shoulder. This is contrary to how he conducts himself.

[39] In response to point 5, the applicant claimed this was a ‘fabrication’. He had only spoken to Ms Manrique once that day, on his way from the elevator to the truck. He did not speak to her in the apartment and did not see her downstairs when he was finishing cleaning up the bins. He had spoken to Mr McGonnell to ask him to tell the Building Manager that they were leaving so the roller doors could be closed. He did not have a conversation with Ms Manrique about finding the Building Supervisor.

[40] In cross examination, Ms Manrique said that she had arrived at the apartment at around 12 noon. Although she normally is advised to go to sites about an hour beforehand, on this occasion, she was advised only about half an hour beforehand. As she had to pick up the keys, she arrived approximately 20 minutes late. When she arrived at the site, she saw the applicant, Mr McGonnell and ‘Jacob’. She asked whether they were waiting very long, and ‘Jacob’ said ‘no, only like 20 minutes’. She confirmed that the first time she saw the applicant, was when he was walking back from the elevator to the truck. She said that ‘naturally he was making fun of me’ because she parked in one of the visitor parking spots, not one of the spots closer to the elevator. When asked about her interaction with the applicant in the apartment, she said that she and the applicant spoke in the parking area, but did not speak in the apartment.

• Vicky Muscat

[41] In her witness statement, Ms Muscat said that she is a regular customer of the respondent. On 5 November 2019, the applicant and other staff of the respondent met her at a site for furniture pickup. At an earlier time, other delivery drivers had tried to open one side of the double front doors, but realised that it could not be opened. The applicant tried forcing the door open, and she asked him several times to refrain from doing so, but her request was ignored. She became concerned that he would break the door, and that she would be liable, if the door was damaged or broken. She told the applicant to stop and take the furniture out the way it was brought in. The applicant became ‘very belligerent’, and said he wanted to make it easy for himself because he had to take ‘all your shit’ out. She said to the applicant that ‘taking all my shit out’ was his job. He replied that he worked for Mr Wyllie and not her. As a customer of the respondent, she believed that this behaviour was unacceptable. The applicant became more antagonistic and she became very upset. She left the site to make a call to the respondent’s office. When she returned, the applicant said to her: ‘I suppose you are going to dob me in again to Jason … and make up more bullshit’. The applicant proceeded to call her a ‘bullshitter’ and that she was making things up because of the front door. She said that the complaint was not about the door, but about his behaviour towards her. The applicant said he would tell Mr Wyllie that ‘it was all bullshit’.

[42] Ms Muscat spoke to Mr Wyllie later that day. When she told him about the incident, Mr Wyllie said that he was very concerned because of how upset she was about the incident. She told Mr Wyllie that she did not want the applicant on any of her jobs again, even if he stayed in the truck. Notwithstanding the difficulties that this would cause, Mr Wyllie honoured this request. She understood that when Mr Wyllie spoke to the applicant that afternoon, he denied everything.

[43] In response to Ms Muscat’s statement, the applicant conceded that he tried to open up one side of the double door. Ms Muscat told him that it was broken. However, he wanted to see if he could fix it, as it was going to cause additional strain by using an alternative entrance. He said that Ms Muscat ‘went into a total meltdown’, and started screaming ‘fuck you, why don’t you listen, that door is broken’ to him about four times. He responded by saying ‘I work for Jason’. He said that the encounter upset him, but he never lost his composure or raised his voice at Ms Muscat.

[44] The applicant said that Mr Wyllie did call him into his office after it happened, but he had not wanted to hear his side of the story. Mr Wyllie said to the applicant ‘you should have walked away’. He never gave him a formal warning, either verbally or written about the incident. He said that it was bad that Ms Muscat was a ‘valued customer’, but felt that Mr Wyllie should have ‘stuck up’ for him as there was no excuse for Ms Muscat’s behaviour towards him.

[45] Ms Muscat was not required for cross examination.

Ms Marina Sossai

[46] Ms Sossai was not required for cross examination. As her witness statement was short, I set it out in full below:

‘This statement is my recollection of the meeting between Jason and John held in Jason's office on the 18th February 2020.

1. I have been employed at Pabs for over 17 years

2. During this time, I cannot recall a time when Jason was aggressive, screamed or swore at an employee.

3. My desk is located approximately 5 meters from Jason's office which has a glass wall and door separating it from the rest of the office. We often talk to each other from our desks and I can hear him clearly. During the meeting Jason's office door was closed but I'm sure that I would have heard any loud voices or yelling.

4. During Jason and Johns meeting I was sitting at my desk working and I did not hear any yelling or swearing.

5. Jason did not appear aggressive or angry before or after the meeting.’

[47] The applicant did not reply to Ms Sossai’s statement.

SUBMISSIONS

[48] Both parties provided short oral submissions in support of their respective cases, and the respondent also provided written submissions, which are set out below.

For the applicant

[49] In oral submissions, Mr Cooper submitted that the applicant’s dismissal was unfair as he was not given a chance to understand the circumstances as to why he was being dismissed, and no opportunity was provided to fairly present his evidence as to the alleged events which occurred. Mr Cooper conceded that there are circumstances in which an employee can be summarily dismissed, but on this occasion, the alleged events did not justify this outcome.

[50] In response to Mr McGonnell’s witness evidence, Mr Cooper submitted that it was convenient for Mr McGonnell to claim that the applicant and his colleagues arrived at the site at 11:00am to support the argument that Ms Manrique was not as late as the applicant alleged, resulting in the applicant being in an unwarranted bad mood. He also claimed that it was inconsistent for Mr McGonnell to say that he heard the applicant speak rudely to Ms Manrique when he was not in earshot of the full conversation. He also said that Ms Manrique’s evidence was inconsistent, as she said that when she arrived, she first spoke to the applicant, but then also said that she first spoke to Mr McGonnell and ‘Jacob’. This meant the respondent’s witness evidence was ‘full of holes’.

[51] Mr Cooper said that if Mr Wyllie had given the applicant the chance to see and respond to the evidence against him, he would have had the chance to put his case forward. Rather, Mr Wyllie acted ‘on a whim’, without waiting for the formal complaint to be made later in the evening on 18 February 2020. He did not have the chance to adequately respond to the allegations. Mr Cooper claimed that Mr Wyllie swore at the applicant.

[52] Finally, Mr Cooper responded to the respondent’s written submissions that the respondent was not large enough to have dedicated human resources capabilities. Mr Cooper claimed that this response typifies the behaviour that resulted in the applicant’s unfair dismissal. Mr Cooper concluded by saying that Mr Wyllie has ‘his own way of doing things and it’s not the way that the Fair Work Commission states a procedure should take place’.

[53] In questions from me about what the applicant is seeking from the proceedings, Mr Cooper said that the applicant is seeking payment in lieu of notice, and a payment equivalent to the applicant’s pro-rated long service leave, resulting in a total amount of compensation of 12 weeks. His circumstances were exacerbated by the current COVID-19 pandemic, resulting in the applicant’s inability to secure future employment at the time of the hearing. However, the applicant was actively seeking alternative employment.

For the respondent

[54] In written submissions, the respondent filled out the Commissions pro forma ‘Respondent’s outline of arguments: merits’ form available on the Commission’s website. In answer to question 3d (Did you tell the employee why you were dismissing them’, the respondent answered as follows:

‘John was called into my office for a meeting about a customer complaint received earlier that day. During the meeting I told John about the complaint and I said to John that he may be dismissed because of serious misconduct. I asked John for his side of the story. After considering what John had said and the relevant information I had at the time. I said to John “I am terminating your employment because of serious misconduct”. I also said “I can’t allow an employee to abuse and harass customers and hurt the business reputation”. John denied any wrongdoing and asked for another chance I said “I’m sorry John but we have had other complaints about your behavior and my backs against the wall and I have no other option”

During this meeting I was professional and calm. Neither John or I got upset or acted in an inappropriate manner.’

[55] The respondent stated that the applicant was provided an opportunity to respond to the allegations, but denied any wrongdoing (as he had done in the past). As a medium sized family business employing 35 people, the Company does not have a human resources department, but strives to comply with workplace relations rules and regulations to ‘provide a fair work environment for all staff’. In submitting that written warnings should have been provided to the applicant, the respondent said that the applicant ‘has proved to be very deceitful in his dealings with me about these customer complaints making it difficult for me to handle this case’.

[56] Regarding the allegations of serious misconduct, the respondent claimed that the harassment and verbal abuse by the applicant which had resulted in customer complaints and refusals to work with him, were grounds to dismiss him. Further, this behaviour had damaged the reputation of the respondent. In describing the circumstances leading to the misconduct, the respondent submitted the following:

‘1. John was employed as a delivery driver and part of his role included meeting customers at the delivery location. In the final instance which resulted in dismissal I received a customer’s complaint that John made rude and racist comments towards her causing distress, anxiety and making her cry.

2. On the 5th November 2019 John was warned verbally that he risks being dismissed if there is no improvement in relation to his behavior towards our customers. This was in response to another customer complaint lodged about John regarding him swearing and arguing with a customer (Vicky from Clear Your Headspace).

A Pabs employee Gerard McGonnell (Irish) who was present at the time witnessed what happened regarding Johns behavior towards Maria from M2 Property Presentation, the customer. Maria the customer was also present and lodged a complaint.

The owner of M2 Property Presentation called the office and made a complaint about Johns behavior and harassment towards her employee Maria. She also emailed me Maria’s statement describing what had happened on the day and other harassment instances that have occurred.

I spoke with the staff member who took the call and managed the customer who lodged the complaint. I also reviewed previous complaints and meetings I had with John about his behavior towards customers. It was difficult to get information from other staff members because they feared John which I found this out after Johns dismissal.

Finally, the respondent submitted that it did not believe ‘John would be suited to work at Pabs because since he’s dismissal staff had informed me that John was a bully and difficult to work with. I would fear for my staff’s safety and workplace harmony.’

[57] In oral submissions, Mr Wyllie noted that there had been numerous complaints made about the applicant’s conduct. Mr Wyllie said that he gave the applicant a verbal warning as a result of the November 2019 incident.

[58] During the meeting on 18 February 2020, Mr Wyllie said that he was ‘professional and calm at all times’. He never swore or yelled at the applicant. He said that the applicant was clearly told about the nature of the meeting and that he may be dismissed, due to his conduct.

[59] Mr Wyllie said that the applicant was given an opportunity to respond to the allegations, which he did. However, the response was not as ‘forthcoming’ as expected, as the applicant simply denied any wrongdoing. He said that it was ‘difficult’ and a ‘challenging situation to handle’. Based on the information at hand, Mr Wyllie said that it was his view that the appropriate course of action was the termination of the applicant’s employment, to avoid further damage to the respondent’s reputation.

[60] Mr Wyllie submitted that the applicant was given approximately 30 minutes’ notice of the meeting on 18 February 2020. During the meeting, and for fear of reprisal, Mr Wyllie did not give the applicant any evidence of the alleged misconduct. He believed that he and the applicant ‘left on good terms’.

[61] In reply, Mr Cooper denied that the applicant was provided with previous verbal warnings regarding his alleged behaviour in November 2019. The applicant conceded that he was asked to go to Mr Wyllie’s office at that time, but that he was never given a formal warning, and that Mr Wyllie simply said to him that the applicant ‘should have walked away’.

[62] Finally, Mr Cooper said that it was clear that Mr Wyllie ‘lost his cool’ in the meeting with the applicant on 18 February 2020. Mr Wyllie was ‘in a bad mood’ and was ‘angry’ when he dismissed the applicant.

CONSIDERATION

[63] Section 385 of the Act defines an unfair dismissal based on four criteria which must be satisfied if a person, seeking a remedy for unfair dismissal, is to succeed. This section reads:

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

(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.

[64] The applicant was dismissed by the respondent on 18 February 2020 (sub-s(a)). As mentioned earlier at [4], sub-ss (c) and (d) of s 385 of the Act do not apply, leaving only the question of whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’ and consequentially, an unfair dismissal. This leads to s 387 which requires the Commission to take account of the following matters:

(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.

[65] I shall come back to these matters in due course. However, I add at this juncture, that the meaning of the expression ‘harsh, unjust or unreasonable’ in the context of an unfair dismissal, was explained in the oft-quoted passage from Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410 where McHugh and Gummow JJ said at para 128:

‘128. Clause 11(b) is aimed at the situation where the termination of employment brought about by the dismissal, rather than the steps leading up to the dismissal, or lack of them, is harsh, unjust or unreasonable. A dismissal with notice may be harsh, unjust or unreasonable because it is based on a ground defined as such by cl 11(b). This refers to such matters as termination "on the ground of" race, colour, sex and marital status. 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.’ (my emphasis)

[66] I turn now to consider whether the applicant’s conduct was a valid reason for his dismissal – a significant matter under s 387 of the Act.

[67] The meaning of ‘valid reason’ in s 387(a) is drawn from the judgement of North J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’). This meaning has been considered and applied by members of the Commission and its predecessors for many years. For example, in Rode v Burwood Mitsubishi Print R4471, a Full Bench of the then Australian Industrial Relations Commission (‘AIRC’) discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and by citing Selvachandran. The following is an extract from the Full Bench’s decision at [17]-[19]:

‘[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peterson Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. 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 reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.’

See also: Nettleford v Kym Smoker Pty Ltd (1996) 69 IR 370.

[68] In this case, the question of whether there was a valid reason for the applicant’s dismissal turns on the Commission making findings of witness credit where the events of 18 February 2020 are strongly contested. The applicant denied the comments said to have been made by him towards Ms Manrique. He further denied that this behaviour had been ongoing for some time in various iterations. Regrettably, due to COVID-19 restrictions on in-person hearings, the Commission has not had the benefit of observing the witnesses giving their evidence. That said, however, it seems to me that the weight of evidence and the improbability of Ms Fryer, Ms Manrique and Mr McGonnell falsely constructing a sequence of events designed to ‘injure’ the applicant’s employment, supports a conclusion, on the balance of probabilities (Briginshaw v Briginshaw (1938) 60 CLR 336) that the applicant misconducted himself on that day, or at best displayed entirely inappropriate behaviour. It is apposite that neither Ms Fryer, Ms Muscat or Ms Sossai were required for cross examination and their statements were admitted into evidence without objection (although I note the applicant responded to the evidence of Ms Fryer and Ms Muscat in his reply evidence).

[69] It is strictly not necessary to make specific findings as to the precise words used by the applicant towards Ms Manrique on 18 February 2020, although I accept words to the effect of those described by Ms Manrique were said. It was clear that the applicant was annoyed she was late which had caused him and the delivery team inconvenience. In my view, it is largely irrelevant as to the conflict in evidence as to when the Team arrived at the apartment and how late Ms Manrique had been. This is because it is the conduct in question which is the relevant focus.

[70] I accept that whatever was said by the applicant caused Ms Manrique significant distress and upset to the point of her being observed by Mr McGonnell and Ms Fryer, as shaking and crying. There was no reason for Ms Fryer to disbelieve the cause of her distress. Her response in contacting Mr Wyllie to report the applicant’s behaviour and insist the applicant not be put in any jobs her company was involved with, was an entirely reasonable and explicable response in order to protect her employees’ health and safety. There is no logical reason why Ms Fryer would go to these lengths, if it was deliberately designed to falsely accuse the applicant of something he had not done. Indeed, the applicant did not speculate as to why Ms Fryer would do so, or why she and Ms Manrique would make up a story. It is plain that Ms Manrique was so distressed that it resulted in physical manifestations of this distress being observed by others. In my view, it is highly improbable that this evidence was created in order to deliberately mislead the Commission.

[71] I also accept Mr McGonnell’s evidence that he did not immediately report the incident because as a work colleague, he was concerned as to the applicant’s reaction if he did so. Pointedly, there was no corroboration of the applicant’s version of events, either from the other employee (Jacob) who was present or in the only statement the applicant relied on from a former employee (Nick) who was not even an employee of the respondent at the time. His brief statement referred to the earlier incident on 5 November 2019.

[72] It is pertinent that another of the respondent’s customers, Ms Muscat, provided evidence of the incident on 5 November 2019, in which she described the applicant’s behaviour as intimidatory and aggressive. She informed Mr Wyllie of the incident and insisted he not send the applicant to any of her jobs in the future. The applicant denied Ms Muscat’s version of the incident; rather he claimed it was Ms Muscat who had screamed and sworn at him. Nevertheless, he accepted Mr Wyllie raised the matter with him. He criticised Mr Wyllie for not ‘sticking up’ for him over Ms Muscat.

[73] While I accept the applicant had received no formal warning for this incident, it is clear Mr Wyllie had not accepted his denials and it is more likely than not he verbally reprimanded the applicant.

[74] Given that Ms Muscat:

• was a different customer of the respondent who had reported similar inappropriate behaviour of the applicant;

• she was not required for cross examination; and

• that the applicant was spoken to about this incident,

it would appear to me that the subsequent 18 February 2020m incident was not an isolated or ‘one off’ incident; rather it demonstrated an unacceptable pattern of behaviour at least from 18 November 2019, which might still well have cost the respondent both Ms Muscat’s and Ms Fryer’s custom.

[75] To add to my doubts about the applicant’s credibility he made much of what he claimed was Mr Wyllie’s conduct in the dismissal meeting. He said Mr Wyllie refused to listen to his side of the story, and constantly yelled and swore at him. Ms Sossai gave uncontested evidence that as her desk was about five metres from Mr Wyllie’s office, she would have heard any loud voices, swearing or yelling when he was meeting with the applicant. She did not hear anything of this kind, nor did Mr Wyllie appear aggressive or angry either before or after the meeting. I accept her evidence.

[76] For the aforementioned reasons, where the applicant’s evidence conflicts with that of the respondent’s witnesses, it is the latter which I prefer. I do not accept Mr Cooper’s submission that the respondent’s evidence was ‘full of holes’). Accordingly, I am satisfied there was a valid reason for the applicant’s dismissal.

Further matters to be considered under s 387 of the Act

[77] Subsections (b)-(e) of s 387 are generally grouped under the rubric of ‘procedural fairness’ or ‘natural justice’ issues. To highlight the importance of procedural fairness issues, I cite three authorities on the subject in unfair dismissal cases. In Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137 a Full Bench of the AIRC said at [73]:

‘As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment.’

[78] In Wadey v YMCA Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations concerning an employee’s conduct. His Honour said:

‘In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.’

[79] Nevertheless, procedural fairness steps should be applied in a common-sense and practical way. The next citation has a particular resonance to the circumstances of this case. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1, Wilcox CJ said at [7]:

‘Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.’

Whether the employee was notified of the reason for his dismissal – s 387(b)

[80] Mr Wyllie verbally notified the applicant on 18 February 2020 of the reasons for his dismissal. He handed him a document said to be notes Mr Wyllie had prepared for the meeting; see: [1] above.

[81] The is a neutral factor in this case.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person – s 387(c)

[82] In my opinion, the applicant was not provided with a reasonable opportunity to respond to the specific allegations against him. The evidence is that he received 30 minutes’ notice of the dismissal meeting, but not provided any details of the meeting’s agenda. Given that I observed the applicant had some difficulty in comprehending legal issues (and was ably assisted by Mr Cooper) and that the piece of paper handed to him was short on specifics, I consider he should have been given a document setting out the details of the allegations (including earlier incidents) and be offered a short period, say 24-48 hours, to consider and/or to seek advice about the prospect of his dismissal. While I accept Mr Wyllie believed that he would just continue to maintain his denials (as he had done in the past) so it would have made no difference to the outcome, that with respect, is not the point. This was an entirely different situation to the earlier warnings, and he was now at real risk of losing his job. He may have admitted his conduct and pleaded to keep his job. Nevertheless, it was incumbent on Mr Wyllie to at least provide him with a reasonable opportunity to respond. A further short period might not have made a difference, but Mr Wyllie’s haste to dismiss an employee with five and a half years’ service, was inconsistent with justice not only being done, but seen to be done; see: R v Sussex Justices ex parte McCarthy [1924] 1 KB 256; [1923] All ER Rep 233.

[83] This criterion tells in favour of a finding of unfairness.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal – s 387(d)

[84] There was no evidence the applicant asked for a support person to attend the meeting on 18 February 2020 and consequentially there was no unreasonable refusal by the employer to allow him to have a support person present.

[85] This is a neutral factor.

Whether the person had been warned about unsatisfactory performance before the dismissal – s 387(e)

[86] It is common ground the applicant attended a meeting with Mr Wyllie about the 5 November 2019 incident. As I said earlier, it was likely Mr Wyllie gave him a verbal warning about his behaviour. Although, it would have been preferable for Mr Wyllie to have given him a written warning at the time, I am satisfied that the applicant was ‘on notice’ that his dealings with customers needed to improve. This factor tells against a finding of unfairness.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal – s 387(f), and 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 – s 387(g)

[87] Although the respondent is not a small business (as defined), it is not a large employer as it employs approximately 19 employees. The respondent has no dedicated human resource management specialists. Mr Wyllie was essentially the investigator and decision maker. I note he has been the Managing Director of the respondent for 20 years. Given this experience, I am somewhat surprised that he did not adopt a more reasonable and procedurally fair process or sought some independent advice when dismissing an employee with five and a half years of service. These criteria tell in favour of a finding of unfairness.

Any other matters the Commission considers relevant – s 387(h)

[88] I have taken into account the applicant’s period of service which was neither short nor lengthy. Although the applicant said he had contacted a ‘few old mates’ to see if any driving work was available, the present COVID-19 pandemic has limited any opportunities for obtaining alternative employment. There was no evidence that the applicant had been applying for work either as a driver or in some other role, or that he had attended any interviews. These matters tell against a finding of unfairness.

[89] For the aforementioned reasons and in weighing all of the matters the Commission is required to take into account under s 387 of the Act, I am satisfied, albeit on a fine balance, that the applicant’s dismissal was ‘unreasonable’, on the grounds of a denial of procedural fairness, and was therefore unfair.

Appropriate remedy

[90] The remedies for an unfair dismissal are set out at s 391 of the Act as follows:

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) 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 reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[91] In his F2 application, the applicant did not seek reinstatement and sought:

‘Pay in lieu of notice period, a pro rata of long service pay, an additional payment to allow John to recover from the trauma of the dismissal and an adjustment to his personnel file to register that the original dismissal was unjustified and an apology.’

[92] As I am satisfied that reinstatement of the applicant is inappropriate, I turn to whether any compensation should be ordered. The methodology for determining the amount of compensation is set out at s 392 as follows:

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.”

The above methodology was discussed in Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 and has since been described in shorthand as the Sprigg Formula. I will make findings as to such components of s 392:

The effect of the order on the viability of the employer’s enterprise – s 392(a)

[93] There is no evidence of any deleterious effect on the viability of the respondent’s enterprise. Given the order I intend to make, there is no such effect on the employer’s viability.

The length of the person’s service with the employer – s 392(b)

[94] As mentioned earlier, the applicant’s period of service was neither short nor lengthy. It was a reasonable period of service.

The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed – s 392(c)

[95] Given the pattern of behaviour I have found established in the 5 November 2019 and 18 February 2020 incidents, I consider it unlikely the applicant would have been employed much longer than four to six weeks. Giving him the benefit of the higher period, I determine six weeks as the likely period the applicant would have remained employed.

The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal – s 392(d)

[96] Although there were no deliberate efforts of the applicant to mitigate the loss he suffered because of his dismissal, I am prepared to treated this as a neutral consideration.

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 – s 392(e); and 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 – s 392(f)

[97] I accept the applicant has not received any remuneration from employment or other work since his dismissal. Subsection (f) is not relevant.

Any other matter that the FWC considers relevant – s 392(g)

[98] There are no other matters I consider relevant, save for what follows under sub-s (3) of s 392.

(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.

[99] In my opinion, the amount of compensation of six weeks should be discounted by a third as an appropriate recognition of his misconduct on 18 February 2020. The resultant compensation calculation is therefore four weeks’ pay at $1,153.85 a week. There is no component included in this amount by way of shock, distress, humiliation or other analogous hurt caused by the applicant’s dismissal (s 392(4)).

[100] Obviously, the compensation cap is not exceeded in this case and ss 5 and 6 are therefore satisfied. Accordingly, I propose to order an amount of $4,615.40 be paid to the applicant by the respondent.

CONCLUSION

[101] For the abovementioned reasons, I am satisfied the applicant’s dismissal was ‘unreasonable’, being procedurally unfair and an order for the payment of compensation equivalent to four weeks’ pay should be made.

[102] Finally, s 381(2) of the Act is a significant overarching object of Part 3-2 – Unfair Dismissal of the Act. It reads:

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

[103] The outcome I have determined in this case is consistent with the object of Part 302 of the Act of providing a ‘fair go all round’ to both the applicant and the employer.

[104] This matter is now concluded and an order for compensation of $4,615.40 is published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Mr B Cooper for the applicant

Mr J Wyllie for the respondent

Hearing details:

2020:

Sydney (via Telephone)

24 June.

Printed by authority of the Commonwealth Government Printer

John Lautaimi v Pabs Furniture Rentals Pty Ltd