Joshua Doran v SSKK Holdings Pty Ltd ATF SKA
[2022] FWC 1799
•11 JULY 2022
| [2022] FWC 1799 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joshua Doran
v
SSKK HOLDINGS PTY LTD ATF SKA
(U2021/11489)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 11 JULY 2022 |
Application for an unfair dismissal remedy – Small business employer – Employment terminated for underperformance and failure to comply with the vaccination policy of the Respondent – Respondent did not establish that it had a vaccination policy or that vaccination requirement was properly communicated – Finding that the dismissal was not consistent with the Small Business Fair Dismissal Code – Finding that the dismissal was harsh, unjust and unreasonable – compensation awarded.
Overview
Mr Joshua Doran (the Applicant) applies under s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in respect of his dismissal by SSKK Holdings Pty Ltd as trustee for SKA trading as Cold Food Logistics (the Respondent). In his Form F2 Application for an unfair dismissal remedy, the Applicant originally named his employer as Cold Food Logistics. With the consent of the Respondent, permission was given to the Applicant to amend his application.
The Respondent’s business is described in the Response to be a logistic company delivering food to customers operating aged care facilities, schools, supermarkets, cafés and restaurants. The Respondent has customers in Queensland and New South Wales.
The Applicant was employed by the Respondent primarily as a food delivery driver, from August 2015 until his dismissal, which took effect on 8 December 2021. The Applicant’s uncontested evidence is that he was initially employed on a casual basis but was offered a permanent position from October 2016.
There is no dispute between the parties, and I am satisfied on the evidence that:
1.the Application was made within the period required in s.394(2) of the FW Act;
2.the Applicant is a person protected from unfair dismissal;
3.the Respondent was a small business employer at the relevant time; and
4.the dismissal was not on the grounds of redundancy and was therefore not a case of genuine redundancy.
I decided that it was appropriate to hold a hearing in this matter. In making that decision, I had regard to the views of the parties together with the fact that a hearing would be the most effective and efficient way to resolve this matter. The hearing was conducted by video on 8 April 2022.
The Applicant was assisted at the hearing by his father, Mr James Doran, and gave evidence on his own behalf. Witness statements for Mr James Doran (the Applicant’s father) and Ms Debra Blackman (the mother of the Applicant’s partner) were tendered without objection and neither witness was required for cross-examination. The Respondent was represented by Xiao (Shaun) Long, who also gave evidence on behalf of the Respondent.
At the request of the Applicant, I issued a notice requiring production of documents by the Respondent relating to its COVID – 19 Policy including screenshots establishing when it was created and updated, records of the Policy being shared with the Applicant and documents given to and signed by staff in relation to the Policy. The notice also required the Respondent to produce CCTV footage of conversations on 27 October and 9 November 2021 and pay slips for the period 23 – 29 August and 8 – 14 November 2021.
On 6 April 2022, in response to the Order of production of documents, Mr Long provided, by email, two payroll advice slips for the pay periods from 23 to 29 August 2021 and from 8 to 14 November 2021, a screenshot of the file properties of a PDF document, named “Vac Policy” captured from a Window desktop on a computer and a photograph depicting a document, headed “COVID – 19 vaccination policy”, which appeared to be hanging on a wall.
I also issued notices requiring attendance at the hearing of two employees of the Respondent at the hearing – Mr Rodney Arnold and Mr Matthew Fleming. On 5 April 2022, the Applicant contacted my Chambers by email alleging that Mr Long had interfered with the Applicant’s witnesses by instructing them not to communicate with him or they would lose their jobs. On 5 April 2022, I caused my Associate to email the parties indicating that this was a serious allegation, and if substantiated could render Mr Long liable to penalties under the FW Act. Mr Long responded by email denying the allegations. On 6 April 2022 I conducted a hearing to deal with the issues surrounding the attendance of Mr Fleming and Mr Arnold.
At the hearing on 6 April 2022, both Mr Arnold and Mr Fleming denied that they had been threatened by Mr Long. Mr Arnold indicated that he would make himself available for the substantive hearing on 8 April 2022 whereas Mr Fleming stated that he did not want to have anything to do with the matter on the basis that he might lose income from having to attend the hearing and being absent from work. Mr Fleming also said that any statements he had made expressing concerns about participating in a hearing were his own views and had not been made because of any discussions with Mr Long. It was agreed with Mr Fleming that he would give evidence by telephone at a time outside his ordinary working hours.
At the conclusion of the Applicant’s evidentiary case, the Applicant stated that he did not wish to call either Mr Arnold or Mr Fleming to give evidence because he was concerned they might “turn hostile”. At the conclusion of the Respondent’s evidentiary case, Mr Long indicated that he wanted to question Mr Arnold and Mr Fleming. I determined that I would not allow Mr Long to call further evidence on the basis that the Directions I issued for the hearing of this matter had provided the Respondent with an opportunity to call witnesses. In response to the Directions, the Respondent filed a statement from Mr Long and did not file statements from any other witnesses. There was no reason the Respondent could not have called Mr Arnold and/or Mr Fleming in accordance with the Directions and to allow the Respondent to call them at the conclusion of its case, after the Applicant had closed his case, would have been unfair. In any event, given the conclusions I have reached in this matter, the evidence of either employee would not have changed the outcome.
Issues for determination
The issues for determination in this case are:
1.Whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code);
2.If not, whether the dismissal was unfair;
3.If the dismissal was unfair, whether a remedy should be granted; and
4.If a remedy is granted, what remedy is appropriate.
I turn first to consider the evidence and submissions of the parties.
Evidence and submissions
The Applicant
The Applicant’s evidence was that he commenced employment with the Respondent in approximately August 2015. The Applicant was initially employed as a casual in the kitchen facility but was offered employment with the Respondent on a permanent basis from October 2016. The Applicant states that after he was made a permanent employee, he requested on several occasions that the Respondent provide a written employment contract formally setting out his hourly rate and entitlements but did not receive a response to this request.
On 2 November 2021, the Applicant received a text message from his co-worker, Mr Rodney Arnold, informing the Applicant that:
“Had a meeting with [Mr Long] today. Told me no job if I’m not vaccinated. Clock is ticking. Asked me about you, I said that he has to talk with you. Just a heads up.”
On Sunday 7 November 2021, the Applicant sent text messages to his Manager advising that the Applicant’s partner was in hospital and that the Applicant would be unable to attend work.
On 9 November 2021, the Applicant attended work at approximately 4.30 am but advised his Manager that he might be required to leave early that day to attend to his partner urgently at the hospital should her condition deteriorate. At approximately 9.49 am, the Applicant received a phone call from his mother-in-law regarding his partner’s condition. Following this telephone conversation, the Applicant said he “punched out” at about 10.20 am and while he was walking downstairs to inform his Manager that he was leaving, Mr Long was standing in the meat room with another co-worker, Mr Matthew Fleming.
The Applicant said that he told Mr Long that his partner was in hospital and that he needed to leave work early. Mr Long responded by stating: “if you haven’t been vaccinated you don’t have a job”. The Applicant said that in reply he stated: “email everything you have on it and I will get back to you, I need to go.”
On 9 November 2021, while he was at the hospital with his partner, the Applicant had a text message exchange with Mr Long. The Applicant said that he thought that it would be appropriate to provide Mr Long with an update, given his early departure from work that day and that he might not be able to attend work for the rest of the week due to the requirement to look after his partner. The text messages, copies of which were tendered by the Applicant, were as follows
“At 5.28 pm, Applicant: I will not be in for the rest of the week.
At 6.00 pm, Shaun Long: Ok. Reasons?
At 6.07 pm, Shaun Long: You need a proper reason to apply for leave, simply a message without a reason doesn’t mean I approve you not to work tomorrow. Please respond with a proper reason for leave approval. Otherwise your employment terminate tomorrow.
At 6.15 pm, Applicant: Please don’t threaten me. My reason is carer’s medical leave.
At 6.16 pm, Applicant: Please let me know if you require me to confirm this via a phone call. Thanks.
At 6.40 pm Shaun Long: It’s not a threaten (sic), it is just reminder of the consequences of taking unapproved leave. You didn’t provide me the reason with the first message. And I require you to be at work tomorrow with the reason given. I believe the message would be good evidence for both of us if you choose to dispute my decision in the future.”
On 10 November 2021 at 1.19 pm, the Applicant sent an email to Mr Long requesting carer’s leave for the remainder of that week and provided a medical certificate dated 10 November 2021 for the period from Monday, 8 November, to Friday, 12 November 2021. The medical certificate stated that the Applicant had been caring for his partner from 8 to 12 November 2021, and that his partner was suffering a medical illness. At 1.57 pm on the same date, an email was sent by the Respondent to the Applicant with the subject line, termination letter, attaching a letter in the following terms:
“Dear Joshua Doran
Termination letter
I am writing to you about the termination of your employment with cold food logistics (the employer) on 8thDec2021.
· Underperformance
· Refuse to comply with company covid-19 vaccination policy
I propose that we meet again on 10.00am 15Nov2021 to review your progress. If you wish to respond to this termination letter please do so by contacting me on [phone number] or by replying in writing.”
On 12 November 2021, the Applicant replied to the email as follows:
“Hi Shaun,
I’m writing to acknowledge receipt of your email, with regard to termination of my permanent employment with Cold Food Logistics.
I disagree with the stated grounds and allegations (2) you list in the termination of my permanent employment with Cold Food Logistics. Please confirm the Termination Date and reasons for said Termination Date.
In relation to the meeting you proposed for Monday 15 November 2021, at 10:00am to “review my progress”. I request that all matters of discussion and communication at this point in time occur via written correspondence.”
On 15 November 2021, Mr Long responded to the Applicant’s email dated 12 November 2021 in the following terms:
“Joshua,
I confirm the Termination reason and Termination date. Am happy to discuss more via written correspondence.
We request the reason for not coming to work for 15Nov2021.”
From 11 to 25 November 2021, the Applicant did not attend work and was on a period of sick leave. Medical certificates from Dr Khan dated respectively 11 and 18 November 2021 were provided to the Respondent by email. The certificates, tendered by the Applicant, indicate that he was unfit to continue his usual occupation during that period. However, while the Applicant was on personal leave, the Applicant attended WorkSafe training centre in Strathpine on 20 and 21 November 2021 and completed the training components to obtain a forklift license. On 24 November 2021, while on personal leave, the Applicant attended Brisbane Truck Driving School to receive training for the purpose of obtaining an Open Heavy Rigid Truck Licence. At the hearing, the Applicant said, in response to questions from me about undertaking such activities during a period of personal leave, that:
PN85
Right, and it seems that you were doing a forklift course while you were on sick leave, is that the case? Yes, on the weekend.
PN86
Right, what was the basis you were doing that? Well, I thought it would be handy to have a forklift ticket.
PN87
So, you weren’t sick on the weekend, but you were sick for the rest of the time. You can agree or disagree with this. There was a period of sick leave before the weekend and a period of sick leave after the weekend? It was actually carer’s leave, so I wasn’t actually sick, I was caring for my partner and her parents - her mother does not work on weekends, so I had her looking after my daughter Koa while I went and got a forklift ticket, because I thought this could end badly, so.
On 26 November 2021, the Applicant returned to work and said that he had a conversation with his co-workers, Mr Darryl and Mr Arnold, who asked him why he was back and when the Applicant said that he was there to work, they informed him that Mr Long had told them he was fired and was not allowed back on the premises. On 29 November 2021, the Applicant said that he attended work but was approached and asked by a co-worker: “what are you doing back here?” The Applicant replied stating that: “I am here to work”. Also on that date, the Applicant said that Mr Long arrived at work at approximately 8.45 am and treated him differently from other staff members by greeting them and not responding to the Applicant’s greeting. The Applicant said that he felt embarrassed and singled out by Mr Long.
According to the Applicant, Mr Long continued with this conduct on 30 November 2021. On 1 December 2021, following a delivery to a customer of the Respondent, the Applicant was questioned by the customer, who stated: “Hey, what are you doing here? I heard you got terminated”. The Applicant responded, “I’m here doing my job and working, have a great day”. The Applicant said that he felt embarrassed that personal and confidential information about his termination had been shared with the customer.
On 1 December 2021, the Applicant sent an email to Mr Long raising his concerns about unfair treatment and breach of confidentiality by Mr Long, as follows:
“Hi Shaun,
I’m writing to formally raise concerns regarding unfair treatment by yourself (Shaun) and breach of confidentiality by Kelvin and yourself (Shaun).
Since my arrival back from sick leave on Friday 26th November, I have been approached by 3 staff members on separate occasions: asking:
· “Why are you back here?”
· “Shaun called Kelvin and told him you are not allowed back on the premises?”
· “You are fired and not meant to be here?”
I feel this is a gross breach of confidentiality regarding my termination and that you have both not followed due process. In that other staff had been told things that have not been discussed with me regarding my employment. I have not been formally advised that you were not allowing me back on the premises and feel embarrassed by these comments made directly to me. This has left me struggling to attend the workplace each day for fear of ongoing embarrassment, exclusion, my rights to privacy breached. This is impacting on my relationships with my other colleagues commenting on things that have been shared by yourself and Kelvin regarding my employment and you both have not had direct conversations with me.
Shaun on two occasions, Monday 29th and Tuesday 30th you have treated me differently than normal and that of other employees. I have acknowledged you and greeted you with “morning” as per typical and as per other’s greetings to you and you have ignored me and walked off, though I have noticed that you have responded to other worker’s morning greeting as would be typical. This has resulted in other staff acknowledging your behaviour and commenting “that was rude” to me.
1 feel that your actions and behaviours has created an intimidating, hostile environment for me to work within, you have conducted yourself in a purposeful manner by ignoring me in front of other staff, sharing details of my termination, withholding the new code for the front door, requiring me to wait and make several phone calls to yourself and Kelvin which you were apprehensive on the phone call giving the code to me. I feel discriminated against and bullied by you due to the above interactions and environment at the workplace, I feel this has caused me sever (sic) embarrassment and humiliation, feeling less than, undervalued and as though I have done things wrong. I have now since developed anxiety when coming to work and this is impacting on my sleep.
I am open if you wish to respond with the things that are driving these behaviours from you toward myself to ensure that my performance is meeting the mark to ensure that due process of providing and allowing me to address these concerns or justifying actions.”
On 6 December 2021, the Applicant wrote to Mr Long requesting that he be provided with the following documents, to be collected on 7 December 2021:
· a Separation Certificate for Centrelink purposes;
· details of remaining entitlements noting that the days of the Applicant’s carer’s leave had been deducted from his holiday leave rather than his sick or personal leave;
· copies of the Applicant’s employment contracts setting out the periods of employment when the Applicant was employed as a casual and when the Applicant was employed on a permanent basis, and information necessary to calculate an hourly rate with reference to an applicable Award;
· copies of documents showing when the Applicant was approved for the processing and handling of Queensland Yogurt and Prime Wagyu products;
· copies and details of any written warnings provided to the Applicant including details of how the warnings were brought to the Applicant’s attention;
· information on how superannuation was calculated, especially in the last five payslips;
· information on how the business’s Covid Safe Plan was provided to the Applicant since the start of the pandemic including:
-records of when formal Covid Safe training occurred and was reviewed;
-records of the handling, storage and supply of meat and seafood products for the business Prime Wagyu for Queensland and New South Wales; and
-written records of the provision of any mandatory vaccination regulations for Cold Food Logistic or Prime Wagyu to the Applicant.
On 7 December 2021, the Applicant received a text message from Mr Long stating that the separation certificate would be provided to him within 14 days. On that day, the Applicant attended a meeting with Mr Long for the purpose of collecting the requested documents from Mr Long. Mrs Kristy Long was also in attendance at the meeting. The Applicant recorded the conversation without the knowledge of Mr or Mrs Long and provided a transcript as follows:
“Applicant: Howdy Doo Dee.
Mr Long: Hey…
Applicant: Money bags.
Mr Long: I received your message. I will send email.
Applicant: Yeah, yeah. Is that all of it? So you have nothing for me?
Mr Long: Ugh.
Applicant: You got nothing for me?
Mr Long: No.
Applicant: Yeah, yeah.
Mr Long: No.”
Applicant: No?
Mr Long: I will send everything together…full package.
Applicant: So how do I get on Centrelink then? I have to wait and get it.
Applicant: Too easy, mate.
Mr Long: All good.
Applicant: Cheers for the opportunities
Mr Long: If you want to give me a call to talk or if you want to have a chat let me know, or send you by email
Applicant: Too easy.”
On 10 December 2021, as the list of documents and the final pay out had not been provided by Mr Long, the Applicant contacted the Fair Work Ombudsman to make enquiries about the outstanding separation certificate, wages, payslips and pay-out figures. On 14 December 2021, the Applicant emailed Mr and Mrs Long stating:
“I’m following up on the requested information as per my email on Monday 6 December.
Urgently requesting:
Outstanding payslips
Pay-out figure
Separation Certificate
I have been advised by the Fair Trade Ombudsman, that you ARE to provided (sic) my payout and separation certificate WITHIN seven (7) days of my employment end date. I believe you are not following due process and also have not kept me up to date with current payslips.
Please update me as per my previous email & requests.”
On 15 December 2021, the Applicant received 14 outstanding payslips. On 5 January 2022, the Applicant exchanged a series of Facebook messages with his previous co-worker, Mr Rodney Arnold who disclosed that he remained in employment with the Respondent despite not being vaccinated. The Applicant tendered the following Facebook message exchange with Mr Arnold:
“Mr Arnold: As of last night I am not allowed to see my kids anymore cause I am not vaccinated. Fuckn (sic) hurts me bro. So im not going to talk to you until I’m sacked. Ok. Then I will come see you. Ok. Time to go dark.
Applicant: Did you get in trouble for talking to me again.
Mr Arnold: Yes.
Applicant: Fuck Shaun you are able to talk to anyone out side of work.
Mr Arnold: Let’s play the game, im sacked. I need money.
Applicant: Did the new bloke tell on you. Stop telling him you are talking to me then. He will keep you until he gets in trouble for unvaccinated people being the[re] which really is not that long away…
Applicant: So that means you are still employed.
Mr Arnold: 3 days with me and my replacement fucked off. I should not be talking to you. Soon ok. I will come see you.”
The Applicant also tendered the following text message exchange he had with Mr Arnold on 20 January 2022:
“Mr Arnold: You told Shaun on Monday that you had spoken to me.
Applicant: No mate is said I know of 3 people there that are not vaccinated…If you look at your previous calls we did not speak until Tuesday so he is lying and I did not mention any names.
Mr Arnold: Ok.
Applicant: He is trying to manipulate you. Just say nothing. He was given no names of persons (we stated that CFL are still employing 3 people unvaccinated and follow no covid safe plan).”
In relation to the allegation of underperformance in the letter advising the Applicant of the termination of his employment, the Applicant said that he had never been spoken to by Mr Long, Mrs Long or his Manager about issues relating to his performance. The Applicant maintained that his purported underperformance was a false allegation created by Mr Long in order to terminate the Applicant’s employment. The Applicant states that prior to the issue of his termination letter by Mr Long:
· he was never warned either verbally or in writing that he was doing the job poorly and that he would have to improve his performance or otherwise be terminated;
· if he had been underperforming, he was never afforded an opportunity to respond to any reasons related to his capacity, conduct or performance;
· he was never provided reasonable amount of time to improve performance or conduct;
· he was never provided training or opportunity to develop his skills; and
· he was never provided feedback.
The Applicant also said that he has never been formally advised in a meeting or provided a copy of the Company’s policy requiring him to be full vaccinated. At the time of the Applicant being provided with the termination letter on 10 November 2021 and when his dismissal took effect on 8 December 2021, there were no legal or mandatory requirements in relation to vaccination and vaccination status for his position, the work he carried out and the locations he attended. Further, the Applicant said that at the date of his dismissal there were three staff who were not vaccinated: Ms Kirsty Long (Owner), Mr Rodney Arnold (Driver) and Mr Marshall (Kitchen hand). The Applicant contended that he received a telephone call from Mr Arnold advising that he had also received a termination letter for refusal to comply with the Company’s vaccination policy, but that Mr Long had later torn the letter up and told Mr Arnold that he would keep him employed for as long as possible. Mr Arnold also told the Applicant that Mr Marshall and Mrs Long were not vaccinated.
In a witness statement in reply filed by the Applicant on 21 February 2022, the Applicant pointed out the Respondent had filed two versions of the Small Business Fair Dismissal Code Checklist, and that there was a discrepancy between answers provided by the Respondent at Question 8 in relation to whether the dismissal was due to the Applicant’s unsatisfactory conduct or performance.
Further, the Applicant said the Respondent did not follow a proper process in addressing and managing the Applicant’s performance notwithstanding the responses provided to the sub-questions under Question 8 of the Checklist dated 8 December 2021. The Applicant submitted the Respondent has never supplied a role or job description for him to ensure that he was meeting the requirements of his role, he was not provided with training opportunities to ensure his performance was up to standard, the Respondent made no attempts to provide warnings for any alleged underperformance issues and the Applicant was not afforded any opportunity to respond to or put forward his perspective with respect to assertions concerning his performance. Further, the Applicant submits that Respondent had provided no evidence of the Applicant’s underperformance or how that performance was addressed or managed. On that basis, it is alleged by the Applicant that the Respondent has supplied a “false and misleading document”.
On the issue of the company COVID – 19 vaccination policy, the Applicant’s evidence is that the first time he became aware that the Respondent had a COVID – 19 vaccination policy was on 12 November 2021. The Applicant said he had never received a copy of the policy from the Respondent, had not been asked by the Respondent to meet and discuss the policy prior to his termination and had never been consulted or provided with an explanation with respect to the implementation of a vaccination policy. The Applicant said the first time he saw the actual COVID – 19 vaccination policy document was when Mr Long provided the document as part his witness statement, and in response to an email from the Commission. The Applicant alleges that the policy document provided by Mr Long was fabricated as there is no evidence that verifies the date of its creation and there is no documentation or record showing how the policy was shared with employees.
The Applicant said that the policy document was not made using company letter head and it contained considerable grammatical errors. The Applicant also said that there is no evidence of how the policy was developed and determined; it made no reference to any relevant Public Health Directions; and it made no reference to any considerations by the Respondent of the relevant Public Health Directions enforced at the time or of the risks posed by COVID – 19 to the Respondent’s operational requirements. Further, there is no evidence that any consultation with Unions or relevant entities was conducted; the policy did not provide the Respondent with a right to require existing or prospective employees to produce their vaccination status; it made no mention of how personal information of employees was to be collected and stored; and it made no mention of the consequences, including the ceasing of employment, for employees who fail to comply with the policy. The Applicant questioned how the implementation of this policy directly relates to the functions or activities of the company or to the prevention and management of COVID – 19.
Under cross-examination, the Applicant denied that he had a conversation with Mr Long on 27 October in relation to vaccination requirements or his intentions in this regard. The Applicant also maintained that he had not seen the vaccination policy before it was provided by the Respondent following a request from Chambers. The Applicant’s position is that the first time he heard about any vaccination requirement was in the text message from Mr Arnold on 2 November 2021.[1] The Applicant’s version of the exchange with Mr Long on 9 November 2021 was that he informed Mr Long that he had an emergency due to his partner’s medical condition and that he needed to go to the hospital to care for his partner. The Applicant said that was the context within which he made the comment, “Ok I gonna go”.[2]
The Applicant denied that Mr Long informed him on that date that the Respondent’s customers would require all persons to be double vaccinated before entering their premises and that he could not work there if he was not vaccinated, and said that before he left the workplace on 9 November, he told Mr Long “to email everything that he has on it and he has done nothing”. The Applicant also denied that he refused to attend a meeting offered to him by Mr Long and said that he was caring for his partner who was ill and had sent an email on 12 November 2021 attaching a medical certificate in this regard.
The Applicant agreed that he would have seen the Vaccination policy if it was hanging in Mr Long’s office but denied that it was displayed in this way. In response to questions from Mr Long as to how he knew that other staff were not vaccinated, the Applicant said that Mr Arnold told him in a Facebook message on 5 January 2022 that he was unvaccinated, despite the Respondent’s policy allegedly requiring staff to be double vaccinated by December 2021. The Applicant also said that Mr Arnold was employed by the Respondent at that time. The Applicant was also questioned by Mr Long about whether he had been required in his role as a driver to cross the border between Queensland and New South Wales to travel to Byron Bay. The Applicant first said that Mr Long had told him he needed to be vaccinated to keep his job and then said that he was not required to cross the border because two other employees who were vaccinated did that work. The Applicant agreed that he could not service the Respondent’s Byron Bay customers but maintained that he had not been required to do so and was not doing those areas.[3]
In response to questions from me, the Applicant agreed that he worked in Brisbane and on the Gold Coast and delivered to Coles, Woolworths, city restaurants and a childcare centre. The Applicant maintained that he did contactless deliveries where he would drop product at a door and it would be collected by the customer. The Applicant said that he had not done a delivery to an aged care facility in over three years but agreed that the Respondent has customers who operate aged care facilities.[4]
In oral closing submissions, the Applicant maintained that he was dismissed because he took personal carers leave to care for his daughter while his partner was in hospital. The Applicant said that he provided a medical certificate to Mr Long who chose to reject the certificate and terminate the Applicant’s employment. Mr Long claimed the Applicant failed to follow a COVID – 19 vaccination policy, but at the same time, other employees who were not vaccinated, were retained in employment.
The Applicant’s evidence in relation to remedy was that he does not seek reinstatement, and instead, seeks compensation for his unfair dismissal. The Applicant detailed that he had applied for numerous positions including as a driver, a Ranger with the Moreton Bay North Regional Council, a youth worker at a detention centre, yard hand, landscaper, cleaner and kitchen hand. The Applicant also gave evidence of delivering his resume to various businesses.
At the time the application was heard the Applicant had not obtained alternative employment. The Applicant said that he would have received a vaccination had Mr Long gone about implementing a vaccination policy properly and that he would still be employed with the Respondent. The Applicant also said that if Mr Arnold is still employed then he would still be employed, given that Mr Arnold is not vaccinated. The Applicant sought compensation in the maximum amount allowable or until the date his application was determined by the Commission.
At the time he was dismissed, the Applicant’s annual gross salary was approximately $57,000 or a $1096.16 per week. The Employment Separation Certificate supplied by the Respondent to the Applicant indicated that his accrued annual leave entitlement amounted to $2,614.00. In his Form F2 Application, the Applicant also sought compensation for lost long service leave and unpaid wages entitlements said to be payable over the period of his employment. Further, the Applicant sought the costs of retraining and the truck and forklift licences he had obtained and compensation for a range of matters including the effect of dismissal on his mental health, breaches of confidentiality and the embarrassing hostile work environment.
Mr James Doran’s witness statement dealt with various ASIC searches he conducted in relation to the ownership of the Respondent in an endeavour to establish that Mr Long was not a Director of the Respondent and that Mr Long did not have permission to represent the Respondent from the owner, Xiao (Kirsty)Long. This proposition was not put to Mr Long when he gave his evidence. Further, in response to questions from me, Mr Long confirmed that he was authorised to represent the Company at the hearing. It is also apparent from the Applicant’s evidence that Mr Long was involved in the management of the Respondent and that the Ms Blackman’s evidence confirmed that at 9.24 am on 9 November she had called an ambulance for her daughter, Ms Tshinta Blackman and had then contacted the Applicant at 9.49 am on that date to advise him of this and that Ms Tshinta Blackman’s condition had deteriorated. Neither Mr James Doran nor Ms Debra Blackman were required for cross-examination by Mr Long.
The Respondent
On 21 December 2021, Mr Long filed on behalf of the Respondent a Form F3 Employer Response to the application. Attached to the Response was a Small Business Fair Dismissal Code Checklist dated 21 December 2021, an Employment Separation Certificate dated 20 December 2021 and the letter of termination issued to the Applicant on 10 November 2021.
In the Form F3 Response, Mr Long provided only one reason for the dismissal which was said to be refusal by the Applicant to comply with company vaccination policy. It was also stated that:
“· We have follow (sic) the right procedure when we make the vaccination policy and we have notify the staff when the policy take effective. We also confirmed with Workplace Health & Safety Queensland that we do the right thing.
· Josh was given 4 weeks of notice for termination.
· As a logistics company delivering food, it is basic requirement for all the team member to be vaccinated. The dismissal is irrelevant to all the other points Joshua raised.”
The Employment Separation Certificate also stated that the reason for separation was “Fail to comply with Company vaccination policy”. It should be noted that in the Small Business Fair Dismissal Code Checklist dated 21 December 2021, the Respondent put “No” as a response to Questions 3, 5 and 8 indicating that the Applicant was not dismissed because the job was not required to be done by anyone, that the dismissal was not for serious misconduct and that the Applicant was not dismissed because of unsatisfactory conduct, performance or capacity to do the job. The reason for dismissal was said to be: “fail to comply with company vaccination policy.”
On 14 February 2022, the Respondent filed a witness statement by Mr Long attaching another version of the Small Business Fair Dismissal Code Checklist, dated 8 December 2021. That version maintains the position in the Checklist dated 21 December that the dismissal was not because the job was not required to be done by anyone nor for serious misconduct. Boxes underneath question 8 have also been ticked to answer “Yes” to the following questions:
“a.Did you clearly warn the employee (either verbally or in writing) that the employee was not doing the job properly and would have to improve his or her conduct or performance, or otherwise be dismissed?
b.Did you provide the employee with a reasonable amount of time to improve his or her performance or conduct?
If yes, how much time was given?
c.Did you offer to provide the employee with any training or opportunity develop his or her skills?
d.Did the employee subsequently improve his or her performance or conduct?
e.Before you dismissed the employee, did you tell the employee the reason for the dismissal and give him or her an opportunity to respond?
f.Did you keep any records of warning(s) made to the employee or of discussions on how his or her conduct or performance could be improved?
Please attach any supporting documentation.”
There is no response to the second part of b. in relation to how much time is said to have been allowed to the Applicant to improve his performance or conduct. In response to Question 9 in relation to the other reason for dismissal, the following statement appears: “Refuse to comply with Covid – 19 Vaccinations Policy”. On 14 February 2022, I caused my Associate to email Mr Long raising the issue that the COVID-19 vaccination policy referred to in Mr Long’s witness statement, was not appended to the statement. In response, Mr Long forwarded a document in the following terms, dated 25 October 2021:
“COVID-19 vaccination policy
· By 08Nov2021 all the staff numbers for cold food logistics are required to be double vaccinated/have a plan to get double vaccinated to continue the job.
· If you have any concerns regarding to getting vaccination in relation to your role please contact Shaun Long.
· Any solutions that can keep you safe & address your concerns please contact Shaun Long.”
In his witness statement filed on 14 February 2022, Mr Long describes 4 separate exchanges with the Applicant as follows:
· On 27 October, Mr Long asked the Applicant whether the Applicant had been vaccinated and the Applicant said, “not yet”. Mr Long responded by saying that all staff members would need to be double vaccinated to carry out deliveries next month when the Respondent’s customers require double vaccination for entry into their premises. The Applicant then purportedly said, “OK but I won’t do it”.
· On 9 November 2021, Mr Long asked the Applicant whether the Applicant was planning to be vaccinated because the Respondent’s restaurant and café customers would require double vaccination for entry into their premises from December 2021. The Applicant said, “Probably not” and Mr Long responded by telling the Applicant that he “can’t let [him] work here if [he doesn’t] do vaccination.” The Applicant responded with “Ok I gonna go”.
· On 10 November, Mr Long sent a letter to the Applicant notifying the Applicant that his employment would be terminated in 4 weeks for failing to comply with the company’s COVID-19 vaccination policy. In that letter, Mr Long proposed a meeting to discuss any concerns the Applicant might have with respect to the vaccination policy.
· On 12 November, the Applicant confirmed receipt of the termination letter but the Applicant disagreed with the letter and refused to attend the proposed meeting.
On 21 February 2022, Mr Long filed an outline of submissions on behalf of the Respondent contending that:
“1. As a logistics company we must comply with the government regulation and the customer requirement to request the driver to be vaccinated to carry on the job. Our customers include age care, childcare, restaurants, cafes etc. etc.
2. Mr. Joshua Doran was consulted and notified both orally and in written with weeks regarding to the vaccination policy.
3. Mr. Joshua Doran was given opportunities in the termination letter to respond to the concerns of the vaccination policy.
4. We allowed Mr. Joshua Doran to have a support person present to assist at any discussions relating to dismissal.
5. We can’t discuss performance with Mr. Joshua Doran before we discussed vaccination policy first. Because of without being vaccinated Mr. Joshua Doran simply can’t be in the place he required him to be to deliver the product for our business.
6. We are small business with only 8 employees, only me and my wife work in the office doing the order taking, bookkeeping & admin, we can’t afford accounting or HR specialist work in the business.
7. We required all the new employee to be double vaccinated.
8. Mr. Joshua Doran was given the opportunities to work with the condition he agree to get his vaccination done during the conciliation. But he refused due to feel awkward.
9. We need to pay the cost to hire and train new staff who got double vaccinated.
10. Most of the food and logistics related business have a vaccination policy in place for workplace health and safety concerns.”
When given an opportunity to provide further oral evidence-in-chief, Mr Long questioned how the Applicant knew whether his workers were vaccinated. In response to a question from me as to whether it was Mr Long’s evidence that his workers are all vaccinated, Mr Long said that he would have to double-check, but they had agreed to be vaccinated. In response to a proposition from me that Mr Long had not provided any evidence of having given the Applicant a written notice or warning in relation to the requirement to be vaccinated against COVID – 19, Mr Long agreed but said that the Respondent has only eight staff and is a family business and that a lot of things are done orally. Mr Long said that he did not know whether all his workers were vaccinated as at the date of the hearing.
Under cross-examination, Mr Long said that the review of the Applicant’s progress outlined in the termination letter did not occur on 15 November 2021 because the Applicant did not contact Mr Long as requested. In response to the proposition that the Applicant had responded by email and sought that all communication from the Respondent be in writing, Mr Long agreed but said that he did not respond to the Applicant’s email. In response to the proposition that he threatened the Applicant with termination of employment when he took carer’s leave to care for his partner, Mr Long said that he did not threaten the Applicant but simply wanted him to provide a reason for the leave. Mr Long also said that he did not refuse the leave and the Applicant was paid for it after the Applicant had told Mr Long the reason for the leave. Further, Mr Long said that he stated in a text message on 9 November 2021 that the Applicant was required to be at work the next day because the Applicant did not provide a reason for not attending work in his first text message.
Mr Long agreed that at 1.19 pm on 10 November 2021 the Applicant emailed a medical certificate to the Respondent to support his request for personal carer’s leave. Mr Long also agreed that the letter, which advised the Applicant that his employment would be terminated with effect from 8 December 2021, was emailed to the Applicant at 1.57 pm on 10 November 2021. Mr Long maintained that he did not see the Applicant’s email before he sent the termination letter. Mr Long maintained that there was no relationship between the two matters and the Applicant was dismissed because he was not vaccinated and vaccination was required to do his job.
In relation to the two versions of the Small Business Fair Dismissal Code Checklist, Mr Long said that he did not understand the form and thought he was answering questions about vaccination. Mr Long also said that the form dated 21 December 2021 is correct and that the Applicant was not dismissed for conduct, capacity or work performance. Mr Long further stated that the two versions of the Checklist are different because his English is not good and his understanding was that the fact that the Applicant was not vaccinated meant that he could not do his job. Mr Long agreed that he had not attached any warnings or supporting documents to the Checklist.
In response to a question as to why he did not respond to Mr Doran’s email of 6 December 2021 requesting various documents including the Respondent’s COVID Safe Plan, Mr Long said that he wanted to discuss whether the Applicant was vaccinated or planned to be vaccinated and did not see anything in the Applicant’s email that was relevant to these issues, and accordingly, did not respond to the email.
In response to questions from me as to whether he had a meeting with all employees about the introduction of a vaccination policy, Mr Long maintained that the policy was posted on the wall in his office at all relevant times, and that he met individually with each employee to discuss the matter. Mr Long conceded that he had no evidence of having provided the policy to the applicant. In relation to the policy, Mr Long could not explain why the first file sent by the Respondent at the request of the Commission is named “Vaccination policy”, and the second file sent in response to the Applicant’s notice to produce documents, is named “Vac policy”. Later Mr Long said that the policy may have been saved in different places on different computers. Mr Long agreed that the policy had not been emailed to staff.
In submissions responding to the Applicant’s evidence that he would have remained in employment until at least the date of the hearing and for the next six months, Mr Long asserted that the Applicant had been requested many times to do the Byron Bay run and had refused because of his vaccination status. Mr Long accepted that he had not provided any evidence of such refusal on the part of the Applicant.
Mr Long also asserted that he dismissed Mr Arnold for not being vaccinated but agreed that Mr Arnold had returned to work. Mr Long said that in January 2022 he had been short of staff and Mr Long said that he would wear a mask. Mr Long also said that Mr Arnold is doing the Applicant’s job. In response to a question as to why the Applicant could not have put on a mask and returned to work, Mr Long said that the Applicant had not requested to come back to work and Mr Arnold kept coming back and put a lot of effort into saving his job. Further, Mr Long said that Mr Arnold returned to work on a casual basis and the agreement was that he could be “let go” at any time. In relation to position of the Applicant and Mr Arnold, Mr Long said, in an exchange with me:
“PN665
The Deputy President: So one came back and one didn't.
PN666
Because Josh didn't requested to come back. Say, ‘Look, I want to do this - talk about the vaccination issue.’ Rodney keep coming back and say, ‘Look, I can do the job. This is my offer. This is my agreement. This is the reason why’, and he come back with a lot of, you know, effort to say how he can do the job even though, you know, he - even he say he might think about to get vaccinated.
PN667
Josh, he sent an email and he say he’s not happy here, he’s discriminated here. He never put any effort to even say how he can do the job. There's no vaccination or his concerns about vaccination, any effort to carry on the job in this status. Rodney, he come back and he say, ‘Look, Sean, I really need an income. I can do this kind of thing with this or that.’ He put a lot of effort to save the job, I can say, and he wasn’t - Rodney wasn't employed as full time, he was employed as a casual before. I only give two days starting with and because we go to the area, we don’t - I don't think we need a vaccination.
PN668
Casual and full time is totally different and I didn’t give Rodney a full time job. He's only casual work, a couple of days on the go. I can let him go any time I want. That’s the agreement.
PN669
The Deputy President: All right.”
Mr Long also emphasised that the Respondent is a small business and that he had only been in Australia for ten years and did not understand much about paperwork. Mr Long maintained that he implemented a policy in relation to vaccination by putting a notice on his office wall and telling people that there is a policy. Mr Long pointed to the fact that he gave the Applicant four weeks’ written notice saying, “Look, you need to be vaccinated to be here” and asserted that the Applicant knew of this requirement and did not comply.
Legislative provisions
In unfair dismissal cases where the employer is a small business employer, the Commission must first consider whether the dismissal was consistent with the Code. The Code has two limbs: “summary dismissal” upon the ground of serious misconduct; and “other dismissal” based on the employee’s conduct or capacity to do the job. The Code is not located in the FW Act or the Regulations. Rather it is governed by a Ministerial Declaration pursuant to s.388(1) of the Act. The terms of the Code are as follows:
“Small Business Dismissal Code
Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
In the terms of the Code dealing with “Other Dismissal” the drafters included a reference to “valid reason”. The first sentence of this part of the Code requires that the employee be “…given a reason why he or she is at risk of dismissal”. The second sentence requires that “[t]he reason must be a valid reason based on the employee’s conduct or capacity to do the job.” Consideration of whether a reason is valid is a separate consideration to the requirement that the employee be given a reason for dismissal although the reference to valid reason is a reference to the reason given to the employee.
In relation to the reason being given to the employee, the language in the first sentence of the Code explicitly requires that this occur before a decision to dismiss has been made. That sentence refers to the employee being given a reason why he or she is “at risk of being dismissed”. These provisions can be contrasted with those which apply when the fairness of a dismissal is being assessed under s.387 of the FW Act. Whether an employee is notified of a reason for dismissal as provided in s.387(b) is a consideration that is weighed in the overall assessment of whether a dismissal was unfair and a finding that this step was not taken will not necessarily be fatal to a finding that the dismissal was fair.
It appears from the terms of the Code dealing with “Other Dismissal” that if the employee is not given a valid reason for dismissal based on the employee’s conduct or capacity to do the job, prior to being dismissed, the dismissal will not be consistent with the Code. It is axiomatic that an employee cannot respond to a reason for dismissal if he or she is not informed of that reason before the dismissal is carried out and given an opportunity to respond. The requirement that the reason be given before a dismissal is carried out is consistent with the later requirements of the Code in relation to warnings and opportunity to respond. The effect is that under the Code the employer is stuck with the reason given to the employee before the dismissal is carried out and cannot rely on another reason including a reason which may not have been known at the time of the dismissal. This can be contrasted with consideration of whether there was a valid reason for dismissal as provided in s.387(a) of the FW Act where, in finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer.[5]
It is also the case that the requirement in the Code that the reason is a valid reason based on the employee’s conduct or capacity to do a job is not expressed subjectively, based on the view or belief of the employer on reasonable grounds. This can be contrasted with the “Summary Dismissal” provisions of the Code which refer to the belief of the employer on reasonable grounds that the employee engaged in conduct that justified summary dismissal (a subjective consideration) rather than whether the conduct occurred and was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response (an objective consideration).
The terms “valid reason”, “capacity” and “conduct” have well-established meanings in the context of legislation governing unfair dismissal and have been used in legislation which pre-dates the Code. I can see no basis for giving these terms a different meaning in the application of the Code. The absence of reference in the “Other Dismissals” section of the Code to the reasonable belief of the employer as to the validity of the reason for dismissal is a further indication that the term should be given the same meaning as it has in s.387(a) of the FW Act – a reason that is objectively sound, defensible and well founded and which justifies dismissal. Such a construction is not inconsistent with the legislative intent of the Code as evidenced by the Object of Part 3-2 of the FW Act in which the Code appears, which includes the needs of employers and employees and the intention to afford a “fair go all round”.[6]
“Capacity” is the employee’s ability to do the job required by the employer[7] including the work the employee was employed to do.[8] Capacity is assessed objectively based on whether the work was performed satisfactorily and not whether the employee is working as well as could be expected or to the employee’s personal best.[9]
The requirements in the Code that there be a valid reason for dismissal and that the employee is informed of that reason before dismissal also imply that any response provided by the employee is required to be considered by the employer before deciding to dismiss the employee. Where an employer cannot provide evidence that the response was considered, there may be difficulty in establishing the validity of a reason for dismissal particularly where the response provides an explanation for the conduct or capacity which led to the dismissal. This is also consistent with the provisions of the Code in relation to warnings which state that any response to a warning made by the employee should be a matter to which the employer has regard.
I proceed on the basis that the provisions of the Code relating to “Other Dismissal” require that:
1.Before dismissing an employee for reasons of conduct or capacity (other than those justifying summary dismissal) the employer must give the employee a reason why he or she is at risk of being dismissed.
2.The reason must be a valid reason (in the sense that it is sound, defensible and well founded and justifies dismissal) based on the employee’s conduct or capacity.
3.Conduct includes an omission[10] and capacity is the employee’s ability to do the job as required by the employer[11] and includes the employee’s ability to do the work he or she was employed to do.[12]
4.The employer must give the employee an opportunity to respond to the reason for dismissal before dismissing the employee.
5.The requirement that there be a valid reason for dismissal means that some consideration should be given to the response the employee provides. This will generally be required when the Commission is assessing whether the reason for dismissal was valid.
6.The employee must have been warned that he or she is at risk of being dismissed either for similar conduct or capacity issues or that the issue that is the subject of the warning has generally placed the employee’s employment at risk and that any repetition or further conduct or capacity issues will result in dismissal.
7.If the employee has previously engaged in conduct that has placed his or her employment at risk and has been warned in relation to it there is no requirement that a further warning be given and it will be sufficient if the employee is notified that the employer believes that the same conduct or further conduct that places the employee’s employment at risk has occurred and gives the employee an opportunity to respond before dismissing the employee.
8.The employee must have been given a reasonable opportunity to improve his or her performance prior to the dismissal being carried out which may include the employer providing additional training and ensuring that the employee knows the employer’s job expectations.
9.An employee may request to have another person present to assist in discussions in circumstances where dismissal is possible, provided the person is not a lawyer acting in a professional capacity. The employer is not required to offer a support person.
If a dismissal was consistent with the Code then the dismissal is not unfair and does not fall to be considered against the criteria in s.387 of the FW Act. If the Commission is not satisfied that the dismissal was consistent with the Code, the Commission must then consider whether the dismissal was unfair because it was harsh, unjust or unreasonable on the basis of the criteria in s.387 of the FW Act as follows:
“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.”
Applying those criteria, a dismissal may be:
· Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
· Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
· Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.[13]
Was the Applicant’s dismissal consistent with the Code?
The letter dated 10 November 2021, notifying the Applicant of “the termination of his employment on 8 December 2021”, states two reasons being “Underperformance” and “Refuse to comply with company covid-19 vaccination policy”. Somewhat confusingly, after informing the Applicant that his employment will end on 8 December, the letter states that Mr Long proposes that he and the Applicant “meet again on 15 November 2021 to review your progress” and concludes by inviting the Applicant to respond to the “termination letter” if he wishes to do so. Although the Applicant took personal leave for some of the period between 10 November and 8 December 2021, it is not in dispute that he remained employed and worked for part of that period.
Accordingly, the reason for the Applicant’s dismissal was not conduct of the kind listed in the provisions of the Code as justifying summary dismissal, but rather was for a reason caught by the “Other Dismissal” provisions of the Code. On the face of the letter informing the Applicant of his dismissal, the reason for the dismissal was associated with the Applicant’s conduct and his capacity to do the job because of his vaccination status. The failure of the Respondent to call evidence at the hearing sufficient to establish the validity of the reasons for dismissal, means that I am unable to be satisfied that these matters were a valid reason for dismissal.
Firstly, there was no evidence of any underperformance on the part of the Applicant. Secondly, I am not satisfied that the Respondent had a COVID – 19 vaccination policy, much less that the Applicant’s conduct was a refusal to comply with such a policy.
It is well established that employees have an obligation to follow the lawful and reasonable directions of their employer. Such a term may be specifically provided for in a contract of employment or implied, by law, in the absence of a contrary intention by the parties.[14] Accordingly, a refusal of an employee to comply with a lawful and reasonable direction of an employer is prima facie a valid reason for dismissal.
A policy is a course of action or principle adopted or proposed by an organisation. Implicitly a policy is required to be promulgated in some manner appropriate to the context in which it is to operate. A policy may operate as a direction such that failure to comply may render an employee liable for discipline. If an employee is disciplined or dismissed for failure to comply with a policy that is not promulgated in a manner that properly explains the policy and the implications of failing to comply, it will be difficult to establish that non-compliance constitutes a failure to follow a lawful and reasonable direction. In addition to the subject matter being lawful and reasonable, it is axiomatic that a direction requires a person to do something and the implications for failure to comply must be clear.
In Construction, Forestry, Maritime, Mining and Energy Union, Matthew Howard v Mt Arthur Coal Pty Ltd[15] (Mt Arthur Coal), a Full Bench of the Commission considered whether a direction in the form of a site access requirement that all workers at the mine must be vaccinated against COVID – 19 by a particular date as a condition of site entry was lawful and reasonable. The Full Bench had regard to various matters, including whether consultation requirements in industrial instruments and workplace health and safety legislation had been met. It was held by the Full Bench that the site access requirement was prima facie lawful because it fell within the scope of employment and because there is nothing illegal or unlawful about becoming vaccinated. The Full Bench in Mt Arthur Coal did not express a concluded view about whether a failure to comply with consultation requirements in workplace health and safety legislation was relevant to the lawfulness of a direction, but rather, focused on whether such failure was relevant to its reasonableness. The Full Bench concluded that the site access requirement was not reasonable because the employer had not consulted employees in accordance with its obligations under workplace health and safety legislation. The Full Bench also observed that had the employer conducted a meaningful consultation process, other considerations in the case would have provided a strong basis for a conclusion that the Site Access Requirement was a reasonable direction.
In the present case, the following matters are not in dispute. The respondent is in the business of delivering food products to businesses or facilities including childcare centres, aged care facilities, restaurants, and supermarkets. Some of the deliveries undertaken by the Respondent’s employees required them to cross the border between Queensland and New South Wales. Further, at or around the time the Applicant was dismissed, those businesses and facilities were subject to restrictions in relation to entry to premises by persons who were not vaccinated against COVID – 19. The restrictions were imposed either through Government health directives or policies implemented by the businesses or facilities. There were also vaccination requirements for persons crossing the border from Queensland to New South Wales.
In those circumstances it would have been entirely appropriate for the Respondent to have a vaccination policy and it is probable that if such a policy were properly implemented, it would constitute a lawful and reasonable direction such that a failure to comply could render an employee liable to be dismissed. However, as I have found, the Respondent has failed to establish that it had such a policy, much less that it was properly implemented.
The provenance of the document tendered by Mr Long is unclear. Mr Long’s evidence about why the PDF versions of the document had two different names was not convincing. It was not established when the document came into existence and when it was put up on a wall in Mr Long’s office. The terms of the document are unclear, and it provides no meaningful information to employees and does not direct employees to any source of information about vaccination generally or the rationale for the employer implementing a vaccination policy. Significantly, for the purposes of determining whether the fact that the Applicant was not vaccinated was a valid reason for the termination of his employment based on his conduct or capacity to do the job, it is not clear from the document tendered by Mr Long that this was a requirement. The document states that employees are required to be double vaccinated by 8 November 2021 or have a plan to be vaccinated “to continue the job”. Accordingly, the cut-off date by which employees must be vaccinated is not absolute. Further confusion is created by the fact that the document concludes by stating: “Any solutions that can keep you safe and address your concerns please contact Shaun Long.” This implies that Mr Long is open to alternatives to vaccination.
The document contains no information about the repercussions for employees who are not vaccinated by the stipulated date. There is also no mechanism for employees to inform the Respondent of their vaccination status and no advice about how that information will be collected and held securely. Mr Long could not state that all the Respondent’s employees have been vaccinated, further indicating that there was no policy or that it was not consistently implemented. Further, there is no evidence that Mr Long, or any representative of the Respondent, had a discussion with the Applicant to inform him of the alleged requirement, much less that the Applicant or other employees were consulted. The Applicant’s uncontested evidence, which I accept, is that he was informed about the requirement to be vaccinated by a work colleague and had not seen the document purporting to set out the policy prior to Mr Long tendering it in these proceedings.
Significantly, Mr Long conceded that he gave work that had previously been done by the Applicant to another employee – Mr Arnold – in circumstances where he was unable to state that Mr Arnold had been vaccinated at the time and there was evidence before the Commission in terms of text messages exchanged between the Applicant and Mr Arnold, making it clear that Mr Arnold had not been vaccinated at a point after the cut-off date in the alleged policy. This evidence is a further indication that there was not a policy in relation to vaccination, the breach of which could have been a valid reason for the Applicant’s dismissal based on his conduct and capacity.
Accordingly, failure to comply with a vaccination policy was not a valid reason for dismissal based on the Applicant’s conduct or capacity to do the job. As previously noted, there was no evidence of any performance issue that could have constituted a valid reason for dismissal. I am therefore not satisfied that there was a valid reason for the Applicant’s dismissal based on his conduct or capacity to do the job. I am also not satisfied that the Applicant was given a reason why he was at risk of being dismissed. Even if I accept Mr Long’s version of the conversation he claimed to have with the Applicant on 27 October and 9 November 2021, that conversation is not sufficient to establish that the Applicant was given a reason why he was at risk of being dismissed.
On Mr Long’s evidence, the conversation on 27 October 2021 was to obtain a response from the Applicant about whether he had been vaccinated. Mr Long does not indicate that he made any comment when the Applicant replied and said that he would not comply. Mr Long did not inform the Applicant that his employment would be at risk if he maintained that position. Mr Long’s evidence about the conversation with the Applicant on 9 November, if accepted, may establish that he advised the Applicant that he was at risk of being dismissed if he was not vaccinated, but that is not sufficient for compliance with the Code.
To comply with the Code, it was also necessary for the Applicant to be warned verbally, or preferably in writing, that he risked being dismissed because of his refusal to comply with the vaccination policy. The Respondent did not comply with this requirement and did not warn the Applicant that he was at risk of dismissal for this reason. Taken at its highest, Mr Long’s evidence of the conversation with the Applicant on 8 November 2021 does not constitute a warning. Mr Long states that he asked the Applicant whether he planned to be vaccinated from December as all restaurant and café customers would require persons to be double vaccinated to enter. According to Mr Long, when the Applicant responded by saying “probably not” he told the Applicant that he could not work for the Respondent if he was not vaccinated. The Applicant’s response was: “Ok I gonna go”.
The purpose of the requirement that an employee who is at risk of dismissal is given a warning, is related to the opportunity to respond to the warning, which the Code requires be given to an employee who is at risk of dismissal. I do not accept that the warning Mr Long gave to the Applicant was sufficiently detailed to meet this requirement, particularly in light of the deficiencies in the Respondent’s policy. The Code further requires that an employee who is at risk of dismissal is given a reasonable chance to rectify the problem, having regard to the employee’s response. On Mr Long’s evidence, the Applicant’s response to the question as to whether he intended to be vaccinated was: “probably not”. The Applicant’s evidence is that Mr Long stated, “If you haven’t been vaccinated, you don’t have a job” and that his response was to ask Mr Long to email information to him and he would get back to Mr Long.
On either version of this conversation, the Applicant’s response was not a clear refusal and was given in circumstances where the implications of refusal to be vaccinated had not been explained to the Applicant. It is also relevant that when the Applicant provided this response, he was rushing away from work to attend to his partner who had been taken to hospital by ambulance and admitted. The Applicant states that he also told Mr Long that he needed to go as his partner was in hospital.
The Code further provides that an employee be given a reasonable chance to rectify the problem, which may involve providing additional training and ensuring the employee knows the employer’s job expectations. At that point, the only information the Applicant had was from a colleague and not from Mr Long or any manager of the Respondent. When these matters are considered in the context of the lack of detail in the Respondent’s vaccination policy, and the fact that the Applicant had not been informed by Mr Long of the vaccination requirement or the effect of the policy, it is clear that the Applicant had no chance to rectify the problem. This is also apparent from the fact that the Applicant was notified of his dismissal on 10 November 2021 by letter sent at 1.57 pm that day, after he had forwarded a medical certificate to the Respondent advising that he was absent from work on carer’s leave due to the illness of his partner. Accordingly, regardless of whether the Applicant told Mr Long that his partner was in hospital before he left the workplace, the Respondent knew, or should have known, that this was the case, prior to the dismissal letter being sent to the Applicant.
It is true that the letter notifying the Applicant of his dismissal invited him to attend a meeting to “review his progress”. However, the letter also informed the Applicant that his employment would end on 8 December 2001 and this was not conditional upon the review. The Applicant cannot be criticised for failing to attend a meeting to discuss his progress in circumstances where there was no indication that any discussion would change the fact that his employment would end on 8 December 2021. This is not an opportunity to respond to a warning or rectify a problem. In any event the Applicant responded to this letter and sought further information about the Respondent’s alleged vaccination policy and did not receive a response. This further establishes the lack of opportunity for the Applicant to respond to a warning or rectify the problem.
There were no discussions about the dismissal and it is not necessary to consider whether the Applicant had another person present to assist him in discussions. While the Respondent completed the Checklist, there were two contradictory versions filed and Mr Long’s evidence about why this was the case was not convincing. The Applicant was not provided with a written warning either in relation to the vaccination policy or his alleged underperformance. For these reasons, I am not satisfied that the dismissal complied with the Code and it is necessary to consider whether the dismissal was unfair, having regard to the matters in s.387 of the FW Act.
Was the Applicant’s dismissal unfair?
Was there a valid reason for the Applicant’s dismissal?
The reasons for the Applicant’s dismissal are within the Respondent’s knowledge, and it is required to establish that the reason was a valid reason for the purposes of s.387(a) of the FW Act. A valid reason for dismissal is one that is “sound, defensible or well-founded” and not “capricious, fanciful, spiteful or prejudiced.”[16] The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts.[17]
For the reasons set out above, I do not accept in the present case that the Respondent has established that there was a valid reason for the Applicant’s dismissal. The Respondent did not have a vaccination policy that was properly promulgated in the workplace. There is insufficient evidence to establish when the document purporting to set out the policy came into existence and when it was posted on the wall of Mr Long’s office, or that it was posted at all. The terms of the document are confusing and contradictory.
There is also evidence that after the Applicant was dismissed, the Respondent did not follow the alleged policy in any event. Under cross-examination, Mr Long was unable to confirm that all employees are vaccinated in accordance with the policy. Mr Long also conceded that Mr Arnold is still employed by the Respondent and took on the work the Applicant was doing when his employment ended. In response to the proposition that Mr Arnold was not vaccinated at the relevant time and that he is not currently vaccinated, Mr Long said that Mr Arnold had received a termination letter but had “come back” and persuaded Mr Long that he could work safely without being vaccinated.
It also appears that the Applicant’s response to the termination letter was different to the response given by Mr Arnold. Mr Long’s evidence about Mr Arnold makes it clear that Mr Long must have known he was not vaccinated and, notwithstanding this, was prepared to accommodate Mr Arnold and to provide him with work, including work previously done by the Applicant, because Mr Long was having issues associated with shortage of labour. This tells against the vaccination policy being a valid reason for the Applicant’s dismissal. It appears that Mr Arnold was either retained in employment or given work as a casual employee, for the arbitrary reason that Mr Arnold responded differently to his dismissal. There is no evidence as to whether Mr Arnold received a letter notifying him that he was to be dismissed in the same form as the letter received by the Applicant. Regardless, for reasons set out above, the letter notifying the Applicant that he was to be dismissed with effect from 8 December 2021 was confusing and contradictory and it was not unreasonable for the Applicant to respond in the manner he did. The way the Respondent treated Mr Arnold weighs against the vaccination policy being a valid reason for the Applicant’s dismissal.
In short compass, failure of the Applicant to comply with the terms of a confusing and ill-conceived document, which bears no resemblance to a policy and was not promulgated or applied as such in the workplace, was not a sound, defensible or well-founded reason for his dismissal. There is no evidence of underperformance as stated in the letter notifying the Applicant of his dismissal. I find that there was no valid reason for the Applicant’s dismissal, and this weighs in favour a finding that his dismissal was unfair.
Was the Applicant notified of the reason for his dismissal?
Section 387(b) requires consideration of whether an employee is notified of “that reason” with reference to the valid reason for dismissal related to the employee’s capacity or conduct referred to in s.387(a). In relation to whether the Applicant was notified of the reason for his dismissal consistent with s.387(b), as a Full Bench of the Commission observed in Crozier v Palazzo Corporation Pty Ltd[18] procedural fairness requires that an employee be notified of a valid reason for dismissal before any decision to dismiss is taken and provided with an opportunity to respond to the reason identified.
The Applicant was notified of the reason for his dismissal in the letter advising him that he was dismissed and that his employment would end on 8 December 2021. In circumstances where the reason for dismissal is provided in a letter notifying the Applicant that the termination of his employment is a fait accompli, and that his employment will end on a prospective date, it can hardly be said that the notification is consistent with the requirements in s. 387(b) of the FW Act. Accordingly, I find that the Applicant was not notified of the reason for his dismissal within the meaning in s.387(b) of the FW Act. This weighs in favour of a finding that the dismissal was unfair.
Was the Applicant given an opportunity to respond to reasons for dismissal?
As the Applicant was not notified of the reasons for his dismissal, he was not given an opportunity to respond to the reasons to the extent those reasons related to his capacity and/or conduct as provided in s.387(c). If there was a policy requiring that the Applicant be vaccinated, the date by which this was required to occur was not until 8 December 2021. The Applicant was required to work out his notice and there is no reason why he could not have been warned about the fact that he was at risk of being dismissed, so that he could have had a proper opportunity over a reasonable period to consider his position. These matters weigh in favour of a finding that the dismissal was unfair.
Was there an unreasonable refusal to allow the Applicant a support person?
There were no discussions with the Applicant relating to the dismissal and no request was made. Section 387(d) is not relevant and is a neutral consideration in determining whether the dismissal was unfair.
Was the Applicant warned about any unsatisfactory performance before dismissal?
If the reasons for the Applicant’s dismissal included “underperformance”, there is no evidence of any warnings, for the purposes of s.387(e). The Applicant states that he had received no warnings during his employment and there was no evidence to the contrary from Mr Long, other than a bare assertion in the letter notifying the Applicant of his dismissal. There is also no evidence of any discussion with the Applicant conducted by a manager of the Respondent, warning him about the repercussions of failure to be vaccinated. I therefore find that the Applicant was not warned about any unsatisfactory performance. This weighs in favour of a finding that the dismissal was unfair.
Did the size of the enterprise impact on procedures followed in dismissing Applicant?
The Respondent’s enterprise is a small business and I accept that this had an adverse impact on the procedures followed in effecting the dismissal. I have had regard to this matter.
Did any absence of dedicated human resource management or expertise impact the procedures followed in dismissing the Applicant?
The Respondent’s enterprise does not have dedicated human resource management specialists or expertise. I accept that this adversely impacted on the procedures followed in effecting the dismissal and this is also a matter to which I have had regard.
Are there any other matters relevant to whether the Applicant’s dismissal was unfair?
The following matters are in my view relevant to the overall consideration of whether the Applicant’s dismissal was unfair. The Applicant was notified that he had been dismissed while he was absent from work caring for his partner who was hospitalised at the time. Mr Long’s text messages questioning the Applicant’s absence from work, at what must have been a difficult time, were not appropriate. The Applicant’s uncontested evidence is that when he attended work on 9 November, he informed his manager that he may need to leave urgently if his partner’s condition deteriorated. Notwithstanding this, Mr Long’s text messages in response to those sent by the Applicant about his absence were hostile and there was no evidence of any attendance issues on the part of the Applicant to justify Mr Long’s attitude.
Further, there was no reasonable basis for the Respondent to treat the Applicant and Mr Arnold differently and to continue to offer work to Mr Arnold while not offering work to the Applicant. I accept that Mr Long has difficulties with English and that this impacted on his communication with the Applicant. However, this is not a factor that outweighs other relevant considerations in the overall assessment of whether the Applicant’s dismissal was unfair.
Conclusion in relation to whether the Applicant was unfairly dismissed
Balancing the considerations in s. 387 of the FW Act, I find that the Applicant was unfairly dismissed. The Applicant’s dismissal was harsh because of its economic consequences for the Applicant. At the time of this dismissal the Applicant had over six years’ service and lost the benefit of that service, particularly with respect to long service leave. The harshness of the dismissal was exacerbated by the fact that the Applicant’s partner was ill and hospitalised at the time he was notified of his dismissal.
The Applicant’s dismissal was unjust because Mr Long decided that the Applicant would not be vaccinated, in circumstances where he had not had a proper discussion about the policy and its repercussions with the Applicant. The Applicant’s dismissal was unreasonable because the Applicant was dismissed in circumstances where he was not given a reasonable opportunity to consider his position with respect to vaccination before he was dismissed.
I turn now to consider whether the Applicant have a remedy for his unfair dismissal?
Remedy
Whether reinstatement is inappropriate
In circumstances where I have found that the Applicant was protected from unfair dismissal at the time he was dismissed and that he has been unfairly dismissed, s.390(1) provides discretion for the Commission to order a remedy of reinstatement or compensation. As required by s.390(2), the Applicant has made an application for an unfair dismissal remedy under s.394 of the FW Act. By virtue of s.390(3), the Commission must not order compensation unless satisfied that reinstatement of the person is inappropriate and the Commission considers an order for compensation is appropriate in all of the circumstances.
The Applicant does not seek reinstatement and contends that it would be inappropriate because of the loss of trust on his part with Mr Long. It is also the case that the Respondent would have been entitled to introduce a vaccination policy had it gone about this process in a fair and reasonable manner. It is not clear that the Applicant is vaccinated and there is a possibility that he would not be able to work for the Respondent if he were reinstated. In these circumstances, I am satisfied that it is not appropriate to order reinstatement (s.390(3)(a)). I must therefore consider whether it is appropriate in all the circumstances to make an order for payment of compensation (s.390(3)(b)).
Whether an order for compensation should be made
In relation to compensation, the Applicant seeks the following:
“Compensation for lost long service leave (pro-rata), underpaid wages/entitlements over the period of my employment, the cost to get retrained (Truck licenses, forklift license, training courses) me to find new work, impacts on my mental health due to the false allegations and breach of confidentiality, privacy and the embarrassing hostile work environment I endured post termination letter created by Shaun Long.
I therefore seek financial compensation, a written apology and for Shaun Long to send a memo to all other employees acknowledging his handling of my termination and addressing ongoing matters like health & safety/covid safe plan/human resources and wage contracts.”
Section 390(3)(b) of the FW Act provides that the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A remedy of compensation is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied.[19]
Having regard to all the circumstances of the case, including the fact that the Applicant has suffered financial loss and loss of employment credits because of his unfair dismissal, I consider that an order for payment of compensation to him is appropriate. It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to the Applicant. In assessing compensation, I am required by s.392(2) of the FW Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.
The established approach to assessing compensation in unfair dismissal cases was set out in Sprigg v Paul Licensed Festival Supermarket[20] and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases,[21] as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 5: Apply the legislative cap on compensation.
I turn now to apply that approach and set out the matters I have taken into account in assessing compensation.
Remuneration the Applicant would have received, or would have been likely to receive, if he had not been dismissed (s 392(2)(c))
Calculations of damages or compensation involve an element of speculation in determining an employee’s anticipated period of employment. This is because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed.[22]
I am satisfied on the balance of probabilities that if the Applicant had not been dismissed on 8 December 2021, he would have remained employed by the Respondent for a period of only four months. I have concluded that the Applicant’s employment would not have extended past six months based on the following matters. The Applicant nominated this period in his evidence to the Commission stating that he sought compensation up to the date of the hearing. Had the Respondent implemented a policy requiring employees to be vaccinated against COVID – 19 in an appropriate manner including consulting with its employees, it is more probable than not that such a policy would have been lawful and reasonable. There is nothing unlawful about a vaccination policy and the Respondent had a need for vaccinated employees to undertake deliveries to several clients. Accordingly, failure to comply with such a policy would prima facie have been a valid reason for dismissal. There is also a possibility that the Applicant would have maintained his position of not wishing to comply, notwithstanding his evidence to the contrary in these proceedings.
I am also of the view that the Applicant could see the writing on the wall in relation to his ongoing employment, indicated by his evidence that he did not believe his exchange with Mr Long about carer’s leave would end well and he used part of his carer’s leave – albeit the weekends – to undertake additional training to further his career prospects. The Applicant had significant issues with the way he alleges he was treated prior to his employment ending.
Mr Long’s evidence, which was also uncontradicted, is that Mr Arnold was only offered casual work for a few days each week after the 8 December date for the implementation of the Respondent’s vaccination policy had passed. Both the Applicant and Mr Long could have called Mr Arnold to give evidence. The Commission expended time and effort to ensure Mr Arnold made himself available for the hearing. Given the evidence that both the Applicant and Mr Long gave about Mr Arnold was not inconsistent and that both could have called Mr Arnold to give evidence, I accept that Mr Arnold was working less than full time hours after December 2021. It is possible that the Applicant would not have accepted employment on this basis. Finally, I observed the interaction between the Applicant and Mr Long at the hearing and it suffices to say that the relationship was fraught and I doubt that this would have changed.
I am satisfied that the remuneration that the Applicant would have received, or would have been likely to receive, if he had not been dismissed, is 16 weeks’ pay at the weekly rate of $1,096.15, totalling $17,536.25, and an amount of $1,665.95.
Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))
The Applicant’s evidence which I accept, is that he had earned no income from other sources since the termination of his employment. I also note that the Applicant was required to work his notice period and did not receive payment in lieu, and that amount is not deducted from the anticipated income.
Viability (s 392(2)(a))
There is no evidence from the Respondent about the effect that an order for compensation would have on its viability, notwithstanding that the Directions for the hearing of this matter required submissions in relation to remedy and all relevant legislative provisions were appended.
Length of service (s 392(2)(b))
The Applicant had more than six years’ service, a significant portion of which was as a full-time employee. The termination of his employment deprived the Applicant of accrued credits for various forms of leave which were not paid out on termination, including sick leave and long service leave. Although the Applicant did not have sufficient service to be entitled to be paid out his long service leave, I have had regard to the fact that he had accrued credit towards such leave and will now need to commence accruing from scratch.
Mitigation efforts (s 392(2)(d))
The Applicant gave evidence about attempts he has made to obtain alternative employment which I accept. I am satisfied that such attempts were reasonable and that no deduction should be made for failure to mitigate the loss of the Applicant’s employment.
Any other relevant matter (s 392(2)(g))
It is necessary to consider whether to discount the amount $17,536.25 for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which the Applicant was subject might have brought about some change in earning capacity or earnings.[23] Positive considerations which might have resulted in advancement and increased earnings are also taken into account.
The discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known and that is a period prospective to the date of the decision. Given the period I have anticipated that the Applicant would remained employed extended only to the date of hearing, there is no basis to make a deduction for contingencies.
However, the consideration in s.392(2)(g) is not limited to contingencies. In the present case, I consider it appropriate to adjust the amount of compensation to reflect the impact of a reduction in hours of work that could have been implemented if the Applicant was dealt with in the same way as Mr Arnold. In this regard, I consider there is at least a strong possibility that the Applicant may have remained in employment working reduced hours, taking into account that he was not available to perform the full range of deliveries that the Respondent required.
While the Applicant’s evidence was that he had not been required to travel from Queensland to New South Wales in the course of his employment and that he could undertake contactless deliveries, the shortage of labour being faced by the Respondent may have meant that the Applicant was unable to perform the full range of duties the Respondent required, resulting in a reduction of his working hours.
Accordingly, I have deducted an amount of 15% to reflect this possibility, resulting in an amount of $14,905.80 in wages and $1,416.05 in superannuation contributions.
Misconduct (s 392(3))
The Applicant has not engaged in misconduct and there is no basis to reduce any amount of compensation on account of this consideration.
Shock, distress or humiliation, or other analogous hurt (s 392(4))
The Applicant has claimed compensation in relation to matters which are analogous to shock, distress, humiliation or other hurt. I note that any amount of compensation calculated must not include a component for shock, humiliation or distress, and I have disregarded that aspect of the Applicant’s claim for compensation.
Compensation cap (s 392(5)-(6))
The amount of compensation I have calculated will not make it necessary to apply the cap provided for in s.392(5) of the FW Act.
Instalments (s 393)
The Respondent has not sought that any amount of compensation I have awarded be paid in instalments and I make no order allowing the amount to be paid in instalments.
Conclusion
I have determined to award the Applicant an amount of $14,905.80, less taxation according to law, as compensation for lost wages and $1,416.05 in superannuation contributions to be paid into the Applicant’s nominated superannuation fund. An Order will issue with this Decision requiring that those amounts are paid within 21 days of the date of this Decision.
DEPUTY PRESIDENT
Appearances:
J Doran, Applicant, self-represented.
X Long, Respondent, self-represented.
Hearing details:
2022.
Brisbane (by video):
8 April.
[1] Transcript of proceedings PN107 – PN113.
[2] Transcript of proceedings PN114-PN117.
[3] Transcript of proceedings PN198 – 202.
[4] Transcript of proceedings PN208 – 216.
[5] Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] (per Acton, SDP, Sams DP and Hampton C), citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000.
[6] Fair Work Act 2009 s.381(2).
[7] Walton v Mermaid Dry Cleaners Pty Limited [1996] IRCA 267; (1996) 142 ALR 681 at 684.
[8] Webb v RMIT University [2011] FWAFB 8336 at [6].
[9] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 AIRCFB at [62]; (2000) 98 IR 137.
[10] Fair Work Act 2009 s. 12.
[11] Walton v Mermaid Dry Cleaners Pty Limited [1996] IRCA 267; (1996) 142 ALR 681 at 684.
[12] Webb v RMIT University [2011] FWAFB 8336 at [6].
[13] Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 (per McHugh and Gummow JJ).
[14] Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 at [64] citing Thompson v IGT (Australia Pty Limited [2008] FCA 994 at [48]; McManus v Scott-Charlton [1996] FCA 1820 at [21]; King v Catholic Education Office Diocese of Parramatta [2014] FWCFB 2194 at [26]–[29].
[15] [2021] FWCFB 6059.
[16] Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
[17] Rode v Burwood Mitsubishi Print R4471 at [90] (per Ross VP, Polites SDP, Foggo C).
[18] (2000) 98 IR 137.
[19] Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17].
[20] (1998) 88 IR 21.
[21] Tabro Meat Pty Ltd v Heffernan[2011] FWAFB 1080; Read v Golden Square Child Care Centre[2013] FWCFB 762; Bowden v Ottrey Homes Cobram[2013] FWCFB 431.
[22] Double N Equipment Hire Pty Ltd v Humphries [2016] FWCFB 7206 at [16]-[17].
[23] Ellawala v Australian Postal Corporation Print S5109 at [36].
Printed by authority of the Commonwealth Government Printer
<PR743637>
0
13
0