Kane Miller v 9x5 Consulting Pty Ltd
[2024] FWC 568
•4 MARCH 2024
| [2024] FWC 568 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kane Miller
v
9x5 Consulting Pty Ltd
(U2023/7977)
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 4 MARCH 2024 |
Application for an unfair dismissal remedy.
On 24 August 2024, Mr Kane Miller (the Applicant) made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). Mr Miller commenced working full time on 5 December 2022 as the Head of Technology with 9x5 Consulting Pty Ltd (9x5 Consulting) (the Respondent). On 7 August 2023, Mr Miller resigned from his position providing four weeks’ notice in accordance with the terms of his employment contract. Mr Miller was summarily dismissed on 14 August 2023. Mr Miller alleges that the dismissal was unfair. 9x5 Consulting contends it had reason to believe that during his notice period Mr Miller was not acting in the best interest of his employer, failed to issue invoices for software licencing on several occasions and had a lack of billable hours recorded. Further, it alleges Mr Miller issued invoices from Smartienet to clients for services provided during his employment with 9x5 Consulting which only became apparent after Mr Miller’s employment was terminated. 9x5 Consulting contends that this conduct constitutes a valid reason for his dismissal. Mr Miller denies the allegations.
The matter proceeded to a determinative conference. Mr Miller appeared and gave evidence on his own behalf. Mr Matthew Willie, Chief Executive Officer, appeared on behalf of 9x5 Consulting Pty Ltd.
The following witnesses gave evidence on behalf of 9x5 Consulting Pty Ltd:
· Mr Matthew Willie, Chief Executive Officer
· Mr Daniel Field, Chief Financial Officer
· Mr Simon Zanatta, Head of Client Services
Preliminary Matters
Sections 396 and 382 of the Act require that I decide certain matters before considering the merits of an unfair dismissal application. I have considered those matters and find that Mr Miller’s application was made within the 21day period as prescribed by s.394(2) of the Act. I also find that 9x5 Consulting Pty Ltd is not a Small Business employer within the meaning of the Act, therefore the Small Business Fair Dismissal Code does not apply. The dismissal was not a case of genuine redundancy. I am also satisfied that Mr Miller is a person “protected from unfair dismissal”.
Case Presented
9x5 Consulting runs a digital advisory company that has a range of services including IT support and managed network services. Mr Miller is the Director of Smartienet, a business which also specialises in IT support and managing technology for businesses.
On 5 December 2022, Mr Miller became a full-time employee with 9x5 Consulting in the role of Head of Technology.[1] As part of his employment agreement Mr Miller was to transfer all existing Smartienet clients to 9x5 Consulting[2] and in return he would receive a 20% margin on all Smartienet’s existing clients.[3] At the time Mr Miller signed his employment contract (Contract) reflecting the agreement reached, Smartienet had approximately 34 clients (Smartienet Clients).[4]
Whilst it is not in contention that the Smartienet Clients were to be transferred to 9x5 Consulting, Mr Miller says that there was no specific timeframe in which this was to occur. Mr Willie, Chief Executive Officer and Mr Field, Chief Financial Officer at 9x5 Consulting say there was an expectation that Mr Miller would transfer his clients to 9x5 Consulting at the commencement of his employment.[5] At the time of his dismissal none of the Smartienet Clients had fully transferred across to 9x5 Consulting.[6]
In January 2023, a marketing communications document titled “Important news regarding your relationship with Smartienet” [7] (Communications document) was developed by 9x5 Consulting in conjunction with Mr Miller for Smartienet clients, however the parties disagree about its purpose. Mr Miller says the document was intended to be sent to clients that were in the process of transferring.[8] Mr Willie and Mr Field say the Communications document was intended to be distributed to all Smartienet clients in January 2023.[9]
The Communications document informs Smartienet clients about the new relationship between Smartienet and 9x5 Consulting, explains that Mr Miller will remain the first point of contact and their payment arrangements will change to 9x5 Consulting.[10] Although Mr Willie expected Mr Miller to provide a copy of the Communications document to all Smartienet clients, this did not occur.[11]
Mr Field says that in February 2023, he made inquiries with Mr Miller about his progress because of the length of time it was taking to transfer the Smartienet Clients.[12] Mr Field also says he made several inquiries about Mr Miller’s billable hours and invoicing,[13] Mr Miller denies that this occurred.[14] Mr Miller says that performance expectations were not discussed at any stage during his employment and the issue of billable hours had not been raised before the meeting on 14 August 2023.[15] Mr Field says sometime around mid-June 2023 whilst preparing for the end of year finances, he became increasingly concerned and again spoke to Mr Miller[16] about the lack of billable hours and invoicing.[17] As the matter remained unresolved, Mr Field says he started raising his concerns at the morning management meetings and shortly after Mr Miller started spending less time in the office and wasn’t attending the daily management meetings. Mr Field says Mr Miller claimed to be working onsite with clients which prompted him to look into the timesheets of Mr Miller and his team to see how much time was being billed to customers.[18] Mr Field became concerned that Mr Miller had not billed any hours for the period of July 2023 although he had claimed to be working with customers on-site. Mr Field requested that Mr Miller update his timesheets. Mr Miller subsequently billed 2.25 hours to 9x5 Consulting clients in July 2023.[19]
On 17 July 2023, Mr Zanatta commenced employment with 9x5 Consulting as Head of Clients Service.[20] Mr Zanatta’s role was to provide support to existing clients of 9x5 Consulting. Mr Zanatta says that at the commencement of his employment, he held the belief that all Smartienet clients had been transferred across to 9x5 Consulting in accordance with an agreement reached between Mr Miller and Mr Willie. [21] Shortly after his commencement, Mr Zanatta says he obtained a list of Smartienet clients and sought assistance from Mr Miller to arrange meetings with those clients.[22]
Mr Zanatta says that it soon became apparent that Mr Miller had only transferred some of the Smartienet Clients to 9x5 Consulting. The information Mr Zanatta was able to obtain from the 9x5 Consulting database was limited to approximately 10 Smartienet clients.[23] Mr Zanatta raised concerns about Mr Miller’s behaviour which he says included a reluctance to initiate meetings with the Smartienet Clients for the purpose of handing over the support duties to Mr Zanatta.[24] Mr Zanatta formed the view that Mr Miller was intentionally providing interference with around thirty of the Smartienet Clients,[25] a claim Mr Miller denies.[26]
Mr Zanatta was concerned that the Smartienet clients that were supposed to have transferred across to 9x5 Consulting never called the help desk, instead preferring to call Mr Miller directly, therefore, 9x5 Consulting was unable to trace or log the calls.[27] However, as previously observed the Communications document states that Mr Miller would remain the primary point of contact for all former Smartienet clients.[28]
Mr Zanatta says that Mr Miller ignored requests for the decommissioning of MS Office 365 Licences with the result being that 9x5 Consulting were required to pay for those unused licence subscriptions. However, I note the evidence suggests this matter had not been brought to Mr Miller’s attention prior to the hearing.
On or around the 5 August 2023, Mr Zanatta raised his concerns with Mr Willie, specifically that he felt he was being “shielded” by Mr Miller from contacting the Smartienet Clients. [29]
On 7 August 2023, Mr Miller handed in his resignation giving four weeks’ notice in accordance with his employment contract.
On 11 August 2023 at 1:28pm, Mr Field and Mr Miller received an email from a former Smartienet client, Rockwell Group, advising that all services provided by 9x5 Consulting were to be transferred back to Smartienet.[30] Mr Miller was requested to attend a video call on the afternoon of that same day. Mr Miller was working from home and declined to attend the meeting because he had to pick his children up from secondary school. The meeting was rescheduled to take place on 14 August 2023.
Mr Miller attended the meeting on the 14 August 2023. Mr Miller says that he believed the meeting was the standard daily catch up and was not aware that the meeting was to address concerns about his conduct. Mr Miller’s evidence was that he thought the meeting would involve a general review of billable hours before his departure.
During the meeting on 14 August 2023, Mr Willie and Mr Field raised concerns about Mr Miller’s failure to participate in a handover of clients with Mr Zanatta. They also raised concerns about the lack of invoicing of clients, lack of billable hours and the correspondence received from Rockwell Group. Mr Field says that Mr Miller provided vague responses during this meeting and offered few reasons as to why clients weren’t being invoiced. Mr Miller denies that he had encouraged former Smartienet clients to transfer back to Smartienet. Mr Miller says explanations were provided for the invoicing discrepancies however, at the conclusion of the meeting he was handed a pre-prepared employment termination letter advising him that his employment had been terminated.
After the dismissal it became apparent to 9x5 Consulting that Mr Miller had invoiced a client through Smartienet for services provided whilst being employed by 9x5 Consulting. It also became apparent on 13 August 2023 that Mr Miller commenced the unauthorised process of transferring the Rockwell Group client from 9x5 Consulting Pty Ltd to Smartienet.
Shortly after dismissing Mr Miller, 9x5 Consulting says it received a number of requests from former Smartienet clients to have their services cancelled. One of those requests came from Mr Miller on behalf of the Penola Saints Netball Club (Penola) of which Mr Miller was the President. It also became apparent that Mr Miller had provided Microsoft 365 licences to Penola through 9x5 Consulting, however, they had not been invoiced for those services. Mr Miller submits that Mr Willie had agreed to provide a sponsorship of $2,500.00 and therefore he provided services to that value. Mr Willie says that this was not the agreement that had been reached and submits this is further evidence that during his employment with 9x5 Consulting Mr Miller was acting in the interests of Smartienet, a separate business and a direct competitor of 9x5 Consulting. It also became apparent that Mr Miller invoiced a client for services provided by Smartienet to the value of $14,272.50 whilst employed by 9x5 Consulting. Mr Willie submits when Mr Miller’s conduct is considered in its totality, there was a valid reason for his dismissal.
Consideration
On 14 August 2023, Mr Miller’s employment was terminated for serious misconduct with immediate effect. At the conclusion the meeting in which the termination occurred Mr Miller was handed a termination letter prepared by 9x5 Consulting in advance of the meeting. Although he understood he was being dismissed Mr Miller says he wasn’t aware the letter was a termination letter until he opened it sometime later.
The reasons relied on in the termination letter are summarised as follows:
Mr Miller had contacted Rockwell Group whilst serving his notice period and that 9x5 Consulting had reason to conclude that he was not acting in the best interest of his employer (the First Reason); and
Mr Miller had not been invoicing clients for services provided and there was a lack of billable hours to explain Mr Miller’s actions from the period of May through to his dismissal (the Second Reason).
Taking into consideration the submissions and evidence of the parties it is apparent that the second reason relied on is to be considered as providing context to the allegation that Mr Miller had not been acting in the best interest of 9x5 Consulting. Further, in support of its reasons 9x5 Consulting sought to rely on evidence that they weren’t aware of at the time of the decision to terminate. I have considered that evidence in the context of the First and Second reason as set out in my findings below.
Before considering whether there was a valid reason for dismissing Mr Miller from his employment, I make the following observations. Mr Miller submitted he had been dismissed because he was allegedly soliciting clients. Mr Miller’s evidence largely focussed on whether he had breached his post-employment obligations by soliciting clients and that the operation of clause 23, Non-Solicitation and Post-Termination Restraint in the employment contract could only come into effect after he ceased his employment with 9x5 Consulting. Although Mr Willie had referred to the solicitation of clients in the termination letter, on a plain reading I observe that reference to solicitation of clients was to serve as a warning to Mr Miller should he not comply with his post-employment obligations. A breach of clause 23 is not a reason relied on for his dismissal. The reference to the post-employment constraints contained within the employment contract merely places Mr Miller on notice that 9x5 Consulting intends to take further action should it become aware of any breach of contract.
I now turn to the reasons relied on by 9x5 Consulting for the termination of Mr Miller’s employment.
Mr Willie says the decision to dismiss Mr Miller was because during his employment Mr Miller had been acting in the interest of Smartienet and was not acting in the interest of 9x5 Consulting and his actions were in breach of his contract including clause 5 and clause 22.1 (d)-(e).
Mr Miller’s contract provided at clause 5. principle duties, a general duty to act in the employer’s best interest at all times.[31] Mr Willie says that Mr Miller’s conduct of transferring client services to Smartienet whilst a current employee is considered gross misconduct and does not constitute acting in the best interests of the employer at all times. [32]
Turning to whether Mr Miller had breached clause 22.1 (d) or (e) of his contract. Clause 22.1 provides that:
“The Employer may terminate your employment without notice or without a payment in lieu of notice for any of the following reasons, if you:
(d) commit any serious or persistent breach of any of the terms of the Contract;
(e) are guilty of dishonesty, misconduct or negligent in the performance of your
obligations under the Contract; (sic)”.
Mr Willie’s evidence is that Mr Miller contacted Rockwell Group during his notice period and there was cause to believe that his actions prompted the request from Rockwell to terminate its services with 9x5 Consulting and move those services to Smartienet.
It is not in contention that Mr Miller continued to engage with Smartienet clients including a Rockwell Group representative during his notice period however, he denies that this was a breach of clauses 22.1(d) and 22.1(e). Neither party called any witnesses to give evidence from Rockwell Group.
To determine if Mr Miller’s conduct was in breach of clause 22.1(d) or (e) of his contract it is necessary to consider Mr Miller’s ongoing relationship with Rockwell Group, his other Smartienet clients and the events leading to Mr Miller’s dismissal. Although the parties gave evidence on various matters that do not require determination, for reasons that will become apparent it is necessary to set out some of that evidence before me.
Mr Willie first became concerned about Mr Miller’s conduct when Mr Zanatta complained that Mr Miller was not assisting to arrange introductions to former Smartienet clients. After further inquiries, it had come to Mr Zanatta’s attention that the Smartienet Clients had not been transitioned across to 9x5 Consulting. Subsequently, Mr Zanatta informed Mr Willie that the Smartienet Clients had not yet transitioned across to 9x5 Consulting. It is not in contention that at the time of his dismissal, which took place eight months after his commencement, Mr Miller had not transferred all of the Smartienet Clients across to 9x5 Consulting.[33] It is also not in contention that the Smartienet clients were to be transferred to 9x5 Consulting, however the parties disagree as to when this should have taken place.
Mr Willie and Mr Field gave evidence that there was an expectation that all Smartienet Clients were to be transferred to 9x5 Consulting at the commencement of Mr Miller’s employment. Further, they submit by reason of operation of item 7 in the Schedule of Mr Miller’s employment contract[34] Mr Miller was being compensated at the commencement of his employment for all existing Smartienet clients, a matter that is not in contention. Item 7 in the Schedule outlines the following information relating to pay:[35]
“$140,000 (Includes Superannuation contributions as required by law), 20% margin
on all Smartienet existing clients as well as 5% commission on all margin above cost of
seat (excluding Smartienet sales) (sic).”
Mr Willie submits, the operation of item 7 in Mr Miller’s employment contract implies that by way of compensation, at the commencement of Mr Miller’s employment the Smartienet clients would become the property of 9x5 Consulting. Mr Willie submits that therefore, contrary to Mr Miller’s submission the evidence supports that there was an expectation that Mr Miller transfer all Smartienet clients at the commencement of his employment.
Mr Miller relies on his submission that there was no formal agreement between himself and 9x5 Consulting as to the timeframe expected to conduct the transfer of clients. During the hearing Mr Miller provided numerous reasons as to why his Smartienet clients had not transitioned to 9x5 Consulting. Mr Miller says that in his first two months of employment he was too busy and therefore unable to transfer some of his clients, and further submits that some of the services provided by Smartienet take time to transfer. Mr Miller also gave evidence about the complexities associated with transferring clients from Smartienet to 9x5 Consulting, much of that evidence was contested by Mr Field, Mr Willie and Mr Zanatta. However, regardless of the complexities involved in transferring clients, the evidence is that Mr Miller was tasked with the responsibility of transferring Smartienet Clients.[36]
Mr Willie and Mr Field submit that in addition to item 7 in the employment contract a Communications Document was developed in conjunction with Mr Miller shortly after his commencement. The Communications Document directs Smartienet clients to change their payment arrangements to 9x5 Consulting. Mr Miller submits that the Communications Document was developed for transferring clients. 9x5 Consulting submits there was no distinction between those who had or had not transferred and that there was an expectation that Smartienet clients would transfer to 9x5 Consulting at least in or around January 2023.
I have considered the evidence pertaining to the transferring of Smartienet clients to 9x5 Consulting. I found Mr Zanatta to be a convincing witness. Mr Zanatta’s evidence is that he was engaged by Mr Willie to service the Smartienet Clients with the understanding that they had been transferred to 9x5 Consulting. When this evidence is considered in conjunction with item 7 in the employment contract and the Communications Document, I am persuaded that Mr Willie had a reasonable expectation that Mr Miller would transfer the Smartienet Clients to 9x5 Consulting at the commencement of his employment.
Mr Willie submits that Mr Miller had not been invoicing clients for services provided and there was a lack of billable hours to explain Mr Miller’s whereabouts from the period of May 2023 through to his dismissal. Mr Willie implied that the lack of billable hours was because Mr Miller was not acting in the best interest of 9x5 Consulting. Mr Field gave evidence that he had raised the issue of billable hours with Mr Miller on several occasions. Mr Fields evidence on this matter was somewhat vague and lacked any specific details as to when those matters were raised and specifically what was raised. Mr Miller submits that before the meeting on 14 August 2023 the issue of billable hours or invoicing hadn’t been raised as a performance issue and neither had there been any performance counselling. Whilst I generally accept that the lack of billable hours may have been casually raised with Mr Miller during the course of his employment and that no performance discussion occurred, I note that Mr Miller was dismissed for reasons of conduct, not performance.
The termination letter also refers to concerns that a number of clients had not been invoiced for services during the months of April to July 2023. Again, on this matter I accept Mr Miller’s evidence that the first time those specific allegations were raised as a genuine performance concern was at the meeting on 14 August 2023. During that meeting Mr Miller provided responses to each of the inquiries. Mr Field’s evidence is that they did not fully investigate Mr Miller’s responses because they felt his conduct pertaining to the Rockwell Group matter was sufficient to warrant a dismissal. Mr Field did concede that some of Mr Miller’s responses did explain the billing anomalies, however, he was unable to provide evidence as to which of the matters hadn’t been resolved.
Much was made of the issue of billable hours, Mr Miller made submissions that it was unreasonable for 9x5 Consulting to expect him to bill 100% of his hours. 9x 5 Consulting raised its concerns that for the months of December 2022 to August 2023 Mr Miller had only billed a total of 60 hours. In July 2023, Mr Miller billed a total of 2.25 hours. It is not necessary for me to decide whether Mr Miller was required to bill 100% of his time or not. The matters relied on by 9x5 Consulting in support of its reasons for terminating Mr Miller was that although Mr Miller claimed he couldn’t make the daily management catch up meetings because he was working on client sites, his billable hours did not reflect this and therefore it raised suspicion as to what Mr Miller was doing during that time. I accept Mr Miller’s evidence that any genuine concern relating to his performance regarding billable hours was first raised at the meeting on 14 August 2023. However, when the evidence is considered in its totality, it was reasonable for Mr Willie to have concerns about the lack of Mr Miller’s invoicing and billable hours. This is relevant because 9x5 Consulting sought to rely on an additional reason for the termination of Mr Millers employment that became apparent after he was dismissed. Mr Willie gave evidence that Mr Miller continued to bill clients for services provided by Smartienet whilst being employed by 9x5 Consulting and that his conduct would explain the lack of billable hours. The evidence before me is that on 23 April 2023, Mr Miller invoiced Better Place Australia for the supply of services through Smartienet whilst he was an employee of 9x5 Consulting. The total value of the invoice was $14,272.50. 9x5 Consulting submits it became aware of Mr Miller’s conduct after the dismissal and should it have become apparent beforehand; the conduct would have constituted serious misconduct, and it would have been relied on as a valid reason for dismissal.
Mr Miller’s initial reasons for his failure to transfer Better Place Australia to 9x5 Consulting was that the process to transfer the client across was technically difficult. Mr Field and Mr Willie gave evidence that this was not the case. Mr Zanatta and Mr Willie gave detailed evidence on the process that should have been undertaken to transfer the client services to 9x5 Consulting.[37] For the reasons below, on this matter I prefer the evidence of Mr Willie and Mr Zanatta.
Mr Miller then sought to rely on the reason that his workload had prohibited him from transferring the client. Given Mr Miller was able to find time to invoice the client he was providing services to whilst working for 9x5 Consulting, I find his reasoning counterintuitive. Further, Mr Miller’s evidence as to the technicalities involved in transferring the client to 9x5 Consulting does not resolve the fact that the invoice included a charge of $6,435.00 for Onsite/Remote Support to five sites. Clearly, and on his own evidence,[38] the technical support is something that should have and could have been invoiced through 9x5 Consulting. On this matter I prefer the evidence of Mr Willie.
Mr Miller gave evidence that the invoice was automatically generated and sent, this was factually incorrect. On further examination Mr Miller conceded that the invoiced amount was different to the previously invoiced amount and that he had manually entered the values before issuing the invoice. The evidence supports a finding that Mr Miller on this occasion was not acting in the best interests of his employer and therefore his conduct was in breach of his employment contract.
It is not in contention that Mr Miller made contact with Rockwell Group during his notice period. On 11 August 2023, Rockwell Group wrote to 9x5 Consulting requesting that all its services be transferred back to Smartienet. On Sunday, 13 August 2023, Mr Miller commenced transferring Rockwell Group services back to Smartienet. This was not put to Mr Miller during the meeting on 14 August 2023 because Mr Willie only became aware after the dismissal had taken effect that Mr Miller had proceeded to transfer Rockwell Group services back to Smartienet on the Sunday before his dismissal. Further, it is apparent that at the time of Mr Miller’s dismissal Mr Willie was not aware that Mr Miller had intentionally retained some of the Rockwell Group services with Smartienet including its backup services.[39] This only became apparent when Mr Miller gave evidence during the hearing. On the evidence before me, it is reasonable to conclude that without notifying Mr Willie of his decision during his service with 9x5 Consulting Mr Miller made a decision not to transfer all of Rockwell Group services to 9x5 Consulting, and therefore Mr Miller was not acting in the interests of 9x5 Consulting.
For reasons stated earlier it is not necessary for me to decide whether Mr Miller’s conduct constituted solicitation of a client. However, if I am wrong as to 9x5 Consulting’s expectations regarding the transfer of clients, it is irrelevant when considering the additional reasons relied on for Mr Miller’s dismissal. What is relevant is that Mr Miller was solely responsible for managing the transfer of Smartienet clients to 9x5 Consulting. Mr Miller had not transferred Rockwell Group backup services. There is evidence before me that Mr Miller was able to and did transfer some of his other clients back up services to 9x5 Consulting. [40] There is no evidence before me that would lead me to conclude that there were technical issues prohibiting Mr Miller from transferring Rockwell Group’s backup services to 9x5 Consulting within the eight months he was employed by 9x5 Consulting. Although he was being compensated, without informing his employer Mr Miller made a decision to not transfer all of Rockwell Group services to 9x5 Consulting. Mr Miller then proceeded to transfer the previously transferred services back to Smartienet without the permission of 9x5 Consulting. Therefore, I find that Mr Miller was not acting in the best interests of his employer.
Taking into account my earlier findings it is reasonable to conclude that through his conduct Mr Miller was acting dishonestly and not acting in the best interest of his employer and therefore clause 22.1(e) of the employment contract applies. Further, Mr Miller’s contract provided at clause 5. principle duties, a general duty to act in the employer’s best interest at all times. I consider Mr Miller’s conduct of transferring services to Smartienet while still working for 9x5 Consulting a valid reason for his dismissal because his conduct did not constitute always acting in the best interests of the employer. I also made the finding that Mr Miller was acting dishonestly by billing Smartienet clients for services which could have and should have otherwise been transferred to his employer whilst he was working at 9x5 Consulting. Therefore, on this matter I find that 9x5 Consulting had a valid reason for dismissing Mr Miller.
I find that 9x5 Consulting had reasonable grounds in reaching its conclusion that Mr Miller was not acting in the best interests of 9x5 Consulting during his employment and his conduct in respect to the matters identified above were sufficiently serious to justify immediate dismissal. 9x5 Consulting had a valid reason for dismissing Mr Miller.
Notification of the Valid Reason –s.387(b), an Opportunity to Respond –s.387(c)
Mr Miller attended a meeting on 14 August 2023. Regardless of what Mr Miller thought the purpose of meeting was for the allegations outlined in the termination letter were put to Mr Miller. I am satisfied that Mr Miller had an opportunity to respond to those allegations.
As to the reasons that became apparent after the dismissal. The reason for termination need not necessarily be that which was given by the employer at the time of the dismissal.[41] In the matter of Shepherd v Felt & Textiles of Australia Ltd[42] the High Court found that:
“The fact that the appellant’s misconduct was unknown to the respondent at the time of the termination of the agreement is quite immaterial. If there were, in fact, any circumstances in existence at the time of the termination of the agreement which could have justified the respondent in so terminating it, then it may justify the termination by subsequent proof of those circumstances”.
It is permissible that facts justify the dismissal, which existed at the time of the dismissal, be considered, even if 9x5 Consulting was unaware of those facts and did not rely on them at the time of the dismissal.[43] I find the facts relied on by 9x5 Consulting which existed at the time of the dismissal and then came to light after the dismissal support a finding that there was a valid reason for Mr Miller’s dismissal.
Unreasonable Refusal of a Support Person – s.387(d)
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.[44] With respect to this consideration, the Explanatory Memorandum states:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[45]
Although Mr Miller was not put on notice that the meeting was to discuss his conduct, it should have been reasonably apparent to him taking into account the events that took place immediately before the meeting. There is no evidence before me that either before the meeting or during the meeting Mr Miller requested a support person There was no unreasonable refusal made by 9x5 Consulting.
Warnings regarding Unsatisfactory Performance – s.387(e)
I am satisfied that there was a valid reason for Mr Miller’s dismissal and his conduct constituted a breach of his employment conditions which justified the termination of his employment.
Mr Miller was dismissed for reasons of misconduct not performance.
Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(h)
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.[46] Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.[47]
9x5 Consulting does not have its own internal human resource management and the termination letter appears to have been written with some haste. 9x5 Consulting has less than 56 employees and no expertise in Human Resources which evidently poses a risk to a growing business.
Whilst the procedures followed in effecting the dismissal of Mr Miller were poorly executed and lacked expertise or the sophistication a dedicated human resource management specialist would have been able to provide. I have formed the view that the deficiencies in process would not have altered the outcome or changed my findings due to the nature of the conduct and that the dismissal occurred during Mr Miller’s notice period.
Any other matters that the FWC considers relevant – s.387((h)
When taking into account any other matters for consideration, the dismissal took place during the final weeks of Mr Miller notice period. Mr Miller submitts that 9x5 Consulting had failed to pay Mr Miller his statutory entitlements being annual leave owing and his superannuation entitlements. An employer cannot withhold an employee’s statutory entitlements even if the employee’s employment has ended for reasons of serious misconduct.
If Mr Miller’s submissions are correct then it is incumbent on 9x5 Consulting that they pay Mr Miller any accrued annual leave entitlements and make payment of any outstanding superannuation entitlements. Should 9x5 Consulting fail to do so then it is open to Mr Miller to pursue the matter with the relevant authorities.
Conclusion
Taking into account all of the circumstances, I consider that the dismissal of Mr Miller was not harsh, unjust or unreasonable. I am also satisfied that the decision by 9x5 Consulting to terminate Mr Miller’s employment was not unfair. Mr Miller’s Application is therefore dismissed.
An order[48] reflecting this decision will be issued with this decision.
COMMISSIONER
Appearances:
Mr K Miller and Ms P Burnham for the Applicant.
Mr M Willie and Mr D Field for the Respondent.
Witnesses:
Mr K Miller for the Applicant.
Mr M Willie, Mr D Field and Mr S Zanatta for the Respondent.
Hearing details:
Fair Work Commission, Melbourne on 27 November 2024.
Written submissions:
Applicant: 6 November 2023
Respondent: 20 November 2023
[1] Transcript PN60-PN62
[2] Transcript PN268, PN284, PN414
[3] ExhibitR3
[4] Exhibit R4, PN371-383
[5] Transcript PN1534
[6] Transcript PN292-294 & PN303-304
[7] Exhibit R7
[8] PN554
[9] Transcript PN552
[10] PN538
[11] PN534
[12] Transcript PN1558, 1562
[13] Exhibit R13
[14] Exhibit A1
[15] PN142-143
[16] Exhibit R13, Transcript PN1578 & PN1714
[17] Exhibit R13
[18] Exhibit R13
[19] Exhibit R13
[20] Transcript PN1845
[21] Transcript PN1861-1862
[22] Transcript PN1873
[23] Transcript PN1918
[24] Transcript PN1912-PN1919, PN1968
[25] Transcript PN1968-1971
[26] Exhibit A1, Annexure A
[27] Transcript PN1961-1965
[28] Exhibit R7
[29] PN1968, PN1971 &1972
[30] Exhibit R5
[31] Exhibit R3
[32] Exhibit R3, Transcript PN487-495
[33] Transcript PN302
[34] Exhibit R3
[35] Exhibit R3
[36] Transcript PN246, PN 268-270
[37] Transcript PN704, PN708 & PN722
[38] Transcript PN 740-746
[39] Transcript PN319
[40] Transcript PN327
[41] Unfair Dismissal Bench Book
[42] Shepherd v Felt & Textiles of AustraliaLtd [1931] HCA 21; (1931) 45 CLR 359 at pp. 373
[43] Australia Meat Holdings Pty Ltd v McLauchlan Print Q1625 (AIRCFB, Ross VP, Polites SDP, Hoffman C, 5 June 1998), [(1998) 84 IR 1 at p. 14]. See also Dundovich v P & O Ports PR923358 (AIRCFB, Ross VP, Hamilton DP, Eames C, 8 October 2002) at para. 79 as cited in the Unfair Dismissal Bench Book at pg.111
[44] Fair Work Act 2009 (Cth) s.387(d)
[45] Explanatory Memorandum, Fair Work Bill 2009 (Cth) [1542]
[46] Fair Work Act 2009 (Cth) s.387(f)
[47] Fair Work Act 2009 (Cth) s.387(g)
[48] PR772001
Printed by authority of the Commonwealth Government Printer
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