Keith Rutty v Smartdollar

[2025] FWC 685

[2025] FWC 685

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Keith Rutty
v

Smartdollar

(U2024/10411)

COMMISSIONER SCHNEIDER PERTH, 7 MARCH 2025

Application for an unfair dismissal remedy

1. On 2 September 2024, Keith Rutty (Mr Rutty or the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he has been unfairly dismissed from his employment with Smart Dollars Western Australia Pty Ltd (Smart Dollar). The Applicant seeks compensation.

1. As the matter could not be resolved at conciliation, the matter was listed for a determinative conference which was held on 17 December 2024. Neither party sought permission to be represented by a lawyer or paid agent, both parties were self-represented at the determinative conference. Mr Rutty gave evidence on his own behalf. Mr Kelvin Di Wang gave evidence on behalf of Smart Dollar. Mr Rutty filed submissions in the Commission on 21 November 2024. Smart Dollar filed submissions in the Commission on 8 December 2024.

1. It was not disputed that Mr Rutty was dismissed at the initiative of the Smart Dollar. Mr Rutty is a person protected from unfair dismissal as his employment was covered by the General Retail Industry 2020 Award. Mr Rutty filed his application within the 21-day time period as required by the Act. Mr Rutty’s dismissal was not a case of genuine redundancy. Smart Dollar initially submitted that the Small Business Fair Dismissal Code (SBFDC) applied to the employment of Mr Rutty. However, during the determinative conference before the Commission on 17 December 2024, Mr Wang confirmed that Smart Dollar had several stores across Western Australia that were all associated businesses which employed more than 15 employees. As a result, I am not satisfied that the SBFDC applied to Mr Rutty’s employment.

1. Smart Dollar submits that, from 2022 to 2023, the business experienced a significant decline in revenue during the tenure of Mr Rutty’s employment and inferred that this was due to the performance and attitude of Mr Rutty. Smart Dollar did not provide any empirical data, witness testimony, or other evidence to support this accusation. When pushed for an explanation on how Mr Rutty’s performance and attitude were a concern for Smart Dollar, Mr Wang provided two examples:

·   The first incident: In 2023, Mr Wang travelled to the Warnbro store to pick up a lamp that a customer requested from another store and Mr Rutty provided him with the incorrect lamp.

·   The second incident: Mr Wang directed Mr Rutty to complete a certain task but, after a discussion with another team member, Mr Rutty completed a different task.

1. Both of these examples occurred some months before the dismissal of Mr Rutty and, whilst these may indicate extremely minor areas of concern regarding Mr Rutty’s performance, neither example provided would, in isolation or combined, provide a valid reason for termination nor would they reasonably warrant the termination of Mr Rutty’s employment.

1. Smart Dollar also made other comments concerning Mr Rutty’s conduct, including that he was too talkative with customers, spent time on his mobile phone whilst at work, and asked for additional shifts despite not always being able to complete the shifts when rostered. Smart Dollar did not provide detailed information or evidence regarding the above alleged conduct, nor does it appear any warnings were issued to Mr Rutty for these areas of concern.

1. Smart Dollar submits that, in 2024, a new manager (Mr John Hsiu-Chung Sung) was appointed the store Mr Rutty worked at. Prior to his appointment as store manager, Mr Sung and Mr Rutty were colleagues. Mr Sung provided a written statement, however, did not attend the determinative conference, so he was not available for questioning and further examination of his evidence. Mr Sung’s evidence is that, on 12 June 2024, he had a formal performance discussion with Mr Rutty concerning his performance. Smart Dollar submits that, following this meeting, there was improvement from Mr Rutty. However, after a further two weeks, Smart Dollar submits that Mr Rutty’s performance regressed. As a result, on 24 July 2024, Mr Wang “personally discussed the situation with Mr Keith, advising him to seek alternative employment”. Smart Dollar did not provide any detailed reasons for this decision, only that Mr Rutty’s performance was not satisfactory, asserting that the lack of diligence from Mr Rutty resulted in multiple work-related errors which adversely affected the business.

1. Mr Rutty filed very limited material with the Commission in support of his application. However, during the determinative conference, I found Mr Rutty to be forthcoming in his statements and generally appeared to be a credible witness. Mr Rutty states that Mr Wang informed him in July 2024 he would be out of the job, at the end of August 2024, due to his age. Mr Rutty disputes the assertions and version of events put forth by Smart Dollar.

1. A primary issue of contention between the parties was the conversation between Mr Rutty and Mr Sung, that Smart Dollar submit occurred on 12 June 2024, in which Mr Sung states he had a formal performance management discussion with Mr Rutty. Not having had the benefit of being able to question Mr Sung on his evidence, and noting the evidence of Mr Rutty to the contrary alongside his general reliability as a witness, I have formed the view that this conversation did not occur or if it did, the conversation was not of such a manner that Mr Rutty could have reasonably understood it to be a warning or formal performance management meeting. There are no accompanying notes or other evidence that this meeting occurred, and no written warning or similar was provided to Mr Rutty at the conclusion of the meeting.

1. Mr Rutty’s responses during the determinative conference were rational and appeared consistent with the, albeit limited, evidence before the Commission. I found Mr Rutty to be sincere in his explanation of events that occurred at Smart Dollar during his employment. For example, Mr Rutty did not deny that he accidentally provided Mr Wang with the wrong lamp for a customer. However, Mr Rutty states that this was an innocent mistake. Mr Rutty also clarified that this incident occurred over 12 months prior to his dismissal taking place.

1. Mr Rutty outlines that many of the customers of Smart Dollar were older and liked friendly customer service, which involved the expected level of verbal communication and what one may describe as a bit of chit chat. Mr Rutty notes that many of the other staff at Smart Dollar in Warnbro do not have English as a first language and, as a result, he would provide additional assistance with customer communication when required. Mr Rutty concedes that he did have his mobile phone with him during work hours, however, this was to enable communication with his daughter who, due to her medical issues and care needs, would occasionally need to contact him while working out of necessity.

1. Mr Rutty submits that he was not provided with any written warnings nor was he ever subject to any formal disciplinary proceedings during his employment with Smart Dollar. Mr Rutty said that, except for being told he was too old by Mr Wang, he has not been provided with a reason for his dismissal.

1. For an employer to terminate the engagement of a worker after the duration of employment that Mr Rutty had with Smart Dollar, there needs to be a valid reason giving rise to termination which is sound, defensible, or well founded. Smart Dollar has not provided any evidence that the conduct or capacity of Mr Rutty was such an issue that it gave rise to a valid reason and the right to terminate.

1. On the contrary, the examples of alleged problem conduct, and performance issues provided by Smart Dollar as contributing to Mr Rutty’s dismissal were vague, trivial in nature, infrequent, not supported by any notable evidence, and occurred well before the termination took place.

1. I have formed the view that Smart Dollar decided Mr Rutty was no longer required by the business and, as a result, they opted to terminate his employment without any care. Smart Dollar seems to rely on alleged conduct and performance issues, even if this was the case, it still enacted a dismissal without affording any due process or clarity to Mr Rutty. I note that the examples provided by Smart Dollar, concerning Mr Rutty’s performance, were not recent in the engagement and, on assessment of all that is before me, appear to have been brought up simply as convenient excuses in a desperate attempt to justify the problematic termination of Mr Rutty.

1. Mr Rutty may not have been the perfect employee for Smart Dollar and Smart Dollar may have had concerns over Mr Rutty’s performance, however, there is no evidence to suggest Mr Rutty was provided with any formal warnings in relation to the concerns held about his performance. Having met with Mr Rutty and understanding how important this job was to him; I am certain that, had Mr Rutty been given the opportunity to improve his alleged performance issues, he would have made all possible attempts to do so.

1. For the reasons outlined above, I have determined that there was no valid reason for the termination of Mr Rutty’s employment by Smart Dollar (s387(a) of the Act). As I have found there was no valid reason for the termination of Mr Rutty’s employment, there could not have been notification of a valid reason or opportunity to respond to such (ss387(b) – (c) of the Act). There is no evidence to suggest that Mr Rutty was unreasonably refused a support person (s387(d) of the Act). Smart Dollar submits that it did have concerns about Mr Rutty’s performance at work, however, I do not believe that these performance concerns were ever formally or reasonably addressed with Mr Rutty nor am I satisfied that the reason for termination was unsatisfactory performance (s387(e) of the Act). Smart Dollar is not a small business for the purpose of the SBFDC code, however, from its conduct during proceedings, it is evident that Smart Dollar is not a large employer and that they lack the required human resources management support in dealing with employment related issues. This lack of support and structure were factors that led to Mr Rutty’s employment being dismissed in a manner which lacked any of the expected or required formalities (ss387(f) – (g) of the Act). In determining the matter, I have also considered that Mr Rutty was engaged by Smart Dollar for over three years with no formal warnings or similar which could be produced into evidence. At the determinative conference, Mr Rutty explained that he had not been able to find new employment and the impact this termination has had on his family has been significant. Mr Rutty submits that his age impacts his ability to find new employment (s387(h) of the Act). 

1. I have made findings in relation to each matter specified in section 387 of the Act as relevant. Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of the Applicant was harsh, unjust, and unreasonable. There was no valid reason for the termination of Mr Rutty. The examples provided by Smart Dollar concerning Mr Rutty’s performance do not individually or collectively justify the termination of Mr Rutty’s employment and termination for such issues would be disproportionate. Smart Dollar’s termination of Mr Rutty cannot be supported by anything that has been put forth, and, of most concern, it appears that Smart Dollar was not concerned with the fact that the termination was unjustified.

Conclusion

1. I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act. The parties will be contacted regarding the programming of the matter to determine remedy.  

COMMISSIONER

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