Kelvin Rowe v Newland Food Company Pty Ltd

[2013] FWC 8806

[2013] FWC 8806

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kelvin Rowe
v
Newland Food Company Pty Ltd
(U2013/10328)

COMMISSIONER SIMPSON BRISBANE, 14 NOVEMBER 2013

Application for relief from unfair dismissal - Conduct did not justify Summary Dismissal - Compensation Ordered - Misconduct reduces amount.

[1] The following Decision, now edited, was issued during proceedings on 12 November 2013.

[2] This matter concerns an application under s.394 of the Fair Work Act 2009 (“the Act”) by Mr Kelvin Rowe (“the Applicant”) who alleges that the termination of his employment with Newland Food Company Pty Ltd (“the Respondent”) was unfair in accordance with the definition contained within s.385 of the Act.

[3] The application was filed on 7 June 2013. The matter was listed for a conference on 12 July 2013 where the matter did not settle. The matter was then listed for a hearing on the merits of the application, on 12 November 2013 in Brisbane.

[4] Directions were issued for the filing of material. The respondent’s material was filed somewhat outside the directions, but in any event, that did not prevent us from proceeding to deal with the matter. The respondent’s material indicated that it employed approximately 120 employees. The applicant in his evidence said that he was employed on a permanent full time basis. He commenced on 18 June 2009 and was employed until his termination on 21 May 2013 which is approximately three and a half years. He said he was employed as a process worker and worked the majority of his time in the bacon room, operating bacon slicing machines.

[5] The applicant said shortly after his probationary period, he was moved to night shift, working under Trevor Thomas the factory manager, and Matt Brown the bacon room supervisor, where his main duties involved moving stock, organising product for the next day, cleaning chillers and alleyways. He said when Matt Brown was absent he was given the opportunity to run the shift. He said that this night shift period ended after about two years from his commencement, and he returned to day shift. He said he was offered the role as bacon role supervisor, which I thought was actually leading hand according to the evidence. He said everything went well, and he got the job done as required and expected.

[6] He said at the beginning of 2013, the respondent changed management, and that a small crew was put back on night shift, and he was asked if he could run that, and Tim Westwood accepted that. He said that there were a lot of rumours in the workplace that there would be changes in the departments, and there was some other evidence to this effect from other witnesses in his case. He claimed that there were in the order of 10 people in leading roles that were no longer employed in the respondent’s organisation, though there is some dispute in the evidence around all this. The applicant claimed in his statement that it was clear that Mr Greg Lillington and his staff from his previous company were taking control of the respondent.

[7] He said that on night shift, they previously did all of the leftover bits and pieces from the day shift, and these jobs did not produce much in the way of good tonnage. So the figures were always low. He said he had two girls on his crew that had been at the respondent for a combined total of nine years, and he had 100 per cent confidence in them. He said he would set them up to do jobs and leave them to do it and he would go and do other jobs, because he would spend some time away from them, but he still knew what was going on.

[8] On this issue, to the extent that it is relevant, the evidence was never completely clear as to the precise reasons as to why the applicant was removed from night shift leading hand role, a decision taken that he was advised of on 20 May. There was in evidence a copy of a document which was admitted as exhibit 4 which was a letter to him which he acknowledged he received on 20 May. It reads as follows:

Kelvin, as you’re aware, the company is going through a lot of changes and restructuring to ensure the ongoing future of the company is secure for all. Part of this restructuring is ensuring that we have correct personnel in the correct areas. Production under your guidance on the evening of 20 May was in no way satisfactory with the number of personnel available, and as a company striving on to survive in this environment, we cannot support this. We wish to advise you that effective Wednesday, 22 May, you will be transferred back to the day shift where you will fill a position on the production line in the processing section of our operation. Can you please make yourself available to commence tomorrow morning and we will not require you to work tonight but you will be paid eight hours in lieu of it. You will be paid your 15 per cent loading until Tuesday, 28 May, which is seven days notice, and the leading hand bonus will cease to be part of your weekly wages from 28 May.

[9] It appears there are some errors in the dates in that letter but it is common ground that the letter was provided to the applicant on 20 May. So to that extent, in view of those errors in terms of the date of the letter and other dates in there, that was the reason given. The applicant clearly asserts from his evidence that it was in connection with comments it would appear made about him to managers in relation to being away from the workplace for a period, although the evidence was never clear on this point.

[10] Ms Sue Otto gave evidence in the respondent’s case today. The applicant objected to Ms Otto giving evidence as no statement had been filed by the respondent from her. However I decided to allow her to give evidence on the basis that the respondent conduct its case first and that the applicant was at liberty to raise concerns if he believed he was being prejudiced by this course. I dealt with the evidence on a more inquisitorial basis, given the circumstances of the applicant being self-represented. I thought it was preferable we try and deal with the matter today rather than looking at the prospect of having to come back on another day because of the circumstances.

[11] In terms of Ms Otto’s evidence, it included that she believed the applicant felt threatened about his position in the period leading up to his termination and that he had been the source of rumours in the workplace about what had been happening. She also claimed that he had been warned not to raise levels of concern about changes with other staff but that he had persisted in doing this. She claimed this had happened on numerous occasions. The evidence was not particularly precise in relation to when these warnings were alleged to have been given and the employees that they were in regard to. It was not a matter that the respondent ultimately relied upon at the time of termination as a basis for termination, as far as I can elicit from the evidence. Therefore I have not regarded those warnings as being particularly relevant to me making a finding in relation to this application, although they provide some context.

[12] Ms Otto confirmed that it was Tim Westwood, in her evidence, the applicant’s supervisor at the time that had made the decision on the day of the 21st to terminate the applicant and it was not her. Although she said he did speak to her about the decision to terminate beforehand, it was his decision. The respondent has not called Mr Westwood to give evidence in this case. This has meant the respondent has not been able to bring direct evidence from the decision-maker in the case about the reasons for dismissal in a case of summary dismissal. The applicant said in his evidence the termination by Mr Westwood occurred - I think it was in the order of 10 to 15 minutes after the incident that the evidence indicated occurred in the QA, the quality assurance room, on the afternoon of 21 May, and that he was given no opportunity, he claimed, to speak to Mr Westwood about the reasons.

[13] Ms Otto was obviously unable to give any direct evidence on this as she was not present during the exchange between the applicant and Mr Westwood. Ms Otto agreed in her evidence that there was no investigation that took place into the allegation made by Mr White to Mr Westwood that led to the applicant’s dismissal. Ms Otto raised an issue in her evidence about the amount of leave that the applicant had been taking during the last 10 months of his employment but as the evidence unfolded I am not satisfied that it has any bearing on determining this matter.

[14] Ms Otto also gave evidence about text messages that she had been receiving from the applicant post his employment, and I will deal with that in some more detail later. Coming to the events of 20 May, the applicant said on that day before his shift started at 2.45 he was told that he was being demoted and had to go home due to poor performance as a supervisor and that someone had gone to Greg Lillington and said that on that night he and Matt Swanson, who was in charge of the raw meat section, had disappeared for three hours. As I have already said, this appeared to be the applicant’s understanding of the reason. He said he was in disbelief and devastated about this in his statement.

[15] Mr Swanson said on 20 May he was off work sick. Mr Swanson gave evidence today, as well as providing a statement. He said that he got a phone call from Mr Westwood saying that Kel, being the applicant, and he had been demoted and to report at 6 am the next morning to start as a worker. He said he was not given any reason. The respondent called some evidence and cross-examined Mr Swanson about his own termination of employment which arose out of some text messages. Mr Swanson was fairly direct in his evidence, acknowledging the fact that he had done the wrong thing in relation to his termination. To the extent that those events occurred and appear to be accepted that they occurred from Mr Swanson, they do not go directly to the central issues in terms of the sequence of events on 20 May and the 21st as they go to the applicant’s circumstances. So to that extent I do not see them of themselves necessarily being a basis to disregard the evidence of Mr Swanson.

[16] Going to those issues, the applicant said that the next morning both he and Mr Swanson arrived at work ready to start at 6 am. The applicant said that they asked if they could have a meeting with Greg Lillington so they could get some answers as to why they had been dropped from their positions. Mr Swanson said that they asked to speak to the general manager so they could get some idea of what they had done wrong. The applicant said that Mr Westwood called Mr Lillington and subsequently advised the applicant and Mr Swanson words as follows:

“He isn’t interested nor cared what we had to say and if you don’t start work immediately, you will be sacked.”

[17] This evidence was not challenged by the respondent in the course of today’s hearing as such, although it would have been obviously difficult for the respondent to challenge them in the absence of Mr Westwood or Mr Lillington to give evidence.

[18] Mr Swanson’s version was that they were told to “get to work or you are sacked”. Mr Swanson said he needed time to think so he decided to go home. That was in his written statement. In his oral evidence he said he had dental issues and he went home because he had a sore mouth. He said he was called later that day by Mr Westwood and told that the applicant had “been sacked for telling one of the workers to watch his back as he had been telling people that we were not doing our work”.

[19] The applicant said that he went to work that day, the 21st, feeling humiliated and embarrassed. The applicant said that he learned that morning that it was one of the new workers that he recommended to hire that had complained about him not being around much and that he was a bad supervisor. Again, there was a paucity of any evidence to support why the applicant had that view and the applicant did not give any himself today, nor did he seek to elicit it from anyone else, including Mr White.

[20] The applicant said the name of the person was Michael White and his partner was Simone from the QA department. The applicant said Simone was starting the night shift the next week. The applicant said that when the next shift was starting he was - this was on the 21st - he was so angry he went into the QA office and told Michael White he was a dog and to watch his back. The applicant said that he returned to the factory where shortly after Mr Westwood came in and fired him for threatening another worker. The applicant said the threat, in his view, was minor compared to some of the things that he was aware of that had happened in the workplace and he gave the example of Matt Brown, who he described as his old boss, telling Sue Otto, who gave evidence today for the respondent - the daughter of Sue Otto that, “Sue needed a bullet to the head.” The applicant said that Matt - Sue’s daughter needed a bullet to the head.

[21] The applicant said that Matt Brown never got fired for that and that Sue was furious. He said that Sue Otto was second in charge at the time. Matt Brown gave evidence to confirm he said those words to that effect in 2012 and that Sue Otto wrote up a written warning about that for the general manager but that it was never signed. He gave evidence also in support of the applicant’s attitude and work ethic. Ms Otto did not give any evidence particularly on the incident involving Mr Brown, albeit that was in the material that the respondent had in advance of the hearing. So I take it that that material was not contested.

[22] The respondent’s submission claimed that the applicant’s conduct was serious misconduct. It is said that the employee, Mr White, advised the factory manager, Mr Westwood, that he was seriously concerned for his safety and so fearful that he left work for the rest of the day and asked if his partner, Simone Boyce, could leave too as he feared for her also. This is not inconsistent with Mr White’s own oral evidence today, albeit the evidence was that Ms Boyce’s shift was finishing shortly after in any event.

[23] The statement of Mr White was as follows:

I was in the QA office with Simone Boyce and Casey Loseby about to start work. Kelvin Rowe walked into the QA office and said to me, “Here’s the dog.” I said to him, “What,” then he said, “You heard me,” paused and told me, “You better watch your back,” in front of Simone Boyce and Casey Loseby. I was unsure as to what to do about the situation. Casey told me to report it to Tim Westwood, if not she would as it was a threat. I notified Tim Westwood of what had happened, and he then went and told Kelvin Rowe he no longer had a job. Kelvin Rowe and Tim Westwood came back into the office and Kelvin Rowe clocked off on his timecard and said, “You’re all a bunch of gutless cunts,” and slammed the door. I was very worried about the threat he had made to me as I was on the night shift with a small amount of staff. I told Tim Westwood that I was worried and he said that I could go home if I wanted, just to be safe, which I did as I was concerned for my own safety.

[24] I note there was no cross examination at any stage in relation to the comments that Mr White attributed to Mr Rowe after he had clocked off on the day of his termination. The statement of Ms Boyce regarding the same incident was as follows:

I was in the QA office with Casey Loseby and Mitchell White, and Kelvin Rowe came into the QA office to get some gloves. He looked at me and said, “Here’s the dog.” Kelvin believed that Mitchell was the reason he was demoted from night shift to day shift, not because he wasn’t doing his job. To then Mitchell White responded with, “What,” and Kelvin Rowe then said, “You heard me,” and started to walk away and said, “You’d better watch your back,” and then walked out.

[25] Mr White in his oral evidence was somewhat inconsistent with his written statement in that he said the applicant left the room after making the first comment that, “Here’s the dog,” and then returned to the room for the second part of the exchange. This is inconsistent with his written statement, is inconsistent with the statement of the applicant, and is also inconsistent with the statement of Ms Boyce. It appeared uncontested though that the comment about Mr White watching his back was made as the applicant was departing the room. Certainly it is clear that there was never a contest that the applicant did say words to the effect as asserted by Mr White and Ms Boyce.

[26] Mr White’s description of the applicant was that he looked irritated. His description was not, in my view, a dramatic one by any measure. Mr White said he reported to Mr Westwood what had been said to him. The evidence supported that he did so after Casey Loseby suggested that he should do so. Mr White said that he hadn’t worked for the respondent very long and he knew nothing about the issue.

[27] He said he and the applicant had worked alongside each other previously and that history together had been good. It appeared to me Mr White appeared to draw no great distinction in his mind about how the words themselves were said to him by the applicant, but it was the words themselves that mattered. He described the physical space of the room to be in the order of three by three square metres, and the applicant was standing about a metre and a half away from him when the comments were made.

[28] Ms Boyce’s evidence was consistent in that she said the applicant came into the room to get his gloves, but he did not leave the room and return, as asserted in the oral evidence of Mr White. Interestingly she described in her evidence the applicant as otherwise a pretty good fellow. She also agreed that she got on, in her words, pretty well with him. There was no suggestion in any of the evidence of raised voices or overtly aggressive conduct by the applicant. Ms Boyce agreed the applicant made the comment as he was walking out of the room.

[29] The applicant said that he wasn’t given a caution or warning in relation to this, and that he had never had anything like this happen before in his time with the respondent, and that it had been trouble free. He said after the incident in the QA room he went back to work and, as I said earlier, was approached by Mr Westwood about 10 to 15 minutes later. In his evidence the applicant said this, that Mr Westwood approached him and said words to the effect, “Kel, there was a situation in the office about 15 minutes ago.” The applicant said he asked, “Are you going to fire me,” and he said Mr Westwood said yes.

[30] Matt Swanson said that the applicant’s job involved a range of different activities. He gave an opinion about the reasons for the applicant’s termination in relation to restructuring, but I don’t see that as being central in the matter. Mr Davidson similarly gave evidence about his theories for why he believed that the termination occurred. I don’t think there’s sufficient evidence before me to conclude that, as has been asserted by witnesses for the applicant, that the reasons for the termination were in connection with a broader agenda to restructure out of the organisation all people who had been in supervisory or leading hand positions. Look, I cannot exclude the possibility of that, but there is insufficient evidence for me to be satisfied that was in fact the agenda as asserted.

[31] The applicant said that since his termination he has learned that the new dispatch manager went to Greg Lillington and said that he and Swanson were missing on the night. Again, he did not give any evidence as to how he learned that. For all intents and purposes it is not central in any event. But certainly the applicant has been unable to make out a case that Mr White was the source of that information on the evidence before me, and Mr White’s evidence would certainly indicate, certainly observing him in the witness box, he appeared to be at a loss as to why the applicant approached him in the way he did on that day.

[32] The applicant said that he was so down after his dismissal he sent a series of text messages to Sue Otto many times asking for his job back and wanting answers as to the reasons for dismissal. He said he did not receive a response to this and did not know why he was fired. He said he sought compensation in the order of 26 weeks.

[33] In terms of dealing with unfair dismissal applications, I need to consider the criteria under s.387 of the Act. In considering whether the tribunal should be satisfied that a dismissal is harsh, unjust or unreasonable the commission must take into account firstly whether was a valid reason for the dismissal related to the person’s capacity or conduct, including its effect on the safety and welfare of others. Now, Ms Otto confirmed, as I said earlier, that Mr Westwood, the applicant’s supervisor, had made the decision to terminate the applicant, and it was not her, and while she did speak to him before he advised the applicant of the decision, she was not the decision maker.

[34] The respondent has not called Mr Westwood to give evidence in the case. This has meant that I am having to deal with the application on the basis of hearing no direct evidence from the person who made the decision to summarily dismiss the applicant. As I have said, Ms Otto agreed in her evidence that there was no investigation into the allegation made by Mr White that led to the dismissal. The respondent has made its case on the basis that it regarded the conduct as serious misconduct.

[35] The definition of “serious misconduct” is included in the Fair Work Regulations section 107. That definition in section 12 of the Act is said to have its ordinary meaning. For “serious misconduct” that is for sub regulation (1):

1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For sub regulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For sub regulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Sub regulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.

[36] Considering the evidence before me, I am not satisfied that on the facts of this case the conduct of the applicant on 21 May in the course of his verbal exchange with Mr White or the comments he directed at Mr White in the QA room constituted serious misconduct for the purposes of the legislation justifying summary dismissal.

[37] The applicant in his evidence was forthright in admitting he was angry at the commencement of the shift because of his demotion effectively. It appears from the evidence that both the applicant and Mr Swanson had sought to challenge the basis of the decision for them to be removed from night shift leading hand roles, and management did not appear to provide them with any process or opportunity to respond to the challenge they made to that decision or inquiries at least as to why it had happened.

[38] As I said, the evidence was that the applicant had been handed a letter on 20 May telling him of the reasons for the decision, but attempts by him to query that decision on the morning of 21 May appeared to be rebuffed. In the circumstances, it is my view that the applicant had some justification in being disgruntled on the day.

[39] The evidence is that the applicant had formed the view that the reason for his demotion were comments of Mr White’s, but as I have already said on a number of occasions, there is no clear evidence to support any basis for him having reached that conclusion. Mr White in his evidence, as I’ve said, indicated he had no idea why the applicant had said to him what he had said. He didn’t know why he thought he had been targeted. There is no doubt that the conduct of the applicant exhibited towards Mr White on the afternoon of 21 May was not appropriate and warranted disciplinary measures being taken against him on the basis of that conduct.

[40] To call an employee a dog and to say that, “You’d better watch your back,” it is not surprising is going to potentially have impacts on that employee in terms of how they may interpret those comments. However in the particular facts of this case, that conduct in my view did not justify summary dismissal on the day. Counselling or a warning may have been more appropriate. It certainly would have been appropriate to more thoroughly investigate what had occurred rather than to summarily dismiss as Mr Westwood did. I say these things because the evidence is not that the applicant entered the personal space of Mr White or that there was any indication the applicant may have been intending to physically assault Mr White.

[41] As I said, Mr White indicated the dimensions of the room were around three by three metres. The applicant said four by four. In any event, it is common ground the applicant entered the room for the purposes of collecting gloves. It would appear that he did have a reason for visiting the room other than to confront Mr White, although he did say in his own evidence he was angry when he entered the room. Mr White said that he was in the order of about one and a half metres from the applicant. So at no time was he in close proximity to the applicant. It is common ground that the applicant and Mr White were both standing while the two women in the room were seated. It is also common ground that the comment, “You better watch your back,” was made by the applicant as he was departing the room.

[42] There was not the suggestion that he eyeballed or confronted Mr White in a menacing way. There is no evidence that the applicant had ever conducted himself in a manner of a similar nature before. So there was no evidence of a pattern on the part of the applicant in this regard. In fact the evidence appeared to be to the contrary. Both Mr White and Ms Boyce indicated that they had previously had good relationships with the applicant in the workplace. Mrs Boyce, as I said, going as far as to say that he was a pretty nice bloke or something to that effect. However the evidence was not that the words were said in a raised voice. The highest it got was that Mr White described the applicant as agitated; Ms Boyce, angry. Certainly the tone of the exchange was not one that would point to it being alarming.

[43] It appears the primary reason for the respondent moving to summary dismissal was the view that the words spoken by the applicant constituted a threat to Mr White and potentially also to Simone Boyce, and also how those comments were perceived by those two employees. Mr White gave evidence that he interpreted the comments as a threat. It is possible however that the words could have been interpreted in a number of ways. It is possible that the applicant had intended to threaten Mr White. That cannot be completely excluded. However it could never have been more than a possibility on the evidence that I’ve heard today. As I have said, he could have meant a number of things. The applicant should have had an opportunity to put his side of the case. Instead the respondent drew only one conclusion about what could have been intended without looking into the matter any further.

[44] On the balance of the evidence that is before me, I am not satisfied that the threat was of a nature that constituted justification of summary dismissal because it was serious misconduct. I also make the observation that the applicant and Mr White were of not dissimilar physical stature. Mr White said that he was about I think 28 years of age, whereas the applicant appears to be middle-aged. The applicant appears slightly taller, although it would appear Mr White to me is slightly broader and heavier.

[45] The reasons for termination, namely that the applicant posed a threat to the staff, need to be objectively assessed. The evidence is the applicant had no history of having threatened any other employees physically or verbally. There is evidence that the applicant appeared to be an efficient and effective employee in other respects during his employment, certainly up to at least 20 May when he was removed from the leading hand role, although there was never a real opportunity for him to understand the reasons for that. So the incident needs to be seen in that broader context where the applicant had been given no opportunity to engage with the respondent about the decision made the previous day to demote him.

[46] The text messages that were admitted into evidence and provided by Ms Sue Otto in her evidence to me disclose a hint of desperation on the part of the applicant. They do not in tone show any indication that the applicant posed a threat or danger to the recipient Ms Otto at the time. Certainly it was evident to me Ms Otto was concerned about the fact that they were repeated and that they were being received at unusual times of day. But of themselves they do not appear to indicate any threat being made to Ms Otto.

[47] I am concerned about the matters raised in those messages by the applicant in relation to particularly those on 26 May and 28 May about the conduct of other employees and why the applicant did not raise these issues at an earlier point. Certainly these matters were raised after the termination. They appeared to have borne no bearing on the reasons for the respondent arriving at conclusions to terminate the applicant. Ultimately these matters related to the direct conduct of others, not the applicant. It’s certainly arguable the applicant had a duty to have reported the matters at the time. There is limited evidence regarding how the respondent dealt with these. Certainly there is evidence that Mr Swanson was terminated arising out of the text messages that were the subject of the reference to 28 May in the texts from the applicant to Ms Otto.

[48] In relation to 26 May, the applicant said in his evidence that he was following a direction from his supervisor Mr Westwood. In relation to 28 May, he said that he spoke to the female staff in question, and they said to him they did not see the text messages as serious or that Mr Swanson should be reported to management. Unfortunately none of the staff were called to give evidence about these particular issues, and none of the text messages that were referred to in relation to the female staff or sent to female staff by Mr Swanson were submitted into evidence. So I am unable to draw conclusions about the extent to which there should be adverse views formed about the applicant in not raising those matters with management earlier. It somewhat limits my ability to be able to draw adverse findings more broadly about those issues.

[49] Overall in summary of all of the matters that I have set out above, I am not satisfied that the respondent had a valid reason for termination. In terms of the other considerations under s. 387, I need to decide whether the person was notified of the reason. The evidence is that the applicant was told of the reason for termination on the afternoon of 21 May by Mr Westwood and dismissed summarily. In relation to s.387(c), whether he was given an opportunity to respond to any reasons related to capacity or conduct, it is clear that the applicant was given no opportunity effectively to respond to the allegation Mr White made against him that he had threatened Mr White, and further that there was no investigation into the circumstances surrounding what occurred in the QA room that afternoon.

[50] In relation to s.387(d), whether or not there was any unreasonable refusal by the employer to allow the person to have a support person present to assist in any discussions relating to the dismissal, clearly as it was a summary dismissal, there was no opportunity afforded for a support person for obvious reasons. In relation to s.387(e), in terms of unsatisfactory performance, it would appear to me this is not a relevant factor in this case. In terms of s.387(f), in terms of the size of the employer being a relevant factor, the evidence is the respondent had in the order of 120 employees. So I do not see that as particularly relevant, nor do I see is the argument as to whether or not there was an absence of dedicated human resources management specialists.

[51] In relation to other matters that are relevant, I do think the impact on the applicant has been particularly severe. The evidence is that he has suffered considerable obvious economic loss in circumstances where it appears to have generally had at least until 20 May a reasonably good employment record. He has suffered depression. Effectively his evidence is that he sought medical support on the basis of the termination. The evidence would appear to be that there is a direct causal link between that and the termination itself and other factors including potential loss of his house.

[52] Having considered all of the relevant factors under s.387, I am satisfied that the impacts on the applicant have been harsh and the termination was unfair. I now need to consider remedy. The applicant has been clear that he doesn’t seek reinstatement, he seeks compensation. I am going to award compensation but there is going to be a reduction based on a number of factors, which I’ll go into, including length of service, conduct contributing to the decision and also some uncertainties in relation to the future in this workplace for the applicant.

[53] In terms of remedy, an order for payment of compensation to the applicant must be an order that the person’s employer at the time of dismissal pay compensation in lieu of reinstatement. In terms of the criteria in determining the amount that’s appropriate, I need to consider the effect of the order on the viability of the employer’s enterprise. There’s no evidence to the effect that an order for compensation would affect the viability of the respondent.

[54] In terms of the employee’s length of service, it was in the order of about three and a half years. Now, that’s not an inconsiderable time but it’s also not a particularly long time in the broader scheme. In terms of the remuneration that the applicant would have received or would have been likely to receive if he had not been dismissed, I need to assess, given the uncertainties in the environment the applicant had been working in, if there had been significant changes occurring in restructuring. According to the respondent today, a recent sale of the business. I can’t be satisfied that the applicant would have continued employment for a period of more than six months. I also take into account, as part of that consideration, that the applicant’s period of employment was, as I said, while not inconsiderable, not particularly lengthy.

[55] In terms of the efforts to mitigate the loss by the applicant, certainly the evidence would be that the applicant did make efforts to mitigate his loss. He gave evidence that he ultimately gained employment as a casual on around 12 October. He gave evidence that due to the status of his citizenship, he’s been unable to claim Centrelink benefits. He had clear incentive to try and gain employment in the circumstances, although he has said that his efforts have been hampered somewhat by the depression that he’s been suffering as a result, as he said of the termination. In any event, I’m not going to make a deduction in compensation on the basis of failure to mitigate.

[56] In terms of the amount of remuneration earned from employment or other work during the period between dismissal and today, it is really the information that I’ve already set out above and that the applicant commenced new employment from 20 October. In terms of the amount of any income reasonably likely to be so earned by the person during the period between the order and the actual compensation, well, look, the circumstances are that it’s my intention to do as follows: I have calculated that the likely earnings of the applicant, had he remained employed, would have been $733.40 per week based on a 38 hour week, times by 26 weeks, that would be in the order of $19,068.

[57] However, I have concluded also in terms of other matters that are relevant that the dismissal has been harsh for the applicant, as I’ve said, economically and on his health, but also I need to consider deduction in terms of misconduct. I intend to discount the amount at 50 per cent on the basis of the applicant’s misconduct. I do so because the statement made to Mr White or the statements made to Mr White on the 21st were clearly inappropriate, ill considered and not an appropriate way for the applicant to have conducted himself.

[58] It appeared from the evidence it did cause distress to Mr White and Ms Boyce, and it is important that conduct is factored into the calculation of appropriate compensation and is not ignored by this tribunal. The applicant acknowledged the inappropriateness of his actions and has offered to, and claims to have apologised to Mr White. On that basis, the figure of compensation I have calculated has been reduced to $9,534. It is less than the compensation cap. It will need to be taxed as it is a gross figure.

[59] I have no capacity to order anything further arising out of any shock or distress suffered by the applicant as a result of the termination. An order to this effect will be issued.

COMMISSIONER

Appearances:

Mr Rowe, Applicant

Mr Wurth for the Respondent

Hearing details:

Brisbane

2013

November 12

Final written submissions:

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