Kerrin John Gooley v Hybrid PG Pty Ltd atf Hybrid Property Group
[2023] FWC 2901
•3 NOVEMBER 2023
| [2023] FWC 2901 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kerrin John Gooley
v
Hybrid PG Pty Ltd atf Hybrid Property Group
(U2023/1318)
| COMMISSIONER HUNT | BRISBANE, 3 NOVEMBER 2023 |
Application for an unfair dismissal remedy – employer terminated permanent employee, attempting to make him a casual employee – employee refused – dismissal effected by employer – dismissal unfair – compensation awarded
On 20 February 2023, Mr Kerrin Gooley made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that he had been dismissed from his employment with Hybrid PG Pty Ltd atf Hybrid Property Group (the Respondent) and that his dismissal was harsh, unjust and unreasonable.
On 21 February 2023, Mr Jaydin Lee, Mr Gooley’s stepson, made a similar application under s.394 of the Act, alleging that he had also been unfairly dismissed from his employment with the Respondent. Both matters were allocated to my Chambers, and on 31 March 2023, I caused an email to be sent to Mr Lee, Mr Gooley and the Respondent outlining a proposal to join the matters based on the similar circumstances of the applications. The parties did not object to the proposal, and as such, the matters were dealt with together. A Decision in respect of Mr Lee’s application has been separately issued in [2023] FWC 2900.
The Respondent’s aviation business provides laundry services to various businesses, including Qantas. On the Gold Coast, the Respondent has two businesses in close proximity; AllClean Premium Linen Hire and Laundering Service in Burleigh Heads and its aviation laundering business known as ‘Dover Warehouse’.
Mr Gooley nominated his dismissal date as 17 February 2023. He did, however, perform work beyond this date as will became clear.
In the Form F3, completed by Mr Patrick Cooper, Director, on 24 February 2023, the Respondent stated the following:
“Q: What date did the employer notify the Applicant of their dismissal?
A:The employee wasn’t dismissed the applicants classification was changed from Fulltime to Casual on 11 February 2023.
Q: What date did the dismissal take effect?
A: 18 February 2023 the re-classification took place
Q: What were the reasons for the dismissal?
A:There has been a downturn in turnover and the Applicants department role is in oversupply and no longer sustainable as a full time role.”
One of the Respondent’s reasons offered in response to Mr Gooley’s assertion in his application that his dismissal was unfair was the following:
“… the staff member is approaching staff on the floor, making threats to fly to Sydney about his Super and is also encouraging other staff to make Fair Work Claims, the staff member is problematic since the change and a number of staff are refusing to work with him as he spends most of his working hours on the phone.”
Directions were issued for the filing of evidence and submissions and the matter was listed for hearing on 29 May 2023. Mr Gooley appeared in relation to his application and was represented by his father, Mr Kelvin Gooley. Mr Lee appeared and represented himself. The Respondent was represented by Mr Cooper. Due to the nature of the matter, I considered it appropriate to conduct the matter as a determinative conference.
A further determinative conference was convened on 29 June 2023. The continued determinative conference on that day largely dealt with Mr Gooley’s matter. I excused Mr Lee’s attendance on this day as he was working with a new employer.
Relevant Legislation
Section 394 of the Act provides:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b)within such further period as the FWC allows under subsection (3).
(3)The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) Fairness as between the person and other persons in a similar position.”
Further, ss.385 and 387 provide as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c)the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
“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.”
Sections 382 and 383 of the Act state:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a)the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
“383 Meaning of minimum employment period
The minimum employment period is:
(a)if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
Section 384 relevantly states:
“384 Period of employment
(1)An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a)a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the time when the person is given notice of the dismissal; and
(ii)during the period of service as a casual employee, the employer had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.”
Section 22 provides the definition of “service” and “continuous service”. It relevantly states:
“22 Meanings of service and continuous service
General meaning
(1)A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i)a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or
(ii)a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii)a period of leave or absence of a kind prescribed by the regulations;
(c) any other period of a kind prescribed by the regulations.”
Section 386 of the Act relevantly states:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
Section 389 of the Act states:
“Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a)the person’s employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b)the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2)A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
Minimum Employment Period
The Respondent noted that it employed 80-100 employees at the time when Mr Gooley’s employment came to an end. Accordingly, pursuant to s.383(a) of the Act, the minimum employment period is 6 months.
Mr Gooley stated that he commenced working at the relevant laundry business in June 2022, with the Respondent taking over the business in July 2023. He maintained that he had continuous service between the entities. Upon taking over the business, the Respondent did not inform Mr Gooley in writing that his earlier service would not be recognised pursuant to s.384(2)(b) of the Act. I am satisfied that Mr Gooley had a minimum of six months’ service.
Was Mr Gooley dismissed?
To determine if Mr Gooley was dismissed, it is necessary to traverse the events of February 2023. Mr Gooley had been employed as a permanent, full-time employee.
Mr Gooley sent Ms Nic Cooper, Operations Manager a text message on 10 February 2023 requesting that his accrued leave hours be included on his next payslip. He planned to take some annual leave.
On 11 February 2023, Mr Cooper emailed Mr Gooley and blind copied in one or two other employees (as I understand) as follows:
“Dear Valued Employee,
Due to a significant downturn in ordering volumes and requirements from our major client Qantas, Hybrid has been forced to make a number of structural changes to our existing employment structures.
It is with deep regret therefore that we advise you that your Full Time position with Hybrid PG Pty Ltd has been terminated with one weeks notice effective today 11 February 2023.
We are however able to offer you a Casual Position where you will be notified weekly of your hours on the Friday before in advance. This will allow us greater flexibility given the uncertainty of orders associated with the aviation industry.
All entitlements owing to you will also be paid with your final pay with your employment structure then reverting to a Casual Basis/Classification.
Should you have any queries please do not hesitate to contact Nic Cooper our Operations Manager.”
Mr Gooley stated that he did not receive the above email. On 14 and 15 February 2023, Mr Gooley sent emails to Ms Cooper chasing up his superannuation payments as he had reviewed his superannuation account and discovered he hadn’t been paid superannuation by the Respondent since the Respondent took over the business in August 2022. Mr Gooley asked Ms Cooper to check to ensure the superannuation had been paid to his correct account because he had not received it.
On 15 February 2023, Mr Gooley had a missed call from Mr Cooper on his phone. The voicemail left by Mr Cooper is as follows:
“Nic has passed on your inquiries into super and that all the details are correct, and we are getting around to it, hopefully you’re not offering to retire in the next couple of weeks. We are arranging to have all of your entitlements paid to you and then we will be re-classifying you to a casual as of next week. Any dramas just drop us an email, it’s easier.”
On 15 February 2023, Mr Gooley received an email from Mr Cooper titled “Leave and super”. His correspondence included the following:
“Lastly in reference to the Super we are across the super, we have verified account details and so on we will be making payments shortly.
It is monitored by the government in the event we don’t pay you will receive interest so need to come down to Sydney and make sure it’s paid (as that’s what I was told you would do ha ha).”
Mr Gooley then wrote the following email to Mr Cooper on 16 February 2023:
“I refer to your email titled “Leave and super” sent to me on Wednesday the 15th of February. In this email you write “Further to my previous email that you may have missed, you have now been re classified to Casual”
I would like to confirm that the employment contract that commenced on the 8th of August 2022 that was signed by Yourself, myself and witnessed by Sheree Stevens, states I was on a 6 month probation period which should have expired on the 8thth of February 2023. As I have not received any formal communication on unacceptable work performance during my probation period and I do not acknowledge receiving any communication from you or any official representative of the company in relation to change of employment during the probation period, then I believe I am engaged as per the company letter of offer.
So for the record, I would like to officially inform you I do not voluntarily accept the offer of a casual employment arrangement and ask that the employment agreement of 38 hours per week as offered by you and accepted by me in the agreement titled “Full time employment contract” dated the 11th of August 2022 is honoured.”
On 16 February 2023, Mr Cooper replied to Mr Gooley as follows:
“Kerrin
This has nothing to do with your performance nor a probation period there has been a down turn in business and several staff have been changed to casual. we cannot longer afford to have as many people on full-time at the moment and we are over supplied in the sorting area.
If you do not want to accept this offer to change to Casual, then kindly accept this is one weeks formal notice that you can finish up next Friday with Hybrid Aviation thank you for your service.”
On 17 February 2023, Mr Gooley responded to Mr Cooper as follows:
“Hi again Patrick,
As in my last email, I don't volunteer to change my status from full time to casual, however, please send through my hours for next week as mentioned, you would let me know my hours Friday for next week.
I would also like to take this time to mention, there was no formal one week's notice by yourself or another representative of Hybrid, to inform me of these employment status changes and secondly, no one consulted with me, what impacts this may have on myself or my family. There was no discussion between Myself and Hybrid regarding the changes and the impacts it may have.”
Mr Cooper responded the same day to Mr Gooley:
“Kerrin
Thanks for your email.
You have been provided notice.
No one has asked you to volunteer going to casual it’s is your right to say no that’s fine.For the purpose of clarity we have sustained a downturn in requirements from our clients and a number of our employees have been advised that we can no longer offer full time hours.
You have received your notice and you have now received your payslip for your entitlements.
You appear to be becoming across as problematic and wanting to be difficult about this matter, one minute you email me and then take yourself off and call Fairwork and then come back again and raise another issue.
You have your notice, and you will receive your entitlements in this Thursdays pay run -your classification has been changed.
If you don’t want to to go Casual then I have no option to terminate your employment with one weeks notice from today.
I will advise you by close of business today of your hours for next week either take it or leave it, however it is pretty clear where you are going with this.”
Later that afternoon, Mr Cooper emailed Mr Gooley the following email with casual hours to be worked the following week:
“Hi Kerrin
Sorry for the reply as Qantas only give us the weekly requirements late Friday.
Your hours next week will be as follows:
1. Wed 8-2pm
2. Friday 8-3pm
Please let me know.”
That night, Mr Gooley replied to Mr Cooper as follows:
“Hi Patrick
Thank you for the correspondence in relation to the available hours for me next week. As these are the only hours you are offering me and as you state, “take it or leave it”, I will take these hours as I have a family to provide for. I am both saddened and disappointment that I was not consulted in this matter and the option being forced upon me will have a major impact on my family and I.
I will report for work as requested by you on Wednesday at 8.00am. For the record, by reporting to work on Wednesday at 8.00 am as my first shift for the week, please do not assume I accept being reduced to casual employment, nor do I accept or agree with the manner in which this matter has been forced upon me with absolutely no consultation in relation to the impact this change will have on my family and I.
Patrick, I have worked hard for your business and always taken pride in doing the best I can for the business, no matter what the task is I was doing. I believe the lack of respect shown to me and the intimidation and bullying being demonstrated by you as a company director is unacceptable at all levels.
Thank you for taking the time to read my response.”
Mr Gooley worked the two casual shifts that week, being Wednesday 22 February 2023 and Friday, 24 February 2023. On 24 February 2023, the same day that Mr Cooper completed the Form F3 Employer Response, Mr Cooper sent Mr Gooley the email below:
“Kerrin,
Your hours for next week are as follows:
8am-12pm- Mon to Fri
Please confirm thank you have a lovely weekend.
Many thanks”
Later that day, Mr Cooper sent the following email to Mr Gooley:
“Kerrin,
unfortunately we have no hours for you next week please disregard my previous email which you haven’t managed to respond to as yet.
Thanks and have a nice weekend.”
Mr Gooley’s written employment agreement specified at clause 24.2 that following a six-month probationary period, if the Respondent wished to terminate Mr Gooley’s employment, he would be entitled to a period of four weeks’ notice. During the determinative conference, Mr Cooper asserted that this was an ‘error’.
It is clear that the Respondent terminated Mr Gooley’s permanent employment and offered to him casual employment. In written correspondence of 17 February 2023 at [29], Mr Gooley informed Mr Cooper that he did not accept his employment being ‘reduced’ to casual employment, nor the manner in which the Respondent went about reclassifying him. He confirmed only that he would report to work for the two days of work.
I find that at no time did Mr Gooley accept being made a casual employee. The pay rate paid to Mr Gooley remained the same at $28.01 per hour, as evidenced on the payslip at page 45 of the Digital Court Book. Mr Cooper had stated in writing to Mr Gooley at [27] that it was ‘fine’ to say no to being reclassified as a casual employee. That is what Mr Gooley did; he did not accept the reclassification.
I find that Mr Gooley’s employment was terminated at the initiative of the Respondent on 15 February 2023 when it was communicated to him and Mr Gooley received that communication. I do not find that the dismissal occurred on 11 February 2023 as Mr Gooley did not receive that communication.
Pursuant to his written employment agreement, Mr Gooley was entitled to four weeks’ notice at the time of the dismissal. He worked 10.6 hours during that period. Mr Cooper did not provide any further hours of work for him to perform during this period. On 27 February 2023, Mr Gooley was declared medically unfit for work for the period 27 February 2023 to 27 March 2023, inclusive.
Was the dismissal a case of genuine redundancy?
The Respondent did not raise a jurisdictional objection that the dismissal was by way of a genuine redundancy, however given the response given by the Respondent in the Form F3, and it being a jurisdictional issue necessary to determine, it is appropriate to consider it here.
Section 389 of the Act requires all three limbs to be satisfied in order for a dismissal to be genuine redundancy.
With respect to the consultation obligations required at s.389(1)(b) of the Act, the relevant clause within the Dry Cleaning and Laundry Industry Award 2020 requires the matters to be put in writing to allow discussions to occur about the likely impact of a decision to make a role redundant. It is an express term. None of this occurred. In the determinative conference when I asked Mr Cooper if he had consulted with Mr Gooley he answered, “Nah.”
In light of the conclusion reached, it is unnecessary to determine s.389(1)(a) and s.389(2) of the Act. The dismissal was not one of genuine redundancy.
Protected from unfair dismissal
Having satisfied myself that there are no jurisdictional matters preventing Mr Gooley from bringing his claim for unfair dismissal, I find that he is protected from unfair dismissal.
Mr Zarn Warner
Mr Gooley considered that he was a good and efficient worker. When he went to work on 22 February 2023, a new employee was present. His name is Zarn Warner.
Following the determinative conference, the Respondent was directed to file to chambers the payslips of Mr Warner. The payslips demonstrate that the week commencing 20 February 2023, Mr Warner worked 10.5 hours. Mr Gooley said that he introduced himself to Mr Warner on 22 February 2023.
In oral evidence given during the determinative conference, Mr Cooper stated that Mr Warner is the son of Mel, who needed to travel to Perth to look after her mother. Mr Warner was employed to replace Mel. Mr Gooley asserted that he was competent to do the work previously done by Mel and then performed by Mr Warner. Mr Cooper stated that he was not. Mr Gooley said he was able to fold Qantas napkins, whereas Mr Cooper said all Mr Gooley wanted to do was to sort.
The payslips of Mr Warner demonstrate that he performed substantial work through March, April and May, typically between around 36 – 41 hours per week. He was paid $28.01 per hour, the same rate that Mr Gooley had been receiving.
Mr John Brandon gave oral evidence during the determinative conference. Mr Brandon was Mr Gooley’s peer. Mr Brandon referred to Mr Gooley as a ‘lazy prick’ and said that he couldn’t have performed the work that Mr Warner did which involved emailing customers.
Mr Brandon gave evidence that Mr Gooley was often talking on his phone. He would disappear to the canteen or outside. When he was warned to pick up his act, he would declare that he has rights.
Mr Brandon gave evidence that Mr Gooley had told him that he gambles on horses. Mr Brandon said that if he owned the business, Mr Gooley would not have lasted very long.
In respect of Mr Cooper not having paid superannuation to Mr Gooley and other workers, Mr Brandon’s evidence is that Mr Gooley said he would go to Sydney to ‘bash up’ Mr Cooper.
Mr Brandon asked Mr Gooley to perform some work. Mr Gooley responded that he was being prevented from trying to talk to fellow employees and stated that when he was on his phone, he was enquiring about his work rights.
Mr Brandon agreed that Mr Gooley informed him that he hadn’t received superannuation into his account. Mr Brandon exclaimed that if Mr Gooley hadn’t been paid superannuation, perhaps neither had he.
Evidence of Mr Gooley
Mr Gooley noted that the payslip of 13 February 2023, where he was paid out annual leave (without his knowledge or consent), being a gross amount of $1,745.41 was not paid to him on 13 February 2023.
Following his dismissal, on 1 March 2023, Mr Gooley emailed Mr Cooper and Ms Cooper to inquire as to when the payment would be made. No response was received.
On 3 March 2023, Mr Gooley sought payment for the 10.6 hours of work performed by him on 22 and 24 February 2023 which Mr Gooley explained as casual hours. I do not accept that they were casual hours.
On 9 March 2023, Mr Gooley sent an email to Mr Cooper and Ms Cooper pleading for payment of monies owed to him, being the amount of $1,745.41 and $296.91. He stated the money was required in order to pay rent and buy food. He advised that the non-payment was causing a psychological injury and he was receiving medical treatment. Mr Cooper gave evidence that he didn’t pay Mr Gooley on time because he was “trying to swing a compo claim at the same time.”
Evidence produced to the Commission demonstrates that the payment of $1,745.41 was paid on 23 March 2023, and the smaller payment on 1 April 2023.
Mr Gooley made a worker’s compensation claim which was accepted by WorkCover with liability from 27 February 2023.
I requested Mr Gooley provide evidence of his horse betting for the relevant period of employment. Having reviewed the evidence, I am satisfied that Mr Gooley was not regularly betting throughout his working time, nor regularly listening to race calls while at work. Most bets were for weekend races, and if they were placed during a workday, only very few might have been raced while he was at work.
The workers’ compensation reconciliation provided by Mr Gooley to the Commission demonstrates that the first payment he received from WorkCover was for the week ending 12 March 2023. The payment received was $757.56. Mr Gooley’s usual pay was $871.38 per week. The reduction per week is $113.82.
Further, he stated that he did not receive the first week’s payment from the Respondent, as instructed by WorkCover.
Mr Gooley denied that he said that he would travel to Sydney to bash Mr Cooper up on account of superannuation not being paid. Mr Gooley said he had stated that he would not accept 10 cents in the dollar if the business was going to close. A manager had said the business was going to be closed.
Evidence of Mr Cooper
In the determinative conferences before me, canvassing both Mr Lee and Mr Gooley’s unfair dismissal claims, Mr Cooper was rude and discourteous to Mr Gooley and Mr Lee, and at times Mr Kelvin Gooley, but particularly towards Mr Gooley and Mr Kelvin Gooley. These are a few of his distasteful one-liners:
“If I sat down and read the Act I’d get nothing done.”
“Are we here for a witch hunt?”
“I’ve offered Mr Lee his job back twice and he hasn’t bothered to extend me the courtesy to respond. I’m at a point where this looks like a cash grab and a reluctance to work.
“Guilty as charged” in response to me informing him of the consultation obligations in the Award need to be in writing.
“You seem to be going over the same thing, spinning wheels.”
“You can interpret it any way you want.”
“You’re wasting everyone’s time.”
“When I’m dealing with idiots.”
“Can we just get on with it please.”
With respect to the supposed threat of Mr Gooley threatening to go to Sydney to bash Mr Cooper, Mr Cooper said that Mr Brandon had reported it to him approximately 2-3 weeks before the dismissal. I asked Mr Cooper why he had not raised it with Mr Gooley? He stated, “I don’t think it’s a big issue, I’m a big boy.” He further stated that he was not threatened, and it didn’t bother him. He did, however, say that he didn’t feel comfortable meeting with Mr Gooley.
Mr Cooper considered that Mr Gooley wouldn’t have lasted long in his role as it had been reported to him by several supervisors that he spent working time talking to other employees about unpaid superannuation. He also rang superannuation funds during working time.
Mr Cooper said that Mr Gooley didn’t want to work, and he wanted to ring “Fair Work” and “the union”.
Consideration
Was the dismissal harsh, unjust or unreasonable?
A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:[1]
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter.[2]
s.387(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)
When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly.”
However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[3]
I have already determined that Mr Gooley was dismissed by the Respondent on 15 February 2023 when he came to learn of the Respondent’s decision, seeking to reclassify his employment from permanent to casual. Mr Gooley did not accept this offer.
Mr Cooper’s evidence in the proceedings and in his material jumped from one reason to another. At some points he considered that Mr Gooley was lazy and “problematic”, wanting to contact “Fair Work”, superannuation funds, unions or other employees, and/or bet on or listen to horse races at work. On 16 February 2023 he wrote to Mr Gooley and said that reclassification had nothing to do with his performance.
Mr Cooper couldn’t determine if he was or wasn’t upset with the suggestion that Mr Gooley had purportedly said he wanted to come to Sydney to “bash him”. It seems he found some humour in the suggestion at [23] and it did not form part of the reason for the dismissal. I find that Mr Gooley did not say he wanted to go to Sydney to “bash” Mr Cooper. I prefer Mr Gooley’s evidence over Mr Brandon’s on this point. Mr Brandon appeared to me to give over-enthused and embellishing evidence in support of the Respondent. If Mr Gooley was as lazy as Mr Brandon made him out to be, I consider this would have been reported by supervisors, not peers (as Mr Brandon was) to Mr Cooper. Mr Cooper declared that there were no performance issues with Mr Gooley, yet changed his mind once the application was received.
In evidence produced late in the proceedings, the Respondent’s consolidated hours of work at each of the two locations are as follows:
Date Dover Warehouse AllClean Warehouse 10 January 2023 450.5 114.5 15 January 2023 416 245.5 22 January 2023 403 220.5 29 January 2023 432 246 5 February 2023 421 234.40 13 February 2023 428 218.5 20 February 2023 420 221
On the evidence before the Commission, there was not a significant downturn in the number of hours required to be worked by employees across the two premises around the second week of February 2023. Noting the reasons why Mr Gooley had to be reclassified was, according to the Respondent, there had been a downturn in business and Mr Gooley’s role was in oversupply.
I am satisfied that Mr Gooley could have performed the work ultimately performed by Mr Warner, later in February 2023. Mr Gooley was, however informed of his dismissal as a permanent employee on 15 February 2023. Mr Warner did not commence for another week.
I consider the true reason for Mr Gooley’s dismissal was that Mr Cooper considered Mr Gooley:
· was making superannuation inquiries, knowing superannuation hadn’t been paid by the Respondent into employees’ accounts;
· encouraging other employees to check their superannuation balances;
· contacting “Fair Work”;
· contracting unions; and
· asking about his leave accruals on his payslips.
If Mr Cooper had any issue with Mr Gooley conducting his inquiries during working time, he could have informed him of the need to conduct his inquiries during personal time. I am satisfied the reasons for the dismissal are because the inquiries were made by Mr Gooley, not solely because they were made during working time. This could constitute a breach of workplace rights; a matter for a Court’s consideration.
Having found that Mr Gooley did not engage in any improper conduct, and there was no shortage of work for him to be perform, I find that there was not a valid reason for the dismissal relating to Mr Gooley’s capacity or conduct.
s.387(b) - Whether the person was notified of that reason
Mr Cooper did not inform Mr Gooley of the true reasons for the dismissal. He concocted a story of reduced needs. This is evident in the reasons offered in the reasons Mr Cooper gave for dismissing Mr Lee, the stepson of Mr Gooley. In that matter, Mr Cooper said Mr Lee was being disruptive and prompted by Mr Gooley.
s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
Mr Gooley wasn’t afforded any opportunity to respond to any reason for the dismissal.
s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person. The Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542] states the following:
“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.”
There was no discussion regarding the dismissal; Mr Gooley was informed by email.
s.387(e) - Was there a warning of unsatisfactory work performance before dismissal
There is no evidence of Mr Gooley being warned of unsatisfactory performance before the dismissal.
s.387(f) - Whether the respondent’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed
According to the Respondent, it employs between 80 and 100 employees. It is not a small employer.
Having regard to all of the churlish remarks made by Mr Cooper in the determinative conferences, Mr Cooper has little interest in meeting the full complement of his human resources responsibilities to his employees. There is an absence of a dedicated human resource management specialist within the Respondent, and I accept this impacted on the procedures followed.
s.387(h) Other matters
I have had regard for Mr Gooley’s length of service of just over eight months and note that it is not a long period of time.
Conclusion
I have determined that there was no valid reason for the dismissal.
I consider that the Respondent did not inform Mr Gooley of the reasons for the dismissal.
I have determined that Mr Gooley was not given an opportunity to respond to the reasons for the dismissal.
There was no unreasonable refusal by the Respondent to allow Mr Gooley a support person.
Mr Gooley was not issued any warnings of unsatisfactory work performance before the dismissal.
The Respondent’s enterprise is not small. I accept that there was an absence of a dedicated human resource specialist which did impact on the procedures followed.
I determine that Mr Gooley’s dismissal was harsh, unjust and unreasonable. Having satisfied myself that the dismissal was harsh, unjust and unreasonable, pursuant to s.385(b) of the Act, I find that Mr Gooley was unfairly dismissed.
Remedy
Section 390 of the Act reads as follows:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a)the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2)The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a)the FWC is satisfied that reinstatement of the person is inappropriate; and
(b)the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
Mr Gooley is a person protected from unfair dismissal for the Act’s purposes and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether he can be reinstated.
Mr Gooley is now medically unfit to return to the Respondent’s workplace. He has suffered a psychological injury. I am satisfied that it is inappropriate to order reinstatement.
I now turn to consideration of compensation.
Compensation
Section 392 of the Act provides:
“392 Remedy—compensation
Compensation
(1)An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2)In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c)the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d)the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e)the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f)the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3)If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5)The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b)half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so e employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
Authorities
The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket.[4] That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;[5] Jetstar Airways Pty Ltd v Neeteson-Lemkes;[6] and McCulloch v Calvary Health Care (McCulloch).[7]
I have had regard to the above authorities, and I have considered the submission of each party.
The effect of the order on the viability of the respondent
No submissions were made relevant to this issue. There is no evidence to suggest that an award of compensation would affect the viability of the Respondent’s enterprise.
The length of Mr Gooley’s service
Mr Gooley had approximately eight months’ service. This is not a long period of time.
The remuneration that Mr Gooley would have received, or would have been likely to receive, if he had not been dismissed
There was no valid reason to dismiss Mr Gooley from his employment. If Mr Cooper had an issue with Mr Gooley making workplace entitlement inquiries during work time, he could have had a discussion with him to request he make inquiries in his own time.
It is uncertain if Mr Gooley would have become psychologically unwell in February 2023, but for the dismissal. Nobody can provide an answer to the scenario.
Mr Gooley was dismissed and would have earned in remuneration the amount of four weeks in notice pursuant to his written employment agreement at a rate of $28.01 per hour = $4,257.52. He was not directed by Mr Cooper to provide any further work but for 10.6 hours of work across 22 and 24 February 2023. Despite his incapacity due to his psychological injury, during the span of his four week notice period, he was not directed or required to perform any work but for those two days, and therefore I do not consider it is necessary to have regard to his incapacity to work on account of not being directed to work during the notice period.
The efforts of Mr Gooley (if any) to mitigate the loss suffered because of the dismissal
Mr Gooley’s workers’ compensation claim was successfully made. He has been incapacitated to work since 27 February 2023.
The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation
Mr Gooley has been in receipt of the following workers’ compensation payments in the four week period from 15 February 2023 to 14 March 2023:
· Week ending 12 March 2023: $757.56
· Week ending 19 March 2023: (2 days out of 5) $303.02
Total: $1,060.58
Relevant authorities declare that workers’ compensation payments constitute ‘remuneration’ for the purposes of this assessment.[8]
Mr Gooley also received the following payments following his dismissal for hours worked by him which constitute remuneration and necessitate a reduction in the award of compensation to be paid to him:
· 16 and 17 February 2023: 15.2 hours @ $28.01 = $425.75
· 22 and 24 February 2023: 10.6 hours @ $28.01 = $296.91
Total: $722.66
The amount of any income reasonably likely to be so earned by Mr Gooley during the period between the making of the order for compensation and the actual compensation
This factor is not relevant in the circumstances of this matter.
Other relevant matters
I do not consider that there are any other relevant matters.
Misconduct reduces amount
Section 392(3) of the Act requires that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.
The section requires that consideration be given by the Commission, amongst other things, as to whether a person’s misconduct contributed to the decision to dismiss an employee even if the Commission has found that there was no valid reason for the person’s dismissal. However, if there was no valid reason for the dismissal, that may be relevant to the Commission’s decision as to the appropriate amount by which the amount of compensation should be reduced.[9]
I do not find that Mr Gooley engaged in any misconduct that would reduce the amount to be awarded to him.
Shock, distress etc. disregarded
I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Mr Gooley by the manner of the dismissal.
Compensation Cap
I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.
The high income threshold immediately prior to the dismissal was $162,000, and the amount for 26 weeks was $81,000. The amount of compensation the Commission will order does not exceed the compensation cap.
Payment by instalments
This is not a relevant consideration.
Order of compensation
I have determined that Mr Gooley would have earned remuneration for a period of four weeks which is an amount of $4,257.52. It is necessary to make the following deductions constituting remuneration:
Workers’ compensation: $1,060.58
Wages: $722.66Total: $1,783.24
The award of compensation is therefore $4,257.52 less $1,783.24 = $2,474.28
The Respondent is to pay to Mr Gooley the following amounts within 14 days:
(a) $2,474.28 taxed as required by law; and
(b)10.5% superannuation (as it then was in the 2022/2023 financial year) being an amount of $259.80 into Mr Gooley’s superannuation account.
An order [PR767970] giving effect to this decision will be published.
COMMISSIONER
Appearances:
K Gooley and K Gooley for the Applicant.
P Cooper for the Respondent.
Hearing details:
Brisbane.
Video by Microsoft Teams.
2023.
29 May.
Brisbane.
Video by Microsoft Teams.
2023.
29 June.
[1] (1995) 185 CLR 410, [465].
[2] Sayer v Melsteel[2011] FWAFB 7498 at [20].
[3] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[4] (1998) 88 IR 21.
[5] [2013] FWCFB 431.
[6] [2014] FWCFB 8683.
[7] [2015] FWCFB 2267.
[8] Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21; refined in Ellawala v Australian Postal Corporation, Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) at para [31]; discussed in Smith v Fearon Howard Real Estate Pty Ltd T/A Ray White (Balmain)[2021] FWCFB 581 at paras [16] – [19].
[9] Crawford v BHP Coal Pty Ltd [2017] FWC 154, [345] – [346]; Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762, [83].
Printed by authority of the Commonwealth Government Printer
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