Kerry Lee Willis v One Fine Collective (Aust) Pty Ltd
[2020] FWC 6418
•1 DECEMBER 2020
| [2020] FWC 6418 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Kerry Lee Willis
v
One Fine Collective (Aust) Pty Ltd
(U2020/7127)
COMMISSIONER CAMBRIDGE | SYDNEY, 1 DECEMBER 2020 |
Application for unfair dismissal remedy - engagement in secondary employment during operation of Jobkeeper contrary to directive of employer - valid reason for dismissal - procedural deficiencies - advice of dismissal sent by email - small business fair dismissal code considered - conduct of employee inconsistent with continuation of employment - dismissal not harsh, unjust or unreasonable - application dismissed.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 23 May 2020. The application was made by Kerry Lee Willis (the applicant) and the respondent employer is OFC (Aust) Pty Ltd t/a One Fine Collective ABN: 68 642 587 381 (the employer).
[2] The application indicated that the date that the applicant’s dismissal took effect was 16 May 2020. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) (a) of the Act.
[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 24 September 2020.
[4] At the Hearing the applicant represented herself, and she provided evidence as the only witness called in support of the unfair dismissal claim. The employer was represented by its co-owner and Chief Financial Officer, Mr Edward Richards. Mr. Richards was the only witness who provided evidence on behalf of the employer.
Background
[5] The applicant had worked for the employer for about one year and one month. The applicant was employed as a Nanny, and she was primarily required to look after the two children of the owners of the employer business, Mr and Mrs Richards. The applicant worked at the residential home of Mr and Mrs Richards. Up until March 2020, the applicant was engaged on a full-time basis working 40 hours per week, four days a week, Monday to Thursday. The applicant’s employment was undertaken successfully, and in February 2020, the employer increased the applicant’s wage from $30 per hour to $32.
[6] The employer operates a business as an events company which runs large-scale events such as Wedding Fairs, Baby Expos and Bridal Markets. The events that were organised by the employer where conducted in Sydney, Melbourne, New York and London. The work undertaken by the applicant as a Nanny was not directly connected with the employer’s events business activities. Instead, the applicant provided assistance to Mrs Richards in particular, the employer’s Chief Executive Officer, to enable Mrs Richards to more efficiently conduct the events business operations. The employer is a small business and it had nine employees at the time of the termination of the applicant’s employment.
[7] The outbreak of the Covid 19 pandemic and the associated restrictions on international travel, public gatherings and social events, had a dramatic impact on the employer’s business. Various events that the employer had organised to be held between March and September 2020 had to be cancelled. In response to the financial impact of the Covid 19 restrictions, the employer implemented a number of measures to reduce staff costs. One staff member was made redundant, and other employees had their working hours reduced by 50%.
[8] On Saturday, 28 August 2020, Mr Richards telephoned the applicant and advised her that because of the financial impacts of the Covid 19 restrictions she would be immediately stood down from her employment without pay. Mr Richards advised the applicant that she would be paid any annual leave entitlements.
[9] During April 2020, the employer made application for Jobkeeper support payments in respect to inter alia, the applicant. The employer and the applicant subsequently qualified for the Jobkeeper support payments, and on 24 April 2020, Mr Richards sent the applicant an email requesting that she return to work on reduced hours involving work between 8 am and 1 pm for the four days a week that she had previously worked, Monday to Thursday. On 26 April 2020, the applicant responded to Mr Richards in an email which advised that she would return to work on Monday, 4 May, and that she would like to have a chat regarding the days and times for her reduced hours of work.
[10] On Thursday, 7 May 2020, the applicant was at work at the home of Mr and Mrs Richards when she discussed the need for her to find secondary employment as a result of the reduction in working hours with the employer under the Jobkeeper arrangements. Mr and Mrs Richards understood the need for the applicant to seek secondary employment to supplement the Jobkeeper payments that she was receiving for her reduced working hours with the employer. The employer had directed the applicant to work four days for five hours which generated $640, and this roughly equated with the weekly Jobkeeper payment of $750.
[11] During the discussion that the applicant had with Mr and Mrs Richards on 7 May 2020, she indicated that having to work for the employer on four days a week impeded her prospects of securing secondary employment. The applicant advised Mr and Mrs Richards that she had been interviewed for a job that involved work on Mondays. Mr Richards explained that whilst the employer was supportive of the applicant finding secondary employment, they required her to work on Monday to Wednesdays which he stipulated to be critical days that the employer required the applicant to work for them.
[12] On the following Tuesday, 12 May 2020, the applicant had another discussion with Mr and Mrs Richards about arrangements for any secondary employment. The applicant told Mr and Mrs Richards that she had made another application for work on Tuesdays, and she wanted to work for the employer on only Wednesdays and Thursdays. Mr and Mrs Richards again stressed that this would not be suitable for them as they required the applicant to work on Mondays to Wednesdays. In this regard, Mr Richards suggested that the applicant could work on the three days of the week being Monday, Tuesday and Wednesday, from between 8 am and 4 pm which would generate 24 hours of work per week, and enable the applicant to potentially secure secondary employment on Thursdays and Fridays.
[13] At 6:11 pm the next day, Wednesday, 13 May 2020, the applicant sent an email to Mr Richards which relevantly advised inter alia, that the applicant had; “heard back from both the interviews that I have been to for Monday and Tuesday work. I have been accepted for both days and this will be starting from next week 18th and 19th May. This leaves Wednesdays and Thursdays available to do hours for you.” The applicant’s email further stated; “I understand this is not ideal for you and under normal circumstances I would prefer to be working for you full-time.” The email concluded with advice to the employer that; “As you can imagine the situation is causing an immense amount of stress and I have developed a severe migraine. Unfortunately I will not be able to come to work tomorrow. I will see you all next Wednesday.”
[14] On the following Saturday, 16 May 2020, Mr Richards sent an email to the applicant in response to her email of the preceding Wednesday. In this email, Mr Richards stated that the employer was surprised and disappointed to receive the applicant’s email on Wednesday evening. Importantly, the email from Mr Richards to the applicant advised inter alia, that; “…in circumstances where you deliberately do not comply with our directions, we have no choice but to terminate your employment with us immediately. We will pay out your notice and any other entitlements you are owed.”
[15] Following the termination of her employment, the applicant’s Jobkeeper payments were ceased, and on 5 June 2020, she received final payment advice which included an amount equivalent to two weeks wages in lieu of notice. The applicant’s secondary employment involving work on Mondays continued for a further 13 engagements and the secondary employment for Tuesdays did not materialise. The applicant has unsuccessfully sought alternative employment.
The Case for the Applicant
[16] The applicant filed written submissions on 6 August 2020. In addition to the written submissions, the applicant provided oral submissions during the Hearing.
[17] The applicant said that her summary dismissal while on a Jobkeeper scheme was unfair and harsh due to the economic and personal consequences resulting from being instantly dismissed.
[18] The applicant submitted that her dismissal was harsh because the outcome was disproportionate to the gravity of the alleged misconduct. The applicant acknowledged that the employer’s business had been decimated by the Covid 19 restrictions, and that she was not able to be usefully employed on her normal contract days and hours. Subsequently however, the applicant was eligible to receive the Jobkeeper payments, and she asserted that she did not refuse to work the requested Jobkeeper hours and days. However, the applicant said that she requested to discuss the hours and days moving forward because of her need to obtain secondary employment.
[19] The applicant submitted that the Jobkeeper hours and days had not been mutually agreed to by both Parties at the time of her dismissal and that she did not breach her employment contract as she was working on the Jobkeeper scheme and she was not bound by her employment contract’s full terms and conditions. The applicant also submitted that she was allowed to have secondary employment on the Jobkeeper scheme.
[20] The applicant further submitted that she did not intentionally ignore the directions of the employer but that she just wanted an arrangement that would work for everybody. The applicant said that her unnecessary dismissal, given during a pandemic, had caused enormous stress and impacted upon her mental health. Further, the applicant said that she had been actively looking for other work but had not been able to secure any casual or permanent work since the dismissal because the Nanny industry had taken a big hit with Covid 19, whereby parents were working from home and had access to free childcare subsidies.
[21] In conclusion, the applicant submitted that as a single mother she had been severely affected by her unfair dismissal to the point that she was unable to support her children. The applicant said that she was seeking compensation for 26 weeks of lost income.
The Case for the Employer
[22] The written submissions provided on behalf of the employer summarised the factual circumstances as contended for by the employer. The employer’s written submissions were supplemented by way of oral submissions made by Mr Richards during the Hearing. The employer’s written submissions were constructed by reference to firstly, the Small Business Fair Dismissal Code and secondly, the various factors contained in s. 387 of the Act.
[23] The written submissions of the employer asserted that the dismissal of the applicant was consistent with the Small Business Fair Dismissal Code. In particular, it was submitted that the applicant had been clearly warned in multiple conversations where she was told the days and hours that she was required to work. Further, it was submitted that the applicant had failed to comply with the lawful and reasonable direction and in breach of her employment agreement, engaged in secondary employment on the days of the week that she was directed to work for the employer.
[24] The submissions made by the employer also addressed the various requirements of s. 387 of the Act. The employer asserted that the applicant had been dismissed for valid reason and that reason involved her refusal to follow a reasonable direction to perform work on the days that the employer required. It was further asserted that the applicant had been notified of the reason for her dismissal, and despite being required to work for the employer on Mondays and Tuesdays, she engaged in secondary employment on those days, contrary to the clear directive of the employer.
[25] It was further submitted by the employer that the applicant had been provided an opportunity to respond about the requirement for her to work on Mondays and Tuesdays, and that position had been made clear to the applicant on at least three occasions. The employer acknowledged that the applicant did not request to have a support person present during those discussions and it also submitted that it did not refuse any request made by the applicant to have a support person.
[26] The submissions made by the employer stressed that it was a small business that did not have dedicated human resource professionals and the termination process that it adopted was the best and fairest considering that it was not a sophisticated employer. The employer said that it believed that it had followed the procedures that were contemplated by the Small Business Fair Dismissal Code. The employer’s written submissions included a checklist that it had completed in respect of the Small Business Fair Dismissal Code.
[27] In further submissions, Mr Richards stated that it had been made very clear to the applicant that the employer required her to work at least three days a week and that Mondays to Wednesdays were critical. Further, Mr Richards said that the employer had not unreasonably refused the applicant’s request for secondary employment as it was sympathetic to her circumstances. However, Mr Richards stressed that the employer had made it very clear that any secondary employment needed to occur on Thursdays and Fridays. Mr Richards stated that despite this position having been clearly established by the employer, the applicant sought out and obtained secondary employment on the days that she was required to work for the employer.
[28] Mr Richards said that he and his wife were very surprised when they received the email from the applicant stating that she had accepted secondary employment starting on the following Monday and Tuesday. Mr Richards submitted that the employer and the applicant were trying to deal with very challenging circumstances arising from the impacts of the Covid 19 restrictions. However, according to the submissions made by Mr Richards, the employer attempted to accommodate the applicant’s requests to find secondary employment, and its actions were in no way unreasonable. Rather, Mr Richards made submissions which asserted that it was the actions of the applicant as conveyed in her email of 13 May 2020, which were unreasonable.
[29] Mr Richards asserted that the applicant gave the employer no notice when she sent an email on Wednesday, 13 May 2020, stating that she had taken on secondary employment and wouldn’t be coming to work for the employer until Wednesday of the following week. Mr Richards submitted that it was the actions of the applicant that had severed the employment relationship, and it was the applicant that had acted in breach of her employment contract.
[30] In summary, the employer said that it strongly believed that it had acted fairly and reasonably in incredibly challenging times. The employer submitted that it believed that it had acted in a manner that was consistent with the Small Business Fair Dismissal Code. Further, the employer submitted that the dismissal of the applicant was not unfair in circumstances where the applicant provided no notice and plainly disobeyed the reasonable request of the employer.
Consideration
[31] The unfair dismissal provisions of the Act relevantly include s. 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. Section 385 is in the following terms:
“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.”
Small Business Fair Dismissal Code
[32] In this case, there was no dispute that the employer was a small business employer as comprehended by the meaning of small business employer stipulated by the terms of s. 23 of the Act. Therefore, the provisions of subsection 385 (c) of the Act require consideration. Specifically, by way of operation of s. 388 of the Act, it is necessary to determine whether the dismissal of the applicant was or was not consistent with the Small Business Fair Dismissal Code (referred to as “the SBFD Code”).
[33] Logically, a determination of any application of the SBFD Code should precede any more general contemplation of whether the dismissal could have been considered to have been harsh, unjust or unreasonable. Further, in the event that the dismissal of the applicant is found to have been consistent with the SBFD Code, any further consideration as to whether the dismissal was harsh, unjust or unreasonable would ordinarily become unnecessary.
[34] The SBFD Code is in the following terms:
“Small Business Fair Dismissal Code
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
[35] The employer did not summarily dismiss the applicant for serious misconduct but instead it made payment to the applicant in respect of two weeks’ notice. Consequently, the Other Dismissal provisions of the SBFD Code have application to the circumstances of the termination of the employment of the applicant.
[36] The circumstances surrounding dismissal of the applicant arose as a direct consequence of the financial impacts on the employer’s business that were created by the Covid 19 restrictions. The particular circumstances in this case do not neatly fit within the framework contemplated by the Other Dismissal provisions of the SBFD Code.
[37] The employer’s business operation had been decimated by the Covid 19 restrictions, and although government assistance, in the form of the Jobkeeper scheme, was provided to the applicant, she suffered an almost 50% reduction in remuneration. Understandably, the applicant sought secondary employment as a means to supplement the Jobkeeper payment.
[38] The employer and the applicant appeared to initially reach a mutual agreement about the working arrangements that would apply during the operation of the Jobkeeper scheme. The applicant returned to work under the Jobkeeper scheme on Monday, 4 May 2020. The applicant initially commenced to work reduced hours that were roughly aligned with the amount of the Jobkeeper payment. The applicant’s reduced hours involved work on the same four days of the week that she had previously worked, Monday to Thursday. This arrangement operated successfully for the first week commencing 4 May, and for the first two days of the second week commencing 11 May 2020.
[39] Following her return to work under the Jobkeeper arrangements, the applicant raised with the employer the prospect of her engaging in secondary employment in order to supplement her reduced wage. The employer was sympathetic to the applicant’s circumstances and it took steps to assist the applicant find some secondary employment. However, the employer had made it clear to the applicant that she was required to work on Mondays, Tuesdays and Wednesdays, which it declared to be critical days on which the applicant was required to work for the employer.
[40] On at least three separate occasions when the applicant and the employer were discussing potential secondary employment, the employer stressed that it required the applicant to work on the critical days of Mondays, Tuesdays and Wednesdays. The evidence clearly established that the applicant was under no misapprehension that any secondary employment could not result in the applicant being unable to undertake work for the employer on the critical days of Mondays, Tuesdays and Wednesdays, albeit for the reduced hours on each of those days. The following evidence that was provided by the applicant during her cross-examination confirmed her understanding of the employer’s requirements for work on the critical days of the week:
“We had a third discussion on your secondary employment on Tuesday 12 May, again at our home. In that conversation, you stated your intention to apply for another job on Tuesdays in addition to the job on Mondays and you reaffirmed that you wanted to do the hours for us on a Wednesday and Thursday. We again explained to you that two days a week wasn’t going to work for us and that we needed Monday to Wednesday as priority days for us. Do you recall us saying that to you? --- Yes.
Did you come away from your conversation on Tuesday 12 May thinking that we were supportive of you taking roles on Monday and Tuesday and only doing work for us on Wednesday and Thursday? --- No.” 1
[41] Consequently, the applicant was consciously acting in direct contradiction to the stated and unambiguous direction of the employer when she sent an email to Mr Richards at 6:11 pm on Wednesday, 13 May 2020, which inter alia, stated: “Today I heard back from both the interviews that I have been to for Monday and Tuesday work. I have been accepted for both days and this will be starting from next week 18th and 19th May. This leaves Wednesdays and Thursdays available to do hours for you…. As you can imagine the situation is causing an immense amount of stress and I have developed a severe migraine. Unfortunately I will not be able to come to work tomorrow. I will see you all next Wednesday.”.
[42] The applicant was taking a significant risk by sending the employer email notification that contrary to their unambiguous and well understood direction, she had engaged in secondary employment which would prevent her from working for the employer on the critical days of the week. On any reasonable and objective assessment, the applicant’s conduct as conveyed in the email of 13 May 2020, was misconduct that was plainly inconsistent with the continuation of her employment.
[43] Although the applicant’s circumstances were understandably difficulty and involved the obvious financial impetus for engagement in secondary employment, there was nevertheless a fundamental obligation and duty upon her as an employee to reach agreement with the employer about any arrangements for secondary employment. To simply inform the employer by email that she was disregarding their reasonable, lawful and unambiguous direction, demonstrated a regrettable and cavalier indifference towards the continuation of the employment relationship. Unfortunately, the applicant had prioritised her engagement in secondary employment above any obligations for the employer. The employer was entitled to treat the actions of the applicant as misconduct which repudiated the contract of employment.
[44] Although the circumstances that were presented in this instance were not clearly contemplated by the terminology used in the Other Dismissals provisions of the SBFD Code, upon a balanced and objective analysis of all of the circumstances, the applicant’s actions which involved her repudiation of the employment contract, and the subsequent dismissal that was implemented by the employer, represented a dismissal by a small business employer that was consistent with the SBFD Code.
Harsh Unjust or Unreasonable
[45] In this case, although the dismissal has been found to have been consistent with the SBFD Code, for abundant caution, the Commission has included a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.
[46] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:
“(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.”
S. 387 (a) - Valid reason for the dismissal related to capacity or conduct
[47] There was a valid reason for the dismissal of the applicant. The applicant acted in direct contradiction of the reasonable and lawful instruction of the employer whereby she was required not to engage in secondary employment that would prevent her from working for the employer on the days of the week which it considered as critical.
[48] In this instance, the actions of the applicant represented misconduct that was plainly contrary to any continuation of the employment relationship. It seemed that because the applicant was working for the employer under a Jobkeeper arrangement she treated her obligations to comply with the directions of the employer as somehow lessened or of little consequence. The Jobkeeper arrangements could not operate as a means by which an employee could dictate the terms of engagement to an employer.
[49] Regrettably, it appeared that the Jobkeeper arrangements had the effect of devaluing the applicant’s contemplation of her existing employment and providing some mistaken authority or permission to act with immunity from obligation to the employer to perform work in accordance with its reasonable requirements. The applicant appeared to believe that the Jobkeeper arrangements provided her with a right to engage in secondary employment that was inimical to the employer’s interests and contrary to its expressed direction. This erroneous belief appeared to motivate the applicant’s actions which represented the misconduct that has established valid reason for her dismissal.
S. 387 (b) - Notification of reason for dismissal
[50] The employer provided notification of the reasons for the applicant's dismissal by email communication. Communication of the advice of dismissal by electronic means such as email or text message, should generally be avoided. Unless there is some compelling reason like extensive distance or genuine safety concern, advice of dismissal from employment is a matter of such significance that it should be conveyed in person.
[51] However, although it would have been preferable for the employer to have engaged with the applicant in person when responding to her email of 13 May 2020, the somewhat audacious action of sending the employer email advice that, without notice, secondary employment had been accepted and would prevent the applicant from returning to the workplace until the following Wednesday, was met with a similarly discourteous email communication of dismissal from the employer. In the circumstances of this case, the email response that advised the applicant of her dismissal was an understandable reaction to the applicant’s email.
S. 387 (c) - Opportunity to respond to any reason related to capacity or conduct
[52] The applicant was given three opportunities to respond to the employer’s directive that any secondary employment could not prevent her from working for the employer on the days it had identified as critical. The applicant was under no misunderstanding about the employer’s requirement, but she defied it anyway.
S. 387 (d) - Unreasonable refusal to allow a support person to assist
[53] The employer did not unreasonably refuse to allow the applicant to have a support person present to assist at any discussions. However, in the circumstance of this case, the discussions were not identified as being of a disciplinary nature in any event.
S. 387 (e) - Warning about unsatisfactory performance
[54] The applicant was not dismissed for unsatisfactory performance.
S. 387 (f) - Size of enterprise likely to impact on procedures
[55] The employer is a small business and therefore allowance has been made for a degree of informality and some imprecision in respect to employment related matters.
S. 387 (g) - Absence of management specialists or expertise likely to impact on procedures
[56] The employer did not have human resource management specialists or other expertise. The absence of employment expertise has been considered particularly in connection with the email advice of dismissal.
S. 387 (h) - Other relevant matters
[57] The financial and personal impacts of the circumstances faced by the applicant both before and after her dismissal have been recognised and appropriately balanced against all other factors under consideration.
Conclusion
[58] The circumstances surrounding the dismissal of the applicant were very unfortunate. The economic impacts of restrictions associated with the Covid 19 pandemic created the severe difficulties that were experienced by both the employer and the applicant and which led to the termination of the applicant’s employment.
[59] The applicant was dismissed in response to her actions in engaging in secondary employment contrary to the clear instructions of the employer. Although it was understandable that the applicant would seek to engage in secondary employment to supplement the significant reduction in remuneration when working under the Jobkeeper scheme, these circumstances did not provide the applicant with a right to unilaterally determine the times at which she would work for the employer.
[60] The email advice that the applicant sent to the employer on 13 May 2020, in which she advised that she had engaged in secondary employment on days that the employer unambiguously required her to work for it, represented misconduct that was inconsistent with any continuation of the employment. The employer was entitled to treat the blatant disobedience of the applicant as misconduct that justified her dismissal.
[61] The employer should have advised the applicant of her dismissal in person. However, in the particular circumstances of this case, where the applicant sent the employer email advice that she had engaged in secondary employment that was inimical to the interests of the employer, it was understandable that the employer would respond in a similar manner. Although some criticism can be made of the procedure that the employer adopted, when all of the circumstances are carefully evaluated, the dismissal of the applicant was consistent with the SBFD Code. Consequently, the applicant could not have been a person that was unfairly dismissed.
[62] Notwithstanding any operation of the SBFD Code, the dismissal of the applicant was for valid reason and without significant procedural deficiency. Further, there were no other factors associated with the dismissal of the applicant which, when considered in the context of the totality of the circumstances, would render the dismissal to have been either harsh, unjust or unreasonable. Therefore, the dismissal of the applicant was not unfair and the application for unfair dismissal remedy must be dismissed accordingly.
[63] Separate Orders [PR724983] providing for the dismissal of the application shall be issued in conjunction with this Decision.
COMMISSIONER
Appearances:
Ms K L Willis appeared unrepresented.
Mr E Richards, Chief Financial Officer appeared for the employer.
Hearing details:
2020.
Sydney:
September, 24.
Printed by authority of the Commonwealth Government Printer
<PR724981>
1 Transcript @ PN75 and PN76.
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