Kin Shing Chan v Rinex Integrated Power Pty Ltd t/a Rinex

[2014] FWC 6275

[2014] FWC 6275

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Kin Shing Chan
v
Rinex Integrated Power Pty Ltd t/a Rinex
(U2014/5455)

VICE PRESIDENT HATCHER SYDNEY, 11 SEPTEMBER 2014

Application for relief from unfair dismissal.

Introduction

[1] The applicant in this matter, Mr Kin Shing Chan, claims an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) in respect of the termination of his employment with Rinex Integrated Power Pty Ltd (Rinex). Mr Chan contends that his dismissal was unfair, and claims the primary remedy of reinstatement.

Procedural matters

[2] Mr Chan represented himself in the proceedings, and Rinex was represented by its employer organisation, the National Electrical and Communications Association. In those circumstances I determined, for the purpose of s.399 of the Act, that it was not appropriate to hold a hearing in relation to the matter. Accordingly, the matter was dealt with in a conference conducted in private as required by s.398. Notwithstanding that, the witnesses gave evidence under oath or affirmation and were subject to cross-examination. Much of the cross-examination - particularly that conducted by Mr Chan - was not productive and consisted of a large number of submission-like statements rather than genuine questioning. That required me to intervene to a considerable degree in the cross-examination of witnesses in order to identify or require questions which the witnesses could reasonably be expected to answer.

[3] Because of these difficulties, as well as some other delays which occurred in the course of the conference, the proceedings were not completed until almost 6.00 pm on the day set aside for the conduct of the matter. At approximately 4.30 pm the evidence of one of Rinex’s witnesses, Mr Ronald Teimourshahi, remained to be heard. In that circumstance, given the unproductive nature of much of the day’s cross-examination, I placed a half hour time limit on Mr Chan’s cross-examination of that witness (although in the result I allowed it to run for closer to 40 minutes). Although Mr Chan made some complaint about this, I do not consider that this deprived him of a reasonable opportunity to test the matters stated in Mr Teimourshahi’s statement of evidence and ask him other relevant questions, and Mr Chan appeared, in the time allowed, to be able to deal with those aspects of Mr Teimourshahi’s evidence which were in contest.

[4] By the time of the completion of the evidence (at approximately 5.10 pm) and prior to the commencement of closing submissions, I observed that Mr Chan was in somewhat of an overwrought state. I therefore offered the parties the option of putting their closing submissions in writing rather than orally. Mr Chan declined this option and, amongst other things, expressed his preference for completing the matter that day. Accordingly I proceeded to receive the parties’ oral closing submissions. During the receipt of these submissions, I again offered Mr Chan the opportunity to put his closing submissions in writing, and he again refused this offer.

The witnesses

[5] Mr Chan gave evidence in support of his own case. Mr Richard Collins, the Sole Director of Rinex, and Mr Teimourshahi, the Service Manager of Rinex, gave evidence on behalf of Rinex.

[6] There were significant difficulties with Mr Chan’s evidence. Generally speaking he presented as someone who was incapable of describing the events relevant to this matter with any reasonable degree of objectivity. Much of his evidence was confusing and contradictory. For example, a theme of his evidence was that he would not have contested his dismissal if Rinex had just paid his “entitlements”. However, it remained quite unclear what entitlements were said not to have been paid. Despite initially professing not to know what Rinex had paid him after his dismissal, he later conceded that he knew he had in fact been paid his statutory entitlement to payment in lieu of notice and his accrued leave entitlements. He accepted that he was not entitled to redundancy pay by reason of Rinex being a small business and denied that he had ever claimed anything in the nature of redundancy pay from Rinex after he had been dismissed, although the emails he sent to Rinex in the period following his dismissal make it reasonably apparent that he was in fact seeking redundancy pay. Mr Chan continued to insist in his evidence that he had not been paid his entitlements while simultaneously claiming not to know what his entitlements were. The only firm claims for “entitlements” he ever actually identified during the hearing were that the payment in lieu of notice should have included his $200 per week car allowance and that there should not have been any deduction for tools. He vaguely suggested that he had heard he might be entitled to three month’s pay on the basis that Rinex had allegedly re-organised its business, while continuing to deny that he sought redundancy pay.

[7] By contrast, I was favourably impressed by the way in which Mr Collins and Mr Teimourshahi gave their evidence. Their answers to questions were direct and forthcoming in nature. Although they both had firm views about Mr Chan’s recent behaviour, they readily made concessions favourable to Mr Chan’s case. For example, they volunteered that, for most of the period of his employment, Mr Chan had been a highly skilled, capable and valued employee. They accepted that much of the dealings they had with Mr Chan during his employment which they described in their witness statements, such as counselling concerning his work performance, was not supported by any documentary records. Mr Collins in particular expressed real regret that events beyond his control had required the termination of Mr Chan’s employment. I accept that, to the best of their recollection, they gave accurate evidence concerning their dealings with Mr Chan which, unlike Mr Chan’s evidence, was not to any significant degree coloured by their emotional reaction to the events which transpired.

[8] I will therefore generally take the approach that where there is a contest as to the facts as between the evidence of Mr Chan on the one hand and Mr Collins and Mr Teimourshahi on the other which cannot be resolved by reference to relevant business records or other contemporaneous documents, I will prefer the evidence of Mr Collins and Mr Teimourshahi.

The evidence

[9] Rinex operates an electrical contracting business. It is a small business as defined in s.23 of the Act. It specialises in the installation and maintenance of high voltage power lines. This work is safety-critical. It employed Mr Chan as a field technician in August 2006. In 2011 he was promoted to the position of Electrical Control Engineer. This was regarded as a highly responsible position. As earlier indicated, there is no dispute that until at least about April 2012 Mr Chan was a capable and valued employee of Rinex.

[10] The evidence of Mr Collins and Mr Teimourshahi is that things changed after extraneous issues in Mr Chan’s life began to distract him from his work. The first issue which emerged concerned a difficulty which Mr Chan told Mr Teimourshahi he had encountered with his neighbour/strata manager concerning some allegedly non-approved work he had performed on his investment duplex unit. This led to him applying for and being granted a month of long service leave in advance in April-May 2012. Once Mr Chan had resolved this issue and returned to work, “the quality of his work was improved to its former level” according to Mr Teimourshahi.

[11] The major issues began when Mr Chan began to build a new house for himself and his extended family in early 2013. Mr Chan directly managed this personal project as well as performing much of the building work himself, and it began to consume much of his time and concentration. After he had exhausted his annual leave entitlement working on the house, Mr Chan applied for and was granted long periods of leave without pay in order to continue to work on the house. Rinex’s records show that from early July to mid-October 2013, Mr Chan did not work on most weekdays, and only worked on occasional weekends. From mid-October until mid-December 2013, he began to attend work more frequently, but was still absent on a number of working days. The records indicate that he returned to full-time work in mid-December 2013. They also demonstrate that Rinex went to great lengths to accommodate Mr Chan’s desire to work on his house. Additionally, Rinex allowed Mr Chan to borrow various items of its equipment and specialised tools to work on the house.

[12] Mr Collins and Mr Teimourshahi gave evidence, which I accept, that Mr Chan’s preoccupation with building the house took a personal toll upon him and began to significantly affect his work performance. Mr Collins, by way of example, described a discussion he had with Mr Chan in October 2012 in which he raised with Mr Chan that he seemed very tired and asked him if he was working all night (on the house). Mr Chan responded by saying words to the effect of: “Richard, this house is killing me - I am under great pressure - there is no more money, the bank will not give me any more and I need to finish the house”. At a subsequent point in the conversation, Mr Chan burst into tears, at which point Mr Collins said: “Kin - look at you - you must give up building this house - you will end up going mad”. Mr Chan denied that this conversation occurred. I do not accept his denial.

[13] Mr Collins and Mr Teimourshahi expressed the following concerns about Mr Chan’s work performance in their evidence:

● he was attending to work in a state of fatigue such that there was a concern about his capacity to perform his work safely;
● whilst at work he would spend considerable time on the telephone making arrangements for the building of his house, including organising subcontractors and ordering materials;
● he became difficult in his dealings with other employees such that they expressed a desire not to work with him;
● he disobeyed management instructions, made errors in his work and missed important deadlines; and
● he borrowed equipment (in some cases without specific permission) to such an extent that it put constraints upon the capacity of Rinex’s technicians to carry out their day-to-day tasks at work and sometimes required them to borrow or buy new tools and lifting equipment.

[14] Mr Chan was informally counselled a number of times about his deteriorating work performance and his preoccupation with building the house. This was primarily done by Mr Teimourshahi, and to a lesser extent by Mr Collins. Mr Collins described one instance where he remonstrated with Mr Chan as follows:

“Myself: Kin - you are really tired, again.

Mr Chan: What I do in my time is my concern - as long as I come to work on time and do a day’s work you cannot complain.

Myself: But you are unsafe to yourself and everybody else.

Mr Chan: No I am not - I am perfectly capable of working here and on my house as well.”

[15] Mr Chan denied that any such counselling had ever occurred, and pointed to the (admitted) lack of any documentary record of any such counselling having occurred. I do not accept his denial. I do not consider that the lack of any record of such counselling diminishes the credibility of the evidence of Mr Collins and Mr Teimourshahi in this respect; in the context of a small business without human resources expertise endeavouring to deal informally with a problematic employee with whom there had previously been a good working relationship, it is unsurprising that no formal record was made of such counselling.

[16] There was a conflict in the evidence about the circumstances in which Mr Chan returned to full-time work in December 2013. Mr Chan’s evidence was that the main stages of his house had been completed by October 2013, and he had at that time requested to return to full-time work only to be told that business was quiet and that he was only required for three days per week: it was only when he “insisted” to return to full-time work in December 2013 that this occurred. Rinex’s evidence was that from October to December 2013, the assignment of only part-time hours to Mr Chan was to accommodate his desire to continue to work on his house, and that Mr Chan’s return to full-time hours was at his request because he needed the money. I accept the latter version of events. Mr Chan’s version was inconsistent with the statement made in his originating application that “Last December, as my building work reached a stage that no longer required my attention I resumed full time work”, and appears to have been tailored to suit his theme that the true cause of his dismissal was redundancy.

[17] Mr Chan contended that upon his return to work “management started to unreasonably pressure me in order to drive me off the workplace from that point onwards” and that “under constant pressure from management, my health started going downhill in 2013”. The only example of this pressure described by Mr Chan as occurring prior to his final day of work on 13 February 2014 was that on “several occasions” he was required to carry starting batteries weighing 57 kilograms each together with another technician. While this might conceivably raise an issue of safe lifting practices, I do not consider that this could be characterised as part of a deliberate strategy to force Mr Chan to leave his employment. No motive on the part of Rinex to do this is apparent. It could not have been a strategy to eliminate Mr Chan’s position without having to pay him redundancy pay because, as a small business, Rinex was not liable to pay redundancy pay. I prefer the evidence of Mr Collins that Rinex needed and valued Mr Chan’s services, but required from him the standard of work performance that he had displayed prior to the commencement of his house-building project.

[18] The evidence of Mr Collins and Mr Teimourshahi was that Mr Chan’s work performance continued to deteriorate after December 2013. Not only did the problems identified in paragraph [13] continue, but there was the additional problem that Mr Chan began to extensively access his personal carer’s leave entitlements. He took such leave on 10, 15, 20, and 23 January and 6 and 7 February 2014. He did this without providing any advance notification, and would often only call or text Mr Teimourshahi to inform him that he would be absent mid-morning. Mr Teimourshahi described this as “very frustrating as I had already made commitments to clients and/or other technicians who had been waiting for him on jobsites”. Rinex’s invoices for the fuel card and mobile telephone it had issued to Mr Chan suggested that he was highly active on the days that he was on leave, and caused it to conclude that he was in fact not sick but was working on the house. The evidence is not conclusive about this. Mr Chan in cross-examination said that on two of the sick days he took he was with his daughter in Canberra assisting her dealing with the stress of settling into life away from home to attend university there. This may explain some of the car usage, although it does not explain the mobile telephone usage. I do not doubt that Mr Chan’s mental health was deteriorating significantly over this period of time as a result of him having to personally organise the completion of his house-building project with little money to do so while at the same time having to meet his work commitments. Whether, apart from the two days in Canberra, Mr Chan was taking leave because he was sick or because he was working on the house, or both, is unclear.

[19] Things came to a head on 13 February 2014. According to the evidence of Mr Collins and Mr Teimourshahi, Mr Chan had earlier been assigned to work on a project that had been arranged for Saturday 15 February 2014 to disrupt power at Zurich Insurance in order to install a new PLC (programmable logic controller) programme. Mr Chan was required to compile the necessary PLC programme in advance and then attend on the 15th to install and commission the programme. He was provided with a work schedule at the beginning of the week (in accordance with usual practice) which had him working on the Zurich project on 14 and 15 February 2014.

[20] According to Mr Collins and Mr Teimourshahi, during the 13th Mr Chan was in the Rinex office preparing drawings for the Zurich project, but was regularly distracted by telephone calls in which he was carrying on an argument with contractors for the house. In the early afternoon Mr Chan had some difficulty printing drawings from his computer, and attempted to resolve the issue by changing the printer settings. Mr Teimourshahi advised him not to do this as it would corrupt the office computer network, and offered to assist him with printing his documents. Notwithstanding this, Mr Chan continued to change the printer settings. This caused Mr Teimourshahi to offer assistance once again, but Mr Chan persisted in changing the printer settings. Mr Teimourshahi asked him to stop, but Mr Chan then shouted a tirade of abuse and swore at him. Mr Chan also raised his cup of tea above his head as if to throw it at Mr Teimourshahi, and then smacked it down on the table. This was witnessed by other female staff at close quarters in what was a small open-plan office, and heard by Mr Collins from his office upstairs. Mr Collins then intervened and directed Mr Chan to leave the office immediately.

[21] Mr Chan said that Mr Collins’ and Mr Teimourshahi’s account of this incident was laughable. He said that Mr Teimourshahi had “unreasonably accused” him of damaging the printer by changing the printer settings, and cited this as an example of unreasonable workplace pressure. However, his account of what transpired then was unclear. In his originating application, Mr Chan said: “On the 13th of Feb. I feel ill in the work place due to unbearable load of work pressure”. In an email which he sent to Mr Collins on 22 February 2014, Mr Chan said that on 13 February 2014, “In the afternoon near the end of my working hours, you personally told me to go home citing my illness”. In his first statement of evidence, Mr Chan simply said that “On the 13th of February, I fell ill for a prolonged period of time”. I do not consider that Mr Chan has given a credible alternative account of what occurred on 13 February 2014. I accept the evidence of Mr Collins and Mr Teimourshahi about this.

[22] Mr Chan did not attend for work on Friday 14 February, Saturday 15 February, Monday 17 February or Tuesday 18 February. He claimed to have been ill on all those days. By 19 February 2014 Mr Chan had not attended for scheduled work days on ten occasions within a period of about six weeks.

[23] The evidence indicates that on the morning of 14 February 2014, one of Rinex’s technicians telephoned Mr Chan at about 7.30 am, and Mr Chan told him that he would be absent because of illness. It is not clear from the evidence when the technician passed on this information, although at some stage Mr Teimourshahi became aware of this contact. More controversially, on 14, 17 and 18 February 2014 Mr Chan sent a text message to a Rinex office number on each day that read: “Not well, take a sick day. Kin”. The office number was a mobile telephone number, but it connected to a landline telephone that was incapable of receiving text messages. Accordingly, although it was not in dispute that the messages were sent, they were never received by Rinex. No message was sent on 15 February 2014.

[24] Mr Collins and Mr Teimourshahi gave evidence that the usual practice was that if Mr Chan was sick, he would call one of them (usually Mr Teimourshahi) personally, or at least text them directly, to inform them as early as possible. They said that neither Mr Chan nor anyone else had ever used the office line for that purpose before, and Mr Collins said that Mr Chan knew perfectly well that the line could not receive text messages. Mr Chan’s evidence was that what he did was consistent with past practice.

[25] I accept the evidence of Mr Collins and Mr Teimourshahi in relation to this matter. It is not easy to determine what Mr Chan’s motives were in behaving this way, but the most likely explanation is that he was actively seeking to avoid direct contact with Mr Collins and Mr Teimourshahi as a result of the incident of 13 February 2014.

[26] In relation to his absence from the scheduled Zurich job on Saturday 15 February 2014, Mr Chan said that it was normal practice in relation to weekend work that contact would be made by Rinex to confirm the job the day before. He said that because no such contact was made, he did not attend, and did not need to inform anyone that he would not be present. He also said that in any event he was sick on the 15th. Mr Collins rejected that evidence, and said that weekend work was very rarely cancelled, that the Zurich job was an “unbreakable arrangement”, and that it was in the weekly work schedule. Mr Teimourshahi gave some support for the proposition that confirmation of weekend work was part of usual practice. Whether it was the usual practice or not, it might have been expected that in any event Rinex would contact Mr Chan to ascertain his intentions, since he was critical to the project. However it seems Mr Collins formed the view - probably correctly - that Mr Chan was “ashamed” about the 13 February 2014 incident and/or was “sulking”, and would not be coming in. Mr Chan’s absence made it necessary for Rinex to bring in additional personnel to complete the PLC programming on 14 February and to carry out the installation on the 15th.

[27] On 18 February 2014 Mr Collins rang Mr Chan and asked him to come in for a meeting the following day. Mr Chan did so. The meeting occurred at the Rinex workshop at about 3.15 pm on 19 February 2014. At this point, Mr Collins was unaware that Mr Chan was claiming illness as the reason for his absence from work since 13 February 2014. In his statement of evidence, Mr Collins gave the following account of the meeting:

“Myself: Thank you for coming. How are you?

Mr Chan: Richard, very tired - this building is exhausting - I am organizing contractors and materials - I am under great pressure.

Myself: You realise this can’t go on. We have had numerous chats about this before. You have to finish your house and we have a business to run. The two things are incompatible. And look what you are doing to yourself.

Mr Chan: I would appreciate some more leeway.

Myself: You realise you have to go? For the benefit of all parties this cannot go on.

Mr Chan: If that is what you want.

Myself: No, I don’t but you must agree that we need to part until the house is finished. Then you are welcome to come back if you wish. You were a good worker and engineer up until your house took over. You know this situation is untenable.

Mr Chan: And when the house is finished?

Myself: Things may be a little quiet at the moment - so do not be upset about leaving - it is a small world and I am certain with your knowledge that we will get together again.

Mr Chan: O.K. But may I keep the car until the end of the month.

Myself: O.K - but drive carefully.”

[28] Mr Chan said that during the meeting there was no mention of his sick leave or work performance, and that Mr Collins “informed me frankly that business was slow and he was winding down the company”. Mr Collins accepted that he did try to “soften the blow” by suggesting that slowness in work was an element of the reason for Mr Chan’s dismissal, but as his account of the conversation made clear, the primary reason was that Mr Chan’s preoccupation with his house-building project had made the continuation of his employment untenable. I accept Mr Collins’ evidence about this meeting.

[29] It is apparent that Mr Chan chose to believe that he had been retrenched. This is made evident by the following email which he sent to Mr Collins on the evening of 19 February 2014 (omitting salutations):

“Thank you for your invitation for a private and candid conversation this afternoon about the company’s outlook for incoming projects and future prospective of the company’s movement.

As the my office’s key and some of tools have been returned at your request at the meeting, please kindly advise that my employment with Rinex has be terminated today? If so, please arrange all papers and finalise my entitlement asap.

Thank you for allow me to continue using the company’s car till sometime next month.”

[30] Mr Collins did not immediately reply to this email. This caused Mr Chan to send Mr Collins a timesheet claiming sick leave for 14, 17, 18 and 19 February 2014 and a picture from his mobile telephone showing the SMS messages he had sent in notifying his illness on those days. He also sent Mr Collins a medical certificate dated 21 February 2014 which asserted that Mr Chan had been unfit for work from 17 February 2014 to 21 February 2014 because of headaches and tinnitus. Notably, the certificate did not cover 14 or 15 February 2014.

[31] This caused a change in attitude on the part of Mr Collins, because he had not previously understood that Mr Chan was claiming any illness for the period 14-19 February 2014. In an email he sent to Mr Chan at 3.10 pm on 21 February 2014, Mr Collins now characterised Mr Chan’s absences in that period as “abandonment of employment”. Among other things, Mr Collins also demanded the immediate return of a number of specified items of Rinex property, including the car. This prompted a long reply email from Mr Chan on 22 February 2014 in which he rejected the claim of abandonment of employment and alleged that this claim was made “in order to avoid paying my entitlements”. Further emails were exchanged, with Mr Collins on 24 February 2014 warning Mr Chan that should he not return Rinex’s property, he would involve the police, and indicating that his entitlements cheque was ready to be picked up. In an email of the same date, Mr Chan said “Rinex did not pay me neither prepare to pay me my legal entitle for retrenching me (my legal entitle can be obtained from Fairwork Act 2009)” [sic]. The situation ended up with Mr Collins and Mr Teimourshahi attending Mr Chan’s house on 26 February 2014 to retrieve Rinex’s property, and contact had to be made with the police before the property was returned. In an email later that day to Mr Collins, Mr Chan again alleged that “No entitlement payment was given to me”. It is, I consider, reasonably apparent that the “entitlement” that Mr Chan was seeking was redundancy pay.

[32] Rinex subsequently paid Mr Chan his final payments, made up of salary until and including 19 February 2014, five weeks pay in lieu of notice, accrued annual leave and long service leave, with a deduction of $1,429.85 for tools purchased for personal use by Mr Chan on Rinex’s Bunnings card or for tools borrowed and not returned. The precise date upon which this was paid is unclear. Mr Collins also sent Mr Chan a long undated termination letter, which Mr Chan appears to have received on 6 March 2014. In that letter, Mr Collins denied that Mr Chan’s termination was a redundancy, and stated that Mr Chan’s “single-minded approach” to his house-building project had resulted in him “forsaking all friendship, honesty, integrity, work ethic and goodwill you had established over the previous 6½ years”. The letter also referred to Mr Chan’s house-building project as being the cause of his exhaustion at work, his absences from work, his poor relations with management and other staff and his unauthorised use of Rinex equipment, and stated that the complex, difficult and potentially dangerous nature of Rinex’s work meant that 100% concentration from staff was required at all times.

Consideration

[33] Section 396 of the Act requires that four specified matters must be determined by the Commission in relation to any unfair dismissal remedy application before the merits of the application may be considered. In respect of the matters identified in paragraphs (a), (b) and (d) of s.396, it was not in issue and I find that:

(1) Mr Chan’s application was made within the 21-day period required in s.394(2)(a);

(2) Mr Chan was a person “protected from unfair dismissal” within the meaning of that expression in s.382 at the time of his dismissal by Rinex; and

(3) the dismissal was not a case of “genuine redundancy” as that expression is defined in s.389.

[34] In respect of s.396(c), it was (as earlier stated) clear on the evidence that Rinex was at the time of the dismissal a “small business employer” within the meaning of that expression in s.23 of the Act. However Rinex conceded, properly in my view, that it could not seek to rely on the Small Business Fair Dismissal Code in its case. Mr Chan’s conduct could not on reasonable grounds have been considered to be serious misconduct warranting immediate dismissal, and for procedural reasons the Code was not otherwise complied with. I find that the dismissal was not consistent with the Small Business Fair Dismissal Code.

[35] Section 387 of the Act requires the Commission, in considering whether a dismissal was harsh, unjust or unreasonable, to take into account a number of matters specified in paragraphs (a) to (h) of the section. I will deal with each of these matters in turn below.

Paragraph 387(a)

[36] I consider that there was a valid reason for Mr Chan’s dismissal related to his capacity and conduct. As I have earlier found, after having been a competent and valued employee for a long period of time, Mr Chan’s work performance, behaviour and reliability were detrimentally affected by his undertaking of the house-building project. His preoccupation with this project had the following consequences:

● he became unreliable in his attendance at work;

● his workplace behaviour became difficult and somewhat volatile, with the result that some fellow employees tried to avoid working with him;

● he attended for work in an exhausted state such that there was a real basis for concern as to his capacity to perform his duties safely and competently;

● he could not be relied upon to attend to and properly discharge his critical duties in connection with projects that Rinex had undertaken;

● he engaged in activities connected with the house-building project in working time and was thereby distracted from his duties;

● he used company equipment on his house-building project without proper authorisation; and

● his general mental health and his capacity to concentrate on his work suffered.

[37] By February 2014, these problems had reached a point where Mr Chan’s behaviour in the workplace on 13 February 2014 was so unacceptable that he had to be directed to leave the workplace, and where his non-attendance during the following days when the Zurich project needed to be completed meant that alternative personnel had to brought in to do his work to the detriment of the business.

[38] In short, by 19 February 2014, Mr Chan’s continued employment with Rinex had become untenable. Rinex could no longer rely upon Mr Chan to perform his critical role in the business. In a larger business enterprise, Mr Chan’s issues may have been more manageable, but in a business as small as Rinex’s, it could not reasonably be expected that Mr Chan’s conduct and behaviour could continue to be tolerated.

Paragraph 387(b)

[39] Mr Chan was notified, albeit in a less than direct form, of the reason for dismissal at the meeting with Mr Collins on 19 February 2014.

Paragraph 387(c)

[40] I do not consider that Mr Chan was given an opportunity to respond to the reason for dismissal relating to his conduct and capacity at the meeting with Mr Collins on 19 February 2014. It is clear that the purpose of the meeting was for Mr Collins to inform Mr Chan, in as diplomatic a fashion as possible, of a decision already taken to terminate his employment.

Paragraph 387(d)

[41] There was no refusal in express terms of an opportunity for Mr Chan to have a support person present at the 19 February 2014 meeting. However Mr Chan was not offered that opportunity, and the lack of any prior notice of the purpose of the meeting meant that Mr Chan was not given a reasonable opportunity to request that a support person be present.

Paragraph 387(e)

[42] Mr Chan’s unsatisfactory performance had been raised with him informally on a number of occasions prior to his dismissal and he had been counselled about it. However he was not “warned” about it in the sense that he was told that unless his performance improved he might be dismissed.

Paragraph 387(f)

[43] I consider that the small size of the Rinex business affected the procedures followed in dismissing Mr Chan to a significant degree. There was no evidence that Rinex had ever dismissed anyone before. The imperfect procedures adopted by Rinex reflect this.

Paragraph 387(g)

[44] Rinex did not at any relevant time have any dedicated human resource management specialists or expertise, and this affected to a significant degree the procedures followed in dismissing Mr Chan.

Paragraph 387(h)

[45] I consider it relevant that Mr Chan has not been in an employment relationship since his dismissal. However because the complexity of his financial affairs leaves it unclear what his sources of income are, and because he has declined to seek alternative work as a qualified electrician for what appear to be status-based reasons, I do not place significant weight on this matter.

Conclusion

[46] Taking into account the above matters, I do not consider that Mr Chan’s dismissal was harsh, unreasonable or unjust. There was a valid reason for his dismissal. Although his dismissal was procedurally flawed, I do not assign significant weight to this because of the small size of the Rinex business and because I do not consider that, had Mr Chan been accorded procedural fairness, there was any reasonable possibility that anything he might have said could have altered the decision to dismiss him. I cannot identify any significant mitigating factors which would outweigh the valid reason for Mr Chan’s dismissal.

[47] Accordingly I order that Mr Chan’s application be dismissed.

VICE PRESIDENT

Appearances:

K. S. Chan on his own behalf

G. Jervis with R. Collins for Rinex Integrated Power Pty Ltd

Hearing details:

2014.

Sydney:

2 September.

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