Lawrence Pineda v Flick Anticimex Pty Ltd
[2024] FWC 1863
•17 JULY 2024
| [2024] FWC 1863 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lawrence Pineda
v
Flick Anticimex Pty Ltd
(U2024/4722)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 17 JULY 2024 |
Application for an unfair dismissal remedy – Applicant dismissed for genuine performance, punctuality and attendance issues – absence of procedural fairness – Applicant’s dismissal harsh, unjust and unreasonable – remedy – reinstatement inappropriate – nominal compensation ordered.
Introduction
Mr Lawrence Pineda (Applicant) has filed an unfair dismissal application (Application) with the Fair Work Commission (Commission) alleging that he was unfairly dismissed (within the meaning of s.385 of the Fair Work Act 2009 (Act)) by his former employer, Flick Anticimex Pty Ltd (Respondent).
The Respondent says that the Applicant was dismissed for genuine performance and attendance issues, including the falsification of time and work records, and otherwise denies that the Applicant was unfairly dismissed.
This matter was allocated to my Chambers on 29 May 2024, and Directions were issued that day providing for the filing and serving of evidence and submissions, and listing the matter for hearing.
At the hearing on 10 July 2024, the Applicant appeared for himself, and Ms Samantha Blagg, Principal, SBHR Consulting, appeared with permission on behalf of the Respondent.
Relevant law regarding unfair dismissal
Section 385 of the Act qualifies a claim for unfair dismissal:
“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.”
The parties are not in dispute as to the following:
(a)the unfair dismissal application was made within the period required by s.394(2) of the Act.
(b)the Applicant is a person protected from unfair dismissal within the meaning of s.382 of the Act;
(c)the Applicant was “dismissed” by the Respondent within the meaning of s.386 of the Act;
(d)the Small Business Fair Dismissal Code (as provided for in s.388 of the Act) does not apply; and
(e)the Applicant’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.
I accept and make findings consistent with the foregoing position of the parties. It follows that the Applicant is an employee protected from unfair dismissal in respect of his employment with the Respondent, and has filed a valid unfair dismissal application.
Factual overview
For the purposes of these proceedings, I make the factual findings that follow.
The Respondent provides residential and commercial pest treatment and eradication services for vermin (i.e. insects, rodents, reptiles and other feral animals).
The Applicant worked for the Respondent from 1 May 2023 to 5 April 2024 (11 months). He was employed as a fulltime (Trainee, unqualified) Pest Technician under the Flick Pest Control Enterprise Agreement 2022.[1]
In the Pest Technician role, the Applicant undertook inspections and treatments of the sites, structures and dwellings of clients of the Respondent, including regular servicing of pest and vermin control assets (devices, monitors, movement sensors, traps and related mechanisms) located on client sites. Such work included removing or disposing of vermin captured or killed, refilling poisons and baits, and replacing asset batteries.
Each day the Applicant would be issued with an electronic schedule of client sites to attend upon to perform his work. Once a client site has been serviced, the Applicant completes an electronic Service Inspection Report (SIR) in respect of the site, site location, client name, time in, time out, service/s performed. The SIR also raises an invoice, and allows for a technician to make comments and observations as to site activity, site conditions, vermin activity, products applied, products replaced, further follow-up work to be scheduled or performed, and related matters. The SIR is signed by the client and the technician once completed, and consolidates to form an electronic contemporaneous record of the site attendance that took place.
On the basis of the evidence of Mr Moustapha Ayoubi (Branch Manager – Sydney Commercial) at the hearing, I accept that a properly completed SIR is critically important in that it is a business record of the Respondent as it concerns its own business activities and standards, and is also used to confirm to a client that relevant work has been undertaken as requested or required (giving rise to payment to the Respondent for such work). In other words, the SIR is the method by which a client can be satisfied that their pest eradication needs and obligations have been met, and that payment to the Respondent for the provision of such services should occur. The signing of an SIR by a client (or their on-site delegate/contact) also enables the client to have some level of oversight as to work that has been performed and is to be charged. This includes clients who have entered into on-going or regular pest maintenance or eradication arrangements with the Respondent, which provide for client sites, structures and dwellings to be regularly serviced (via service visits) as part of a fixed schedule and cost service plan.
I equally note from the evidence that the Respondent’s pest and vermin control activities include the use of pest and vermin control assets which run 24/7 on batteries, and contain GPS remote monitoring systems that send out electronic information as to their use, functioning and status (to the Respondent and/or the client). These assets need to be regularly serviced, including (if applicable) having their batteries replaced, to ensure their on-going function.
On 5 April 2024, the Applicant was issued with a letter confirming the termination of his employment with the Respondent (Termination Letter), which reads:
“Dear Lawrence,
This letter confirms the outcome of the meeting held with you on 05/04/2024.
The purpose of that meeting was to advise that your performance since commencement, has not met the standards required at Flick Anticimex despite ongoing coaching conversations with you.
• Not attending working at the required time
• Missing jobs and failure to communicate to the office.
• Falsing job completion• Going MIA in the workday
As a result of the above, a decision has been made to terminate your employment.
In accordance with your employment contract, Flick Anticimex will provide payment for all monies which you are entitled to including the minimum statutory period of notice (one week, paid in lieu) and accrued annual leave entitlements.
Yours sincerely,Moutsapha Ayoubi
Branch Manager – Sydney Commercial”
I note that a termination meeting was held with the Applicant on 4 April 2024 (Termination Meeting), at the conclusion of which the Applicant decommissioned his work van and handed it over to the Respondent, along with other employer property (including his work mobile phone).[2] It follows that the reference in the Termination Letter to a meeting held on 5 April 2024 is in error, and should be a reference to the Termination Meeting held on 4 April 2024.
The Applicant received payment in lieu of notice (one week), along with his outstanding annual leave accruals, on 14 May 2024.
In closing oral submissions, Ms Blagg submitted (on behalf of the Respondent) that the Applicant was in reality dismissed for reasons of serious misconduct (i.e. falsely claiming that he attended two work sites and performed certain work, when he did not), but paid one week’s pay in lieu of notice anyway.
Whether the Applicant’s dismissal was harsh, unjust, and/or unreasonable
Section 387 of the Act provides what matters must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable.
“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”.
The terms “harsh”, unjust” and “unreasonable” are to be given their ordinary meaning.
An Applicant (employee) carries the onus to prove that his or her dismissal was unfair.
It is well settled that a statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give a matter(s) weight as a fundamental element in the decision-making process. However, as Kitto J noted in Rathborne v Abel[3]:
“Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v. Ward [1961] YR 632, at 634.”[4]
(my emphasis)
s.387(a) — Whether there was a valid reason for the Applicant’s dismissal which is related to his capacity or conduct
An employer bears the persuasive onus of establishing or proving that there was a valid reason for an employee’s dismissal.[5] The level of proof is on the balance of probabilities, at a reasonable level of satisfaction.[6] The fact that serious allegations are made does not alter the position in civil proceedings that the level of proof is based upon the balance of probabilities.[7]
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”.[8] Further, 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.[9]
Where a dismissal relates to conduct, the reason for the dismissal may be valid because the conduct occurred and justified dismissal. However, the reason may not be valid because the conduct did not occur, or it did occur but did not justify dismissal.[10]
The question of whether the alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it,[11] and reasonable minds may differ.
The Respondent submits that there was a valid (performance) reason for the Applicant’s dismissal. That valid reason is said to arise from the Applicant’s conduct, that flows into an irretrievable breakdown of trust in the relationship between the parties, and resulted (in the facts of this case) in the Respondent’s decision to dismiss the Applicant from its employment. The Respondent’s evidence to support its contentions as to the Applicant’s conduct is summarised in the file note of Mr Marvin Victoria, Operations Manager, which reads:
“04/04/2024
Falsifying documentation and completing work which is fraud.
At 2:45 on the 04/04/2024 -schedule advise that Lawrence hasn’t clocked in to all of his jobs that day. Phone conversations with Lawrence, Marvin Operations Mgr., Moustapha BM
Called Lawrence at 3 pm and ask LP why has only actioned 2 or of 6 jobs that day, and what was he doing the whole day. Lawrence replied he was trying to find parking and it was raining. We question his two completed jobs that day, he replied he did them.
After the phone conversation ended, Flick has a database system that checks if the device has been updated, none of which was done, which means he was closing off work without attending site. Confirmed with both customers advising no FLICK rep attended that site .
Attached below are 2 examples of not attending site records. These are internal company records which Moustapha Ayoubi can explain at the Tribunal in detail what they mean, and how it indicates evidence.
The below is the example of 1”[12]
The notes of the Termination Meeting between Mr Ayoubi, Mr Victoria and the Applicant, that occurred at around 4:30pm on 4 April 2024, read:
“Moustapha, Marvin and Lawrence went in the meeting room. Moustapha explained to Lawerence due to the following reason of:
• Not attending working at the required time
• Missing jobs and failure to communicate to the office.
• Falsing (sic) job completion
• Going MIA [missing in action] in the workdayWe have spoken to you about 3 out of the 4 point above, the 4th is falsing (sic) work, regarding work today we have checked with two customers [omitted] and [omitted] and said both didn’t see you on the 04/04/2024.
This is a breach of trust and company policy which put the business a risk with our customers.
RESOLUTION/CORRECTIVE ACTION
Termination of Employment – letter provided to Lawrence Pineda”[13]
Having heard evidence from Mr Ayoubi,[14] Mr Victoria and the Applicant at the hearing, and considered the documentary evidence contained as attachments to the Respondent’s Final Statement 7, I accept that the ‘notes’ set out at paragraphs [27] and [28] of this decision support the following two findings:
a) the Applicant engaged in the conduct alleged by the Respondent as it concerns the identification and summation of that conduct set out in Mr Victoria’s file note of 4 April 2024;[15] and
b) further to (a), the Applicant’s conduct was a valid (sound, defensible and well founded) reason for the Applicant’s dismissal by the Respondent.
The existence of a valid reason for the Applicant’s dismissal weighs in favour of a finding that the Applicant’s dismissal was not harsh, unjust and unreasonable.
s.387(b) - Whether the Applicant was notified of the valid reason; and s.387(c) - Whether the Applicant was given an opportunity to respond to any reason related to his capacity or conduct
Proper consideration of s.387(b) of the Act requires a finding to be made as to whether the Applicant “was notified of that reason” and given an opportunity to respond to same.
Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a) of the Act.[16] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[17] and in explicit, plain and clear terms.[18]
In order to be given an opportunity to respond for the purposes of s.387(c), the employee must be made aware of allegations concerning the employee’s conduct so as to enable them to respond to the allegations and must be given an opportunity to defend themselves. As Justice Moore has stated in Wadey v YMCA Canberra[19]:
“the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That… does not constitute an opportunity to defend.”[20]
The Applicant was given an opportunity to respond to the Respondent’s allegations against him at the Termination Meeting. However, the Applicant received no advance notice of the allegations, or advance notice of the purpose of the Termination Meeting. It follows that the criteria under s.387(b) and (c) weigh in favour of a finding that the Applicant’s dismissal was harsh, unjust or unreasonable.
s.387(d) — Whether there was any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal
The Applicant was not provided with the opportunity (let alone a genuine opportunity) to bring a support person to the Termination Meeting.
As noted by a Full Bench of this Commission, “[t]he subsection is not concerned with whether or not the employee was informed that he or she could have a support person present”.[21] I therefore treat this criteria (s.387(d)) as a neutral consideration in this case.
s.387(e) — Whether the Applicant was warned about that unsatisfactory performance before his dismissal
A warning for the purposes of s.387(e) of the Act must clearly identify:
· the areas of deficiency in the employee’s performance;
· the assistance or training that might be provided;
· the standards required; and
· a reasonable timeframe within which the employee is required to meet such standards.[22]
In addition, the warning must “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”[23] In order to constitute a warning for the purposes of s.387(e), it is not sufficient for the employer merely to exhort their employee to improve their performance.[24]
I am satisfied that the Applicant was warned about his unsatisfactory work performance prior to his dismissal. Whilst the Respondent’s evidence as to its prior concerns, issues and warnings in respect of the Applicant’s work performance, service quality, service delivery, punctuality and absenteeism is somewhat unreliable, it is supported by some contemporaneous objective evidence in the form of business records (site inspection reports), text messages, screen shots, and photographs sufficient to ground findings that the Applicant was well aware, and had been told or warned, that he was engaging in conduct and behaviour wholly inconsistent with his obligations to the Respondent in the performance of his role.[25]
The Applicant says that he was not given sufficient training in his role by the Respondent, such that his performance issues are not a reflection of his own performance, but an absence or lack of training by the Respondent. Even if that be the case, which has not been proven on the evidence, many of the Applicant’s work performance issues arise from his own absenteeism, lack of timeliness, and lack of communication with the Respondent (when attending work late, or not at all). No amount of training can resolve these issues.
I find that this criteria (s.387(e)) weighs in favour of a finding that the Applicant’s dismissal was not harsh, unjust or unreasonable.
The degree to which the size of the Respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal (s.387(f)); and 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 (s.387(g))
The Respondent does not employ dedicated human resources management specialists.
There is no evidence to suggest that the size of the Respondent’s enterprise (some 1,600 employees all-up) likely impacted upon the procedures it followed in effecting the Applicant’s dismissal. I note that whilst the Respondent has a large number of overall employees, the Respondent’s Sydney Branch does not employ dedicated human resource professionals, and obtains its human resources assistance externally, on a sporadic basis, and in many instances after an issue has already arisen and/or been dealt with or responded to.
Neither party put forward substantive or relevant submissions that go directly to either of the criteria under ss.387(f) and (g) of the Act. I therefore treat both of these criteria as neutral considerations in this case.
s.387(h) - Any other matters that the Commission considers relevant
The Applicant made various submissions concerning his personal and family circumstances (including the effect of his immediate dismissal upon same), him being a hard worker, the presence of unforeseen circumstances, and trying his best. He also submitted that:
a) he got through his six month probation without incident, and that the Respondent’s allegations against him appear to have been recent inventions or “fishy”; and
b) his conduct, even if proven, ought to have only resulted in a warning, and not his termination.
My Ayoubi’s evidence is that he was leading a new management team and had started or taken up his role as Branch Manager post the Applicant’s six month probation. He did not take the decision to dismiss the Applicant lightly, but he had to maintain standards, and the Applicant remains a person who simply does not understand the gravity of his poor performance and conduct as it affects both the Respondent and its customers.
In the facts and circumstances of this case, I am not persuaded that the “other matters” raised by the Applicant (as set out in paragraph [45] above), give rise to anything more than neutral considerations.[26]
On a final note, I did not find the Applicant to be a particularly reliable or credible witness. During his responses to questions at the hearing, he raised issues unrelated to the question asked, and in some cases was overly generalist in his answers, or otherwise non-responsive. He was clearly communicating with his wife (located at the bar table) from the witness box (verbally and non-verbally) during his cross-examination by Ms Blagg. In comparison, I consider that both Mr Ayoubi and Mr Victoria provided straight forward answers in their explanations of the events that have happened, and in their responses to the questions that were asked of them. To the extent that there is any contest on the evidence as to the facts, I have preferred the evidence of Mr Ayoubi and Mr Victoria to that of the Applicant.
Was the Applicant’s dismissal unfair?
I have made findings in relation to each of the criterion specified under s.387 of the Act (as relevant). I have also considered and given due weight to each of the criterion as a fundamental element in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.[27]
In relation to the criterion set out under s.387 of the Act, I have found that:
(a) the presence of a valid reason for the Applicant’s dismissal weighs against a finding that the Applicant’s dismissal was harsh, unjust and unreasonable;
(b) the fact that the Applicant was warned about his unsatisfactory work performance prior to his dismissal weighs against a finding that the Applicant’s dismissal was harsh, unjust and unreasonable; and
(c) other relevant criteria (under s.387 of the Act) either weigh in favour of a finding that the Applicant’s dismissal was harsh, unjust and unreasonable, or are neutral considerations.
In view of the findings and conclusions set out in this decision, including as to the absence of what might be broadly termed procedural fairness in effecting the Applicant’s dismissal, I find that the Applicant’s dismissal was harsh, unjust and unreasonable (i.e. unfair). The Applicant’s dismissal was a dismissal for a valid reason, absent procedural fairness, which in my view, in the overall facts and circumstances of this case, made the Applicant’s dismissal unfair.
Remedy
Being satisfied that the Applicant:
(a)has made a valid application for an order granting a remedy under s.394 of the Act;
(b)was a person protected from unfair dismissal; and
(c)was unfairly dismissed within the meaning of s.385 of the FW Act;
I may, subject to the Act, order the reinstatement of the Applicant, or the payment of compensation to him.
Under s.390(3) of the Act, I must not order the payment of compensation to the Applicant unless:
a. I am satisfied that his reinstatement is inappropriate; and
b. I consider that an order for payment of compensation is appropriate in all the circumstances of the case.
In all of the circumstances, I do not consider that reinstatement of the Applicant is an appropriate remedy. The Applicant does not seek reinstatement, and the Respondent does not want him back in its workplace. I am satisfied (and find) that his reinstatement is inappropriate in this case.
As I have found that reinstatement is inappropriate, I must now consider whether an order for compensation is appropriate under s.390(3)(b) of the Act. A Full Bench of the Commission has noted that the question of whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one, and whether an applicant has suffered financial loss may be a relevant consideration.[28]
I am satisfied that the Applicant has suffered a financial loss, and having considered all of the circumstances of this case, and I find that it is appropriate to order compensation in his favour. My reasons and assessment of the amount to be awarded follow.
The long-established approach to assessing compensation in unfair dismissal matters was set out in Sprigg v Paul Licensed Festival Supermarket (Sprigg),[29] which the Full Bench of this Commission has since applied under the current Act.[30]
I summarise the Sprigg formula as follows:
i)estimate the remuneration that employee would have received if the employer had not terminated the employment;
ii)deduct monies earned since termination;
iii)discount the remaining amount for contingencies; and
iv)calculate the impact of taxation.
While Sprigg’s case sets out the method, I must nevertheless take account of all the circumstances of the case, and the specific criteria listed under s.392 of the Act.[31]
The overall consideration is that the level of compensation must nevertheless be appropriate (i.e. neither clearly excessive, nor clearly inadequate) having regard to all of the
circumstances of the case.[32]
Sections 392(2)-(6) of the Act, read:
“(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 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.”
Section 392(2)(a) – Viability
The Respondent has not filed any evidence regarding this factor. I am not persuaded that my consideration of this factor means that I should not make an order for compensation, or reduce any amount of compensation to be ordered.
Section 392(2)(b) – Length of service
The Applicant was employed by the Respondent for 11 months. This is a short period of time, however, I consider that the Applicant’s length of service does not support reducing or increasing the amount of compensation ordered.
Section 392(2)(c) – Remuneration the person would have received
As stated by a majority of the Full Court of the Federal Court in the He v Lewin[33] (as quoted in Zeng v Conrock Australia Pty Limited)
“[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive... the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”
The Applicant seeks three months compensation (on the basis that he has been unemployed for three months), however, he advanced no substantive basis upon which a finding can be made that he would have remained in the Respondent’s employ (but for his dismissal) for a three month period. In the circumstances of this case, I do not accept that the Applicant would have remained in the Respondent’s employ beyond (at the most) a further four weeks. The evidence discloses that the Respondent was clearly dissatisfied (at its wits end) with the Applicant’s repeated poor performance, bad punctuality and unexplained absenteeism, and this poor work performance, bad punctuality and unexplained absenteeism was occurring on a consistent basis in the months/weeks leading up to the Applicant’s dismissal on 5 April 2024.
Section 392(2)(d) – Efforts to mitigate loss
The Applicant’s evidence as to his attempts to mitigate his loss are unsupported by documentary evidence. He simply says that he has been unsuccessful in applying for various jobs. I am therefore unable to objectively assess the genuineness of the Applicant’s attempts to find alternative work post his dismissal. I consider it appropriate to reduce any amount ultimately awarded to the Applicant by 20 percent (i.e. based upon his failure to tender, or otherwise rely upon, probative objective evidence of his mitigation attempts post his dismissal).
Section 392(2)(e) & (f) – Remuneration and income earned
The Respondent paid the Applicant one week in lieu of notice. This amount is to be deducted from any ultimate compensation amount awarded to the Applicant. The Applicant’s oral evidence is that he has not earnt any income or secured any paid employment between his dismissal and the date of the hearing. He was not tested on this evidence during cross-examination.
Section 392(2)(g) – Any other matter
I am not aware of any other matter to be considered in determining the amount of compensation to be awarded to the Applicant.
Section 392(3) – Contribution to dismissal by misconduct not relevant
I find that misconduct by the Applicant (as found to have occurred in this decision) significantly contributed to his dismissal. I will reduce any compensation awarded to the Applicant on the basis of misconduct by 20%.
Section 392(4) – Shock, distress etc disregarded
I have not ordered an amount of compensation for shock and distress given that I am not permitted to do so under the Act.
Taxation
Consistent with prior decisions,[34] I propose to order payment of a gross (that is, before
tax) amount of compensation, to be taxed according to law. I therefore take into account issues of taxation, but leave such issues to applicable taxation legislation.
Section 392(5) Compensation Cap
At the time of his dismissal, the Applicant was paid $1,107.70 (gross) per week.[35]
Under s.392(5) of the Act, the compensation cap is the lesser of 26 weeks of the Applicant’s pay, or half the amount of the high income threshold. I am satisfied that the amount to be awarded to the Applicant in this case will not exceed the compensation cap.
Conclusion on Remedy
Having weighed each of the considerations under s.392 of the Act, I find it appropriate to grant the Applicant a compensation amount that is equivalent to the income that he would have received had he not been unfairly dismissed by the Respondent. I take that period of time to be four weeks, or the gross sum of $4,430.80 (i.e. 4 x $1,107.70).
Noting that the Applicant received one week’s pay in lieu of notice, I also consider it appropriate that the period of compensation be reduced accordingly, to three weeks, or the sum of $3,323.10 (i.e. 3 x $1,107.70). I then reduce this amount by 50 percent (being 20 percent for failure to appropriately (on the evidence) mitigate loss, a further 20 percent for misconduct, with a further 10% deduction to be applied for contingencies (per Sprigg), resulting in a final sum of $3.323.10 less 50% ($1,661.55) = $1,661.55 (gross, and subject to applicable taxation as required by law).
In all the circumstances, my evaluative assessment is that the appropriate remedy in this matter is an order compensating the Applicant for his unfair dismissal in the gross amount of $1,661.55 (less applicable taxation), plus superannuation of 11 percent on the gross amount (being a total superannuation payment of $182.77). I consider these amounts to be appropriate (i.e. neither clearly excessive, nor clearly inadequate) in all of the circumstances of the case.
Section 381(2) of the Act is a significant overarching object of Part 3-2 of the Act. It is expressed as follows:
“381 Object of this Part
(1) The object of this Part is:
(a)to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b)to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c)to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”
In my judgment, the outcome in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both the Applicant (as employee) and the Respondent (as employer).
I will issue Orders as to compensation reflective of the outcome of this decision, which will be issued contemporaneously with this decision. These proceedings are otherwise finalised, completed and closed.
DEPUTY PRESIDENT
The Applicant, Mr Lawrence Pineda, appeared for himself.
Ms Samantha Blagg, Principal, SBHR Consulting, appeared with permission on behalf of the Respondent (Flick Anticimex Pty Ltd).
[1] Letter of Offer, 20 April 2023.
[2] Note clauses 33 and 55 of the Flick Pest Control Enterprise Agreement 2022, and the Letter of Offer, 20 April 2023, at clauses 11 and 16.
[3] (1964) 38 ALJR 293.
[4] Ibid, at 301.
[5] Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, at 412; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, at 204.
[6] Briginshaw v Briginshaw (1938) 60 CLR 336, at 361-362 (per Dixon J); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, at 170-171 (per Mason CJ, Brennan, Deane and Gaudron JJ).
[7] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, at 170-171 (per Mason CJ, Brennan, Deane and Gaudron JJ).
[8] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (2000) IR 371, at 373.
[9] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, at 685.
[10] Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836, at [7]; Gelagotis v Esso Australia Pty Ltd[2018] FWCFB 6092, at [117]; Titan Plant Hire Pty Ltd v Van Malsen[2016] FWCFB 5520, 263 IR 1, at [28].
[11] King v Freshmore (Vic) Pty Ltd[2000] AIRC 1019, Print S4213, at [23] to [24].
[12] Respondent’s Final Statement 7.
[13] Respondent’s Final Statement 8. It is not apparent that the Applicant saw, prior to being served with the Respondent’s Final Statement 8 as part of these proceedings, the minutes of the Termination Meeting conducted on 4 April 2024.
[14] At the hearing, Mr Ayoubi pointed out that the Applicant’s conduct (as depicted in the Respondent’s Final Statement 7) was fraudulent in that the customer has paid for a service never performed, that customers (such as the restaurant in this case) have health standards that they must meet and comply with (which they rely upon the Respondent for), and that such conduct (absence of service) can result in the customer losing trust in the Respondent (with the Respondent losing out on that customer’s patronage and payments, and gaining a bad reputation). Mr Ayoubi noted that the Respondent’s assets do not record the Applicant as attending the customer site or servicing the asset, and the specific customer also confirms that the Applicant did not attend their site – which is despite the Applicant signing off on and submitting a Service Inspection Report for that specific site/job.
[15] Respondent’s Final Statement 7. During the hearing, the Applicant’s response to the allegations made in the Respondent’s Final Statement 7 centred around generalities as to his personal and family circumstances, not being given enough training and support, the presence of unforeseen circumstances, being given too much work to do, texting another employee (Candice) about the two sites visits in question, and just trying his best. None of these responses go towards directly explaining or responding to the allegations and other concerns set out in the Respondent’s Final Statement 7.
[16] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, at [55]; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.
[17] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.
[18] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998). See also Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), at [41]; Read v Gordon Square Child Care Centre Inc[2013] FWCFB 762 (Acton DP, Deegan C and Gregory C), at [46] to [49].
[19] [1996] IRCA 568.
[20] Ibid.
[21] Jurisic v ABB Australia Pty Ltd[2014] FWCFB 5835, at [84].
[22] McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd[2013] FWC 3034, at [32].
[23] Fastidia Pty Ltd v Goodwin, Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), at [43] to [44].
[24] Ibid.
[25] See Form F3, at Items 3.1 and 3.2, and the Respondent’s Final Statements 2 (punctuality and lack of communication), 3 (questionable service work and poor performance, circa February 2024), 4 and 5 (Verbal Warning for attendance and punctuality on 14 February 2024) and 6 (punctuality and lack of communication, failure to complete work hours between 7am and 3pm, 7 March 2024). Whilst I accept that the photographs attached to Fact Statement 3 are unverifiable as to the date and time that they were taken, their location, and their proximity to servicing work performed by the Applicant, the issue that raises concerns is the Applicant’s response to such photographs when confronted with them at the hearing. In this regard, at the hearing the Applicant did not challenge the authenticity of such photographs, but sought to suggest that the images depicted were of vandalism, as opposed to poor service delivery by him. I cannot remove the potential for vandalism of the devices depicted, however, the assets in the pictures (in my view) depict images of assets that have not been rectified to their functional purpose after being serviced or attended to.
[26] I note the absence of procedural fairness in effecting the Applicant’s dismissal, however, I have already dealt with this issue and taken it into account under the statutory aspects of procedural fairness (i.e. ss. 387(b) and (c) of the Fair Work Act 2009).
[27] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), at [92]; Edwards v Justice Giudice [1999] FCA 1836, at [6] to [7].
[28] Vennix v Mayfield Childcare Limited[2020] FWCFB 550, at [20].
[29] (1988) 88 IR 21.
[30] ERGT Australia Pty Ltd v Govender[2021] FWCFB 4508, at [35].
[31] Elefantis v The Trustee for Timber Ridge Unit Trust[2022] FWCFB 43, at [67].
[32] McCulloch v Clavary Health Care Adelaide[2015] FWCFB 873, at [29].
[33] [2004] FCAFC 161 at [58].
[34] Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge[2013] FWCFB 431 at [55]; Vennix v Mayfield Childcare Limited[2020] FWCFB 550 at [32].
[35] Form F3, Employer Response.
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