Livani Gianakis v Clarke Allied Work Pty Ltd
[2023] FWC 1073
•8 MAY 2023
[2023] FWC 1073
The attached document replaces the document previously issued with the above code on 8 May 2023.
Typographical error corrected in paragraph [51]. Second sentence of paragraph [104] amended to add the word “not”. Date in paragraph [139] changed from “19 December” to “20 December”.
Associate to Deputy President Anderson.
Dated 8 May 2023.
| [2023] FWC 1073 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Livani Gianakis
v
Clarke Allied Work Pty Ltd
(U2022/12181)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 8 MAY 2023 |
Application for an unfair dismissal remedy – disability sector – administrator / therapy assistant – accreditation – conduct and performance – valid reason – procedural fairness – dismissal harsh – compensation ordered
On 22 December 2022 Livani Gianakis (Mr Gianakis or the applicant) applied under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy. He was dismissed that day (22 December 2022) by Clarke Allied Work Pty Ltd (Clarke Allied, the respondent or the employer).
At the date of dismissal, Mr Gianakis was employed as an Administrator / Therapy Assistant.
Mr Gianakis claims the dismissal was harsh, unjust or unreasonable. He seeks compensation.
Clarke Allied oppose the application. It contends that the dismissal was not unfair and no issue of remedy arises.
Conciliation was conducted on 15 February 2023. The application did not resolve.
Directions were issued on 21 February 2023 (amended 5 April).
In advance of the hearing, I received materials from Mr Gianakis and the employer.
On 19 April 2023, I refused a request by Clarke Allied to be legally represented.[1]
I heard the matter (merits and remedy) in person on 1 May 2023.
Mr Gianakis was self-represented. The employer was represented by its internally employed Corporate and Legal Affairs Manager.
Evidence
Witness statements were filed in the name of five persons:
By the applicant
· Livani Gianakis (applicant);[2]
· Angela Gianakis (mother);[3] and
· Roland Gianakis (father).[4]
By the respondent
· Fiona Margaret Clarke (business owner);[5] and
· Brian Wright (client).[6]
I was advised at the outset of proceedings that Mr Gianakis did not seek to examine the employer witnesses and that Clarke Allied did not seek to examine the applicant or his other witnesses.
Whilst I agreed to receive the statements of Angela Gianakis, Roland Gianakis and Brian Wright without each being called to answer questions, I indicated that in a matter such as this where contested facts exist as to the applicant’s conduct and performance there were questions the Commission intended to ask of its own motion of both the applicant and Ms Clarke. Accordingly, each gave oral evidence (although neither party cross examined the other despite being given the opportunity to do so).
Both Mr Gianakis and Ms Clarke gave evidence to the best of their recall. Ms Clarke was a conscientious witness and her evidence creditworthy. Whilst the employer in closing invited me to make some adverse findings of credit against Mr Gianakis I decline to do so given that he was not cross examined. Whilst some gloss was placed on aspects of his evidence, it was generally reliable.
To the extent factual disputes arise, I deal with those in the body of this decision.
I note that the employer did not call two persons who form part of the relevant narrative – the Chief Operating Officer Mr Seric who issued a final warning letter and the termination letter; and a team leader Mr Rowe to whom Mr Gianakis reported. I do not however draw an adverse inference of the Jones v Dunkel[7] kind for not doing so given that, with the evidence I adduced from Ms Clarke and Mr Gianakis, no significant evidentiary lacuna exists.
I take into account that some evidence (oral and written) includes hearsay. I give limited weight to hearsay where it concerns disputed facts unless otherwise corroborated by direct evidence on which findings can be made to the requisite standard of proof.
Facts
I make the following findings.
Clarke Allied
Clarke Allied is a health and wellbeing service provider including to persons with disability. It is registered with and provides services to the National Disability Insurance Agency (NDIA) under the National Disability Insurance Scheme (NDIS).
The services provided principally (though not exclusively) concern assistance on dietary and lifestyle support. The business trades as ‘The Innovative Dietician’ and ‘Innovative Supports’.
Clarke Allied is not a small business within the meaning of the FW Act but is a business of relatively small scale. It employed approximately twenty persons at the time Mr Gianakis was dismissed. It operates from a number of locations in the Adelaide metropolitan area.
Clarke Allied is owned and operated by Ms Clarke who has a commitment to support vulnerable members of the community.
Mr Gianakis’ employment
Mr Gianakis was employed in March 2022 as a 24 year old with tertiary qualifications in Exercise and Sport Science, and in Graphic Design.[8]
Mr Gianakis was employed as a part time employee working at least 25 contracted hours per week.[9] He was employed under the Social Community Home Care and Disability Services Industry Award 2010.
Two months after commencing, and with the sponsorship of his employer, Mr Gianakis commenced a formal traineeship for a Health Support Worker qualification under a Training Plan intended to be conducted over forty-six months through an approved traineeship provider.[10]
The circumstances by which Mr Gianakis came to be employed were somewhat unorthodox. His mother was at the time a client of Clarke Allied. Ms Clarke came to be aware of Mr Gianakis seeking permanent work through her connection with his mother. Mr Gianakis was, prior to being employed, working casually as a soccer, swimming and tennis coach with certain sporting clubs and schools.
Ms Clarke did not have a vacancy to fill but decided to create a position that could suit the business and Mr Gianakis’ skill set and develop his competencies. The position of ‘Administrator / Therapy Assistant’ was created.
As evidenced by the position title, a portion of Mr Gianakis’ role was administrative work in the office. This included website and social media management and related tasks, utilising Mr Gianakis’ training in graphic design. The therapy assistant work contemplated Mr Gianakis providing health and lifestyle services to NDIS clients of the business to assist them becoming more active around their homes and community. Ms Clarke envisaged using Mr Gianakis’ qualifications and connections in sport and exercise, as well as upskilling via the traineeship.
NDIA certification
Mr Gianakis had not previously worked in the disability sector.
As Clarke Allied was an NDIA provider and as Mr Gianakis would be providing services to clients as part of the therapy assistant role, Ms Clarke informed Mr Gianakis at the time of engagement that he needed to hold NDIA certification to work in the sector. Mr Gianakis agreed to procure certification. Doing so was important to Ms Clarke because the business needed to be compliant with NDIA requirements.
The obligation on Mr Gianakis was written into the Employment Contract. Clause 10.4.3 provided:[11]
“You must procure an NDIA mandatory certificate and provide us with evidence of the same”.
It was also a contractual requirement that Mr Gianakis hold a Criminal History Assessment certifying that he was able to work with children, persons with a disability and the aged. Mr Gianakis held a working with children certificate, given his prior (and continuing) sports coaching work in clubs and schools.
Mr Gianakis’ work arrangements
Until dismissed, Mr Gianakis worked for nine months.
Mr Gianakis organised his minimum contracted hours (25) around four days per week (Tuesday to Friday inclusive), allowing him to continue other sports coaching work on Fridays to Mondays or doing additional hours for Clarke Allied on weekends when he did not have those commitments.
Commonly until mid-November 2022 (one month prior to dismissal) Mr Gianakis worked additional (weekend) hours for Clarke Allied such that he averaged about 32 hours per week.
Mr Gianakis reported to a team leader Mr Rowe. When Mr Gianakis was allocated therapy assistant work, this would be done via another team leader Mr Watson.
In the early months of employment Mr Gianakis mainly performed administrative duties as he developed his skills and familiarity with the business. He was then progressively allocated therapy assistant work. By the last quarter of 2022 a majority of his time (approximately two-thirds) was therapy assistant work.
Performance concerns
In the last quarter of 2022 Ms Clarke was advised of and developed some concerns about Mr Gianakis’ performance and conduct.
She had been informed by Mr Rowe and others that despite repeated requests, Mr Gianakis had not provided evidence of his NDIA certification.
On performance, she thought Mr Gianakis was doing some good work but was also somewhat carefree with what was required of him.
In relation to Mr Gianakis helping clients with therapy assistance work, Ms Clarke felt that Mr Gianakis may be pressuring them to attend sporting activities in the community that Mr Gianakis wanted to attend rather than activities that might be the best fit for the client.
In a team meeting context Ms Clarke spoke to Mr Gianakis about some of these concerns. Whilst he was, according to her evidence, insistent that the activities he had proposed were beneficial to the clients, she “put her foot down”[12] and advised Mr Gianakis that he needed to exercise better and more balanced judgement about external sporting outings.
In mid-November 2022 Ms Clarke appointed a new Chief Operating Officer Mr Seric. She told Mr Seric that Mr Gianakis needed to be more closely managed. Mr Seric decided that Mr Gianakis should work only his contracted hours, not extra hours whilst his work output was assessed. From mid-November 2022 Mr Gianakis was rostered twenty-five hours per week (only) and not always on Tuesday to Friday.
In the week of 12 December 2022, Mr Gianakis was rostered to work as part of his regular hours on Saturday 17th and Sunday 18th. Mr Gianakis did so.
Final warning and stand down
In mid-December 2022 Ms Clarke received a complaint from a client Mr Wright. Mr Wright advised management that he felt pressured by Mr Gianakis to go to the cricket in Adelaide on a hot day, and did not consider this good for him. He also complained that he felt pressured by Mr Gianakis to go to another interstate sporting event.
Mr Wright also expressed concern that Mr Gianakis had told him about the circumstances of another client, which he considered inappropriate.
Mr Wright’s concerns are set out in his witness statement.[13] I note that he was not cross examined and that Mr Gianakis refuted a number of the concerns[14] and that he too (Mr Gianakis) was not cross examined on them. For reasons that follow, I do not need to make findings as to whether those concerns were merited. Suffice to find that they were communicated to management.
They triggered a stand-down and a final warning.
On 20 December 2022 Mr Seric, with the knowledge and assistance of Ms Clarke, sent Mr Gianakis the following:[15]
“IMPORTANT NOTICE REGARDING YOUR EMPLOYMENT - TO BE READ IMMEDIATELY
Notice of stand down and final warning re conduct
Date of this Notice: 20 December 2022
To: Mr. Livani Gianakis
This is an important Notice regarding your employment with Clarke Allied Work Pty Ltd. You should read it in its entirety and comply with the obligations and responsibilities set out herein.
The following subjects are included in this Notice:
1. Notice of stand down with immediate effect
2. Final warning re continuation of your employment
3. Withdrawal of privilege re Cruise Expedition participation
4. What you need to do
1. Notice of stand down with immediate effect
Effective immediately, you are stood down from performing your normal duties in the course of your employment.
The reason for this is that you have not - despite several reasonable requests - undertaken
the following actions which are required in connection with the continuation of your employment:
a. You have not procured the NDIS Worker Check; and
b. You have not undertaken CPR training.
You have been informed that these are required, and you have not taken substantive action to attend to those matters. Nor have you provided any compelling reason for not doing so. Until such time as these issues are resolved, you are stood down and no payment of remuneration will accrue to you until these matters are resolved.
2. Final warning re continuation of your employment
It has come to our attention that there are three recent instances of behavior in the course of your employment which have been inappropriate.
Further instances of inappropriate behavior will not be tolerated, and your employment could be terminated if your conduct does not improve to a standard which is reasonably appropriate for the position you occupy.
a. You have endeavored to misuse an employer provided motor vehicle for your own personal advantage, without permission, which in any event would not be granted.
b. Your conduct in respect to provision of respite care services was below the standard which is acceptable, and constituted an unnecessary risk to the client participating in the respite care.
c. You have inappropriately disclosed confidential information regarding a client to another client.
3. Withdrawal of privilege re Cruise Expedition participation
Taking into account all of the above, we have decided to withdraw from you the privilege of participating in the January 2023 Cruise Expedition training program.
We consider this is a fair and reasonable decision in the light of your recent conduct.
4. What you need to do
1. You should read this Notice in its entirety
2. You should attend to the matters set out in this Notice without delay
3. You should reflect on your standard of conduct, and ensure that you act in an appropriate manner in future
4. You should acknowledge receipt of this Notice by return e-mail
5. If you wish to make any comment regarding the content of this Notice, then you may do so by return e-mail by 5pm on Thursday 22 December 2023
6. You should return all property belonging to the organization to the Steadfast
Office/Business Centre. If you are unable to do so, please provide us with an alternate location to pick up the
property.
Livani, these are serious matters requiring your immediate and diligent attention. If you do not attend to these matters and/ or your future conduct continues to be unsatisfactory, then your employment may be terminated. If you do not understand this Notice or its importance, please let me know without delay.
Joe Seric
CHIEF OPERATING OFFICER” (emphasis in original)
Mr Gianakis was taken aback by the letter and what it informed him.
He telephoned Mr Seric that day. Mr Gianakis variously sought to explain, refute and seek more information about the concerns raised. He took contemporaneous notes of the conversation. They are in evidence[16] and I find them to be a largely reliable reflection of the conversation.
Mr Seric told Mr Gianakis that he had until 5pm on 22 December 2022 to provide a written response, as the letter had indicted.
Mr Gianakis thought about the matter further that evening and in the very early hours of the morning of 21 December 2022 (thirty-five minutes past midnight) sent Mr Seric the following response by email:[17]
“Joe
I refer to your Notice of Stand Down (Notice) dated 20 December 2022 and confirm receipt of same.
I am incredibly disappointed to receive the Notice which is full of factual inconsistencies and errors. These not only incorrect, however they fail to provide factual, transparent and clear examples of the breaches to which you are purporting to assert.
You could easily have approached me to articulate your concerns and allow me the opportunity to provide a response before you unilaterally issued the Notice, which carries significant consequences.
This is not only breaching the principles of procedural fairness, however it is also inappropriate and improper, and in contravention of all relevant workplace laws.
Your conduct amounts to bullying and harassment.
On this basis, please confirm you will immediately withdraw the Notice with immediate effect.
In the event you do not withdraw the Notice unequivocally, I reserve all rights available to me.
I look forward to hearing from you today (21st of December) whereby you will confirm the Notice is being withdrawn.
Regards
Livani”
Dismissal
Mr Seric discussed the response with Ms Clarke during that working day. Ms Clarke considered the response confrontational and lacking insight into the issues raised by the employer and the remedial action the employer was seeking of Mr Gianakis.
In particular Ms Clarke was deeply concerned that Mr Gianakis had not yet obtained NDIA certification despite being asked to provide evidence of the same and despite having worked with clients providing therapy assistance for months. She considered that, in light of a forthcoming NDIA audit of the business (scheduled for January 2023) that she could not continue to employ Mr Gianakis in a non-compliant state. She decided that Mr Gianakis should be dismissed.
Together with Mr Seric, a letter of termination was drafted. It was sent to Mr Gianakis on 22 December 2022. It read:[18]
“Dear Livani
We were very disappointed to read your unhelpful and confrontational reply to the Notice.
It is clear that you have a critical lack of insight regarding the serious issues in relation to your employment, and in particular you have not addressed any of the matters which we have raised.
First of all, you have not addressed the issues giving rise to you being stood down. These issues have been outstanding for some time, and your lack of attention to them has led to us not being in a position to deploy you in your role as an employee.
Secondly, we are disturbed about your apparent lack of insight regarding your inappropriate conduct.
We believe we have given you a fair and reasonable opportunity to respond to the issues we have raised, and your failure to provide any realistic response leads us to the conclusion that we have no option but to terminate your employment.
In that regard, you will be paid all accrued entitlements. There is no payment due in respect to notice of termination, as you are unable to be deployed in a working role.
I remind you that you are required to return all property belonging to the organisation
including any keys that you may have been issued. Please contact Andrew Rowe in the first instance to make arrangements for the return.
We regret this decision, but it is the result of your own response to all of the matters we haveraised.
Yours sincerely
Joe Seric
Chief Operating Officer”
Mr Gianakis was summarily dismissed on the ground that “you are unable to be deployed in a working role”.
Mr Gianakis filed these proceedings later that day.
Post dismissal
Mr Gianakis continued to undertake casual sports coaching work in the period following dismissal, to the extent it was in season.
However, Mr Gianakis has not to date obtained permanent employment.
Mr Gianakis has applied for one job only, in the sports sector with a school (which he was unsuccessful). He has not applied for any work in the disability sector.
Mr Gianakis did however on 7 January 2023 go online and complete the online requirements for NDIA accreditation (described as the ‘NDIS worker check’)[19] and received confirmation three weeks later (24 January).[20]
Mr Gianakis’ evidence was that he applied for one job only in the four months following dismissal and none in the disability sector because he has given priority to representing himself in these proceedings and because the dismissal affected his confidence and sleep patterns.
Submissions
Mr Gianakis
Mr Gianakis advances his case on two primary grounds.
Firstly, Mr Gianakis submits that his conduct and performance in the job was not below standard. There was no valid reason for dismissal.
Secondly, Mr Gianakis submits that he was denied procedural fairness as there was no reasonable opportunity to improve in the two days that elapsed after the final warning letter. His says his dismissal was unfair on that ground.
Mr Gianakis also submits that his dismissal was unfair because it was immediate and he was not paid in lieu of notice.
Mr Gianakis submits that each of these factors, considered individually or collectively, render his dismissal unfair.
Mr Gianakis seeks compensation that takes into account the four months he has spent without income from permanent employment, and also compensation for the loss of the opportunity to complete a 46 month traineeship.
Clarke Allied
Clarke Allied submit that the dismissal was not harsh, unjust or unreasonable and no issue of remedy arises.
Clarke Allied submit that a valid reason for dismissal existed because Mr Gianakis failed to secure the NDIA accreditation and provide proof of that to his employer.
Clarke Allied submit that a further valid reason for dismissal existed having regard to Mr Gianakis’ performance and conduct based on the issues outlined in the warning letter of 19 December 2022.
Clarke Allied submit that Mr Gianakis was provided fair opportunities to be aware of his employer’s concerns and respond. It says that Mr Gianakis was repeatedly asked to provide proof of NDIA accreditation, and was spoken to by Ms Clarke about those issues.
Clarke Allied submit that the formal warning put Mr Gianakis on notice and the confrontational terms of his reply were a matter of choice on his part.
Clarke Allied submit that to the extent that there may have been shortcomings in procedure, in an overall sense the process adopted was fair and, in any event, any gaps in procedural fairness do not trump the fact that a valid reason for dismissal existed.
In the alternative, and in the event that a finding of unfairness is made, Clarke Allied submit that any compensation order should be no more than the week of notice said to be owing had Mr Gianakis not been summarily dismissed.
Consideration
The issue for determination is simply put; was Mr Gianakis’ dismissal “harsh, unjust or unreasonable” and, if so, is it appropriate to order a remedy by way of reinstatement or compensation?
No jurisdictional issues arise. Mr Gianakis was protected from unfair dismissal within the meaning of s 382 of the FW Act. He served the statutorily required minimum employment period (s 382(2)(a)). His annual rate of earnings did not exceed the high income threshold (s 382(2)(b)(iii)). His employer was a “national system employer” within the meaning of s 14 of the FW Act. His application was filed within the statutorily required 21 days after dismissal took effect.
Section 387 of the FW Act provides:
“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.”
I now consider the factors in s 387.
Valid Reason (s 387(a))
An employer must have a valid reason for the dismissal of an employee. It is the Commission’s task to determine if a valid reason exists. The reason(s) should be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced”.[21]
Other than in the case of a small business (as defined), in a conduct-based dismissal[22] the test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. The Commission must itself make findings as to whether the conduct occurred based on the evidence before it.[23]
Whilst Mr Gianakis carries the burden of establishing that the dismissal was unfair in the relevant sense, where an employee is dismissed for conduct in breach of duty, as with certain allegations in this case, an evidentiary onus rests on an employer to establish that on the balance of probabilities the conduct occurred.[24]
A valid reason is not assessed simply by reference to a legal right to terminate a contract of employment.[25]
I now consider whether, on the evidence before me, the conduct said to constitute the alleged breaches of duty is established to the standard of proof required and, if so, whether it collectively or individually constituted a valid reason for dismissal.
Conduct and performance issues
This allegation is multi-faceted. I deal with each of the elements.
Misuse of company vehicle
The allegation by Clarke Allied in the stand-down letter is that Mr Gianakis used a company supplied motor vehicle for his own advantage.
The evidence indicates that a company vehicle was provided for use to Mr Gianakis and another employee on a shared basis. The evidence suggests that Mr Gianakis did share usage of that vehicle with the other employee.
Clarke Allied did not particularise what personal use was allegedly inappropriate. The evidence indicates that the employer required, for security reasons, either Mr Gianakis or the other employee to not leave the vehicle overnight at its Maylands premises but to take it home. Hence when Mr Gianakis drove the vehicle home and parked it in his private driveway he was compliant with and not in breach of policy.
The evidence suggests that upon Mr Seric assuming his role, the requirement changed such that the vehicle was to be kept overnight at the Modbury premises and not at a private residence. There is no evidence that Mr Gianakis did not comply with this varied requirement.
At its highest the evidence suggests that on one occasion Mr Gianakis commenced the count of his work hours on a given day from the time he left home in his private vehicle to travel to Modbury to collect the company car and then attend to a client, rather than commence working time from when he arrived at the Modbury site and travelled to the client. Mr Gianakis readily acknowledged that he done so in error, had been spoken to about it and corrected his daily work hours. I accept Mr Gianakis’ explanation that this was an error borne of being unfamiliar with the new procedure of collecting the car from Modbury. It was not an attempt to procure paid time he was not entitled to.
This allegation is not made out.
Disclosure of confidential information
The allegation by Clarke Allied in the stand-down letter is that Mr Gianakis disclosed confidential information about a client to another client, contrary to his obligations.
The employer did not particularise the allegation. I accept Mr Gianakis’ evidence that when he asked Mr Seric on 20 December 2022 to provide particulars Mr Seric declined to do so on the basis of good faith to the client.
That said, Mr Wright’s statement[26] refers in general terms to being told information by Mr Gianakis about another client and I have accepted Ms Clarke’s evidence that Mr Wright had in fact reported his concerns to management.
However, reported concerns is not objective evidence of conduct let alone breach of an obligation. Mr Gianakis denied what Mr Wright said[27] and neither were cross examined.
In these circumstances the evidence falls well short of being able to safely make a finding about the relevant conduct let alone whether it was in breach of duty.
This allegation is not made out.
Standard of care
The allegation by Clarke Allied in the stand-down letter is that Mr Gianakis risked client wellbeing by pressuring clients to attend sporting events they did not wish to and doing so in conditions that put their wellbeing at risk.
The particulars appear to concern the matters raised by Mr Wright in his complaint to management and in his evidence wherein he says he felt pressured to go to the cricket on a forty degree day, and to soccer game in Adelaide or interstate.
Mr Gianakis’ response in evidence was that he raised these activities as options with Mr Wright but nothing was obligatory and the client’s attendance was dependant on conditions on the day and how the client felt on the day. This Mr Gianakis said also applied to interstate events whether soccer or wrestling.
I have accepted Ms Clarke’s evidence that she informally counselled Mr Gianakis, at least in a team meeting context, to exercise better and more balanced judgement about external sporting activities.
I accept that Mr Gianakis failed to exercise wise judgement (including recognising that a non-obligatory proposal put to a vulnerable client could itself cause anxiety and worry if the client was not in favour of it). I also accept that Ms Clarke was both correct and well within her rights to counsel Mr Gianakis about considering less ambitious and more manageable local activities. I find Mr Gianakis’ evidence eschewing a personal attraction to sporting events to be somewhat confected.
However, I do not find that Mr Gianakis, as a relatively inexperienced therapy assistant, was in breach of his employment obligations to act in the best interests of the business and its clients in suggesting sporting outings to clients. I do not find that he was prioritising his own self-interest.
To the extent his judgements made on these therapy issues were unwise they certainly warranted counselling, but the conduct was not a valid reason for termination.
NDIA certification
The allegation by Clarke Allied in the stand-down letter and repeated at the hearing is that Mr Gianakis failed to procure NDIA certification whilst employed and failed to provide proof of that certification to his employer.
This allegation is made out.
NDIA certification is an NDIS Worker Check Clearance. It is procured by application online.
As a matter of fact, at no time during Mr Gianakis’ employment did he obtain let alone provide evidence to his employer of NDIA certification.
Mr Gianakis did not obtain certification until applying online on 7 January 2023 and securing the certificate on 24 January 2023 – a month after dismissal.
Was this a breach of his employment obligations?
I conclude that it was.
I have accepted the evidence of Ms Clarke that upon employing Mr Gianakis she told him that he needed to obtain an NDIA clearance as he did not have such a clearance given that he had not previously worked in the disability sector.
The evidence clearly establishes that this was an express obligation written into his Employment Contract.
By not doing so, Mr Gianakis was in breach.
Was this breach a valid reason for dismissal?
For the following reasons I conclude it was.
Firstly, the requirement was lawful and reasonable. NDIA clearance was required of Mr Gianakis because it was required of Clarke Allied by the NDIA with respect to any employee working with NDIS clients. A failure by Clarke Allied to be compliant with this regulatory requirement put its registration and thus business model at risk. The obligation was not theoretical; audits were regularly conducted by the NDIA and non-compliant activities were likely to be identified and made the subject of adverse audit findings. The next audit was scheduled for January 2023.
Secondly, Mr Gianakis knew that the job he was employed to do included therapy assistant work with NDIS clients. Thus he knew or ought to have reasonably known of the reason why this obligation existed and had been formalised in his Employment Contract, and that it was important to his employer and his capacity to do his job.
Thirdly, without this certification Mr Gianakis could not lawfully perform work in the sense of being compliant with NDIA requirements. It was an inherent part of his role that he be accredited. Breach was serious and had serious potential consequences.
Fourthly, there was no impediment, technical or substantive, to Mr Gianakis procuring the certification and producing it to his employer. He could have done at any stage in his nine months of employment what he belatedly did in January 2023.
Fifthly, the employment obligation to procure certification and present proof was on Mr Gianakis personally. The Employment Contract did not provide for the employer applying on his behalf. Mr Gianakis had to do this in his personal capacity and make the relevant declarations to the certifying agency.
Mr Gianakis’ explanation for not having done so was that he believed he did so in August 2022 when he sent Mr Rowe a receipt of a certification he had obtained.
I reject this submission for two reasons.
Firstly, what Mr Gianakis sent Mr Rowe was a materially different certification. It was a receipt for an updated certification he had sought on 13 April 2022 and obtained on 3 May 2022 for working with children. It was not an NDIS Worker Check Clearance. Had Mr Gianakis read his Employment Contract, he would have seen that it clearly provided that both certifications were required and that they were not one and the same. Had Mr Gianakis even cursorily read the receipt of 13 April or the certificate of 3 May he would have seen that it was a working with children check he had obtained and not an NDIA certification.
Secondly, whilst I accept that in August 2022 Mr Gianakis believed in good faith that what he sent Mr Rowe was what was required, he was advised by Mr Seric on 20 December that an NDIA clearance still did not appear to exist. He responded by saying that he was “waiting for Jason to investigate this for me” and “I remember doing it with Andrew months ago”.[28] Upon asking Mr Seric to send him the link so he could do it, he was told to “google it”. Mr Gianakis did not do so but instead wrote a reply asking for his warning and stand-down to be withdrawn.
I conclude that in the months that followed August 2022 Mr Gianakis assumed that he had done what was required but, on as an important matter such as this, his assumption was both wrong and a serious misjudgement on his part.
I take into account that Mr Gianakis, when confronted at the eleventh hour by Mr Seric’s text message on 20 December, was willing to do it (ie obtain accreditation) “now”. I take into account that this supports a finding that it was not a deliberate unwillingness on Mr Gianakis’ part to procure accreditation. Rather the relevant finding is that he did not do so, even at this late hour, because he was carelessly inattentive to his obligations. He had earlier neglectfully allowed many months to pass by without having done so.
I also take into account that Clarke Allied is not blameless in this episode. It ought also to have been readily apparent to those who supervised him and allocated therapy clients to Mr Gianakis that what he sent through in August 2022 was a working with children check receipt and not an NDIA certification. Whilst this somewhat mitigates the seriousness of Mr Gianakis’ failure in that he could have been alerted earlier than December 2022 to the fact that he was still not compliant (and thus may not have been non-compliant for as long) it does not mean that his failure to do what was required of him from the time he started employment nine months earlier was not a serious breach. It was.
I note that Mr Gianakis was also required to have renewed his cardiopulmonary resuscitation (CPR) certification and by the date of dismissal had not done so. However, prior to receiving the stand-down notice, he had belatedly booked that in for 18 January 2023. In those circumstances, whilst this supports a finding of neglect concerning the need for the timely procurement of the certifications required of him, this was a lesser breach and not of itself a valid reason for dismissal.
Conclusion on valid reason
Mr Gianakis’ failure to be NDIA certified to undertake the therapy assistant work that he was employed to perform was a valid reason for dismissal. That work constituted a material, and by the time of his dismissal, a majority of his workload. He had not procured certification to perform an inherent requirement of the role, and it was his contractual obligation to have done so.
I conclude that there was a valid reason for dismissal on this ground, but not on the other conduct or performance grounds relied upon by Clarke Allied.
This weighs against a finding of unfair dismissal.
Notification of reason for dismissal (s 387(b))
Mr Gianakis was notified of the reasons for dismissal in the letter of termination dated 22 December 2022.
Mr Gianakis disagreed with the reasons but knew why he had been dismissed.
This is a neutral conclusion.
Opportunity to respond (s 387(c))
An employee protected from unfair dismissal should be provided an opportunity to respond to a reason for dismissal relating to their conduct or capacity. An opportunity to respond should be provided before a decision is taken to terminate an employee’s employment.[29]
The opportunity to respond is an element of procedural fairness but does not require formality. This consideration is to be applied in a common-sense way to ensure the employee is treated fairly.[30] Where an employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, that is enough to satisfy this consideration.[31]
Mr Gianakis was provided an opportunity to respond to the allegations in the stand-down letter of 20 December 2022. He was given until 5pm on 22 December 2022 to do so.
He did so on the early morning of the following day, 21 December 2022.
The period of time to respond to the allegations (two days) was short but not so short that allegations could not be understood and thoughtfully responded to in this period.
I deal below with whether other aspects of the time frame applied by Clarke Allied were reasonable.
I also deal below with the reasonableness of the employer’s reaction to Mr Gianakis’ response.
This weighs against a finding of unfair dismissal.
Opportunity for support person (s 387(d))
Where an employee protected from unfair dismissal has requested a support person to assist in discussions relating to dismissal, an employer should not unreasonably refuse that person being present.
Mr Gianakis did not request a support person. The employer did not unreasonably refuse a support person.
This is a neutral consideration.
Warnings concerning performance (s 387(e))
I have found that Mr Gianakis was put on notice, at least from August 2022, that he had not provided the NDIA certification required of him (and that in responding to that notification Mr Gianakis believed, erroneously but without adequate care and attention, that he had done so).
I have also found that one aspect of concern about his performance (the nature of activities he was proposing to clients as part of therapy services) was the subject of informal counselling and guidance from Ms Clarke.
However, not until 20 December 2022 was Mr Gianakis warned.
The warning concerned multiple issues. The timeframe it set for response was not unreasonable.
However, the stand-down letter also provided that “you should act in an appropriate manner in the future” and “if your future conduct continues to be unsatisfactory, then your employment may be terminated”.
For two reasons I conclude that the two days that elapsed between the warning and the dismissal were unreasonably short for the warning to be characterised as a warning capable of remediating conduct or performance.
Firstly, to the extent the failure to procure accreditation was the subject of the warning, whilst the online process for procuring NDIA accreditation was not time consuming and could be readily completed in one day (as Mr Gianakis did on 7 January 2023) the completion of an online application generated a receipt, not a certificate. A certificate could only be obtained once the agency considered the application. The evidence is that this could take between a fortnight and a month. Hence, whilst the two days provided for by Clarke Allied in the warning were sufficient for Mr Gianakis to apply for accreditation, they were not sufficient for Mr Gianakis to fully comply and remediate this breach.
Secondly, to the extent the other conduct and performance issues were the subject of the warning, a period of two days was completely inadequate to “attend to these matters” as the warning required. Clearly none of those performance or conduct issues could be remediated whilst Mr Gianakis was stood down and not working.
Given this, the warning letter of 20 December 2022 cannot be fairly characterised as a warning designed to remediate conduct or performance. Rather the better characterisation is that it was a stand-down notice requiring Mr Gianakis to show cause why his employment should not be terminated. That the letter required Mr Gianakis to return company property and gave notice that his “privilege” to participate in a company funded cruise expedition in January 2023 was withdrawn, adds weight to this finding.
I do not however find that dismissal was pre-determined. I have found that Ms Clarke made the decision to dismiss only after reading the 21 December 2022 response by Mr Gianakis and concluding that the response was both confrontational and lacked insight into his responsibilities.
The inadequate time frames for remediation of performance and conduct issues provided between the warning and the dismissal weigh in favour of a finding of unfairness.
Size of enterprise and human resource capability (ss 387 (f) and (g))
The employer is a business of relatively small scale with some but not extensive internal human resource and industrial capacity.
It is not a small business within the meaning of the FW Act.
The evidence does not support a finding that the size of the employer or its internal human resources capacity materially explain or mitigate any shortcomings in managing workplace or disciplinary matters.
This is a neutral consideration.
Other matters (s 387(h))
Mr Gianakis submits that his dismissal was unfair because it was immediate and he was not paid in lieu of notice.
I agree.
I do not consider that the failure to procure certification warranted summary dismissal. I have found that it was serious. However the failure to do so was the product of neglect and a lack of care and insight into the importance of doing so. I agree that it struck at the heart of the employment relationship in that work, at least in relation to therapy assistant duties, could not be undertaken by Mr Gianakis if he and the employer were to be compliant with NDIA requirements. However, it was neglectful not deliberate conduct. Mr Gianakis did not set out to be non-compliant or put his employer at regulatory risk. It was the consequence of neglect.
I also take into account that the administrative aspects of his role (though not the complete role) could be performed absent such accreditation.
That Mr Gianakis was not dismissed on notice or paid notice in lieu weighs in favour of a finding of harshness.
There are no other matters raised for consideration.
Conclusion
Unfair dismissal matters are multifactorial.[32]
In considering whether Mr Gianakis’ dismissal was “harsh, unjust or unreasonable” the Commission is required to consider each of the matters in s 387 of the FW Act to the extent relevant.[33] Those matters must be considered as part of an overall assessment. Each assessment must be made on its merits. That assessment is to be based on the ordinary meaning of the words, in their statutory context. Context includes the object stated in s 381(2) of the FW Act that:
“…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 the employee concerned.”
In arriving at an overall assessment, the statutory considerations must be applied in a practical, common-sense way to ensure that the employer and employee are each treated fairly.[34]
I have found a valid reason for dismissal existed based on a serious breach by Mr Gianakis of the obligation to procure NDIA accreditation and provide evidence of that to his employer.
I have found that the time-frame provided by Clarke Allied for remediation between the written warning and the dismissal was unreasonably short.
I have also found that it was unreasonable that Mr Gianakis was not dismissed on notice.
I accept Ms Clarke’s evidence that the terms of Mr Gianakis’ reply of 21 December 2022 was the trigger that explained why dismissal occurred so soon after the warning letter and stand-down were notified.
However, I do not accept the employer’s submission that Mr Gianakis’ response materially mitigated the procedural unfairness on its part. Whilst I find that Mr Gianakis’ response was impulsive, confrontational and lacked insight into the seriousness of his neglect, it was ultimately the responsibility of and within the control of the employer to manage its decision-making. The employer responded to an intemperate employee response to a show cause letter with an equally impulsive response to summarily dismiss.
Objectively considered, the overreaction by the employer rendered the dismissal procedurally unfair even though it had a valid reason to dismiss. It resulted in summary dismissal rather than dismissal on notice, and the dismissal gave Mr Gianakis no further time to secure compliance with his obligations.
Whilst not substantively unfair, considered overall, and for these reasons but these reasons only, I consider that the dismissal of Mr Gianakis was harsh.
I will proceed to consider remedy.
Remedy
Remedies available to the Commission under s 390 of the FW Act are reinstatement (in the same or other position) or (but only if reinstatement is inappropriate) compensation (within statutory limits).
Whether to order a remedy is a discretionary matter.
I consider it appropriate to order a remedy but only on the terms outlined below.
I conclude that reinstatement is inappropriate. I have found that dismissal was not substantively unfair; simply that the summary nature of the dismissal coupled with time frames that gave no further time to secure compliance made it harsh. The employment relationship is beyond repair given the small scale of the business and the conduct that brought the relationship to an end.
I turn to the issue of compensation. Section 392 provides:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so 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.”
I now consider each of the criteria in s 392.
Viability: s 392(2)(a)
There is no evidence before me to suggest that a compensation order of the sum provided for in this decision will adversely affect the viability of Clarke Allied.
Length of service: s 392(2)(b)
Mr Gianakis worked for Clarke Allied for nine months.
Remuneration that would have been received: s 392(2)(c)
Having regard to Mr Gianakis’ age and limited service, notice that would have been payable to Mr Gianakis under the statutory National Employment Standards and the modern award is one week.[35]
Mitigating efforts: s 392(2)(d)
Mr Gianakis failed to materially mitigate his loss in the weeks that followed his employment ceasing. However in light of the limited nature of the compensation order I will make, I will not apply a deduction on this account.
Remuneration earned or likely to be earned : ss 392(2)(e) and (f)
I will make no deductions on these accounts as the compensation order does not cover a period that Mr Gianakis earned or may earn future remuneration in a new permanent job.
I will make no deduction on the account of casual earnings by Mr Gianakis in the compensation period as those earnings were not in consequence of being dismissed. They were earnings from work (sports coaching) that was being conducted in parallel to his part time employment at Clarke Allied.
Other matters: s 392(2)(g)
I take into account that Mr Gianakis did in fact apply for NDIA certification on 7 January 2023 and did in fact obtain that certification on 24 January 2023. However he did so after being dismissed and in the full knowledge that he had not done so as required during the term of his employment, and that not having done so was a reason why he had been dismissed.
There are no other matters or contingencies that need to be provided for.
Misconduct: s 392(3)
Mr Gianakis materially contributed to the dismissal by failing to meet his obligation to obtain NDIA certification but I have found that this conduct was the product of neglect and not deliberate choice.
I will make no deduction on this account.
Shock, Distress: s 392(4)
Compensation allowable by the FW Act does not include a component for hurt feelings. The compensation order will make no such provision.
Compensation cap: s 392(5)
The amount of compensation I will order does not exceed the six month compensation cap.
Conclusion on compensation
The compensation order will be for a two week period.
A reasonable period that ought to have been provided to Mr Gianakis between the date of the warning and the date of any decision to dismiss would have been one week. This would have allowed Mr Gianakis reasonable time to have shown to the employer whether he had insight into the breach and whether he was willing to urgently take steps to procure his NDIA certification. He would not have been able to obtain a certificate within that further week but would have had time to apply and show proof that he had done so. This could have readily been done online and could have been done irrespective of whether the stand-down was continuing. This period would also have allowed the employer, in the cool light of day, to better assess the overall fairness of how it would respond.
A decision to dismiss, if made, could then have been made but on notice.
Thus, the short period of further opportunity to comply with his obligations (of one week) together with the period of notice that ought to have been given (one week) will be the compensation sum.
I will calculate the two weeks of compensation at the hourly rate of $30.46 per hour by 25 hours per week. This amounts to a gross sum of $1,523.00. I will also order the applicable percentage of superannuation on this sum be paid into the fund that contributions were being made.
I do not consider a compensation sum of a greater amount to be appropriate given my finding of a valid reason for dismissal based on neglect of duty concerning a serious matter that was an inherent requirement of the role.
Nor do I consider it appropriate to increase the compensation sum on the ground that Mr Gianakis applied for NDIA accreditation on 7 January 2023 and obtained a certificate on 24 January 2023. As noted, this was only belatedly done after Mr Gianakis was dismissed and knew why he had been dismissed. It is not reasonable to order compensation for doing after dismissal what ought to have reasonably been done whilst employed.
Conclusion
I find that Mr Livani Gianakis, a person protected from unfair dismissal, was dismissed by Clarke Allied Work Pty Ltd on 22 December 2022 and that his dismissal was harsh on the ground that he was dismissed summarily (without notice) and not provided further time to remediate his failure to be NDIA certified after being formally warned of that fact.
I consider it appropriate to order a remedy by way of compensation. The amount of compensation payable by Clarke Allied Work Pty Ltd under s 392 of the FW Act will be $1,523.00 less tax plus the applicable superannuation percentage payable on earnings on this sum.
Payment of the sum will be required within fourteen days.
I issue an order to this effect in conjunction with the publication of this decision.[36]
DEPUTY PRESIDENT
Appearances:
Mr L Gianakis, on his own behalf
Mr J Fitzpatrick, of and on behalf of Clarke Allied Work Pty Ltd
Hearing details:
2023
Adelaide (in person)
1 May
[1] Decision via email ‘Chambers - Anderson DP’ 19 April 2023 4.48pm
[2] A1 Statement (undated); A2 Statement and Submission (17 March); A3 Statutory Declaration in Reply (19 April); A4 Statement and Submission in Further Reply (28 April)
[3] A14 Statutory Declaration (19 April)
[4] A15 Statutory Declaration (19 April)
[5] R1 Statement (4 April)
[6] R2 Statement (26 April)
[7] (1959) 101 CLR 298
[8] R6 Resume
[9] A1 Attachment 1 (Employment Contract)
[10] A1 Attachment 2 (Training Contract)
[11] A1 Attachment 1 clause 10.4.3
[12] R1 paragraph 12
[13] R2
[14] A4
[15] R3 and A5
[16] A1 Attachment 13
[17] R4
[18] R5 and A7
[19] A16
[20] A17
[21] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373
[22] Except where the Small Business Fair Dismissal Code applies
[23] King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 [24]
[24] Edwards v Guidice (1999) 94 FCR 561 [6]-[7]
[25] Sydney Trains v Hilder[2020] FWCFB 1373 at [26] principle (6)
[26] R2 paragraph 5.7
[27] A4 paragraph 7
[28] A1 Attachments 4 and 8
[29] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [75]
[30] RMIT v Asher (2010) 194 IR 1 at 14-15
[31] Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7
[32] Jones v Brite Services[2013] FWC 4280 at [24]
[33] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR 915674 at [69] (AIRC, 21 March 2002)
[34] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at [36]
[35] Section 117(3) FW Act
[36] PR761681
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