Maksym Borodin v Localcom Pty Ltd
[2020] FWC 6409
•27 NOVEMBER 2020
| [2020] FWC 6409 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Maksym Borodin
v
Localcom Pty Ltd
(U2020/5770)
COMMISSIONER SIMPSON | BRISBANE, 27 NOVEMBER 2020 |
Application for unfair dismissal – Jurisdictional objection - Whether Small Business Code satisfied – Employer decided to make Applicant redundant however terminated Applicant inside notice period on the basis of failure to follow a lawful instruction – Applicant purportedly stood down without pay – Applicant on personal leave at time requested to provide password - In all of the circumstances dismissal unfair – Compensation ordered.
[1] On 28 April 2020, Mr Maksym Borodin made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Localcom Pty Ltd (the Respondent).
[2] Mr Borodin commenced permanent full-time employment with the Respondent on 17 December 2018 in the position of Network Engineer. The Respondent is a telecommunication business that provides internet and phone systems to businesses in Australia located at Varsity Lakes, Queensland.
[3] The matter was listed for conciliation before a Staff Conciliator on 19 June 2020. The matter did not settle at conciliation and was allocated to me. I issued directions for filing of material and the matter was listed for Hearing on 2 September 2020. Mr Borodin complied with those Directions and filed his material by the due date of 13 August 2020. The Respondent was required to file its material by 28 August 2020.
[4] On 21 August 2020, Mr Craig Lomans, Sales Director of the Respondent, sent correspondence to my chambers requesting for the hearing to be adjourned and an extension of time to prepare submissions on behalf of the Respondent.
[5] After seeking the views of Mr Borodin, I determined to relist the matter for Hearing for 14 September 2020. The Respondent was granted an extension to file material by 4 September and Mr Borodin to file reply material by 11 September. The Respondent failed to file material by 4 September and was sent correspondence from the Commission on 7 September seeking an explanation. On 8 September Mr Lomans replied that he had handed in his notice with the Respondent however retained carriage of the matter and said he was having difficulty locating the form to complete. The Respondent was granted an extension to the following day.
[6] On 8 September Mr Lomans filed an outline of argument for the Respondent. On 11 September Mr Borodin filed his reply material.
[7] On 14 September 2020 Mr Borodin appeared at the hearing on his own behalf and despite attempts to contact the Respondent, the Respondent failed appear. I adjourned the matter. Mr Lomans subsequently sent correspondence to chambers the following day advising he was in hospital on the day of the hearing and was unable to communicate. Mr Lomans said he was “extremely sorry for wasting anyone's time.” Correspondence was sent to the Respondent asking for verification of the reason given however this was not provided.
[8] The matter was relisted for hearing on 7 October 2020. Mr Borodin appeared on his own behalf and Mr Lomans appeared on 7 October for the Respondent. At the commencement of the hearing the parties agreed for the matter to be conducted as a determinative conference.
[9] Mr Borodin did not seek reinstatement but compensation. It was apparent a separate issue existed about whether a stand down that the Respondent implemented prior to the dismissal was lawful, however I explained I could not make a binding determination about that matter, or on claims made that he had been underpaid by the Respondent.
[10] I raised as a preliminary matter that the Respondent had not filed a Form F3. Mr Lomans claimed several attempts had been made to file the Form F3 including on 17 June 2020. I asked Mr Lomans to forward to my chambers by email the Form F3 he said he had attempted to file which he did. It appears the Respondent did attempt to file this Form F3 back in June however it was never received by the Commission.
[11] Mr Borodin relied on his form F2, his outline of argument and attachments filed on 17 August 2020 1, the statement of Mr Vlad Grazhdan,2 and his outline in reply of 11 September 20203. The Respondent relied on its Form F3 filed during the hearing, its outline of argument filed on 8 September 20204 and the oral evidence from Mr Lomans and Mr Perera. Mr Borodin was given an opportunity to read the Form F3 before cross examination of witnesses.
Whether Respondent a Small Business
[12] In relation to the Small Business Fair Dismissal Code (the Code) Mr Lomans maintained for the Respondent that this was not a case of summary dismissal and that the dismissal fell within the category of “other dismissal” under the code.
[13] Mr Borodin claimed he had a list with 17 names on it in response to the Respondent’s claim that it was a small business and that it complied with the Code. I asked Mr Borodin to provide the list of employees which he did. I then asked Mr Borodin a series of questions about the list of names. Some of the employees were employed after Mr Borodin’s termination and some were independent contractors which Mr Borodin accepted. Some had also ceased to be employed at the time of Mr Borodin’s termination.
[14] Mr Lomans responded to a list of names provided by Mr Borodin that appeared to be persons paid by the Respondent according to payroll records “from” January 2020. The parties accepted the termination was on or around 21 April 2020. Mr Lomans gave evidence that from Mr Borodin’s list 7 persons were employees, a number of employees had left the employment of the Respondent prior to the termination of Mr Borodin in April 2020 and several were subcontractors.
[15] Mr Borodin said he could not provide any more evidence on the issue besides the list of names he provided. Mr Borodin could not provide specific evidence to refute Mr Lomans’ evidence regarding the particular individuals who Mr Lomans said should not be counted. On the evidence I therefore determined that the Respondent was a small business employer and that the Code applied.
EVIDENCE
[16] Mr Lomans maintained that the evidence provided in Mr Grazhdan’s statement was not relevant to the application. Mr Borodin accepted that Mr Grazhdan could not give direct evidence about specific events that led to his termination. Mr Borodin submitted that Mr Grazhdan’s evidence included evidence to the effect that that the Respondent had an adverse view of employees who did not agree to work for free. Mr Loman said he did not work with Mr Grazhdan and ultimately decided he did not wish to cross examine him. I advised the parties the statement would come in as it was and it would be a matter of how much weight, if any that it should be afforded.
[17] Mr Grazhdan’s evidence included that he worked for the Respondent as a Chief Technology Officer for more than three years and successfully completed the core technology transformation for the Respondent. He said under his technical guidance the Respondent’s technology was significantly improved which allowed it to make a big step forward from being a re-seller to becoming an internet telephony and internet access services provider.
[18] Mr Grazhdan said, since he joined the Respondent in June 2015, he witnessed a lot of staff hired and then shortly fired, because they didn’t want to work underpaid or for free. Mr Grazhdan said the Respondent was always understaffed, and he had to work after-hours for free almost every single day during the first year with the company to finish building the main components of the company’s infrastructure. He said he worked late nights unpaid as some of their team members were operating from overseas, and he worked on weekends without any compensation during those three years with the company.
[19] Mr Grazhdan said unfortunately, working after-hours and on weekends started to take its toll on his health, and as per the management’s recommendation, he went on annual leave overseas for a period to meet his family in June 2018. He said he had about 10 weeks of unused leave at that time. Mr Grazhdan said when he got back it was clear to him that the management had plans to fire him. Mr Grazhdan claimed he was unlawfully dismissed in September 2018, and he was told that he was made redundant based on the performance revision and that the company did not require his skills anymore.
[20] Mr Grazhdan said at the time the Respondent did need his skills and they were understaffed. Mr Grazhdan said he believed that the final decision on his dismissal was made two weeks earlier when he asked for compensation for any future after hours or weekend jobs.
[21] The terms and conditions of Mr Borodin’s employment were provided in an employment contract that was tendered by Mr Borodin. The employment contract set out his duties as follows:
“• Maintenance of Talkup Communication’s IT and Telecommunication Equipment.
• Creation and maintenance of all technical documentation related to Talkup Communications UT and Telecommunication equipment.
• Assist in the creation and ongoing evolution of Talkup Communication processes and procedures.
• Design and implantation of projects related to IT and Telecommunications.
• Provide high standard of technical support for all TalkUp products to customers.”
First Written Warning 28 February 2020
[22] Mr Borodin was issued a written warning on 28 February 2020 by email. The warning letter read as follows:
“Hi Max,
Please take this as a written warning since you are refusing to do a task when your manager has requested you to do which is obviously within your ability to do.
This kind of insubordinate behaviour is taken seriously and will not be tolerated.
mentioned to me that you are busy sending an equipment, as refusal saying it is not your job.
Since you know that the post office is closed right now and you will not be able to send the devices, you should change the priority of tasks as the manager request you to.
Furthermore our partner is in fact on site waiting for the task that was assigned to you to be completed.
Failure to do so will result in indirect financial lost to the company and you employment will be terminated on the grounds of financial loss and insubordination.
Regards,
Oshada Perera
Senior Telecommunication Engineer”
[23] Mr Borodin said during his oral evidence that the context of the warning was that another employee had left and was never replaced, and the duties were just put on him. Mr Borodin said he didn’t want to make a big deal about it, so he just accepted it.
[24] Mr Borodin said at the relevant time it was 4.30pm and the post office shut at 5.00pm. Mr Borodin said he was doing multiple tasks all the time. Mr Borodin accepted that it was his fault and maybe he should have “done it” but it was not his job and he didn’t know how to do it.
[25] Mr Lomans said Mr Perera issued the warning. Mr Lomans said Mr Borodin was always pushing back about things and the point of the warning was to make clear to Mr Borodin if he was directed to do something within the scope of his job he should do it.
[26] Mr Perera said he gave a direction on 27 or 28 February to Mr Borodin to ship a device to a customer. Mr Perera said Mr Borodin aggressively said no, and he did not want to do it at that time. Mr Perera said Mr Borodin refused to send the device to the customer and Mr Perera said afterwards he gave Mr Borodin a written warning. Mr Perera said the reason Mr Borodin gave for not doing the task was the task he was doing at that time, however Mr Perera said the task Mr Borodin was doing was not urgent at that time.
[27] Having listened to the evidence on this issue it would appear that Mr Borodin refused to follow a lawful and reasonable direction from Mr Perera. Whilst it was probably true that Mr Borodin was busy on other tasks at the time, it does not seem his explanation for refusing to complete the task he was directed to do justifies his refusal.
24 March Covid-19 letter to staff
[28] On 24 March 2020, Mr Borodin stated that all staff received an email regarding the impact of Covid-19 on the business. On 25 March 2020, the email was forwarded to Mr Borodin. It is necessary to set the email out in full:
“Hi Team
Unfortunately, it has come to the stage where, as a business, we are seeking support form the government around supporting staff and remain operational. There is a very real possibility that if we don’t act right now, the business may wind up and the aim is avoid this outcome. For this reason and this reason alone, I am asking each of you individually to make a decision around your own future here at LocalCom.
Currently, the Government is working on leave payment arrangements to assist rents with living costs. Additionally, the Centrelink NewStart allowance and equivalents have no doubles to $1100 a fortnight but will started for the first 4 weeks a nearly $7000. If you are on a Centrelink benefit by the end of March you will receive an additional $750 as a lump sum.
Therefore, I am recommending each staff member contacts any debtors they have. Particularly car loans, credits cards, finance etc and asking for assistance as they are all geared to supporting everyone and deferring payments.
At LocalCom, we are reliant on our customers paying their bills, to pay our wages and bills. As such, we have a high risk of bad debt flowing through and disrupting our ability to do so. It is for this reason I am asking you all to make a decision personally, yourself.
1. As Qantas has asked its entire workforce, go without pay for 4 weeks and have a job to come back to
Or
2. Accept a redundancy which is 1 weeks pay per Fairworks policy. (obviously your holiday leave would be paid out at some stage)
(I have spoken to Fairwork and have come to these two options).
If you take option 1, I would ask for you to still assist where you can so this business is here to come back too. I cant make you do any of this but obviously we need a business to come back to.
I need to stress that we are asking for Government assistance. It is well reported that they will do for small and medium business and release a package.
Unfortunately, these have not become available to us yet. Be mindful that everything is changing day by day, and after 3-4 weeks we will reassess, we want to come out of this thing.
Lastly, this is nationwide and people are losing their jobs. This obviously is not what I want. However, this is the reality of the situation we are in. I am trying to keep you guys through the first step and as we go on, we ALL as a nation need to make sacrificies and I assure you all I will be trying to assist you the best I can.
Please come back to me individually with what you want to do. I apologise if this causes duress to any over you. It is unprecedented challenge we are facing.”
[Original Text Kept]
26 March 2020
[29] Mr Perera said around 26 March 2020, the Respondent had a data migration program that Mr Borodin was supposed to be handling however Mr Borodin said he couldn’t go because he had to change the tyres on his car in 800km. Mr Perera said he told Mr Borodin that his salary had been increased by $10,000 a year because he was using his own car rather than the office car because Mr Borodin could not drive a manual car. Mr Perera said Mr Borodin was going to cancel the project and that would cost the Respondent and Mr Perera said he had to spend $300 to pay someone to take Mr Borodin to the project.
[30] Mr Borodin denied his salary was increased by $10,000 because he drove his own car. Mr Borodin also said he was not being paid since the Wednesday (25 March) and the data migration was going to be at 3am on the Friday morning (27 March). Mr Borodin said he was not being reimbursed for mileage and his contract said he should have been. Mr Borodin said he was going to learn to drive a manual however the car he was going to learn on which belonged to a relation was not insured and not driveable.
[31] On 26 March 2020, the following email exchange occurred between Mr Borodin and Mr Perera:
Oshada Perera - 10:10
what are you up to?
Max Borodin - 10:11
checking hks
and a1
and mark sheppard
Oshada Perera - 10:14
what are you checking?
Max Borodin - 10:14
the registrations
and if it went down
Oshada Perera - 10:14
ok let me know how it goes.
Max Borodin - 10:15
well a few still got unregistered
mark sheppard is good now
will check it later
Oshada Perera - 10:15
What was wrong? do you know?
Max Borodin - 10:16
nah
doesnt look liek itnernet went down this night
so mark sheppard was good
hey Oshada i have also cancelled the AAPT migration
and the server upgrade tomorrow
will get this done when it is all sorted
i need the tyres changed in 800km and i wont have money
Oshada Perera - 10:32
please do not cancel the migration and upgrade
I expect you to do that
Max Borodin - 10:32
i have already send them a notification
Oshada Perera - 10:33
I increased your salary $10,000 because you were using your car
Max Borodin - 10:33
not just because of that mate
Oshada Perera - 10:33
yeah well say sorry and we are moving forward with it
dont be a hard person when we require help. I have always looked after you
I did not expect this honestly
common matemate
Max Borodin - 10:34
i am not, what i am saying i have 600 $ in my bacnk account
and in 800 ks i will have to change the tyres
and i wont have the money
what do you want me todo ?
Oshada Perera - 10:34
you said you are going away so will not be driving til you come back right
ok use my car
Max Borodin - 10:35
i told craig I havent decided yet
Oshada Perera - 10:35
thats not hard
Max Borodin - 10:36
ok
just leave ur car at the office ill come around to pick it up
before leaving tomorrow
ill send them a request to not cancel it
also it was nearly a year and a half ago the raise
if i check my logbook i have done mileage for around 16k $
which paid by the quotes provided on the gov website
at 67c per km
Oshada Perera - 11:06
sending raman to pick you up as dicussed.
Max Borodin - 11:08
now ?
Oshada Perera - 11:15
no at 3.00am
Max Borodin - 11:15
ok
Max Borodin - 12:07
Hey Osahda I was advised that I am getting paid till tomorrow, can you please confirm
also please confirm what will be happening with next week
Oshada Perera - 12:11
Will let you know
who said that?
Max Borodin - 12:11
Craig
Thanks
[Original Text Kept]
[32] Mr Borodin stated that on 26 March 2020, he advised Mr Lomans in an instant message conversation that he had not been paid for the period commencing 25 March 2020. The exchange is as follows:
Mr Borodin: | Wait just noticed that not getting paid since yesterday? I excepted to get paid till end of this week, as were not advise to take leave from next week. I am happy to take leave without pay or work those hours as required and get paid for those at my usual rate |
Mr Loman | Hi Max. yesterday I advised you in the morning verbally and sent an email, obviously you came back today, so we are trying to save everything we have. you have not answered the question around helping with bits and pieces in the interim. Trying to save the business here so you all have jobs in the end of it. We are all in the same boat here as a business and as country and work. If you require to be paid then I will work on something. |
Mr Borodin: | I can’t afford to work and not get paid. I need to go to data centre tomorrow at 3:00 am so yes I need to be paid for work. If as a business you will have no work and require me to take leave without pay, please advise in advance in an email, so I can prepare financial for it. Also, to be clear, yesterday I wasn’t told that I am not getting paid starting from yesterday. |
Mr Lomans: | So if you don’t work and don’t get paid can you afford that? |
Mr Borodin: | I can prepare for. I’d find paid work. |
Mr Lomans: | So what what your email this morning about going to your parents? I’m doing a formal email now. |
Mr Borodin:(11:39 am) | I am looking at my options while I be without work. As well as going to my parents. If you have no work I can’t find other paid work I will go to my family to stay with them. |
[Original Text Kept]
[33] Mr Borodin submitted that after further conversation with Mr Lomans, he had received correspondence from the Respondent advising that his last day will be Friday, 27 March 2020 before being stood down. Mr Borodin provided a screenshot of the correspondence he received from the Respondent that stated as follows:
“As per our phone conversation yesterday and the emails attached you are to be stood down without pay due to the COVID-19 virus. We require you to take 4 weeks unpaid leave and we can assess closer to the end date.
Your last day will be Friday the 27th of March. I would ask that any tasks that you deem important through this down period you let us know so we can manage.
I have also let you know that you should be registering your intent to claim Centrelink because you mentioned you would be looking for additional work in the down time and I don’t want you left short.
We would require you to be on call and if were require your assistance due to customer emergency etc we will remunerate you appropriately.
Lastly Max these are hard times on everyone and should you need any one to talk to please feel free to call me directly”.
[34] Mr Borodin submitted that in the first week of April, he contacted Centrelink and he was advised that he had been unlawfully stood down by the Respondent. Mr Borodin stated he then contacted Fair Work Australia however did not indicate whether he contacted the Commission or the Fair Work Ombudsman.
6 April 2020
[35] On 6 April Mr Perera sent the following email to Mr Borodin:
Oshada Perera - 13:47
hey mate, did you create a site to site vpn for mark sheppard
did you ship two mikrotiks to them?
portal only has one mikrotik device lited
listed
[Original Text Kept]
7 April
[36] Mr Borodin and Mr Lomans exchanged a series of emails from 7 April 2020 to 9 April 2020 pertaining to stand down provisions.
[37] On 7 April 2020 Mr Perera sent the following message to Mr Borodin:
Oshada Perera - 14:59
following needs to be done.
1. add voice gateway details to vitality
2. add mikrotik to mark sheppard
[Original Text Kept]
[38] Mr Borodin tendered a screenshot of an email he received from Mr Lomans. In this email, Mr Borodin was offered a reduced salary during the Covid-19 period and was requested to work from the Surfers Paradise office on the basis that a spare room was available for him to work to meet social distancing requirements.
[39] Mr Borodin responded to this email at 5:46 pm on Tuesday, 7 April 2020 and stated, in relation to the offer of reduced salary, the following:
“I’m happy to come out and work at my usual rate, however, as you know, I need to work from Varsity office as I have there all my equipment needed, isolation has never been an issue.”
[40] A screenshot of Mr Lomans’ response was tendered by Mr Borodin. Relevantly, Mr Lomans stated:
“We will be offering you a reduced package of $57,000 inc super and revised roles through this time.
Isolation is a issue and whilst you have stated “isolation has never been a issue” I think the whole country could say the same thing however now it is, so if you do wish to return to work it will be from surfers paradise.”
[Original Text Kept]
8 April 2020
[41] On 8 April the following exchange occurred between Mr Perera and Mr Borodin:
Max Borodin - 11:19
I am waiting on a response from Craig
Oshada Perera - 11:27
No rush, i'm just adding things a we go that I find
Max Borodin - 11:27
Sweet
[Original Text Kept]
[42] Mr Borodin responded to Mr Lomans’ last email at 3:36 pm on 8 April 2020. Relevantly, Mr Borodin stated:
“I appreciate your offer, however 57k is below the recommended limited by Fairworks and what I’m prepared to work for. I’m happy to work 30 hours a week for the next two weeks at my usual rate. This will give business 20% in cost reduction. I feel this will be sensible to the business and myself, as I also need to pay my bills. With the reduced income I would prefer working at the Varsity office or home, since at these places I have full set up to do what is required. Surfer’s office is not a suitable place, also I will have to pay parking costs which I cannot afford with the reduced income.”
[Original Text Kept]
9 April 2020
[43] On 9 April Mr Perera sent the following message to Mr Borodin:
Oshada Perera - 14:51
3. add voicegateways device
whats the password for this device?
[Original Text Kept]
[44] Further emails were exchanged between Mr Borodin and Mr Loman regarding the offer of the reduced salary and comparisons were made to the classification level 3 and 4 in the Professional Employees Award 2010. Mr Borodin sent an email to Mr Lomans at 5:16 pm on 9 April 2020. In this email, Mr Borodin stated:
“I understand the workload in the next two weeks is expected to reduce, thus I’m happy to reduce my work hours for the next two weeks to 30 hours pw and get paid at the hourly rate as per the contract. This will give 20% reduction in costs for this period. Otherwise happy to accept the minimum between level 3 and 4 suggested above for hours in the contract.
Also, as advised earlier, I’m not in the position to work at Surfers Paradise office, as it will affect my ability to work productively and joyfully. As per contract my work place is Varsity office”.
[Original Text Kept]
[45] At 7:15 pm, Mr Lomans responded and requested that Mr Borodin confirm that he is not willing to work from the office located at Surfers Paradise and whether he accepted the role offered by the Respondent. Mr Borodin responded to Mr Lomans’ email at 7:25 pm, and stated as follows:
“Hi Craig,
Thank you for your understanding, but I do not accept the minimum wage.
Thanks,
Max”
[46] Following this, Mr Borodin was required to attend the office located at Surfers Paradise for a meeting on 14 April 2020. In a screenshot tendered by Mr Borodin, Mr Lomans stated that Mr Borodin was able to bring a support person to the meeting.
14 April 2020
Upon arrival at the Surfers Paradise office on 14 April 2020, Mr Borodin stated he was unable to enter the office building. Mr Borodin advised Mr Lomans of this in an email sent at 8:54 am. Mr Lomans stated that he was in the office, and requested that Mr Borodin return to the office and that he will reimburse Mr Borodin $10 for petrol consumption. Mr Borodin attended the meeting with Mr Lomans.
[47] Following the meeting, Mr Lomans sent an email to Mr Borodin at 11:04 am. Attached to the email was a letter. The body of the email is as follows:
“Hi max,
Thank you for coming in today. As it stands its unfortunately that we have come to this stage but as the attached letter inform you we no longer have the position of Network Engineer available due to the COVID-19. Your last day will be 28th of April. You are required to work from the surfers paradise office and we will remunerate you $10 a day for the fuel. Parking will also be covered please start at 9 am tomorrow. Call my mobile and I will let you in.
We would like to maintain a professional relationship with you for future roles that may come available.
Regards,
Craig”
[Original Text Kept]
[48] Turning to the letter attached to the email, the letter stated as follows:
“Dear Max Borodin
Termination of your employment by reason of redundancy
The purpose of this letter is to confirm the outcome of a recent review by LocalCom of its operational requirements, and what this means for you. As a result of the recent COVID-19 development, sales and economic downturn, the position of Network Engineer is no longer needed. Regrettably this means your employment will terminate. The decision is a reflection on your performance.
Based on your length of service, your notice period is 2 weeks’. Therefore, your employment will end on 28th April 2020.
You will also be paid your accrued entitlements and any outstanding pay up to and including your last day of employment. This includes the balance of any time off instead of overtime paid accrued but not yet taken (paid at the overtime rate applicable when the overtime was worked) and superannuation
…
We thank you for your valuable contribution during your employment with us. Please contact me if you wish to obtain a reference in the future.
Yours sincerely
Crain Lomans
National Sales Manager”
[Original Text Kept]
Alleged second warning
[49] On 14 April Mr Perera sent the following message to Mr Borodin:
Oshada Perera - 09:59
4. voice gateway missing, I added it, add user/password
the update this ticket
**
Text Kept]
15 April 2020
[50] At 10:24 am on 15 April 2020, Mr Borodin sent an email to Mr Lomans with a medical certificate attached deeming Mr Borodin unfit for work from 14 April 2020 to 17 April 2020. Mr Borodin tendered a further medical certificate deeming him unfit for work from 17 April 2020 to 24 April 2020.
[51] On 15 April 2020 Mr Perera and Mr Borodin exchanged the following:
Oshada Perera - 13:04
TRIAL BAY FAMILY PRACTICE TRUST
please add mikrotik device and user/pass
Max Borodin - 13:15
im sorry im on a sick leave
Oshada Perera - 13:16
when you feel better. get well soon
[Original Text Kept]
17 April 2020
[52] On 17 April Mr Perera and Mr Borodin exchanged the following:
Max Borodin - 11:02
cool
Oshada Perera - 11:22
TRIAL BAY FAMILY PRACTICE TRUST
please send me mikrotik device and user/pass
Max Borodin - 11:22
im on a sick leave sory
Oshada Perera - 11:29
if you could write that, you could send me the user pass as well.
I'm askig you because it is not in portal when it is supposed to be
20 April 2020
[53] On 20 April 2020 Mr Perera and Mr Borodin exchanged the following:
Oshada Perera - 09:27
whats the user pass for trial bay mikrotik?
Max Borodin - 09:29
please talk to craig
Oshada Perera - 09:30
You keep on not providing company information, while you are on company payroll.
I suggest you to re-think your behaviour since it is against your contract.
[54] Mr Borodin said the information Mr Perera wanted was available to the Respondent. Mr Lomans said as he had taken over as manager and the Respondent was trying to get its social media presence up. He said he asked Mr Borodin to give him the log in for LocalCom and he did not need to give him his personal one. Mr Lomans was not sure of the date. Mr Lomans said Mr Borodin was not cooperating with his request as his manager.
[55] Mr Lomans said he spoke with Mr Perera who was Mr Borodin’s manager and said that Mr Perera was coming in the following day at 10am where he subsequently sat down with Mr Borodin and gave him a warning about following instructions. It was not entirely clear from the evidence whether this discussion was before or after the meeting on 14 April. Mr Lomans said after a discussion he and Mr Perera agreed that Mr Borodin would be given directions in writing because he was not following directions.
[56] Mr Lomans said the Respondent felt it was being “blackmailed” over password information it needed from Mr Borodin. Mr Borodin said he was not getting paid at all during this time. He said he was also not checking emails at this time. He also said he was on sick leave when he received the termination letter.
[57] Mr Lomans said when Covid-19 hit employees were stood down but asked to be on call if work was required to be done. Mr Lomans claimed that when Mr Borodin was advised he was redundant he went and got medical certificates and would not respond when attempts were made to contact him by chat, email and personal email. Mr Borodin said he did not receive any pay for the help he provided to Mr Perera after the stand down.
[58] Mr Borodin said he was genuinely unwell at the time (after being advised his position was redundant) and the Respondent had no basis to suggest otherwise. Mr Borodin said he also should have been paid for the sick leave which he was not.
[59] Mr Borodin also said if the Respondent received Job Keeper payments it could have used that to support him. He also said that his job was still there and had not changed. Mr Borodin claimed that the decision to dismiss him was made much earlier when he refused to work for free.
[60] Mr Lomans said Mr Borodin did not classify as a level 3 as he did not work autonomously. He said a reduced role was offered to Mr Borodin, but he did not want to do it. Mr Lomans also said when Mr Borodin claimed he was sick and unable to respond to messages at that time he was contacting other people asking about matters like pay rights. Mr Lomans said another staff member “Alex” was also made redundant, and at the relevant time the Respondent was not yet able to access Job Keeper.
[61] I asked Mr Lomans directly when Job Keeper was first available to the Respondent and his evidence was to the effect that it was after Mr Borodin was terminated.
[62] Mr Perera said in the first week after Mr Borodin had been told he would be made redundant in two weeks’ time, (on 14 April) he asked Mr Borodin for a password and Mr Borodin was responding to the messages saying he was sick. Mr Perera claimed he said that’s okay and he hoped Mr Borodin would return to work the following week but instead Mr Borodin put in another doctor’s certificate.
[63] When Mr Borodin did this Mr Perera again asked Mr Borodin for the passwords. Mr Perera said the passwords should have been stored where they could be accessed by another member of staff but this was not the case. Mr Perera said Mr Borodin again refused to provide the passwords.
[64] Mr Perera said this was against Mr Borodin’s employment contract. Mr Perera said the Respondent could not remotely log in because it didn’t have the passwords. He said Mr Borodin was asked over a series of days for the passwords but would not provide the passwords and his last response was please talk to Craig (Lomans).
[65] Mr Borodin said the passwords were all defaults and Mr Perera knew this. Mr Borodin said he was being asked to work while he was not being paid and he did not blackmail anyone but he would not work for free. Mr Borodin said he did not refuse to work, the Respondent refused to pay. Mr Borodin said there was work to be done contrary to what was claimed by the Respondent.
[66] Mr Perera said the passwords were configured by Mr Borodin, and he asked Mr Borodin for the password three times and got three different answers, and he did not know the password.
21 April 2020
[67] Mr Lomans sent an email to Mr Borodin at 11:26 pm on 21 April 2020, requesting Mr Borodin provide details of devices and passwords in order for work to be performed. Mr Borodin stated that further emails were exchanged, however he no longer had a record of these emails. Mr Lomans claimed that Mr Borodin was holding back giving the passwords until he received his final payment.
[68] Mr Borodin stated that he received the following email. I note that the email tendered by Mr Borodin is timestamped 11:25 am on 21 April 2020. It provides as follows:
“Hi Max,
I am writing to you today to advise you effectively immediately we are terminating your employment with LocalCom Ltd Pty (formally Talk Up Pty Ltd). Due to a variety of including breaching of contract including “failing to carry out a lawful and reasonable instructions”.
We have been back and forth with yourself for weeks in terms of trying to work out solution to this difficult situation. I have spent hours on the phone to fair work, I have sent emails to yourself, messages and called you I have had a face to face with you and unfortunately for all parties we are now at this point.
Myself, Oshada and Wayne have all been asking you questions which have been ignored. I would put this down to sick leave, however other members of our team have advised us you have been in contact with them arounds their roles and pays.
Your are terminated from today being the 21/4/20 all entitlements will be paid out.
Regards
Craig”.
[Original Text Kept]
[69] Mr Borodin took issue with the communication received regarding his termination, submitting it was not done in a proper way, as there had been no consultation or notifications in advice of the changes made.
[70] In his written submissions, Mr Borodin also took issue with the date his dismissal took effect, stating that “the dismissal should have taken effect on 28-Apr-20 as per the first letter, however, I received a letter on 21-Apr-20 advising that my dismissal was effective immediately”.
LEGISLATION
[71] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.
CONSIDERATION
[72] The first termination that occurred on 14 April 2020 was purported to be on the basis of redundancy. The relevant notice period was two weeks. It is apparent from the evidence that after only one week of the notice period the Respondent decided to terminate Mr Borodin, not on the basis of redundancy but for “failing to carry out a lawful and reasonable instructions”.
[73] There is no dispute between the parties that the reason for the termination was that given on 21 April concerning failure to carry out lawful and reasonable instructions, superseding the earlier decision to terminate based on redundancy which would have had effect from 28 April. The evidence is that Mr Borodin was not paid notice pay.
Whether Respondent complied with Small Business Fair Dismissal Code
[74] The small business fair dismissal code reads as follows:
“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity. A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
[75] It was discussed with the parties in the hearing and appeared to have been accepted, that this was not a case of summary dismissal on the basis of an earlier warning issued on 28 February. However, on the evidence, given that the termination on 21 April was issued with immediate effect I have concluded it was a summary dismissal.
[76] Turning to the section of the Code under the heading “ Summary Dismissal” I do not accept that the conduct of Mr Borodin in not providing the passwords gave the Respondent reasonable grounds to believe Mr Borodin’s conduct was so serious that it warranted summary dismissal.
[77] Mr Borodin had been on a period of alleged stand down (which is disputed) without pay since late March, purportedly on the basis there was no work for him. He was then terminated on the basis of redundancy with two weeks’ notice on 14 April and was at the time of the requests for the password and his subsequent termination on 21 April, on personal leave with medical certificates covering that time.
[78] Given all of that, the Respondent should have warned Mr Borodin that he was at risk of termination if he did not provide the passwords before moving to dismiss. It is also doubtful that Mr Borodin was in fact ever directed to provide the password information. The emails read more like requests than clear directions, although the last message from Mr Perera of 20 April clearly expresses displeasure at Mr Borodin not having provided the information.
[79] Alternatively, if this is properly a case falling within the meaning of “Other Dismissal”, under the Code, it is clear that the employee must be warned that they are at risk of being dismissed, and be given an opportunity to respond. I have concluded that the Respondent cannot rely on the warning of 28 February to satisfy that requirement in the Code because Mr Borodin was not warned and given an opportunity to respond before termination in relation to the password issue. Whilst both the 28 February incident, and the password issue involved an allegation of failing to follow a lawful and reasonable direction, the circumstances are distinguishable.
[80] As explained, as at 21 April 2020 Mr Borodin had been initially in a period of stand down without pay, then on personal leave. His reluctance to cooperate with the Respondent’s requests for assistance in it completing a work related task was regrettable given it appears his medical condition did not prevent him from engaging in other forms of communication at time, however again, it would have been appropriate for the Respondent to warn him that if he did not supply the password requested despite being on personal leave the Respondent was contemplating terminating him with immediate effect. The form of language in the emails is again relevant in that it the language is not that of an explicit direction.
[81] Given these findings the dismissal was not consistent with the Code and it is necessary to consider whether the dismissal was harsh, unjust or unreasonable.
[82] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
[83] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 5 I set out my consideration of each below.
s.387(a) whether there was a valid reason for the dismissal related to the persons capacity or conduct;
[84] I found as set out above that Mr Borodin did not follow a lawful and reasonable direction on 28 February 2020. The Respondent made a decision to terminate Mr Borodin on the basis of its view that his failure to provide it with a password despite a number of requests to do so over a period of days in April justified his termination. On the basis of the evidence I am inclined to the view that Mr Borodin was aware of the Respondent’s request for the relevant information, and was capable of complying with it however was being somewhat recalcitrant given prior disputation over the alleged stand down, his position having been made redundant a week earlier and his being on personal leave.
[85] However, the Respondent’s failure to give him a clear direction to provide the password despite all of the circumstances means the Respondent did not have a valid reason to terminate him on 21 April.
S.387(b) whether the person was notified of the reason;
[86] The termination letter advised Mr Borodin of the reasons for his termination.
s.387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[87] Mr Borodin was not given an opportunity to respond to the allegation that he had failed to following a lawful and reasonable direction as he was not on notice that he was required to comply with a direction despite being on personal leave and failure to do so may result in his termination.
S.387(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
[88] There was no refusal by the employer to allow Mr Borodin to have a support person assist him, however given the manner in which the termination occurred there was no practical ability for Mr Borodin to have such support.
S.387(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
[89] The dismissal related to conduct and not performance and on that basis s.387(e) is not relevant.
S.387(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;
[90] The Respondent is a small business and this is likely to have impacted on the procedures followed.
S.387(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;
[91] The Respondent did not have a dedicated humans resource management specialist and this is likely to have impacted on the procedures followed.
S.387(h) Any other matters that the FWC considers relevant.
[92] I made clear to the parties it is not the Commission’s role to determine the stand down dispute as part of these proceedings. However, on the evidence before the Commission it seems more likely than not that the Respondent was not entitled to stand down Mr Borodin on 27 March however that is ultimately a matter that will need to be determined somewhere else if it is to be pressed by Mr Borodin. It also appears the Respondent did not pay Mr Borodin notice. Given my conclusion above, he should have been paid notice.
CONCLUSION ON WHETHER DISMISSAL WAS UNFAIR.
[93] Having found that the Respondent did not have a valid reason for termination, and that there were also procedural flaws in the manner in which the termination occurred, I have concluded that the dismissal was harsh, unjust or unreasonable.
Remedy
[94] Mr Borodin does not seek reinstatement and instead seeks compensation for the period he was stood down, payment of unused sick leave and public holidays and loss of income. Section 392(4) of the Act provides that the Commission can only make an order to compensate for lost remuneration and as referred to earlier, this was explained at the hearing. Mr Borodin submitted that he has commenced employment in a new position that is located in Brisbane a month after his termination.
[95] Both parties agreed Mr Borodin’s rate of pay was $1,538 per week. Mr Lomans said Coronavirus had hit the business hard though it was not in administration or insolvent. Mr Lomans said the business had significant debts, but his evidence did not rise to a level that demonstrated that the Respondent could not comply with an order for the payment of compensation.
[96] Mr Borodin worked for the Respondent from 17 December 2018 to April 2020. Mr Borodin gained other employment from 5 May 2020 and sought compensation for the period that he was not working.
[97] I have concluded on the basis of the evidence that Mr Borodin’s employment would have come to an end on 28 April 2020 on the basis of the earlier decision to terminate him made on 14 April 2020 with two weeks’ notice on the basis of redundancy had it not been for the termination on 21 April. I have been persuaded on the evidence that the Respondent did attempt to negotiate with Mr Borodin an alternative role however this was unacceptable to Mr Borodin. On the basis of his ordinary earnings Mr Borodin would have earned $1,538 in the week between 21 April and 28 April.
[98] Mr Borodin gave evidence that he sought other employment during the time he was unemployed but was not successful until 5 May 2020. He made efforts to mitigate his loss and no further deduction is made on that basis.
[99] Mr Borodin was entitled to two weeks’ notice that he did not receive. I intend to take this matter into account under section 392(g) and order an additional amount of $1,538 taking the amount of compensation to be paid to $3,076. There is no need to deduct any amount on the basis of earnings since termination as the period of two weeks does not extend to the point at which Mr Borodin gained new employment.
[100] The amount of $3,076 does not exceed the compensation cap. I intend to order that Localcom Pty Ltd pay Mr Maksym Borodin the amount of $3,076 gross taxed according to law within 14 days of the date of this decision. An order requiring the payment of this amount will be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
Mr M. Borodin appearing on his own behalf
Mr C. Lomans appearing for the Respondent
Hearing details:
2020,
Brisbane by video:
October 7
Printed by authority of the Commonwealth Government Printer
<PR724969>
1 Exhibit 2.
2 Exhibit 1.
3 Exhibit 3.
4 Exhibit 4.
5 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
0
0
0