Michael Dowd v Shane Wooffiden
[2024] FWC 1001
•17 APRIL 2024
| [2024] FWC 1001 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Dowd
v
Shane Wooffiden
(U2024/1601)
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 17 APRIL 2024 |
Application for an unfair dismissal remedy – Compensation awarded.
Mr Michael Dowd has applied under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The Respondent Shane Wooffidin T/A Brickology (Brickology), opposes the application. Mr Wooffidin is a sole trader. He traded as Brickology and Mr Dowd worked for him as an apprentice brick layer.
The application was heard by way of conference and Mr Dowd represented himself. I granted Brickology permission to be legally represented as Brickology submitted that it wished to raise a jurisdictional objection involving some complexity and legal representation would allow the matter to be dealt with more efficiently.
I find that Mr Dowd was unfairly dismissed. I have awarded Mr Dowd compensation in the sum of $2,500. My reasons follow.
When can the Commission order a remedy for unfair dismissal?
Section 390 provides that the Commission may order a person’s reinstatement, or the payment of compensation to a person if satisfied that the person was protected from unfair dismissal and the person has been unfairly dismissed. Section 382 provides that a person is protected from unfair dismissal if the person is an employee who has completed a period of employment of at least the minimum employment period and the person is covered by a modern award, an enterprise agreement applies to the person, or the person earns less than the high-income threshold. Section 385 relevantly provides that a person has been unfairly dismissed if the Commission is satisfied of four things: the person has been dismissed; the dismissal was harsh, unjust or unreasonable; the dismissal was not consistent with the Small Business Fair Dismissal Code, and the dismissal was not a case of genuine redundancy.
Brickology initially raised the jurisdictional objection that Mr Dowd had not been dismissed. It argued that he had been on a period of unpaid leave. During the conference it became clear that on 22 January 2024 Brickology applied to Training Services NSW to cancel Mr Dowd’s apprenticeship. Mr Dowd received notice of the application from Training Services on 25 January 2023 with the result being the apprenticeship was cancelled. Once this became clear the Brickology accepted that there had been a dismissal. I am satisfied that the initiative taken by Brickology to have the apprenticeship cancelled resulted in Mr Dowd’s employment as an apprentice being terminated.
There was no contest, that Mr Dowd was otherwise protected from unfair dismissal. The questions for determination under s.385 in this case are whether the dismissal was harsh, unjust or unreasonable and if so whether a remedy should be ordered.
Background
In July 2023 Mr Wooffidin told Mr Dowd that he was going to have to close the business to attend to personal health issues. There was some contest in the evidence about what was said about the length of the close down. Mr Dowd’s recollection was that the closure was to be for two months, Mr Wooffidin is certain he said it would be for 3 months. That issue is not material. It took some time for Mr Wooffidin to arrange treatment and the closure did not commence until 28 September 2023. The arrangement during the closure was that Mr Dowd would continue to be employed by the business but that there would be no work for him to do and no payment made. Mr Wooffidin undertook to assist Mr Dowd in finding work with others during the closure. Mr Wooffidin did assist in finding work during October and November 2023 and Mr Dowd performed work during that period.
In December 2023 Mr Dowd contacted Mr Wooffidin about returning to work with Brickology. He did so by text message. Some of those messages were to Mr Wooffidin, others included Mr Wooffidin’s father and to Mr Wooffidin’s de facto partner, Ms Milojevic. The text exchanges were in strident language and in many respects unprofessional. The tenor of the communications was that Mr Dowd wanted to return to work. The replies were to the effect that Mr Wooffidin was still unwell and unable to recommence the business. Mr Dowd was unable to find work in December 2023 or January 2024. The text exchanges continued through January 2024.
On 22 January 2024 Brickology took steps to cancel the apprenticeship. This was done without Mr Dowd’s knowledge. An application was made to cancel the apprenticeship. I was provided with the form. The form purports to be an agreement between Mr Dowd and Mr Wooffidin to cancel the apprenticeship with effect from 28 September 2023. No reason for cancellation is provided. The form is signed on behalf of Mr Wooffiden by Ms Milojevic and is dated 22 January 2024.
On 25 January 2024 Training Service NSW wrote to Mr Dowd informing him of the application to terminate his apprenticeship. The letter said Mr Dowd should contact Training Services NSW if he did not want his apprenticeship cancelled, and that if he failed to do so within 21 days of the date of the letter days his apprenticeship would be cancelled. The letter also informed him that if he had received any financial assistance or scholarship payments associated with the apprenticeship they would be suspended. It also said that he could continue his apprenticeship with another employer.
In the days that followed Mr Dowd contacted Mr Wooffidin in a series of text messages. In those messages Mr Dowd made various threats of legal and other action in response to the termination of his employment. The first of those messages Mr Dowd stated that he believed Mr Wooffidin to be in breach of his contract and he had not resigned and had not been given notice of termination. In a latter message Mr Dowd complains about the backdating of his termination and ask that he be paid what he is entitled. In the last text message, sent on 2 February 2024, he asked that he be provided with written confirmation of termination. There was no response from Mr Wooffidin to any of these text messages.
Mr Dowd did not respond to the letter from Training Services NSW. The consequence of not doing so as stated in the letter was that the apprenticeship was cancelled.
Mr Wooffidin filed an application his unfair dismissal application on 14 February 2024. Mr Dowd identified in his form that he was notified of his dismissal when he received the letter of cancellation on 26 January 2024. He also identified that date as the effective date of dismissal.
A response to the unfair dismissal application was filed on 23 February 2024. The response set out the circumstances of the employment and asserted that Mr Dowd had not been dismissed but was a period of unpaid leave whilst the respondent’s business was closed down. No mention was made in the response of the actions taken by the Respondent to cancel Mr Dowd’s apprenticeship. At the conference in these proceedings, after the circumstances of the application to cancel the apprenticeship were discussed, the Respondent accepted that it was open to find that the employment had terminated at the initiative of the employer. I find that the employment terminated at the initiative of the Respondent. That initiative was the application made by to cancel Mr Dowd’s apprenticeship.
Was the dismissal harsh unjust or unreasonable?
The next question is whether the dismissal harsh, unjust or unreasonable. In considering that question I must take into account the matters set out in s.387 of the Act.
The Respondent effected Mr Dowd’s dismissal by having his apprenticeship cancelled. No reason was given for doing so. Mr Dowd was unaware of the steps taken by the Respondent to cancel his apprenticeship until he was notified by Services Training NSW. He was not provided with a letter of termination. Consequently, s.387(a) which directs my attention to whether there was a valid reason for the dismissal related to capacity or conduct is not relevant. Similarly, s.387(b) which goes to whether the employee was notified of the valid reason related to capacity or conduct is not relevant. Section 387(c) and (d) going to whether the employee was given an opportunity to respond to the reason and was permitted to have a support person are also not relevant. Section 387(e) goes to warning about unsatisfactory performance. There was no allegation of unsatisfactory performance, so this consideration is not relevant here. Sections 387 (f) goes to the size of the enterprise. Brickology is a business run by a sole trader, Mr Wooffidin. I do not consider this a relevant factor in determining whether the dismissal was unfair.
Section 387(g) goes to whether dedicated human resource management specialists or expertise would likely impact on the procedures followed in effecting the dismissal. Brickology did not have dedicated human resource specialists. If it did have, I expect it would not have taken the steps it did to cancel the apprenticeship. I do not however find this to be a factor relevant to the consideration that the dismissal was harsh, unjust or unreasonable.
Section 386(h) requires that I consider other relevant matters. I believe two matters are relevant. The first is that steps were taken to cancel Mr Dowd’s apprenticeship without his knowledge and second that those steps included providing a form to Training Services NSW that purported to record an agreement with Mr Dowd that the apprenticeship be cancelled.
As to the first matter, Mr Dowd had been engaged as an apprentice in the Respondent’s business. The business closed for a number of months from October 2023 and Mr Dowd was forced to take leave without pay. He initially expected that leave to be for two months. Although Mr Wooffidin asserts that the period was to be for three months and that is what Mr Dowd was told. It is not material, but I prefer Mr Dowd’s evidence that he was told it would be for two months. This explains his text messages in December seeking advice as to when work would be available again. In the event the closure continued into a fourth month in January 2024. I was told that the business has still not re-opened.
I was taken to Mr Dowd’s text messages in December 2023 and January 2024. Those messages were at times abusive and threatening. The abuse and threats no doubt arose at Mr Dowd’s frustration at having no work. That is no excuse for the tone of the messages. During the conference Mr Dowd expressed regret at the language used. The Respondent stated that it did not act at the time the texts were sent to discipline Mr Dowd for sending the language used in those messages. The steps taken on 22 January 2024 to cancel the apprenticeship were taken against the backdrop of the text messages.
The Respondent sought to explain those steps as simply reporting what had occurred with the apprenticeship. The form being a means of letting the relevant training body know that the business was closed, and Mr Dowd had not performed paid work since September 2023. I do not accept this explanation. The email messages associated with the filling in of the form suggest there was some confusion about what the date of the cancellation date should be, but it is clear that the form that was being provided was a form that would lead to the cancellation Mr Dowd’s apprenticeship. I find that the Respondent took steps to cancel the apprenticeship as a means of dismissing him. It was motivated by the text messages it had received from Mr Dowd and it took those steps without his knowledge because had it informed him Mr Dowd would not react well. I consider this to be unreasonable conduct. Regardless of how the Respondent anticipated Mr Dowd would react, it should have informed him that it was taking steps to cancel his apprenticeship.
As to the second matter, the form itself purports to represent an agreement between Mr Dowd and Mr Woofidin that the apprenticeship be cancelled. This is clear both on the face of the form, which is headed Cancellation of an apprenticeship or traineeship by consent. The instructions attached to the form also state “Applications for cancellation should be made on this form and submitted to Training Services NSW as soon as practicable after the parties have agreed …”. Those instructions go on to make it clear that the cancellation be by consent. An application can be made by one party if the other is not available to sign the form or does not consent, but the reason for the refusal to consent must be recorded. The form advises that if one party does not agree contact should be made to Training Services NSW for assistance.
When the form was completed, there was no agreement from Mr Dowd to cancel his apprenticeship. He was not given an opportunity to agree or disagree. He was simply not told that the Respondent was taking steps to cancel the apprenticeship. Instead, the form was forwarded to Training Services NSW without indication that Mr Dowd had not consented. I find it was unreasonable for the Respondent to do so.
In those circumstances, I find that the dismissal was unreasonable, and I am satisfied that Mr Dowd was unfairly dismissed within the meaning of s.385 of the FW Act.
Remedy
Mr Dowd did not seek reinstatement. I find that in any event the relationship has broken down and reinstatement is inappropriate. Ms Dowd seeks compensation. I am satisfied that it is appropriate to make an order for payment of compensation in lieu of reinstatement.
Section 392(2) of the Act requires all the circumstances of the case be taken into account when determining an amount to be paid as compensation in lieu of reinstatement. I find the following circumstances relevant to an order for compensation. Mr Dowd was dismissed because his apprenticeship was cancelled at the initiative of the respondent. He was not consulted about and did not consent to the cancellation of his apprenticeship.
Section 392(2) also requires me to consider the matters listed in s.392 (a) to (g). In relation to paragraph (a), it is clear that an order for compensation will have an impact on the financial situation of the business given that Mr Wooffidin is a sole trader and has not been able to work in the business due to ill health. I was told that Mr Wooffidin intends to recommence the business when able. For the purposes of paragraph (b) I note that Mr Dowd had only worked for Mr Wooffidin since July 2022 and that he had not performed paid work since September 2023. In relation to paragraph (c), Mr Dowd wished to complete his apprenticeship in the business and had 18 months to go to do so. There is some uncertainty associated about how long he may have remained with the business, given the health of Mr Wooffidin, its impact on the business and the apparent falling out between the two over the text messages sent by Mr Dowd in December 2023 and January 2024. However, Mr Dowd was paid $1,328 per week and had he finished his apprenticeship with the respondent he would have earned $103,591.80. As to mitigation mentioned in 392(2)(d), Mr Dowd has found alternative employment as a labourer. He commenced that work in March 2024. And has received some earnings in that period which are relevant to paragraphs (e) and (f).
Paragraph 392(2)(h) requires me to consider any other matter considered relevant. In this case it is relevant that at the time of the dismissal Mr Dowd was not earning wages. He was witing for Mr Wooffidin to re-open the business. His dismissal however occurred without warning. He was not paid any termination pay and he was not given notice. I consider these factors to be relevant in assessing compensation.
The well-established approach1 to the assessment of the quantum of compensation under s.392 of the Act is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket.2 It involves estimating the remuneration the employee would have received but for the dismissal, deducting monies earned since termination, discounting that amount for contingencies and assessing the tax implications to ensure no adverse impact on the employee.
The unusual circumstances of this case, which involve dismissal from a business that was in a hiatus at a time when no earnings were being made, do not lend themselves easily to the usual approach. Mr Dowd was not receiving an income when he was dismissed. There was some uncertainty as to when he would recommence. The relationship with Mr Wooffidin had clearly broken down. These factors suggest that Mr Dowd was unlikely to be willing nor be able to afford to continue to wait for work to recommence. This makes it difficult to make any estimate in relation to earnings lost as a consequence of the dismissal. I find that there has been none. Mr Dowd has suffered some loss though in that he was not paid annual leave accrued and notice when dismissed. Those entitlements amount to around 2 weeks’ pay. I will order an amount of compensation in lieu of reinstatement that equates to around two weeks’ pay.
I was encouraged by the Respondent to take into account under s.292(3) Mr Dowd’s misconduct in sending inappropriate text messages in December 2023 and January 2024. I do not propose to do so. There is no reason to reduce the amount of compensation on account of that conduct.
Conclusion
For the reasons outlined I consider that Mr Dowd was unfairly dismissed and will order that the Respondent pay Mr Dowd an amount of $2,500 compensation in lieu of reinstatement.
An order requiring payment in this amount will issue separately.
DEPUTY PRESIDENT
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