Michael Lo v Mett Pty Ltd

[2021] FWC 5271

[2021] FWC 5271

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Lo
v
Mett Pty Ltd
(U2021/4376)

COMMISSIONER BISSETT MELBOURNE, 6 SEPTEMBER 2021

Application for an unfair dismissal remedy – jurisdictional objection – resignation or termination – employee resigned then requested dismissal – dismissal occurred during period of notice of resignation – dismissal at initiative of employer – dismissal not unfair in circumstances where employee requested dismissal occur – application dismissed.

[1] Mr Michael Lo (Applicant) has made an application to the Fair Work Commission for a remedy from unfair dismissal. The Applicant was employed by Mett Pty Ltd (Respondent). He commenced employment with the Respondent in 1999 and his employment ceased on 12 May 2021.

[2] The Respondent has objected to the Commission dealing with the application on the grounds that it says the Applicant resigned his employment and was not dismissed.

[3] The application was listed for a determinative conference/hearing with respect to whether the Applicant was dismissed and on the merits of the claim on 11 August 2021. Prior to the hearing I granted permission to both parties to be represented by a lawyer or paid agent.

PRELIMINARY MATTERS

[4] Section 396 of the Fair Work Act 2009 (FW Act) sets out the matters that must be considered by the Commission prior to considering the merits of an application for remedy for unfair dismissal. Those matters are whether the application was made within time (s.394(2) of the FW Act), whether the dismissal was a genuine redundancy, whether the dismissal was consistent with the Small Business Fair Dismissal Code and if the Applicant is protected from unfair dismissal.

[5] I am satisfied that the Applicant is protected from unfair dismissal and that the application was made within time. Further, there is no claim that the termination of employment was a redundancy and the Respondent is not a small business as defined in the FW Act.

[6] The requirements of s.396 of the FW Act having been considered, it is, in this case, necessary to determine if the Applicant was dismissed at the initiative of the employer.

[7] A person has been unfairly dismissed if the requirements of s.385 of the FW Act have been met. Section 385 of the FW Act states that:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[8] The meaning of ‘dismissed’ is found in s.386 of the FW Act. It states as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[9] The Respondent says that the Applicant resigned his employment and hence was not dismissed.

[10] Whether or not the Applicant was dismissed needs to be determined prior to a consideration of the merits of an application. If the Applicant was not dismissed within the meaning of the FW Act the merits of his claim for remedy from unfair dismissal does not need to be considered. On the other hand, if the Applicant was dismissed his claims in relation to unfair dismissal are relevant.

EVIDENCE

Evidence of Mr Michael Lo

[11] The Applicant said he was employed by the Respondent as a Quality Assurance Engineer and that over the 25 years of his employment with the Respondent he has not been issued with any warning in relation to his conduct or performance.

[12] The Applicant stated that Mr Chen became his Manager in March 2021 and said that Mr Chen did not raise any issues with him in relation to his performance.

[13] The Applicant gave written evidence as to the meetings he said occurred on 12 May 2021. 1

[14] The Applicant said that on 12 May 2012 Mr Chen approached him and told him to go to Mr Sven Westphal’s office. He said Mr Westphal was ‘angry and upset’ and said to him loudly ‘Michael, you are [a] liar. You argue [with everyone] and argue with all the managers.’ 2 The Applicant said he did not get a chance to respond and denied he said to Mr Westphal that he wanted to resign.3 He then left the office.

[15] The Applicant said he had a second conversation with Mr Westphal that day near the stairs. He said to Mr Westphal there was nothing wrong with his (the Applicant’s) performance. He said Mr Westphal said in reply ‘You’re a liar. We will show you’. 4

[16] Following this discussion the Applicant said that Mr Chen approached him and gave him a warning letter dated 15 April 2021 even though he had been absent from work on that day. He did not sign that warning letter or any of the three letters given to him that day. The Applicant said that during the meeting with Mr Chen he was told that Mr Westphal wanted him to leave the company immediately. He said he was forced into a conference room where he was shown a termination letter and told he had to go immediately. 5

[17] The Applicant said he was not given a copy of the warning or termination letters but asked, and was permitted, to photograph them on his phone. 6

[18] The Applicant advised that, prior to March 2021 when he started reporting to Mr Chen, he had reported to Mr Marcus Schoelderle, the Machining Manager. He says he was told by Mr Schoelderle with the restructure that his work would not change but that he would just report to Mr Chen.

[19] The Applicant denied that, once he started working for Mr Chen, he spoke with Mr Chen on a regular basis about the work he was performing, 7 although said they sometimes talked about his work.8

[20] The Applicant said that he knew Mr Chen wanted to change the way to department was being run. He said that Mr Chen ‘put more job[s] on [him]’ and wanted him to do ‘things still under negotiation.’ 9 The Applicant agreed that Mr Chen told him that functions were being centralised and that quality assurance staff would not work in just one part of the operation but would work in different parts of the team. The Applicant denied that it was agreed that there would be a trial of the new arrangements and said that the matter was still under negotiation.10

[21] The Applicant’s evidence is that he told Mr Chen that if he changed the Applicant’s job he should change the Applicant’s pay. 11 The Applicant agreed that he told Mr Chen on 30 April 2021 that he would only do the work required if he was paid more money and his hours reduced to 4 days per week.12 The Applicant agreed that he was told the following day that the company would not agree to the changes sought13 although he also said he could not recall if Mr Chen had asked him to do the new job.14 The Applicant agreed that following this he continued to only perform his old duties and said he did not perform any of the new duties because it was ‘still under negotiation.’15

[22] The Applicant gave evidence that his written witness statement, in relation to the meetings on 12 May 2021 was ‘[a]lmost’  16 complete and was ‘true’.17

[23] The Applicant said that at the beginning of the meeting on 12 May 2021 Mr Westphal said to him ‘you are a liar’ 18 but then gave evidence that Mr Westphal had said:

“I’m not happy what you’re doing, Michael. You argue with Jeff, you argue with Mal, you argue with everybody, and you are selfish. You are a liar.” 19

[24] The Applicant agreed that Mr Westphal raised with him that he had been found sleeping at work. He replied to Mr Westphal that he was not asleep but had been sitting at his desk with his eyes closed and that this had been during his lunch break at about 1.50pm. 20

[25] The Applicant also said that he could not remember what Mr Westphal said to him, just that Mr Westphal was not happy with what he was doing. 21

[26] The Applicant denied that he said to Mr Westphal ‘[i]f that’s the way you want it to be, I quit. I give four weeks’ notice now, and I quit’ and then left the room. 22 The Applicant does agree that 10-15 minutes later he came back to see Mr Westphal although denied that he had spoken to his wife or said to Mr Westphal that he had spoken to his wife and wanted, not to resign, but to be dismissed.23

[27] The Applicant said he then returned to his desk where Mr Chen then approached him and gave him the three warning letters at the same time. 24 The Applicant said that he remained at work all morning and took the photographs of the warning and termination letters at a further meeting with Mr Chen at 12.01pm.

[28] The Applicant produced a log of telephone calls that he said he received from Boost Mobile 25 after a request made to them following an order of the Commission to the Applicant to produce his mobile phone records. The Applicant said that when he received the document he forwarded it to his lawyer and that he did not edit it in anyway. The Applicant could not explain why the coversheet for the spreadsheet related to a mobile phone account for ‘Janice O’Reilly’ for the period 2015 and 2016 or why it had a Telstra reference on it. The Applicant said he did not receive the spreadsheet from Telstra but rather from Boost Mobile.

[29] The Applicant agreed that he did make one phone call between the time of the meeting with Mr Westphal and the meeting at 12.01pm when he took the photographs of the warning and termination letters although he cannot remember who he made that call to.

Evidence of Mr Jeff Chen

[30] Mr Chen is the Quality Manager for the Respondent. He commenced with the Respondent in February 2021.

[31] Mr Chen gave evidence that in mid to late March 2021 the Applicant commenced working in his team. He said he met with the Applicant and advised him that his role would involve ‘a new direction which was more focussed on quality control and metrology coordinator work for the whole site, as opposed to a quality assurance for a particular area.’ 26 At this meeting a 1 month transition period was agreed with the Applicant.

[32] Mr Chen said that in mid to late April 2021 he heard the Applicant had been caught asleep at his desk by Mr Jarrod Westphal (Jarrod), an employee. Mr Chen said that he spoke to Jarrod who said he caught the Applicant sleeping at his desk with a video playing on his phone at about 2.30pm on 14 April 2021. Jarrod told Mr Chen that the Applicant had told him he was on his lunch break. Mr Chen said that the day after he spoke to Jarrod he spoke to the Applicant. The Applicant told him that he was on his lunch break at the time.

[33] Mr Chen said he spoke to the Applicant on or around 30 April 2021 and confirmed with him that he needed to commence the new duties. He said the Applicant told him that he wanted to reduce his working days to 4 days per week and that he wanted a pay increase. Mr Chen told the Applicant that he would speak to Mr Schoelderle and get back to him. Mr Chen spoke to Mr Schoelderle who said the request could not be accommodated. Mr Chen told the Applicant the following day that Mr Schoelderle had not agreed to his requests. The Applicant told Mr Chen he would not perform the new role. Mr Chen told Mr Schoelderle this who said that something would need to be done.

[34] On 12 May 2021 Mr Chen asked the Applicant to deal with a matter that had arisen. He said that the Applicant refused to do the work. Mr Chen said that, at this stage, the Applicant had been in the job for approximately 2 months and it was becoming unworkable. At about 9.00am that day Mr Westphal asked Mr Chen how his team was going. Mr Chen advised Mr Westphal that the Applicant was refusing to follow instructions to perform his work. Mr Westphal asked Mr Chen to bring the Applicant to see him. Mr Chen approached the Applicant and told him that Mr Westphal wanted to see him in his office.

[35] Mr Chen also attended the meeting with Mr Westphal and the Applicant. He said Mr Westphal asked the Applicant what was going on with his ‘disciplinary issues’ including the Applicant sleeping at work. The Applicant replied that there were no disciplinary issues and that he was on his lunch break when the sleeping incident occurred. Mr Chen said he could not recall the rest of the discussion but did hear the Applicant say words to the effect ‘[y]ou know what Sven, I’m going to resign.’ The Applicant then left Mr Westphal’s office. 27

[36] Mr Chen’s evidence is that, following this meeting, he stayed with Mr Westphal. They then spoke to Mr Schoelderle and told him what had occurred. About 10 minutes later the Applicant appeared. He said that he had spoken to his wife who told him to stay and he would not resign unless something was done. Mr Chen said he could not recall the exact words used by the Applicant. He said that Mr Westphal said in reply ‘[f]air enough, it is what it is, you can leave.’ 28

[37] Mr Chen said that at this point Mr Westphal asked him to issue three warning letters to the Applicant. Mr Chen then went to his office and prepared three warning letters based on three disciplinary issues he had raised with the Applicant. He then met with the Applicant and went through the content of the three letters. Mr Chen asked the Applicant to sign the letters however the Applicant refused. Mr Chen said that one of these letters had the incorrect date on it and the ‘discussion’ in relation to the [sleeping] matter occurred on 14 April 2021 and not 15 April 2021. He said he corrected the first notice and that is why there are two notices for the same incident. He then asked Ms Alison Guthrie, the receptionist, to prepare a termination letter based on the disciplinary notices. Mr Chen then showed the termination letter to the Applicant and advised him that based on the disciplinary issues raised in the warning letters, his employment was terminated. Mr Chen said the Applicant took photos of the warning and termination letters. After handing in his keys and working gear the Applicant left the Respondent’s premises.

[38] Under cross-examination Mr Chen said he could not recall specifically the day he had the conversation with the Applicant [about sleeping at work] but said that it was the day after he spoke to Jarrod. 29

[39] Mr Chen said that he questioned whether the Applicant could have been on his lunch break when he was seen sleeping as the incident occurred around 2.30pm, which is not the standard lunch break 30 although agreed it was not absolutely impossible that the Applicant was on his lunch break.31

[40] Mr Chen said that the date on the 2^nd warning letter 32 was an error and it should read ‘2021’ not ‘2020’. He said that he could not recall if the conversation took place precisely on 30 April 2021 but says it was around that date.33

[41] Mr Chen agreed he did not provide the relevant warning letters to the Applicant on 14 April 2021 or 30 April 2021. He said that he had discussions with the Applicant at the times indicated but nothing was issued in writing.

Evidence of Mr Markus Schoelderle

[42] Mr Markus Schoelderle is the Technical Manager and has worked for the Respondent for over 20 years.

[43] Mr Schoelderle said that he was not present in the [first] meeting on 12 May 2021 between the Applicant, Mr Westphal and Mr Chen. 34 That day however, when he was walking to his office, he saw Mr Westphal and Mr Chen. They were discussing a meeting they had just had with the Applicant and told Mr Schoelderle that the Applicant had resigned his employment. Mr Schoelderle said that about 5 minutes later the Applicant approached them and said words to the effect of ‘I spoke to my wife and I am not resigning. You need to sack me’ to which Mr Westphal said ‘you already resigned, you said you resigned in our earlier discussion.’35

[44] After the Applicant left them, Mr Westphal repeated that the Applicant had resigned. Mr Westphal also said there were warning letters that should have been issued and told Mr Chen to write these up.

Evidence of Mr Sven Westphal

[45] Mr Sven Westphal is the General Manager for the Respondent. He said that the Applicant had worked for the Respondent at this particular plant for about 20 years. Mr Westphal said the Applicant is a ‘smart and intelligent individual’ however he tends ‘not to work well as part of a team.’

[46] Mr Westphal said that on or about 15 April 2021 he became aware through Jarrod, who was looking for the Applicant to have some paperwork completed, that the Applicant was asleep at his desk. When roused by Jarrod the Applicant became irate and said he was on his lunch break. Mr Westphal raised the issue with Mr Frank Anderl, HR and Payroll Manager, and said that a discussion needed to be had with the Applicant about that matter. Mr Westphal said that the Applicant, however, was not at work on 15 April 2021 and left early on 16 April 2021. Mr Anderl then went on 4 weeks’ leave so the meeting with the Applicant had not occurred.

[47] On or about 30 April 2021 Mr Westphal spoke to Mr Chen who said that the Applicant had refused to undertake some work requested of him as he claimed it was not his job to do those tasks.

[48] On 12 May 2021 Mr Westphal said he was checking in with his managers. Mr Chen told him that the Applicant had again refused to perform work required of him. Mr Westphal told Mr Chen to bring the Applicant to his office. Mr Westphal said he called Mr Chen and the Applicant into his office as the Applicant ‘had a long history of performance concerns which had been escalating since he moved into the Quality team under Mr Chen’s supervision.’ 36 Mr Westphal said he considered the Applicant’s refusal to perform work unacceptable and he needed the Applicant to commit to improving his performance, commit to performing the duties required and to start working as a team player. Mr Westphal hoped that by raising the issues with the Applicant himself the Applicant’s performance would improve.

[49] Mr Westphal said that at the commencement of the meeting on 12 May 2021 he asked the Applicant what was going on, that he had been caught sleeping on the job to which the Applicant said he was on his lunch break, and that he had refused a week earlier and again on this day to do some work as required by Mr Chen. The Applicant responded by saying ‘[i]f that’s the way you want to be, I quit. I give you four weeks’ notice now and I quit.’ Mr Westphal said he was disappointed but thought, given the Applicant’s refusal to perform his role and his decision to resign, the Applicant clearly did not want to stay in the role.

[50] Mr Westphal agreed that during this meeting he did call the Applicant a liar but said this was in response to what the Applicant said about sleeping at work.

[51] After the Applicant left his office Mr Westphal said he and Mr Chen walked out and ran into Mr Schoelderle near the stairs. They discussed what had occurred with the Applicant amongst other matters. About 10-15 minutes later the Applicant approached them and said ‘I’ve been on the phone with my wife and she said you should sack me’. 37

[52] Mr Westphal responded that the Applicant had given his notice to which the Applicant said the Respondent had to sack him. Mr Westphal agreed to the Applicant’s request and said ‘[i]f that’s what you want, I’ll give you four weeks’ notice. I’ll pay you out now, and you can go.’ 38

[53] Mr Westphal said that he thought documentation should accurately reflect the concerns raised with the Applicant which would warrant dismissal. As Mr Anderl was on leave he asked Mr Chen to provide the Applicant with three written warnings based on the disciplinary issues. Based on the disciplinary issues (sleeping at work and two refusals to do the work he was asked to perform) Mr Westphal considered there were sufficient grounds for terminating the Applicant’s employment.

[54] Mr Westphal agreed that, prior to 12 May 2021, the Applicant had not been given any warning letters in relation to his conduct or performance. He said that the Applicant could be temperamental and that he had looked after him on a one-on-one basis. 39

[55] Mr Westphal said the Applicant had not, prior to 12 May 2021, indicated that he was going to resign from his employment and he did not think that the Applicant would resign at the meeting on 12 May 2021. Mr Westphal said that Applicant was smart but his conduct was a problem. 40

[56] Mr Westphal said he had ‘tolerated’ the Applicant for 25 years and it was the Applicant’s decision to ‘quit’. 41 Mr Westphal said that he did not terminate the Applicant’s employment and then issue the three warning letters.42 Mr Westphal said he thought the Applicant would have returned 15 minutes later (which he did do) and explain that he had lost his cool and did not intend to resign. However that was not a discussion that occurred.

[57] Mr Westphal said he had been told that the Applicant refused to sign the warning letters given to him but said employees do not have to sign such letters. Mr Westphal said there was no need for him to review the warning letters given to the Applicant as the Applicant had given notice of his resignation. 43

WAS THE APPLICANT DISMISSED?

[58] In the matter before me the Applicant does not claim that he resigned but was forced to do so by the conduct of the Respondent. Section 386(1)(b) (see paragraph [8] above) therefore does not need to be considered further. Rather, the Applicant claims that his employment was terminated at the initiative of the Respondent.

[59] In Mohazab v Dick Smith Electronics Pty Ltd (No 2) 44the Full Court of the Industrial Relations Court found that:

“…it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”

[60] In O’Meara v Stanley Works Pty Ltd 45the Full Bench of the Australian Industrial Relations Commission said:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

[Endnote omitted]

[61] What must be determined in the first instance is the conduct of both the Applicant and Respondent in the period leading up to, and on, 12 May 2012.

[62] I accept that the Applicant joined Mr Chen’s team in mid to late March 2021, that Mr Chen explained to the Applicant that he would have to broaden the work that he did and that he provided the Applicant with a 1 month transition period to the new working arrangements.

[63] I am satisfied, on the Applicant’s evidence, that he refused to undertake the additional work required of him. I accept Mr Chen’s evidence that this specifically occurred twice on or about 30 April 2021 and again on 12 May 2021.

[64] As to what happened in the meeting on 12 May 2021 in Mr Westphal’s office, I prefer the evidence of Mr Westphal and Mr Chen to that of the Applicant. Both were forthright and honest in the evidence they gave in circumstances where that evidence has not always put them in a good light. They admitted errors (Mr Chen in relation to the dates on the warning letters) and were clear that the three warning letters were written after the meeting in Mr Westphal’s office. Neither suggested expertise in staff management and Mr Westphal acknowledged that things may have been handled differently if Mr Anderl was present.

[65] The evidence of Mr Westphal and Mr Chen is supported by what Mr Schoelderle said was recounted to him in a conversation after the meeting with the Applicant concluded. While Mr Schoelderle was not present in the meeting where the Applicant resigned, his evidence as to the conversation he had shortly thereafter with Mr Westphal and Mr Chen was not tested in cross-examination such that I am satisfied I can accept it as a true account of the conversation. Whilst not determinative of what was said in the meeting in Mr Westphal’s office, it is supportive of the evidence given that the Applicant did resign in that meeting

[66] In his written statement the Applicant told of 4 discussions he had with his managers on 12 May 2021 – the first in Mr Westphal’s office, the second with Mr Westphal near the stairs, the third with Mr Chen in the maintenance shed where he said Mr Chen wanted him to sign three warning letters and the fourth in the Applicant’s office where, he said, Mr Chen terminated his employment. The Applicant did not give written evidence as to who else was present at any of these meetings. In his oral evidence the location of the latter two meetings (with Mr Chen) changed and he gave evidence of others who were present at the various meetings. Further, the Applicant said, in cross-examination, that his written statement was ‘almost’ a complete version of what had occurred. In reaching a decision as to which evidence I prefer, the Applicant’s lack of completeness in his written statement and the changes he made from his written statement in his oral evidence, raise doubts as to the reliability of the totality of his evidence. For these reasons, on balance, I prefer the evidence of the Respondent’s witnesses over that of the Applicant such that, where there is conflict in the evidence, I have accepted that of Mr Westphal, Mr Chen and Mr Schoelderle over the Applicant.

[67] I accept the explanation of Mr Westphal that, in his years of managing the Applicant he considered the most effective approach was to let the Applicant know when he had stepped out of line and that he needed to ‘pull his head in’. Mr Westphal’s acknowledgement of the need to manage the Applicant as an individual should not be brushed aside. I accept that Mr Westphal was continuing a management style which had worked with the Applicant to date when he called him into the meeting on 12 May 2021. This of course is not to suggest that properly documented processes and outcomes should not be in place to ensure consistency and reliable record keeping. The Applicant, however, on his own evidence, maintained a stubborn attitude that nothing had been agreed to with respect to changes to his duties and therefore he was not going to undertake the work required of him by the Respondent. He apparently believed a pay increase was warranted. Mr Westphal was not happy with the Applicant on 12 May 2021 and the Applicant was not going to change his view on his work.

[68] Given my view as to the reliability of the evidence given, I am satisfied that the Applicant said that he resigned from his position and was giving four weeks’ notice in the (first) meeting with Mr Westphal in his office at which Mr Chen was present on 12 May 2021.

[69] For this reason there was no action of the Respondent that brought about the termination of the Applicant’s employment in the first instance. That Mr Westphal wanted to talk to the Applicant was not unreasonable and that he sought to talk to him about a number of incidents, not the least of which was the Applicant’s refusal to perform the work required by Mr Chen, cannot be considered unusual.

[70] The Applicant did have the opportunity to withdraw his resignation and Mr Westphal, in his evidence, expected that the Applicant would do just that when the Applicant approached him, Mr Chen and Mr Schoelderle near the stairs. What the Applicant did however was only entrench his position. I accept the evidence of Mr Westphal, Mr Chen and Mr Schoelderle that at this time the Applicant indicated that he wished to have his employment terminated by the Respondent instead of the resignation.

[71] I make no finding as to whether the Applicant made his request to be dismissed on anyone’s advice to him. I do not need to make such a finding to reach my conclusions.

[72] In acquiescing to the Applicant’s request however, the Respondent did dismiss the Applicant during his notice period. The Applicant had resigned but intended to work his 4 week notice period. It was during this time the Applicant’s employment was terminated. The Respondent’s grounds for doing so are no more than that the Applicant asked to be dismissed.

[73] Whilst my finding may appear counter-intuitive to the Respondent, I do find that the Applicant was dismissed from his employment at the initiative of the employer. The employer acted on the request of the Applicant although was not obliged to do so. Ultimately the dismissal could not have occurred on 12 May 2021 had the Respondent not agreed to the request of the Applicant. This action by the Respondent brought the employment of the Applicant to an end on that day. Whilst there may be some argument that the second termination was at the initiative of the Applicant and not the employer no submissions were made as to such a nuanced view of the termination. I therefore accept that, in terminating the Applicant’s employment, the termination was, ultimately at the initiative of the Respondent (although at the invitation of the Applicant). Had the Respondent refused the request of the Applicant the resignation would have followed its set course.

[74] I accept that the actions that then followed of Mr Westphal and Mr Chen were driven by mistaken beliefs of needing to be able to justify the dismissal. The Applicant, having requested that his employment be terminated (for reasons only know to him), left Mr Westphal in a situation where he apparently considered he needed a paper trail that would support or confirm the issues the Respondent had with the Applicant’s conduct. For this reason Mr Westphal had Mr Chen write up discussions that had been had with the Applicant in relation to his conduct or performance. I accept that these discussions did, in fact, occur. Without access to HR records Mr Chen made some errors on these documents in relation to the dates he indicated the discussions had occurred. On the first report he was out by a day and on the second report he wrote ‘2020’ instead of ‘2021’. I would note that there was no pretence about when these write ups were done. Mr Chen dated them the day he wrote them, i.e. 12 May 2021.They were presented to the Applicant that day who refused to sign them, as was his right and the Applicant was, shortly thereafter, provided with notice of his termination.

[75] The Applicant then left the premises of the Respondent and (it not having been otherwise put) received his 4 weeks’ pay in lieu of notice.

[76] For all of these reasons and given my findings above, I am satisfied that the Applicant was dismissed within the meaning of the FW Act.

WAS THE APPLICANT UNFAIRLY DISMSSED?

[77] In determining if the Applicant was unfair dismissal it is necessary to consider each of the matters in s.387 of the FW Act. Section 387 of the FW Act states as follows:

“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' 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.”

[78] The Respondent does not put any defence to the claim of unfair dismissal, consistent with its claim that the Applicant resigned.

[79] I have considered each of those matters in s.387 of the FW Act.

[80] The Applicant was dismissed for sleeping at work and for a refusal on two occasions to carry out work as directed. In the circumstances, I accept the submissions of the Applicant and am satisfied in this case that this did not provide a valid reason for the dismissal of the Applicant (s.387(a) of the FW Act).

[81] The Applicant was not told of that reason for dismissal (s.387(b) of the FW Act) prior to his dismissal.

[82] The Applicant, having not been advised of the reason for dismissal, was not given an opportunity to respond (s.387(c) of the FW Act).

[83] The Applicant was not unreasonably denied a support person. Having found as I have, I am satisfied that the Applicant knew he intended to ask the Respondent to dismiss him. He could have taken a support person with him. He chose not to do so well aware of the conversation he intended to have with Mr Westphal (s.387(d) of the FW Act).

[84] The Applicant’s employment was terminated for reasons of misconduct and a failure to perform his duties as required. To the extent the reason for dismissal related to performance I do accept that the Respondent had sought to manage these issues with the Applicant through a transition period to the expanded work required to be undertaken and by discussions with the Applicant about his work undertaken from time to time by Mr Chen. I do accept that no formal performance management process or warnings in relation to continued poor performance had been put in place. (s.387(e) of the FW Act).

[85] The Respondent has over 100 employees and a dedicated human resources manager (who I note was absent at the time of the Applicant’s dismissal). I do consider that, had Mr Anderl been at work matters may have been dealt with quite differently but they were not. I do not consider the size of the employer or the absence of human resource expertise to be relevant to the determination of the matter before me (ss.387(f) & (g) of the FW Act).

[86] I note the Applicant’s age (58), his 25 years employment with the Respondent and the economic consequences for him on the loss of his employment. I have also taken into account that it was not the Respondent’s intention to terminate the Applicant’s employment. My findings above in relation to the resignation then termination as set out above are relevant considerations and I have taken them into account in reaching my decision below (s.387(h) of the FW Act).

[87] This is an unusual case. The Applicant says he did not resign but was dismissed while the Respondent says it had no intention of dismissing the Applicant but that he resigned and then insisted he be dismissed. It is not common, in my experience, that an employee requests that they be dismissed.

[88] Given the circumstances set out in my consideration of if there was a dismissal and, in particular my finding that the Applicant requested that he be dismissed not long after he resigned, I am not satisfied that the dismissal was harsh, unjust or unreasonable. Given the request of the Applicant it would be counter-intuitive to find that agreement to this request could result in a dismissal that was unfair. The Applicant knew his circumstances but resigned and then requested he be dismissed. He cannot have been surprised at the result.

[89] This finding is reflective of the very unusual circumstances of this case. Whilst it is generally the case that a finding of no valid reason for dismissal will result in a finding that the dismissal was harsh, unjust or unreasonable, such an outcome is not the required result. If it was that no valid reason required a finding that dismissal was harsh, unjust or unreasonable, that would be to misread the requirement of the FW Act. A consideration of whether a dismissal is harsh, unjust or unreasonable requires a consideration of all of the factors set out in s.387 of the FW Act. No single factor is to be given primacy over others. This case is demonstrative of the necessity to consider all factors.

CONCLUSION

[90] For a dismissal to be unfair it must be found to be harsh, unjust or unreasonable. Having found it was none of these I find that the dismissal was not unfair.

[91] I would observe that, even if I had found the dismissal was unfair, on the submissions and evidence before me, I would not have awarded compensation as I do not consider the Applicant has suffered any loss in remuneration caused by the dismissal. The Applicant resigned and provided 4 weeks’ notice of his resignation. I could, in those circumstances, only find that his anticipated period of employment was 4 weeks. On his dismissal the Applicant was provided with 4 weeks’ pay in lieu of notice. 46 In these circumstances his lost remuneration was zero.

[92] The application for relief from unfair dismissal is therefore dismissed. An order 47 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

M. Lo on his own behalf.

D. Garan for the Respondent.

Hearing details:

2021.
Melbourne by video using Microsoft Teams:
August 11.

Printed by authority of the Commonwealth Government Printer

<PR733187>

 1   Exhibit A1

 2   Transcript, PN125-PN126

 3   Transcript, PN126

 4   Transcript, PN128-PN131

 5   Transcript PN160

 6   Witness statement of Michael Lo, attachment ML-3

 7   Transcript PN236

 8   Transcript PN241

 9   Transcript PN248

 10   Transcript PN254, PN258

 11   Transcript PN252, PN257

 12   Transcript PN262

 13   Transcript PN268

 14   Transcript PN290

 15   Transcript PN270, PN277, PN278, PN280

 16   Transcript PN299

 17   Transcript PN301

 18   Transcript PN328-PN329

 19   Transcript PN330

 20   Transcript PN344, PN346-PN351

 21   Transcript PN369

 22   Transcript PN374-PN375

 23   Transcript PN376-PN378-PN379

 24   Transcript PN388, PN390-PN391

 25   Exhibit R1

 26   Exhibit R2, paragraph 4

 27   Exhibit R2, paragraph 14

 28   Exhibit R2, paragraph 15

 29   Transcript, PN631-638; Exhibit R2, paragraph 6

 30   Transcript PN676

 31   Transcript PN677

 32   Exhibit R2, attachment JC-1

 33   Transcript PN694-PN698

 34   Transcript, PN752

 35   Exhibit R3 paragraph 5

 36   Exhibit R4, paragraph 9

 37   Transcript PN915

 38   Exhibit R4 paragraphs 13-15

 39   Transcript PN794

 40   Transcript PN909

 41   Transcript PN912- PN913

 42   Transcript PN925

 43   Transcript PN937, PN940

 44 (1995) 62 IR 200 pp. 205-206

 45   PR973462; citing Pawel v Advanced Precast Pty Ltd, Print S5904; Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200; ABB Engineering Construction Pty Ltd v Doumit, Print N6999

 46   Exhibit R4, para 15

 47   PR733188