Mr Carl Barone v Zero in Pty Ltd T/A Shoreline Caravan Park

[2018] FWC 3993

[2018] FWC 3993

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Carl Barone
v
Zero In Pty Ltd T/A Shoreline Caravan Park
(U2018/3171)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 10 JULY 2018

Application for unfair dismissal remedy – alleged serious and wilful misconduct – entry to manager’s private on-site residence – small business employer – Code not made out - proportionality – summary dismissal unfair – reinstatement inappropriate - compensation discounted by contributory misconduct and absence of mitigation – compensation ordered

[1] The reader of this decision is cautioned that it includes foul language drawn from the evidence.

[2] Mr Carl Barone (the Applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Zero In Pty Ltd trading as Shoreline Caravan Park (Shoreline or ‘the employer’). He claims to have been unfairly dismissed on 25 March 2018. At the date of dismissal he was employed as a Grounds Maintenance Attendant. He had worked at Shoreline for almost four years.

[3] Mr Barone claims that his dismissal was harsh, unjust or unreasonable. He seeks compensation and a revised Employment Separation Certificate.

[4] Shoreline own and operate a caravan park at Port Augusta in regional South Australia, approximately 300km north of Adelaide adjacent the southern Flinders Ranges. It opposes the application. It says that Mr Barone was a casual employee working regular full time hours who was told on 25 March 2018 that, for reasons of serious misconduct, he would no longer be rostered to work at Shoreline. Whilst agreeing that Mr Barone was dismissed as a consequence, it contends that its dismissal was not harsh, unjust or unreasonable; and that no issue of remedy arises.

[5] No jurisdictional issues arise in determining the application. However, whilst not a jurisdictional issue, in dispute is whether Shoreline is a “small business employer” for the purposes of the FW Act and (in consequence) whether the Small Business Fair Dismissal Code is relevant to these proceedings.

[6] I am satisfied that Mr Barone was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. Whether that required six months service (if Shoreline was not a small business employer) or twelve months service (if Shoreline was a small business employer), he served the statutorily required minimum employment period (section 382(2)(a)). I am satisfied on the evidence that the whole of Mr Barone’s employment as a casual employee counts towards this period because his employment was regular and systematic and he had a reasonable expectation of continuing employment on that basis. 1 His annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act.

[7] His application was filed within the statutorily required 21 days after dismissal.

[8] On 30 April 2018 conciliation of the application was conducted by a Commission-appointed conciliator. It did not settle. It was referred to me for hearing and determination.

[9] I issued directions in the matter on 16 May 2018. In advance of the hearing, and consistent with my directions, I received witness statements, documents and materials in reply from both Mr Barone and the employer.

[10] I heard the matter in Port Augusta on 29 June 2018 by determinative conference. I reserved my decision, which I now deliver.

[11] Both parties were self-represented. Although Mr Barone had the assistance, with permission, of a paid agent at the earlier directions hearing and in preparing his witness statement and outline of submissions, his representative ceased to act on 19 June 2018.

The Evidence

[12] The evidence before me was both oral and documentary.

[13] At the hearing Mr Barone gave evidence in support of his claim. The employer called its manager Mr Robert Anderson (who also conducted the employer’s case) and a receptionist Mr Riley Foster. All persons who gave evidence were cross examined.

[14] The employer submitted written witness statements from three other persons: a co-owner Mr Randall Hodge, a caravan park employee and resident Mr Deen Bennett and a caravan park customer Mr Trevor Hunt.

[15] At the commencement of proceedings I was informed by Mr Anderson that Mr Hodge may attend to give oral evidence. Mr Hodge did not do so.

[16] Whilst I have received and perused the statements of Mr Hodge, Mr Bennett and Mr Hunt they are unsworn and untested statements. I have had regard to them as background material but where there is a discrepancy in evidence requiring findings of fact, I have regard to and give weight to sworn evidence that has been tested by cross examination, not these unsworn statements.

[17] Neither the evidence of Mr Barone nor Mr Anderson can be wholly relied upon. Both were argumentative and accusatory. Each exaggerated their evidence to suit their contentions. Not all of their evidence was, however, implausible or in dispute. In fact, much of the critical evidence about what happened in Mr Anderson’s bedroom on 23 March 2018 was not. Where it is necessary to make findings of fact on disputed evidence I do so for each individual finding that needs to be made based on the demeanour of witnesses, the inherent plausibility of their versions and corroborative evidence or material (if any).

[18] Mr Foster presented as a witness whose evidence could be relied upon.

Does the Small Business Fair Dismissal Code Apply?

[19] Under the FW Act, a dismissal is not an unfair dismissal if the employer was a small business (as defined) immediately prior to the dismissal and the small business employer complied with the Small Business Fair Dismissal Code. 2

[20] The Small Business Fair Dismissal Code applies where an employer is defined as a “small business employer” (section 388 FW Act). A “small business employer” is defined as an employer which employed fewer than 15 employees at the date of dismissal (section 23 FW Act).

[21] My Directions of 16 May 2018 provided the parties with a copy of the Small Business Fair Dismissal Code.

[22] In this matter Mr Barone submitted that the employer employed 18 persons at the date of dismissal. Shoreline submitted that it employed 10 or 11 persons.

[23] As the parties were self-represented, prior to the hearing on 28 June 2018 I provided them with a Background Note containing information relevant to the question of whether the Small Business Fair Dismissal Code applied. That Background Note attached the definition of “small business employer” in section 23 of the FW Act and extracts from the Commission’s Unfair Dismissal Bench-book dealing with the definition of “associated entities” and casual work on a “regular and systematic basis”.

[24] I take into account that it is for an employer seeking to rely on the Small Business Fair Dismissal Code to produce sufficient evidence before the Commission that it met the definition of “small employer” at the date of dismissal. This conclusion is consistent with the general principle that a party seeking to rely on an affirmative proposition carries the onus of establishing that proposition. 3

[25] The evidence before me concerning the number of employees employed by the employer and associated entities at the date of dismissal was the oral and written evidence of Mr Anderson and Mr Barone. Although Mr Hodge’s witness statement refers to this matter, he was not called to give evidence. Further, although the potential existence of an associated entity was alluded to by both Mr Barone and Mr Anderson I was told that only Mr Hodge could provide information about that. Not having given evidence, I have no basis on which to form concluded views about the existence or otherwise of an associated entity.

[26] The evidence clearly establishes that Shoreline employs two managers, one groundsman (Mr Barone), two office staff, five cleaners and two juniors. That is 12 persons. Although the office staff, cleaners and juniors are casuals working less than full time hours (in some cases substantially less), they are regularly and systematically employed.

[27] The difference between Mr Barone’s calculations and those of Shoreline come down to whether the co-owners (Mr and Mrs Hodge) should be included in the calculation; whether two backpackers (Lisa and a person possibly called Sally) should be included in the calculation and whether two permanent residents (John and Deen) who did odd jobs in return for rental relief should be included.

[28] I include in the calculation both Mr and Mrs Hodge, the owners. The evidence before me is that they worked at the caravan park for Shoreline.

[29] I do not include the two backpackers in the calculation. One had worked for two weeks only, the other for two or three days only. Neither was sufficiently engaged to have been employed on a “regular and systematic basis”.

[30] On balance, I do not include the two permanent residents (John and Deen) in the calculation. There was no documentation produced which records any working arrangement between them and the park, and I am not satisfied that a sufficient intention to create legal relations existed so as to satisfy one of the essential elements of a contract of employment. Although they worked regularly over a period of time doing casual work as directed by the manager (such as painting) in return for rent relief, they did not draw a wage and it is clear from the evidence of Mr Anderson that an such arrangement was informal and at their respective discretion.

[31] I find on the evidence before me that Shoreline employed fourteen persons at the date of Mr Barone’s dismissal. Thus, Shoreline was a “small business employer” as defined and the Small Business Fair Dismissal Code has application to the matter.

[32] However, for reasons that follow, I find this to be of no practical consequence as I also find that the summary dismissal provisions of the Code were not complied with by the employer, thus requiring the Commission to consider the broader question whether the dismissal was unfair within the meaning of section 387 of the FW Act.

The Events of 25 March 2018

[33] Based on the evidence before me I make the following findings.

[34] Mr Barone and Mr Bennett, a permanent resident who also worked at the park, had a loud and foul verbal altercation in the grounds of the caravan park on the morning of Friday 23 March 2018.

[35] Mr Barone had witnessed Mr Bennett driving his car in the park grounds faster than the 8km per hour maximum permitted by park rules. As Mr Bennett brought his car to a stop Mr Barone yelled to him not to speed in the park to which Mr Bennett took exception and told Mr Barone to “fuck off”. Mr Barone responded in kind telling Mr Bennett to “fuck off”. Mr Bennett called Mr Barone “a lazy cunt”. Mr Barone admitted that he then called Mr Bennett a “fucking arsehole”. Although initially denied, in answer to questions from me Mr Barone agreed that he also called Mr Bennett “a lazy cunt”.

[36] The argument was verbally violent and foul, and both Mr Barone and Mr Bennett gave as good as they got. Mr Bennett then walked away to his residence.

[37] The altercation was overheard by a cleaner (Carly) who told Mr Foster that something was happening and that he should come outside with her to see what was going on. As they moved outside, the altercation subsided. Mr Foster had identified Mr Barone’s voice but did not move outside quickly enough to make out precisely what was said.

[38] Mr Barone was incensed that he had been called lazy by Mr Bennett, who he believed was a slow worker. He decided that he had enough of Mr Bennett. He decided that he would then and there speak to the park manager Mr Anderson and report Mr Bennett’s conduct and tell Mr Anderson that he (Mr Barone) would no longer have anything to do with Mr Bennett.

[39] Mr Barone walked a few metres into a building which I will describe as the Office/Residence. It is a building on the park grounds which serves as both the office for park reception and administration, and as the residence of the park manager Mr Anderson and his partner. The building contains an entry door to a front counter where administrative staff work and receive customers. Behind the front counter through a sliding door is the residence. The first room of the residence is a living area with an open kitchen. Once through that area is a doorway into a hall where at one end there is a private office, a storage and spare room and at the other end, through a doorway, a sunken bedroom. The geography of the Office/Residence is set out in exhibit R10 and I consider that to be a fair representation albeit not to exact scale.

[40] The manner in which Mr Barone walked into the Office/Residence was described by Mr Foster as having “stormed through”. I accept this evidence. Mr Barone was single minded in purpose. He was agitated, focussed and nothing was going to get in his way. He intended to get to Mr Anderson then and there.

[41] As Mr Barone stormed through he asked Mr Foster if “Rob” (Mr Anderson) “was awake yet”. Mr Foster said “no”. Mr Barone asked where he was. Mr Foster gestured behind him, in the direction of the wall adjacent to the front counter and the residence.

[42] Mr Barone opened the sliding door. He says that the sliding door was half ajar. Mr Foster says it was fully closed. I prefer Mr Foster’s evidence.

[43] Mr Barone walked through the living area. He didn’t see Mr Anderson. He then walked through the doorway into the hall. I accept Mr Barone’s evidence that that hallway door was open. Mr Barone turned left and walked down the hall and placed himself in the entry of Mr Anderson’s bedroom. The bedroom door was open. Mr Anderson stood in the bedroom doorway under the door frame. He did not step down into the sunken area where the bed was located, but he stood in the bedroom entry. He saw Mr Anderson in bed. Mr Anderson says he was asleep and was only awaken by Mr Barone’s voice. Mr Barone says Mr Anderson was already awake. I accept Mr Anderson’s evidence on this point. He was asleep and awaken by Mr Barone.

[44] On seeing Mr Anderson, Mr Barone, without hesitation, said in a firm manner (but without shouting) words to the effect “I’ve fucking well had enough of Deen, he’s been fucking speeding in the park, he’s called me a lazy cunt, I won’t have anything more to fucking well do with him, you’ve got to get rid of that arsehole, I’m not working with him or driving him anywhere, I’ve had enough of him.”

[45] Mr Anderson awoke. He was startled to find Mr Barone in his bedroom entry standing over him. Mr Anderson groaned “arghhh”. Mr Barone left and walked out of the Office/Residence. He resumed his daily duties and heard no more of it that day.

[46] There is a dispute on the evidence as to whether Mr Barone’s presence in the Office/Residence occurred about 1030am (as Mr Barone claims) or closer to 9am (as Mr Anderson claims). By claiming that this occurred at about 1030am Mr Barone was seeking to infer that Mr Anderson was a lazy manager in bed at 1030am. I do not accept Mr Barone’s evidence on this point. Mr Foster says it occurred between 9am and 930am. In any event, Mr Anderson’s explanation was that the preceding night some residents had come in late, jumped a gate and he had not got to bed until early morning. I consider that plausible evidence. In any event, nothing turns on it. I am not inquiring into whether Mr Anderson should have been in bed at 1030am or at 9am. I am inquiring into Mr Barone’s conduct and whether his dismissal was unfair.

[47] Mr Anderson awoke and was shocked that Mr Barone had, in his view, invaded his privacy. He was irate at Mr Barone but did not confront him, not wanting to trigger another outburst. He decided to investigate what had gone on. During the day he asked Mr Foster to prepare a statement, which Mr Foster did. He also asked Mr Bennett to prepare a statement, which Mr Bennett did.

[48] Mr Anderson remained deeply concerned at what had happened and formed the view that he needed some time to think about his response. He thought about the matter over Saturday 24 and the morning of Sunday 25 March. At that stage he did not speak to the park owners, Mr and Mrs Hodge, as they were overseas on holidays. He did however speak to his partner who also helped him manage the park who was interstate on the Friday 23 March but who had returned by Saturday 24 March.

[49] Mr Anderson looked up “the fair work” website. He saw that an employee only needed to be paid their statutory entitlements when dismissed for serious misconduct. He also looked at Shoreline’s Code of Conduct and its Discipline and Termination Policy.

[50] Mr Anderson decided that Mr Barone’s conduct in entering the manager’s private residence and his bedroom entry and speaking to him whilst the manager was asleep was such an invasion of his privacy that it constituted serious misconduct warranting instant dismissal. In fact, Mr Anderson considered it to be “quasi criminal in nature akin to trespass”.

[51] Mr Anderson telephoned Mr Barone on Sunday lunchtime 25 March 2018. When Mr Barone returned the call, the conversation was brief. Mr Anderson told Mr Barone that because of what happened last Friday he (Mr Barone) could no longer work at the caravan park and that he would not be rostered any more hours. Mr Barone protested, and made some reference to the view the owners would take. Mr Anderson said that if the owners took a different view that was up to them, but his decision as manager stood. Mr Barone again protested saying that he (Mr Anderson) could not do that and would see him in “fair work”. The call concluded.

[52] Mr Barone did not attend for work the following day as he had been rostered. He was paid wages only until his last day of work, Friday 23 March. He received no pay in lieu.

[53] Mr Barone immediately contacted the park owners. He was told by Mrs Hodge that he should go to work the next day and they would sort it out on their return. Mrs Hodge then texted him back later that afternoon to the effect that “it is out of our hands, Rob is in charge”. Mr Anderson’s decision to dismiss stood.

Consideration

Compliance with Small Business Fair Dismissal Code

[54] The Summary Dismissal provisions of the Code provide as follows:

“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.”

[55] The Code requires the employer to have formed a view on “reasonable grounds” that the conduct was sufficiently serious so as to warrant instant dismissal. Whether “reasonable grounds” existed is to be objectively assessed. The fact that an employer believed they had “reasonable grounds” is not to the point if the reasonableness of that view is not objectively established. 4

[56] As is apparent from this decision, my findings are that whilst Mr Barone committed acts of misconduct on 23 March 2018 they did not warrant instant dismissal for serious misconduct. I have also concluded that the employer did not have an objective basis to reasonably believe that Mr Barone’s misconduct justified instant dismissal. In those circumstances, I conclude that Shoreline did not make out the Code’s Summary Dismissal requirements.

[57] I am therefore required to consider whether Mr Barone’s dismissal was unfair (in the sense of being “harsh, unjust or unreasonable”) having regard to the considerations in section 387 of the FW Act.

Valid reason (section 387(a))

[58] The reason for Mr Barone’s dismissal was serious misconduct in that he invaded the caravan park manager’s privacy by entering his private residence without authorisation and by standing in the doorway of his bedroom and complaining to him about another employee whilst he was sleeping.

[59] Mr Anderson’s evidence was clear on this point. He made the decision to dismiss Mr Barone not because of Mr Barone’s conduct during the verbal altercation that morning with Mr Bennett, but because of the invasion of his (the manager’s) privacy.

[60] A dismissal for serious misconduct needs to be premised on conduct which strikes at the heart of the employment relationship, rendering its continuation incompatible with the conduct that has occurred. When relying on serious misconduct as a reason for dismissal, an employer carries the onus of establishing that the conduct occurred to the requisite level of persuasion.

[61] In this matter, there is no dispute that the conduct of entering the residence occurred. I have made findings about how that occurred and what was done and said by Mr Barone at the time.

[62] The issue that arises is whether the conduct was a valid reason “for the dismissal” (my emphasis).

[63] In all of the circumstances, I do not conclude that the conduct was serious misconduct warranting instant dismissal.

[64] I consider that Mr Barone’s conduct in entering Mr Anderson’s private residence on 23 March 2018, walking into his private hallway and standing in the doorway of his private bedroom was without question foolish and inappropriate. It was also reckless because having done so he saw the manager asleep but disregarded that fact and proceeded to speak to the manager about his unhappiness with another person, thus awaking him. In doing so, Mr Barone was selfishly indifferent, wanting to get off his chest what was aggravating him without thinking about the consequences for others including his manager and the manager’s partner who could have just as easily been in the manager’s bed had she not been interstate. There was no emergency at hand and no particular urgency in taking the course he did. Mr Bennett had retreated to his van. The argument had ended. Mr Barone could have just as readily waited until Mr Anderson appeared in the workplace to vent his unhappiness.

[65] That said, section 387(a) is not directed at conduct alone but the consequence of conduct – that is, the dismissal. In this matter, the consequence was summary dismissal. It was not dismissal on notice. It was not a final warning.

[66] I am satisfied that Mr Barone’s conduct justified a final warning or, depending on the extent to which the employer applied a consistent approach to other employees, even dismissal on notice. However, it was not so serious as to strike at the heart of the employment relationship so as to make its continuation unviable. 5 The response of summary dismissal was not proportionate to the gravity of the offence. There is no basis on which it can be objectively said that there were reasonable grounds to correlate the misconduct as being of such serious character that justified instant dismissal. In that sense there was no valid reason for “the dismissal”, being the summary dismissal. In that sense it was both unreasonable and harsh.

[67] In reaching this conclusion the following is relevant:

● Although employees of Shoreline knew that the manager’s residence was behind the front counter and accessed via the sliding door, this area was not absolutely out of bounds. The evidence of Mr Barone, Mr Foster and even Mr Anderson was that from time to time employees would enter through the sliding door either to locate the manager or, for example, to access the storeroom where mattresses were kept. Mr Foster considered this to be a rare event, but occurred. I accept Mr Anderson’s evidence that he applied a stricter approach to accessing these areas from mid-2017 (when he commenced as manger) than did previous managers, but even then entry was not absolutely predicated on Mr Anderson or his partner accompanying a staff member or giving them specific authorisation to do so. Some common-sense was applied, and expected; after all, this was not a manager’s residence geographically disconnected from the workplace; it was in the same building that formed part of the workplace;

● Mr Anderson believed that he had generally made staff aware of the privacy of his residence at tool-box meetings but conceded that he probably had not spoken to Mr Barone on a one-to-one basis to make his expectations about entry into his residence clear. Mr Barone was adamant that he had not been; and

● Mr Anderson had closed the sliding door from the office but had not closed the door to either the hallway or his bedroom on the day in question.

[68] For these reasons, I do not consider that there was a valid reason for summary dismissal.

Notification of the reason for dismissal (section 387(b))

[69] I find that Mr Barone was notified of the reason for his dismissal in the telephone call on 25 March 2018 by Mr Anderson, and this was confirmed in the text he received from Mrs Hodge that afternoon. In that telephone call, Mr Anderson specifically referred to the events of the preceding Friday.

Opportunity to respond (section 387(c))

[70] The notification of dismissal on 25 March was abrupt and without notice or opportunity to respond prior to the decision having been made. There is no sense in which the telephone call on Sunday 25 March 2018 was a discussion of the events or of what might be a possible sanction.

[71] I do not accept the evidence of Mr Anderson that he gave Mr Barone an opportunity to respond to the proposition that he had engaged in serious misconduct. Whilst it is true that Mr Barone and Mr Anderson both knew exactly what went on between them as they were the participants to the bedroom encounter, Mr Anderson had chosen to only request and receive statements from Mr Bennett and Mr Foster and not otherwise speak to Mr Barone or seek a written statement from him before making his decision to dismiss.

Opportunity for support person (section 387(d))

[72] Shoreline did not refuse Mr Barone a support person, reasonably or unreasonably. There was no opportunity created by the employer in which a support person could have been sought or accompanied Mr Barone, as he was not given an opportunity to respond prior to a decision to dismiss being made.

Warnings concerning performance (section 387(e))

[73] I accept the evidence of Mr Anderson that he and Mr Hodge had on multiple earlier occasions spoken to Mr Barone about his conduct and in particular his temperament, his language to other staff or customers, and his smart-alec approach to people that could readily give rise to offence or confrontation. I accept Mr Anderson’s evidence that in his presence, Mr Hodge specifically gave Mr Barone a verbal warning about this in the wake of a complaint by a customer Mr Hunt in January 2018. I also accept that there were incidents involving Mr Barone’s conduct towards tenant’s Kennedy and Pajank in September 2017 and January 2018.

[74] There was conflicting evidence about these preceding incidents. I do not need to determine their circumstances other than to indicate that I am satisfied that after each incident Mr Barone was verbally counselled about his temperament by either Mr Anderson or Mr Hodge, irrespective of the contributory conduct by the other party to the dispute. I am not satisfied though that the incident reports produced into evidence (R7, R8 and R9) were contemporaneous records of those incidents, as stated by Mr Anderson.

[75] Further, I am satisfied on the evidence of Mr Anderson that there were numerous other informal occasions where Mr Anderson and Mr Hodge told Mr Barone to modify his demeanour otherwise “we’ll lose customers”.

Size of employer’s enterprise (section 387(f)) and human resource capability (section 387(g))

[76] I have found that Shoreline was a “small business” as defined by the FW Act. Even more relevantly (and whether so defined or not), Shoreline was a business of small scale. It employed no more than ten full time equivalents in a very informal manner in a distant part of regional South Australia with no human resources capability. The owners were hands-on in the business. Mr Anderson and his partner resided in the caravan park.

[77] Although he had tried to formalise procedures to a greater degree than previous managers, Mr Anderson was responsible for multiple tasks. He had inherited staff, some park rules and staff rules but had not fully imposed his footprint on those procedures in his first nine months as manager. Getting around to that was a work in progress. He was managing a small enterprise.

[78] In deciding how to respond to what he considered an invasion of his privacy he felt he had nowhere to go for advice other than the fair work web site.

[79] In this context, I take into account the fact that Mr Anderson gave himself some time to cool down, think about his options once the working week concluded, and speak to his partner (co-manager) over the weekend. In doing that, he took a sensible course. The fact remains however that he did not give Mr Barone an opportunity to respond. Having been the person whose privacy was invaded, he was deeply invested in the events of Friday 23 March 2018, and unable to fully detach himself from his sense of violation. He was empowered as manager to make the decision to dismiss, but even though he gave himself a couple of days to cool down, he was unable to access an independent source of advice. Mr Anderson was both victim of the misconduct (as he saw it) and decision-maker. It was regrettable all round that Mr and Mrs Hodge were overseas at the time and unable to independently or actively involve themselves in the investigation or decision.

Other matters (section 387(h))

[80] I take into account that in regional South Australia employment prospects for Mr Barone may be limited and that he is recovering from a work-related injury. However, despite these factors being real, they are not unique amongst other dismissed employees of his age and work history in the region. They do not explain Mr Barone’s conduct or outweigh my conclusions concerning his contributory conduct that led to his dismissal.

Conclusion

[81] Taking into account all of the relevant factors arising from the consideration of sections 387(a) to (h) of the FW Act I find that Mr Barone’s summary dismissal was harsh, unjust and unreasonable.

Remedy

[82] Mr Barone seeks compensation and a re-issued Employment Separation Certificate. He considers re-employment inappropriate.

[83] I consider that reinstatement would be wholly inappropriate. His relationship with Mr Anderson has completely broken down, in large part through his doing. Not only did Mr Barone materially contribute to his dismissal through inappropriate and reckless conduct, he had previously displayed a poor temperament which this employer reasonably considered could put at risk its reputation amongst customers. Further, given the small and informal nature of the enterprise, there are no alternate positions to which Mr Barone could reasonably be reinstated.

[84] I now turn to the issue of compensation.

[85] Section 392 of the FW Act provides as follows:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[86] I now consider each of the criteria in section 392 of the FW Act.

Viability: section 392(2)(a)

[87] This is a small enterprise. However, there is no evidence before me to suggest that a compensation order of the quantum I have decided would materially affect the viability of Shoreline.

Length of service: section (section 392(2)(b))

[88] Mr Barone had worked for Shoreline for 3 years and 11 months.

Remuneration that would have been received: section 392(2)(c)

[89] Had he not been dismissed on 25 March 2018, Mr Barone’s employment would likely have not lasted any significant period of time. Mr Anderson had been manager since mid-2017 and was applying a stricter approach to behaviour and conduct than previous managers. In the nine months that Mr Barone had worked under Mr Andersons’s management, I have found that he was verbally counselled on at least three occasions and informally spoken to on many more about his conduct and temperament to customers and staff.

[90] Mr Barone sustained a work-related injury from a fall which had him off work for a substantial part of the time Mr Anderson had been manager. In those circumstances, at least once every few weeks whilst in the workplace Mr Anderson or the owner Mr Hodge was finding cause to speak to Mr Barone formally or informally about problems with his behaviour.

[91] I find that there was no reasonable expectation of continuing employment for more than a month (four weeks). I consider that in that period of time Mr Barone would likely to have again lost his temper with a customer or staff member or precipitated a confrontation of sorts.

[92] On the material before me, he earned $834.55 gross per week at the date of dismissal.

[93] Had he worked for a further four weeks he would have earned $3,338.20 gross.

Mitigating efforts: section 392(2)(d)

[94] Mr Barone has made no efforts to find employment since his dismissal. He says that he is waiting until fully recovered from his work related injury before doing so. He has been in receipt of unemployment benefits, but otherwise not earned income.

[95] Whilst the evidence before me is that Mr Barone did sustain a work related injury which incapacitated him, he was able to return to work in mid-January 2018 and had worked continuously since then until his dismissal. There is no evidence before me to the effect that Mr Barone has any greater level of incapacity now than he did at the date of dismissal. In fact, Mr Barone’s evidence is that his shoulder and arm injury has improved further with treatment.

[96] In these circumstances, and also taking into account that securing employment in or around Port Augusta is not an easy task, I consider that Mr Barone has not made full efforts to mitigate his loss.

[97] I will deduct one week from the compensation order on this account.

Remuneration earned: section 392(2)(e)

[98] Mr Barone has earned no remuneration since his dismissal. I make no discount on account of this factor.

Income likely to be earned: section 392(2)(f)

[99] On the basis of Mr Barone’s evidence, there is no likelihood that he will earn income between the making of this order and the payment of compensation.

Other matters: section 392(2)(g)

[100] There are no other matters or contingencies that need to be provided for.

Misconduct: section 392(3)

[101] Section 392(3) of the FW Act requires the amount of compensation that would have been ordered under section 392(1) be reduced by an appropriate amount on account of contributory misconduct.

[102] I have found that Mr Barone materially contributed to the employer’s decision to dismiss by virtue of foolishly and recklessly invading the privacy of Mr Anderson’s bedroom. I also found that Mr Barone did so in an agitated state which had been caused by a verbal argument with another employee in which he had taken exception to being sworn at and called lazy, yet he himself had re-payed that exchange in kind.

[103] I consider that a 50% discount is appropriate in this case. This equates to a two week discount.

Shock, Distress: section 392(4)

[104] I note that the amount of compensation allowable by the statute does not include a component for shock, humiliation or distress. Nor does it include any basis for punitive damages.

Compensation cap: section 392(5)

[105] The amount of compensation I will order does not exceed the six-month compensation cap.

Payment by instalments: section 393

[106] Given the amount I will order is small but so too is the employer’s enterprise, I will provide 14 days for the employer to give effect to my order. In these circumstances, no order for payment by instalments will be made.

Conclusion

[107] I note that although Mr Barone sought a re-issued Employment Separation Certificate, the Commission has no power to order that an employer issue or re-issue an Employment Separation Certificate. Should the Commission find a dismissal to be unfair (as it has in this instance), the Commission’s powers under Part 3-2 of the FW Act are limited to orders for reinstatement or compensation (with ancillary orders relating thereto).

[108] I consider it appropriate to make a compensation order in lieu of reinstatement. Having regard to the loss of reasonably anticipated prospective earnings arising from the employer’s decision to dismiss (four weeks) and other considerations provided for in section 392 of the FW Act (resulting in a three week discount), I will order that, within 14 days from today’s date, Shoreline pay Mr Barone the sum of $854.35 less tax at the rate his remuneration was taxed.

DEPUTY PRESIDENT

Appearances:

C. Barone, on his own behalf

R. Anderson, for the Respondent

Hearing details:

2018.

Port Augusta.

29 June.

Printed by authority of the Commonwealth Government Printer

<PR608765>

 1 Section 384 FW Act “period of employment”

 2 Sections 385(c) and 388(2) FW Act

 3   Piyush Jain v Infosys Limited T/A Infosys Technologies Limited[2014] FWCFB 5595 at [37]; see also Caruana v Shace Toop Trading Trust[2018] FWC 3078 at [55] – [62]

 4   Ryman v Thrash Pty Ltd t/as Wisharts Automotive Services[2015] FWCFB 5264. See also Grandbridge Limited v Wiburd[2017] FWCFB 6732, Steri-Flow Filtration Systems (Aust) Pty Ltd v Erskine[2013] FWCFB 1943 and Pinawin v Domingo [2012] FWAFB 1359

 5   Blyth Chemicals Ltd v Bushnell (1993) 49 CLR 66