Mr George Koulouris v Ludowici Sealing Solutions Pty Ltd
[2016] FWC 5636
•3 NOVEMBER 2016
| [2016] FWC 5636 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr George Koulouris
v
Ludowici Sealing Solutions Pty Ltd
(U2016/6867)
COMMISSIONER HUNT | BRISBANE, 3 NOVEMBER 2016 |
Application for relief from unfair dismissal.
[1] Mr George Koulouris has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by Ludowici Sealing Solutions Pty Ltd (Ludowici).
[2] Mr Koulouris commenced employment with Ludowici in July 2015 as a casual storeperson. On 10 December 2015, Mr Koulouris became a permanent employee. His employment was terminated on 5 May 2016.
[3] It is apparent that Ludowici considered Mr Koulouris to be an employee with less than six months’ employment as a permanent employee, and not protected from the unfair dismissal jurisdiction of the Act. Just prior to Mr Koulouris reaching six months’ permanent employment he was dismissed.
[4] On 2 August 2016, the matter was listed before me for determination of a jurisdictional objection made by Ludowici that Mr Koulouris did not meet the minimum employment period. At the conclusion of the jurisdiction hearing I delivered an ex tempore decision dismissing the jurisdictional objection, finding that Mr Koulouris met the minimum employment period. I determined that the casual employment from July 2015 to 9 December 2015 was regular and systematic pursuant to s.384(2)(a), and during this period Mr Koulouris had a reasonable expectation of continuing employment on a regular and systematic basis. Accordingly, his employment exceeded six months, entitling protection from unfair dismissal.
[5] The application was subsequently listed for determination of the merits of the application on 11 August 2016.
[6] Mr Koulouris was self-represented at the hearing and gave evidence on his own behalf. Ludowici was represented by Mr Charlie Bilek and Mr Geoff Michalski of Ludowici. Evidence for Ludowici was given by:
● Mr Jason King, Operations Manager;
● Ms Kiran Lal, Production Co-Ordinator;
● Mr Ethan Woolley, Warehouse employee; and
● Mr Grant O’Callaghan, Warehouse Manager.
[7] At the conclusion of the proceedings I determined that Mr Koulouris had been unfairly dismissed and granted his application. I issued an Order [PR584103] granting Mr Koulouris a remedy of compensation. These are the reasons for that decision.
The reasons for the dismissal
[8] Ludowici dismissed Mr Koulouris due to alleged poor behavior in the workplace which included excessive absenteeism, aggressive behavior towards his colleagues and regular ‘mood swings’.
[9] Mr Koulouris was dismissed through an exchange of text messages between him and Mr King on 5 May 2016, and a telephone discussion on the same day. The text message exchange was as follows:
Mr Koulouris: Sorry I’m sick and I won’t be in today. George.
Mr King: George can you ring please.
Mr Koulouris: Unless instructed otherwise I will be in for work tomorrow
Thanks Jason
Mr King: Hi George, Regrettably we can’t go on this way and its unfortunate it has come to this. We will send any belongings you may have here to you by mail. All entitlements plus a weeks notice will be paid today and a separation certificate will also be emailed and posted. Take care
Mr Koulouris: As you said in the past if you want to hold back my entitlements its your decision.
Mr King: That was never indicated to you. As in my previous text all entitlements including one week in lieu of notice will be paid to you today.
Mr Koulouris: That was too easy huh boss’ 1
Submissions and evidence-in-chief of Mr Koulouris
[10] Mr Koulouris submitted that his dismissal was effected without any reason given and that his dismissal was not justified or done in the right manner. 2
[11] Any alleged misconduct or performance issues were never indicated to him prior to the dismissal taking effect, and no meetings with managers were arranged to discuss alleged misconduct or performance issues.
[12] Mr Koulouris submitted that he was not given an opportunity to respond to his dismissal, despite asking for the opportunity to do so. The dismissal was unfair as the respondent failed to provide reason or explanation for the termination.
[13] Mr Koulouris submitted that the Commission should take into account circumstances including bullying and verbal threats from Mr King. Mr Koulouris also gave evidence that the workplace was ‘toxic’ and that Mr King referred to staff, including Mr O’Callaghan the Warehouse Manager, in derogatory terms.
[14] In cross-examination, Mr Koulouris disagreed that he was particularly aggressive or moody in the workplace. Where he had manufactured make-shift knives for the purposes of opening boxes, his evidence is that they were made because his work-supplied Stanley knife, used for opening boxes kept going missing.
[15] One of the make-shift knives manufactured by Mr Koulouris was a Stanley knife blade inserted into a highlighter pen. A colleague had picked up the highlighter, expecting it to be a highlighter and not a knife, and had nearly cut herself. Despite being asked to dispose of the make-shift knife, Mr Koulouris did not do so. Management disposed of the make-shift knife and provided to Mr Koulouris a new Stanley knife.
[16] It was Mr Koulouris’ evidence that everybody in the workshop knew that he had a make-shift knife having used a highlighter and he had been using it for some months. 3 He suggested the respondent had been playing ‘mind games’ with him by not supplying him with a Stanley knife when his went missing.
[17] It is Mr Koulouris’ evidence that he did not make the knives to intimidate others in the workplace. He considered it a ‘novelty’. 4
[18] Mr Koulouris did not seek reinstatement, and agreed it would be inappropriate in all of the circumstances. He had only worked a limited number of casual shifts with other employers between the dismissal and the date of the hearing, and gave evidence as to his limited earnings and the amount of roles he had attempted to secure.
Submissions and evidence of Ludowici
[19] Ludowici submitted that the termination of Mr Koulouris was justified and that Mr Koulouris demonstrated unsatisfactory work attitude and performance. Ludowici submitted that numerous staff working with Mr Koulouris experienced threats, mood swings and bullying behaviour from Mr Koulouris.
Evidence of Mr Wooley
[20] Mr Wooley’s evidence is that he had noticed a few occasions where Mr Koulouris had acted in a threatening manner towards staff and displayed mood swings with “attitude”. Mr Wooley stated that on one occasion, while he was looking for a spanner in the tool room he had asked Mr Koulouris if he had seen it, to which Mr Koulouris responded “Nah mate I don’t know or care what ya do with your tools”. Mr Wooley stated Mr Koulouris then said to him “So are you on any illicit drugs or taking them or anything, might be why you can’t find it. 5
[21] In cross-examination, Mr Koulouris denied that he asked Mr Wooley if he was on illicit drugs. His recollection is that he joked with Mr Wooley on an alternate day if Mr Wooley was on medication, and when Mr Wooley said no, Mr Koulouris said, “Well you should be.” 6
[22] Mr Wooley provided evidence that Mr Koulouris displayed concerning conduct which included him bringing his own knives with handles to work, even though the company provided necessary tools including knives. Mr Wooley also stated that Mr Koulouris often made aggressive jokes that “breached the personal jokes barrier and went past workplace humour”. 7
Evidence of Mr O’Callaghan
[23] Mr O’Callaghan’s evidence was that Mr Koulouris’ mood swings were hard to judge. He stated:
‘He could come in all roses then the next thing be all dark and you would be wary about approaching him for any jobs when he got in that mood. I just left him to do what he was doing and if any errors came up just fixed them without approaching him as I did not want to put him further into a bad mood.’
[24] Mr O’Callaghan also gave evidence in relation to the knives that Mr Koulouris would take to work, which included homemade style knives. 8
[25] In cross-examination, Mr Koulouris disagreed with the evidence of Mr O’Callaghan that on occasions during meetings on the warehouse floor, Mr Koulouris would depart from the meeting, or click his fingers or roll his eyes. It is Mr Koulouris’ evidence that on one occasion he left a meeting without approval because he wasn’t feeling well and then stood by the door until he was feeling well. 9
[26] During a performance review, Mr O’Callaghan commented that Mr Koulouris would agree to work overtime on a Saturday and then not attend. Mr Koulouris’ evidence is that he sent a text on each day to advise he was not coming to work that day.
[27] An employee in the workshop named Ethan prematurely turned off a compression hose being used by Mr Koulouris. When he discovered the loss of compressed air, Mr Koulouris approached Mr O’Callaghan and suggested that Ethan had turned it off on purpose, so as to annoy Mr Koulouris. Mr Koulouris gave Mr O’Callaghan an ultimatum; that Ethan should be dismissed or Mr Koulouris would leave the employment.
[28] Mr O’Callaghan immediately spoke with Ethan and was satisfied that Ethan, while working outside of the shed, was unaware that Mr Koulouris was using the compressed air. He concluded that Ethan had turned off the compressed air in error, and it was not in any way malicious. Ethan offered to turn the hose back on when this was discovered, however Mr Koulouris considered that by this stage it was too late in the day to be of any effect.
[29] Mr O’Callaghan’s evidence is that it was extremely difficult to direct Mr Koulouris to perform particular work. Mr Koulouris complained that work given to him was not in his job description and he would only do duties within his job description. Mr O’Callaghan considered that his hands were tied and he could only utilise Mr Koulouris to do alternate work when he had completed picking duties. 10
Evidence of Mr King
[30] Following Mr Koulouris’ dismissal on 5 May 2016, Mr King sent to himself an email on 6 May 2016. The email purports to document a conversation that Mr King had with Mr Koulouris on 21 April 2016 about his mood swings, accusations of other staff, threats to walk out and the need for greater respect towards his fellow workers. Mr King used handwritten notes taken by Ms Lal who was present during the meeting with Mr Koulouris on 21 April 2016 to prepare his email to himself.
[31] Ludowici submitted that the email evidences the fact that Mr Koulouris was warned that if these issues were not addressed, he would no longer have a position with Ludowici. A summary of Mr King’s conversation and the points he raised with Mr Koulouris is as follows, together with Mr Koulouris’ position on each item put to him while giving evidence:
1. [Mr Koulouris] needs to control his mood swings as this is upsetting the dynamics of the team environment to the point that no one wants to approach him. Mr Koulouris purportedly responded by saying that he is trying to overcome the problem and that it only occurs when he sees people being lazy.
1A. Mr Koulouris denied Mr King raising this with him. 11
2. [Mr Koulouris] is not to give ultimatums to management that it’s either him or some other employee to lose their position within the company. Mr Koulouris purportedly responded by saying he only said that in the heat of the moment as he thought he was being set up.
2A. Mr Koulouris agreed that he had given Mr O’Callaghan an ultimatum with respect to dismissing Eric or he would leave his employment. 12
3. [Mr Koulouris] is to get it out of his mind that he is being set up by anyone in the company and no one is playing games with him to which Mr Koulouris allegedly responded that he had a hard time trusting people due to past experiences in the workplace.
3A. Mr Koulouris denied this part of the conversation, but stated that he did raise at another time with Mr King that he held trust issues with fellow employees. 13
4. [Mr Koulouris] is to stop accusing people of sabotaging his work, to which Mr Koulouris purportedly responded by saying that no one touches his stuff and it makes him mad when people do.
4A. Mr Koulouris’ evidence is that he did state that people were sabotaging his work, but he denies that he said that no-one should touch his things because it makes him mad when people do. 14
5. That Mr Koulouris is not approachable when he’s angry, to which he responded that when he over thinks things and gets angry it’s just best to leave him alone and he will come good. Mr King explained to him that this was not an acceptable answer and that his position requires communication throughout the day.
5A. Mr Koulouris denied that on 21 April 2016 this was discussed. It is his evidence that during a meeting of 6 April 2016 he was informed that if he was feeling upset during work time, he could be excused to walk to the local shop for up to 30 minutes. 15
6. [Mr Koulouris] is not to threaten to walk out when he feels like it or not turning up because he’s in a bad mood, to which Mr Koulouris allegedly responded by saying that when he’s had enough he will just leave or not turn up one day with no notification at all, and he only doesn’t come in because of his bad mood and doesn’t want to be around people and needs time to think. Mr King asked how the company could rely on him in the future when he’s made such a statement.
6A. Mr Koulouris denied that he said this during the meeting of 21 April 2016. He stated that the only time he said that if he didn’t like being there he would just walk out; this was said by him during his performance appraisal. 16
7. That Mr Koulouris needs to have respect for fellow workers and work as a team, to which he responded that he will work on his issues and come to [Mr King] with any problems.
7A. Mr Koulouris denies this was discussed. 17
8. That Mr Koulouris’ work attendance needs to be looked at, to which he explained that he sometimes misses the train and arrives late at work and that he will not have any more days off because of his mood swings.
8A. Mr Koulouris denies that Mr King discussed with him his attendance at work. He accepts that there were occasions where he did miss the train, and he sent a text. 18
[32] On 22 April 2016, one day following the meeting of 21 April 2016, Mr Koulouris missed his train and sent a text to Mr King. Mr King responded, “All good mate, I’m of (sic) today but have a good one”. Mr Koulouris replied, “Thanks. And just to say…..I will be a loyal worker up to the day that I’m no longer wanted. Have a good one….”.
[33] Mr King stated that it was management’s decision to terminate Mr Koulouris, and he agreed with the decision. He would have preferred to have met with Mr Koulouris in person to terminate his employment. 19 The decision to dismiss Mr Koulouris was on the basis of his mood swings, attendance, and the fact that people found him unapproachable.20
[34] It is Mr King’s evidence that as at 5 May 2016, Ludowici considered Mr Koulouris to be an employee subject to a probationary period, and entitled to dismiss him for the reasons stated above.
Evidence of Ms Lal
[35] Ms Lal confirmed in evidence that the account of the meeting on 21 April 2016 in Mr King’s email of 6 May 2016 is accurate. 21
Harsh, unjust or unreasonable
[36] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:
‘387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.’
[37] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:
‘.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’
[38] I am under a duty to consider each of these criteria in reaching my conclusion. 22
[39] I will now consider each of the criteria at s.387 of the Act separately.
Consideration
Valid reason - s.387(a)
[40] It is clear from the evidence of the respondent’s witnesses, and the jurisdictional objection earlier raised, that Ludowici (incorrectly) considered there existed a right to dismiss Mr Koulouris without a corresponding protection from unfair dismissal.
[41] I am satisfied that Mr Koulouris was a difficult employee to work with and to manage. I find that he was, at times, unapproachable and refused to work to direction. He made an ultimatum that a colleague with whom he was upset with needed to be dismissed or he would leave. Where I am asked to determine if Mr Koulouris was moody at work or not, I prefer the evidence of the respondent’s witnesses over Mr Koulouris’ evidence.
[42] I accept the evidence of Mr King and Ms Lal with respect to the meeting that occurred on 21 April 2016 following the ultimatum made by Mr Koulouris the day before. A broad range of issues was discussed with Mr Koulouris on this day with respect to his conduct in the workplace and areas where he needed to improve.
[43] I consider the meeting of 21 April 2016 sufficient to have constituted a warning to Mr Koulouris. There does not appear to have been any further incidents following this meeting but for Mr Koulouris’ text to Mr King indicating his non-attendance at work on 5 May 2016.
[44] I consider that Ludowici was not well experienced in employment matters, and considered Mr Koulouris’ non-attendance on 5 May 2016 a suitable reason to terminate his employment following the discussion held with him on 21 April 2016. It was put by Ludowici that this was the ‘last straw’.
[45] Mr Kolouris’ non-attendance on 5 May 2016, together with his notification by text which was seemingly an acceptable mode of communication within this workplace did not constitute a valid reason for the dismissal. There had not been any further incidents of misconduct or poor behaviour following the meeting of 21 April 2016.
[46] Accordingly, I do not find that there was a valid reason for the dismissal.
Notification of the valid reason - s.387(b)
[47] Mr Koulouris was not notified of the reason for the dismissal, other than the concerns the respondent held as of 21 April 2016. There were no further incidents relevant to what was discussed at the meeting of 21 April 2016, other than his absence from work on 5 May 2016.
Opportunity to respond - s.387(c)
[48] Ludowici did not provide Mr Koulouris an opportunity to respond to its concerns, other than during the meeting of 21 April 2016. When Mr King telephoned Mr Koulouris on 5 May 2016 to inform him of his dismissal, there was no opportunity to respond. The decision had been made and Mr King was tasked with communicating the decision.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[49] There was no meeting held with Mr Koulouris to discuss the reasons for the dismissal.
Warnings regarding unsatisfactory performance - s.387(e)
[50] I am satisfied that Mr Koulouris was adequately warned on 21 April 2016 that his conduct in the workplace needed to improve. He was given specific examples of the issues that required his attention.
Impact of the size of the Respondent on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[51] I am satisfied that Ludowici did not, at the time of the dismissal, have dedicated human resource management specialists or expertise in this field. It held an incorrect belief that Mr Koulouris could be dismissed without unfair dismissal protection.
Other relevant matters - s.387(h)
[52] I have had regard to the short period of service Mr Koulouris was in employment with Ludowici.
Conclusion
[53] Having considered each of the matters specified in s.387, I am satisfied the dismissal of Mr Koulouris was harsh, unjust and unreasonable. There was no valid reason for the dismissal and I find that there were considerable failings made by Ludowici to afford Mr Koulouris procedural fairness, including providing him with an opportunity to improve his behaviour.
[54] Further, as is evident during the hearing, Ludowici considered that it could dismiss Mr Koulouris due to absence from work. Regard must always be had to an employee’s right to be absent from work on lawful grounds. I am satisfied with the undertaking given by the representatives of Ludowici that further inquiries will be made by the respondent to improve its understanding of workplace rights with respect to lawful absenteeism.
Remedy
[55] Section 390 of the Act outlines the remedies available to Mr Koulouris and provides as follows:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”
Consideration of reinstatement
[56] Mr Koulouris is a person protected from unfair dismissal for the purposes of the Act, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether he can be reinstated.
[57] At various times during the hearing and during questioning by me, Mr Koulouris stated that he did seek reinstatement, and he did not consider that it would be inappropriate for the Commission to reinstate him to his position. When further questioned on this, I understand that Mr Koulouris ultimately abandoned this potential remedy, having regard to all of the circumstances, and not just his own wishes.
[58] I elected not to order the reinstatement of Mr Koulouris to his former role, as I considered it inappropriate to do so. I was satisfied that the conduct complained of by the respondent’s witnesses did occur, and determined that Mr Koulouris was not well-suited to continue to be employed in the respondent’s workplace.
[59] Having observed Mr Koulouris during the hearing, I determined that he has some difficulty with aspects of social relationships. That is not to say that he is unable to work cooperatively with all colleagues; I do not think it is appropriate for him to be employed in this workplace with the relationships that he would need to have with the various witnesses who gave evidence.
[60] I also came to this conclusion based on an incident during a luncheon adjournment in the proceedings. It was Mr Koulouris’ evidence that he had no issue with Mr Bilek and Mr Michalski in the workplace. However, as all three gentlemen travelled in the elevator from the Commission’s building to downstairs, according to evidence given by Mr Michalski, Mr Koulouris said to them:
"It's lucky I'm in a happy, non-aggressive mood, huh".
[61] I recalled Mr Koulouris to give evidence with respect to this incident. On Mr Koulouris’ own account, he stated that he said while in the elevator:
"It's good that I'm not in a paranoid or in a dark mood".
[62] Having heard evidence with respect to this incident, I directed Mr Koulouris not to speak again to Mr Bilek or Mr Michalski outside of the proceedings, and to ensure all parties travelled separately following the conclusion of the hearing.
[63] Mr Koulouris’ statement to Mr Bilek and Mr Michalski in the elevator, even if his own account is accepted, is troubling. I find that it was said to intimidate the respondent’s representatives and was deliberately menacing. There is no place for such conduct during or after Commission proceedings, either in the Commission or outside.
[64] I am satisfied that it would be inappropriate to reinstate Mr Koulouris.
Consideration of compensation
[65] Section 392 of the Act provides:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
Authorities
[66] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket23. That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey24; Jetstar Airways Pty Ltd v Neeteson-Lemkes25 and McCulloch v Calvary Health Care26 (McCulloch).
[67] I have had regard to the above authorities.
The effect of the order on the viability of Ludowici
[68] There was no evidence available to me on the effect an order of compensation might have on the viability of Ludowici.
The length of Mr Koulouris’ service
[69] Mr Koulouris had been employed as a permanent employee for less than six months. In addition, he had a further five months’ service as a casual employee prior to the permanent employment commencing.
The remuneration that Mr Koulouris’ would have received, or would have been likely to receive, if he had not been dismissed
[70] I am of the view that Mr Koulouris employment would not have continued for an extended period of time. Mr Koulouris submitted that I should find that he would likely to have continued with Ludowici for a period up to 10 years. I do not accept this, particularly as Mr Koulouris made it clear in his performance review that if he is unhappy in a role, he leaves his employment at short notice.
[71] The period between when Mr Koulouris was warned on 21 April 2016 and the dismissal on 5 May 2016 is a relatively short period of time. On Mr Koulouris’ evidence, he largely denies the account of the meeting, accepted by the Commission.
[72] I have no doubt that the relationship between the parties would not have subsisted for much longer. For this reason, I concluded that Mr Koulouris’ employment would have been terminated within four weeks of the actual dismissal.
The efforts of Mr Koulouris (if any) to mitigate the loss suffered because of the dismissal
[73] Mr Koulouris’ evidence is that he had a small number of casual engagements since the dismissal. He had not found a substantive role at the time of the hearing.
[74] Mr Koulouris presented as a physically strong-looking man in his early 40’s. His evidence is that he applies for approximately five roles per day. 27
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
[75] Mr Koulouris’ evidence is that he had earned only $2,000 since the dismissal. It is not clear when exactly the casual engagements were, and if any income was earned during the period within four weeks of the dismissal. I determined the amount ordered to Mr Koulouris on the assumption that he did not earn any income in the period four weeks following the dismissal.
The amount of any income reasonably likely to be so earned by Mr Koulouris during the period between the making of the order for compensation and the actual compensation
[76] This factor is not relevant in the circumstances of this matter.
Other relevant matters
[77] The parties did not make submissions in relation to this criterion.
Misconduct reduces amount
[78] Mr Koulouris did not engage in misconduct on 5 May 2016 by sending a text message advising that he would not be at work because he was ill. There is no reason to reduce the amount ordered to Mr Koulouris, as there was no misconduct.
Shock, distress etc. disregarded
[79] I confirm that the amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Mr Koulouris by the manner of the dismissal.
Compensation Cap
[80] The amount of compensation the Commission ordered does not exceed the compensation cap.
Order of compensation
[81] I determined that Ludowici pay the amount of $2646.00 less tax as required by law. This amount represents three weeks’ wages. I had earlier determined that Mr Koulouris’ employment would not have subsisted for more than four weeks, and having been paid one week’s notice, the payment of three weeks’ wages was ordered.
COMMISSIONER
1 Exhibit R3.
2 PN33.
3 PN298.
4 PN288.
5 Exhibit R6.
6 PN281.
7 Exhibit R6
8 Exhibit R7.
9 PN330.
10 PN988.
11 PN213.
12 PN217.
13 PN225.
14 PN232.
15 PN236.
16 PN241.
17 PN255.
18 PN258.
19 PN656.
20 PN661.
21 PN755.
22 Sayer v Melsteel[2011] FWAFB 7498 at [20].
23 (1998) 88 IR 21.
24 [2013] FWCFB 431.
25 [2014] FWCFB 8683.
26 [2015] FWCFB 2267.
27 PN402.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR584099>
0
4
0