Mr N v The Bakery

[2010] FWA 3096

[2010] FWA 3096

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr N
v
The Bakery
(U2009/13348)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 20 APRIL 2010

termination of employment – determinative conference.

[1] On 30 October 2009 Mr N lodged an application pursuant to section 394 of the Fair Work Act 2009 (the Act), with respect to the termination of his employment with a small Bakery (The Bakery). The application was not settled through the conciliation process and was subsequently referred to me for arbitration.

[2] On 23 November 2009 the parties agreed that the matter should be determined through a conference process rather than a traditional hearing. As a consequence, the names of the parties have not been published in this decision. Both parties were self represented although Mr N's sister, Ms B assisted him in the proceedings. The matter proceeded over 3 days consistent with the request of The Bakery, so as to allow The Bakery managers and owners to participate in these proceedings while maintaining their business.

[3] The conduct of the proceedings warrants mention at the outset. A recording problem prevented a sound file for the initial proceeding on 9 March 2010 being available. As a consequence, my notes of this proceeding were later circulated to the parties and, as they primarily covered Mr N's evidence, he was given the opportunity to confirm a number of changes to these notes.

[4] While the proceedings were informal, sworn evidence was given and witnesses were cross-examined.

[5] Mr N comes from Hungary. At his request, an interpreter was provided and interpreted the entire proceedings. Mr N's sister disputed the accuracy of this interpretation on a significant number of occasions. On these occasions the interpretation was clarified.

Preliminary Issues

[6] Section 385 of the Act states:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWA 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.”

[7] Section 396 states:

“396 Initial matters to be considered before merits

FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[8] There is no question that the application was made within time, that Mr N was protected from unfair dismissal, and that the termination of his employment was not a case of genuine redundancy.

[9] As I have already noted, The Bakery employed fewer than 15 employees at the relevant time. In this context, I have considered whether the termination of Mr N's employment was consistent with the Small Business Fair Dismissal Code (the Code).

[10] This Code is established pursuant to section 388 which states:

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[11] The Code itself states:

“Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.

Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response.

Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[12] I consider that the structure of the Act is such that it is intended that if compliance with the Code is established on the part of a small business, the application must necessarily be dismissed without further consideration. If, however compliance with the Code is not established, it is necessary to give consideration to the factors, set out in section 387 of the Act, which apply to industry generally, so as to determine whether a termination of employment was harsh, unjust or unreasonable.

The background

[13] I have set out below a summary of the background matters which led to the termination of Mr N's employment.

[14] There is no dispute that, at the time of the termination of Mr N's employment, it employed fewer than 15 employees. Mr N was engaged by The Bakery as a baker for some 3½ years.

[15] For at least some of this time he was engaged pursuant to the terms of an agreement which the parties referred to as an Australian Workplace Agreement. He worked on a regular part-time basis.

[16] The Bakery asserts that Mr N was advised some 2 years ago that incorrect time book entries were inappropriate.

[17] In April 2009 The Bakery wrote to Mr N relative to concerns over the provision of proof of absence documentation. This matter was proposed to be the subject of a disciplinary meeting. The Bakery assert that this resulted in Mr N being given a verbal warning.

[18] In July 2009 Mr N was given a written advice relative to his alleged threatening behaviour toward one of the The Bakery managers. This advice referred to an earlier warning for similar behaviour in November 2008. It proposed a disciplinary interview would be convened.

[19] Mr N worked on Saturday 17 October 2009 from around 12.30 pm to around 5.30 pm. This was not a normal work day for him and it was the result of the absence interstate of at least one of the business owners. Mr N was given instructions relative to the work he should do on that day. He attended work with his wife and young daughter. While the parties are in dispute over the extent of time that his wife and young daughter spent in the bakery as distinct from outside the bakery premises, there is no dispute that they came into the bakery on a number of occasions. Mr N supervised two other employees over this time. These employees speak different Mandarin dialects and have very limited English.

[20] At around 4.00 pm Ms O, one of the owners/managers, attended the bakery to collect completed products. She met Mr N, his wife and daughter in the bakery and then talked outside of the bakery with them before leaving.

[21] On Monday, 19 October 2009 Ms O checked the time records. She noted that Mr N had recorded a finish time of 5.30 pm which she thought to be inconsistent with her understanding that Mr N was about to finish work at around 4.30 pm. She discussed this issue with another owner/manager, Ms A. Ms A observed Mr N's actions on the closed circuit TV in the bakery. She observed Mr N's wife and young daughter in the bakery at various times and for substantial periods. She observed Mr N at some time, late in the day, making a pizza in the bakery.

[22] The parties are in dispute over the extent to which, on Mr N's arrival at work on Monday 19 October, Ms O engaged in two separate discussions with him.

[23] Later on 19 October 2009 Ms O contacted her lawyer and the Fair Work Australia help facility. In this latter respect she was advised to download the Small Business Fair Dismissal Code Checklist and did so.

[24] On Tuesday 20 October 2009 Mr N was requested to meet with Ms O and Ms A. Ms P, another employee, was asked by The Bakery management to attend as a witness. The matters discussed at this meeting are disputed but it is agreed that these discussions involved at least some of the video being shown to Mr N and Mr N being told of the summary termination of his employment. It is also agreed that at some point in this meeting, Mr N engaged in a telephone discussion in Hungarian with his sister. There was a subsequent disagreement between Mr N and the Bakery management. Police were called to the bakery by management and ultimately escorted Mr N from the premises.

[25] Some time after 20 October 2009 Mr N received written advice confirming the termination of his employment on the basis of:

“….

We have considered your responses and the nature of the information at hand and confirm the reasons for your termination are as follows:

A serious breach of your contract of employment by falsifying time records and not responding honestly to questions relating to the incident to the Company owners.

Your actions constitute serious and wilful misconduct that justifies summary dismissal at common law.

Accordingly, your employment is to be terminated effective immediately and without paid notice.

…”

[26] Mr N's position is that the termination of his employment was unfair in that it lacked a valid reason and was implemented in a procedurally unfair fashion.

[27] The Bakery position is that Mr N's attendance at the bakery on the Saturday with his wife and child represented an occupational health and safety risk about which instructions had been given, that his time book entries were false and his subsequent explanation of his work actions were untrue. The Bakery assert that these factors represented an adequate reason for the summary termination of Mr N’s employment. Further, The Bakery assert that Mr N had a working grasp of English such that he could understand the discussions on 20 October 2009 and on the days previous to that, and that the termination of employment process was not unfair.

[28] There are substantial conflicts in the evidence before me. Mr N's evidence in this matter went to his version of the events of 17 October 2009 and the discussions with The Bakery management on 20 October 2010. He disputed any discussions occurred on 19 October 2009.

[29] Ms O's evidence went to her attendance at the factory on 17 October 2009 and her subsequent investigation of Mr N's behaviour and her meetings with him on 19 and 20 October 2009. Ms O's evidence also went to her discussions with Ms A and her contact with Fair Work Australia and The Bakery legal adviser.

[30] Ms A's evidence was limited to her involvement in the investigation of the incident and subsequent involvement in the interview on 20 October 2010 which resulted in the termination of Mr N's employment.

[31] Ms P’s evidence went to her participation at the 20 October 2009 meeting. This included her recollections of the video shown at this meeting, of the discussions with Mr N, which included the termination of his employment and his telephone discussion in Hungarian with his sister.

[32] I have also noted that a statutory declaration has been made out by Mr W, another owner/manager of The Bakery, who provided the working instructions to Mr N for 17 October 2009 but who was not present on that day.

[33] Additionally, statutory declarations have been provided by Mr T and Mr C, who worked with Mr N on 17 October 2009. These detailed the functions these persons undertook on 17 October 2009, and their observations.

Findings on non agreed issues

[34] In order to reach any conclusion about compliance with the Code in this situation where there are a significant number of disputed facts, it is necessary that I firstly reach some conclusions about these facts.

[35] I note that The Bakery obtained a copy of the Code Checklist on 19 October 2009 and that this checklist was partially completed (Exhibit W1). I have concluded that the partial completion of this checklist reflected difficulty on the part of Ms O in linking the questions to the circumstances surrounding the termination of Mr N's employment. Given that The Bakery was terminating Mr N's employment on a summary basis, I believe this difficulty is perfectly understandable as the Checklist does not appear to lend itself to simple completion in these circumstances.

[36] Additionally, as a result of the dispute over factual issues, findings on various of the other disputed facts are necessary before I consider whether the completion of this Checklist enables a conclusion that the termination of Mr N's employment was consistent with the Code.

Mr N's previous warnings

[37] I have concluded that Mr N was cautioned, over the duration of his employment, with respect to his time recording practices and his behaviour at work. I have concluded that these cautions were verbal advices. I have reached these conclusions on the basis of the written material provided to me and having regard to the evidence of Ms O and Ms A.

Mr N's understanding of English

[38] I have concluded that Mr N understood English only as a second language, that he is able to communicate in English but that his grasp of the English language is somewhat limited and restricted. In reaching this conclusion I have noted that Mr N worked with The Bakery management over 3 years without a substantive need for interpretive assistance. I have also relied upon my own observations of Mr N in the proceedings before me.

The Video footage

[39] I have concluded that The Bakeryy management had observed on a number of occasions the video footage of employees working in the bakery on 17 October 2009. Further, that this video showed Mr N at various times. It depicted him making a pizza toward the end of the day, and present in the baking area with his wife and young daughter at various times. It did not show other children in the work area. The video showed employees other than Mr N performing various baking tasks which Mr N subsequently said that he undertook.

[40] I have concluded that the film subsequently became unwatchable and that The Bakery made efforts, through specialist repair and recovery technicians, to remedy this. In this latter respect, I have relied on the evidence of Ms O and the receipts provided for these services.

[41] In the earlier respect I have relied on the evidence of Ms O and that of Ms A and Ms P. I have noted that, on 20 October 2009, and again in the proceedings before me, Mr N disputed what was shown on the video.

Mr N's behaviour on 17 October 2009

[42] I have concluded that Mr N understood the tasks required of him on 17 October 2009. That much is clear from the extent to which the product he was responsible for is not in dispute.

[43] I have concluded that Mr N made a pizza during his working time and that he was not required or requested to do so by The Bakery management. In reaching this conclusion I have had regard to the statutory declaration made out by Mr W. I have noted that Mr N did not, or could not, specifically identify who requested that he make a pizza. Finally, I have noted the evidence of Ms O and Ms A.

[44] I have relied on the statutory declarations made out by Mr T and Mr C to conclude that a portion of the pizza was offered to at least one of these persons as fellow workers.

Occupational Health and Safety issues

[45] Whilst I have noted The Bakery is concerned that Mr N breached its occupational health and safety requirements by allowing his wife and child in the area, I do not consider that this was a fundamental reason for the termination of his employment. This issue was not referenced in the letter of termination of employment and evidence to support it as a basis for the termination is not clear. In any event, notwithstanding that The Bakery had a reasonable basis for understanding Mr N’s behaviour breached occupational health and safety requirements, I am not satisfied that a reasonable basis for concluding that this was serious misconduct has been made out as properly promulgated and consistently enforced policies dealing with such behaviour have not been demonstrated to me.

Mr N's breaks from work

[46] Mr N asserts that he took no breaks from work during the five-hours that he worked on 17 October 2009. I have concluded that this is not correct and that he took a number of breaks during periods when he was not shown to be working on the video footage and when he was making a pizza. I have reached this conclusion on the basis of the evidence of Ms O and Ms P. I am unable to reach conclusions with respect to the actual duration of these breaks.

Meetings on 19 October 2009

[47] I have concluded that Ms O met with Mr N on 2 occasions on 19 October 2009, and that, at these meetings, she expressed concern over Mr N’s behaviour on 17 October 2009 relative to inconsistencies in Mr N's:

• time records relative to her observations of the status of the work when she left the bakery on 17 October 2009



• account of his work actions relative to the matters shown on the video footage, and



• advice with respect to his wife and daughter’s attendance at the bakery on 17 October 2009 relative to her observations and the closed-circuit TV.

[48] I have concluded that the primary issue which concerned Ms O in these meetings and about which she remained most concerned, related to inconsistencies over Mr N's time records with respect to his finishing time. I have concluded that she sought confirmation from Mr N, of his behaviour in these respects and was not satisfied with the integrity of his responses.

[49] I have reached this conclusion on the basis of the evidence of Ms O. Whilst I have noted substantial inconsistencies between Ms O’s evidence and that of Mr N, I prefer the evidence of Ms O. Her evidence was consistent with the recollection of others who watched the video in contrast with Mr N’s somewhat evasive responses.

Meeting on 20 October 2009

[50] I have concluded that Ms O did attempt to discuss Mr N’s behaviour with The Bakery lawyer and obtained the Small Business Fair Dismissal Code Checklist before meeting with Mr N on 20 October 2009.

[51] I have concluded that, at this meeting, allegations relative to Mr N’s falsification of time sheets were put to him with respect to his finishing time, the time he spent making a pizza and the absence of any recorded breaks from work. Mr N was shown at least part of the video. I have concluded that Mr N was advised of his summary dismissal.

[52] I have concluded that Mr N was upset at these allegations, that he disputed the video evidence, and that he then telephoned his sister.

[53] I have further concluded that Mr N did not accept the termination of his employment, that he refused to leave the premises and that he did not do so until he was escorted out by the police.

[54] In these respects I have particularly relied on the evidence of Ms A, Ms O that of Ms P.

Consideration of the Code

[55] The Code requires consideration of the extent to which the employer had reasonable grounds to believe that an employee committed misconduct of a specified nature. With respect to summary dismissal, the Code then requires consideration of the extent to which the employer had reasonable grounds to believe that this misconduct was sufficiently serious to justify summary dismissal.

[56] This assessment of the employer’s approach and conclusions requires from Fair Work Australia a quite different function from that directed toward employers at large through section 387 of the Act.

[57] I have considered whether the circumstances were such that The Bakery had reasonable grounds upon which it could conclude that Mr N's behaviour represented serious misconduct.

[58] The Bakery had video evidence to support Ms O's observations about the extent to which Mr N's work was substantially completed by 4.00 pm on 17 October 2009.

[59] The Bakery had video evidence of Mr N making a pizza at work after the functions he had been instructed to undertake had been completed.

[60] The Bakery had a reasonable basis upon which to question Mr N about these issues and was not convinced that Mr N was responding to its concerns in these respects in a truthful and honest manner.

[61] I have concluded that The Bakery had two reasons to terminate Mr N's employment. Firstly, it concluded that he had falsely completed his timesheet to increase the time for which he would be paid. I am satisfied that The Bakery had a reasonable basis for reaching this conclusion. Further, that The Bakery had a reasonable basis for regarding that conduct as serious misconduct warranting summary dismissal.

[62] The Bakery is a small business. It had previously cautioned Mr N with respect to timesheet accuracy. False timesheet entries amount to theft in terms of overpayments to which Mr N would not otherwise be entitled. The extent to which this type of dishonesty has generally been accepted as serious misconduct has been specifically addressed in various matters before the then Australian Industrial Relations Commission. One such matter is Sciberras v Coles Supermarkets Australia Pty Ltd 1.

[63] In that matter, Lawson C considered a number of decisions dealing with falsification of time records in the following terms:

“On the matter of relevant authorities, Mr Ritchie referred to Robert Houston v. James Hardie Pipelines - IRCA 94/533 (unreported), in which the Court concluded:

"Here, having regard to the fact that there was a proper investigation and that neither as a result of that investigation nor subsequently has any evidence been advanced by the applicant that there was a culture within the respondent that a practice of clocking on other employees cards did exist, I am not satisfied that the applicant has discharged his onus of proof that his termination was in breach of the requirements of section 170DE(2) of the Act. I propose to dismiss the application."

Mr Ritchie argued that the circumstances of Houston's case and this case were sufficiently similar for the Commission to dismiss this application.

In another case concerning the falsification of time cards a Full Bench of the Industrial Relations Commission of New South Wales in Electricity Commission of New South Wales (t/a Pacific Power) v. Ricky Robert Nieass and others (IRC NSW 672/95) dealt with the issue of onus in a matter concerning a collective falsification of time cards. The Full Bench said, inter alia:

"The onus of ensuring the correctness of any claim made for overtime or any other matter was on the employee."

and later:

"The Commissioner formed the view that the employees should have been told that if the behaviour continued dismissal might result. We do not wish to say that absence of warnings in appropriate circumstances, might be taken into consideration in contemplating notions of harsh, unjust, and unreasonable. In industrial circumstances as in other avenues of life an employee or an employer must be taken to be aware of the natural and probable consequences of their actions. However, we reject as industrially inappropriate any notion that adult, responsible, and senior employees are entitled to a warning that they might be dismissed if they continue to misconduct themselves within employment, dishonestly. No employee of ordinary understanding and certainly not employees of mature age, substantial classification and seniority, need to be told that if they deal dishonestly with their employer they may be dismissed, any more than they need to be told that they should be careful in crossing the street."”

[64] I have adopted this position so as to conclude that The Bakery had reasonable grounds upon which to believe that Mr N had falsely recorded his actual work times on his timesheet and that this represented serious misconduct.

[65] The second reason why The Bakery dismissed Mr N related to his responses to Ms O’s questions. I am satisfied that The Bakery management had a reasonable basis for concluding that Mr N's responses were dishonest. They were inconsistent with the actions shown on the video and with Ms O's observations.

[66] The requirement for honesty is an essential component of any employment relationship, but not every form of dishonesty can be characterised as serious misconduct.

[67] However, in the context of questions about Mr N's time sheets, I consider The Bakery had a reasonable basis upon which to conclude that summary dismissal was also appropriate in that Mr N was being dishonest.

[68] As an issue separate to the basis upon which summary dismissal can be founded, the Code deals with procedural matters in the context of establishing a right for an employee, faced with possible dismissal, to have another person present to assist in discussions where dismissal is possible.

[69] I have considered this matter in the context of my findings with respect to Mr N's limited understanding of English.

[70] Mr N asked for, and was given an opportunity to telephone his sister during the termination of employment meeting on 20 October 2010. I think it likely that, at that time, he had already been advised of the termination of his employment. I am unable to conclude that this telephone discussion equated with an opportunity to have a support person present. Further, while Ms P was present on 20 October 2009, I consider that she was there as an employer witness and not a person to assist Mr N.

[71] Mr N's right to a support person only exists when they are discussions where dismissal is possible. If there were no such discussions and the termination of employment decision was simply communicated to Mr N, no right therefore arises under that Code. However, the evidence presented to me indicates that while Ms O intended to terminate Mr N's employment as at the commencement of the 20 October 2009 meeting, at the meeting on 19 October 2009 she gave him an opportunity to respond to the proposition that his timesheet was incorrect, that he had made pizza for himself, and did not record his breaks from work. It was the discussions on 19 October which established the basis for the subsequent termination of employment.

[72] Whilst I am satisfied that Mr N adequately understood these discussions without an interpreter, as he had understood employment instructions over the last 3½ years, he was not given the opportunity to exercise his right to have another person present to assist.

[73] This means that, despite my earlier findings with respect to the reasonableness of The Bakery position with regard to the summary dismissal, the proper application of the first procedural requirement in the Code, relating to the right to access a person to assist, has not been complied with.

[74] I have reviewed the Code Checklist in this context. I am satisfied that the Checklist was completed by Ms O on the basis that questions relative to performance-based discussions and an opportunity to respond do not appear to be related to termination on the basis of serious misconduct. I consider that the Checklist is deficient in this respect as it does not address the right to have a person to assist. There is nothing in the Checklist itself that would have alerted Ms O to the requirement in the Code for an employee to have another person present to assist in circumstances where dismissal is possible. This deficiency, together with the extent to which the Checklist does not assist where there are disputed facts or an element of doubt about the reasonableness of the employer position means that I consider the checklist to be of dubious value as a determinant of whether the Code has been complied with..

[75] Mr N was not given access to a person to assist him during the meetings on 19 October 2010. , I am not able to conclude that the termination of Mr N's employment was consistent with the Code.

[76] In this situation then, there is no capacity for me to reach an initial conclusion such that the application should be dismissed pursuant to section 396.

[77] As a consequence, it is necessary to consider the application in the context of the factors set out in section 387. This section states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”

[78] I have considered each of these factors in the context of the background and my earlier findings.

Valid Reason

[79] I have adopted the concept of a valid reason as it was set out by North J in Selvachandron and Perterson Plastics 2 in the following terms:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly”.

[80] On the material before me I have concluded that Mr N's behaviour in making a pizza at work was personally motivated and resulted in an unnecessarily prolonged work time. I have concluded that Mr N had his wife and young daughter present in the bakery at various times during the day on 17 October 2009. I have concluded that Mr N did not tell The Bakery management the truth relative to these issues at a meeting held on 19 October 2009.

[81] I consider that these behaviours represented misconduct that falls marginally short of serious misconduct. Uncertainty about the extent of the time involved and common practices with respect to family members in the workplace are relevant considerations in this respect. Nevertheless, Mr N's behaviour represented a valid reason for the termination of his employment. It went directly to the trust and confidence the employer could have in him as an employee in the future.

[82] I have further addressed the issue of summary dismissal later in this decision.

Notification of the Reason

[83] I am satisfied that Mr N was notified of the reason for the termination of his employment on 20 October 2009 and that this was later confirmed to him in writing.

Opportunity to Respond

[84] I am satisfied that Mr N was given an opportunity to respond to the time recording and pizza making allegations, at the meeting on 19 October 2009, and that he did so.

[85] To a far more limited extent, Mr N had the opportunity to respond to the video evidence at the termination of employment meeting on the 20 October 2009, but I consider that, by that time, the termination of employment decision had already been made.

Refusal to allow a support person to be present

[86] There is no evidence that, at the meeting with Ms O on 19 October 2009, Mr N sought access to a support person-or that he was refused any such request.

[87] Notwithstanding this, I consider that The Bakery's failure to propose a support person in circumstances where it was considering termination of employment and was aware of Mr N's English language limitations, is a factor mitigating toward unfairness in the process.

Warnings

[88] I have already concluded that Mr N had been counselled about various aspects of his work behaviour and that he had been specifically warned about accurate timesheet reporting some 2 years earlier.

Employer Size

[89] I have noted that The Bakery is a very small employer and that this has impacted on the procedures followed. In this respect I have also noted that The Bakery endeavoured to obtain advice from its lawyer and from Fair Work Australia.

Absence of Human Resource Management expertise

[90] I have noted that The Bakery had no internal human resource management expertise.

Other Matters Relevant

[91] I have noted Mr N’s English language limitations, but, as I have already observed, there is no indication that he understood the meetings on 19 and 20 October 2009 any less than he accurately understood workplace instructions given to him over at the previous 3½ years.

[92] I have considered the extent to which, in all the circumstances, termination of Mr N's employment, without notice, was a proportionate response to his misconduct.

[93] The uncertainty associated with just how inaccurate Mr N's timesheet was with respect to the work he undertook is a factor which indicates that summary dismissal was a disproportionate response. Notwithstanding that I do not consider that occupational health and safety issues were the reason for the termination of Mr N’s employment, the absence of evidence that supports the proper promulgation of occupational health and safety rules with respect to family members being in the bakery, is a further factor mitigating against summary dismissal.

Summary

[94] Having considered all of the factors set out above, I have concluded that the termination of Mr N's employment was harsh in that it occurred without notice and without access to a support person. However, Mr N's conduct was such that I consider that the termination of his employment was neither unjust nor unreasonable.

Remedy

[95] Section 390 provides that I may order a remedy in these circumstances. Reinstatement is clearly the initial remedy to be countenanced. However, I note that neither Mr N nor The Bakery supported reinstatement and it is clear to me that the relationship between the parties is such that reinstatement simply would not work.

[96] Accordingly, I have considered the issue of compensation consistent with section 392 of the Act. This section states:

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), FWA 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 FWA considers relevant.

Misconduct reduces amount

(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA 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 FWA 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 FWA 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.”

[97] There is no information available to me relative to the financial standing of The Bakery. Conversely, there is no indication that the amount I propose will adversely affect that business.

[98] I have noted Mr N's 3½ years service. Whilst this is not a short time, it is not of such a duration that projections about ongoing long employment can be made. I have noted that Mr N had received some counselling and, on his own advice, had concerns over the employment arrangements under which he worked.

[99] Had Mr N not been summarily dismissed on 20 October 2009 I consider it most likely that he would have been either dismissed with notice, or with a payment in lieu of notice. Consistent with the National Employment Standards set out in the Act, I consider the notice would have amounted to three weeks pay.

[100] I have noted Mr N's efforts to mitigate his losses following the termination of his employment.

[101] There is no indication that Mr N has earned income since the termination of his employment or that alternative income options are likely to be available to him in the immediate future. I have noted that Mr N's somewhat broken English may be an impediment to alternative work in certain situations.

[102] In terms of other matters which might be relevant, I have noted Mr N's family circumstances in that he has a young daughter.

[103] I have reduced the amount which I would otherwise have ordered by one week in recognition of the extent to which Mr N's behaviour was the factor which instigated the termination of his employment.

[104] On this basis I have awarded Mr N two weeks pay less tax, in lieu of reinstatement.

[105] An Order [PR996338] to this effect will be issued.

SENIOR DEPUTY PRESIDENT

 1   Print N3941

 2 (1995) 62 IR 371 at 373

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