Mr Raymond Hoffensetz v Dalle Cort Financial Services - [2012] FWA 8604

[2012] FWA 8604

FAIR WORK AUSTRALIA

DECISION

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

Mr Raymond Hoffensetz
v
Dalle Cort Financial Services
(U2012/3367)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 25 OCTOBER 2012

Summary: whether non provision of a witness statement by an applicant is a cause for dismissing the application - dismissal unfair - monies paid as notice - remuneration earned post employment more than if employment had continued - no compensation ordered - relevance of contingencies.

[1] On 28 June 2012, Mr Raymond Hoffensetz (“the Applicant”) lodged an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in respect of his dismissal from his employment with Dalle Cort Financial Services (“the Respondent”). The Respondent’s business also includes an entity known as Austax, to which reference is made below. The Respondent’s nominal owner is Mr Isi Dalle Cort.

[2] No issue of the competency of the application was agitated: the application was made within time as required by s.394(2) of the Act; the Respondent is a national system employer for the Act’s purposes; and the Applicant is a person who is protected from unfair dismissal as defined by s.382 of the Act. The application was subject to a conciliation conference on 17 July 2012, which was unsuccessful in resolving the issues in dispute. The file subsequently was allocated to me on 30 July 2012. Following a telephone conference with the parties on 1 August 2012 the matter was set down for hearing in Townsville on 18 and 19 October 2012.

[3] Upon the Applicant’s dismissal, he was paid four weeks’ salary as notice in lieu of service. This payment was made, it is said (but never evidenced), on the condition that the Applicant not pursue any claims arising from his period of employment with the Respondent; a condition the Applicant did not accept (and retained the monies as paid to him in this regard). There is further discussion of this matter and its evidentiary basis below.

FAILURE TO PROVIDE A WITNESS STATEMENT

[4] This application was marked by the fact the Applicant himself did not lead any evidence in the proceedings. Despite my having queried this approach when it became evident no witness statements for the Applicant were to be filed in accordance with the Directions as issued, the Applicant's legal representative maintained this approach.

[5] The Respondent contended that in such circumstances the application should be dismissed as the Applicant had failed to bear the onus of making out his claims.

[6] It is often the case that an Applicant bears the onus to make out its claims as the Respondent in this matter asserts. But the statutory jurisdiction in relation to unfair dismissal does not turn squarely on the Applicant carrying a burden of proof to make out his or her claims at an evidentiary level. After all, it is the Respondent's decision-making that is often brought into question by way of s.387 of the Act, and in certain instances, the foundation of that decision-making is known by the Respondent alone and is accessible only through the examination process.

[7] In this case I add that the Applicant in this matter has not withdrawn his application, but continues to press his claim that his dismissal was harsh, unjust and unreasonable, and is legally represented to that end. A statutory declaration on one point (concerning remuneration sources since dismissal) has been received. The Applicant also attended the hearing and was made available to provide evidence if called by the Respondent (which did not choose to do so).

[8] While I can only deal with the evidence that is before me, I nonetheless must still take into account the matters set out at s.387 of the Act in reaching a determination as to whether the dismissal was harsh, unjust or unreasonable. This is a not a circumstance in which I should dismiss the application, as the Respondent argued I should.

[9] Further, I cannot for procedural fairness purposes disallow the Applicant a right to examine the evidence of the Respondent as to whether there was a valid reason for the dismissal etc. for the purposes of s.387 of the Act. In certain circumstances, as I have suggested above, it will be the Respondent who is the repository of knowledge about aspects of s.387 of the Act, which will need to be made out.

[10] Of course, the consequence of the course of action adopted by the Applicant is that the Applicant has foregone the right to have me rely upon his own direct evidence, as it might have been, and that will have consequences for his case where there are facts to be established and issues of credit require resolution as they may affect the formation of my views in relation to the matters set out in s.387 of the Act. I can now only rely upon the materials as presented and the evidence as adduced (though I need not accept that evidence uncritically for the determinative purpose before me).

[11] Upon making this clear at the time of the hearing, the Applicant's legal representative suggested I should call the Applicant at my own motion in order to assist in determining any factual or credit issues I might identify as I went along. I respectfully declined to run the Applicant's case for him, and more.

[12] As is implicit above, I do not think that the fact that the Applicant has not himself yielded evidence by way of a witness statement makes the application he has made a nullity or otherwise negates the challenge that application itself makes to the Respondent's decision making (in the context of the requirements of s.387 of the Act). In essence, the Applicant has relied upon the examination of the Respondent's witnesses to yield the evidence necessary for the ultimate finding.

[13] Indeed, there may be cases in which applicants are unwilling or unable to provide witness statements themselves. But those circumstances (where the applicant continues to insist in pressing the application nonetheless) do not cause an applicant in such circumstances to forego his or her statutory rights to make a claim for a remedy. Such circumstances are distinguishable from those in which an applicant fails to attend a hearing and does not give evidence of wishing to prosecute his case as such (as were considered by a Full Bench of Fair Work Australia in Re: Sayers.) 1

BACKGROUND

[14] The Applicant had been employed by the Respondent since September 2006 until his employment was terminated on 5 July 2012. The Applicant's duties, as they came to be, were a matter of some contest in their detail, but it was accepted that generally he was employed (under the terms of the contract of employment dated 5 July 2011) to oversee the Respondent's information and communications systems in the role of IT Systems Manager. The Applicant was responsible for the IT systems for both the Respondent’s business and that of Austax. It appears a plan was afoot to merge the two IT systems. 2

[15] These systems were important for the Respondent's business. The Respondent provides financial information and manages investments for its clients. The Respondent relies on access to the financial records (portfolio and investment information) of its clients.

[16] The Respondent’s Austax business arm is concerned with preparing and lodging taxation returns with the Australian Taxation Office on behalf of its clients. There were some 12,000 personal and business taxation returns lodged in the last financial year. The Respondent appears to have been largely (and aspired to be) a paperless office.

[17] Access to and retention of financial records and data was central to the Respondent's business operations. Austax, of course, must be able to retrieve its clients’ financial data for auditable purposes.

[18] The Applicant was dismissed from his employment by correspondence dated 21 June 2012 (which was in actuality correspondence that should have been dated 22 June 2012). 3

REASONS FOR DISMISSAL

[19] There were multiple, interacting reasons for the dismissal. These reasons include the following alleged failures by the Applicant to:

Maintain a backup of the Austax data since Wednesday of the previous week (which at the time of the dismissal was the only period of time the Respondent understood the backup had not been completed);

Ensure that there were accessible security systems for the Respondent’s city and Aitkenvale offices (a concern which appears to have arisen from a situation in April 2012 in which the Respondent’s security systems in its previous buildings were rendered insecure owing to an IT server modification and property losses were incurred); 4

Ensure that there were adequate security arrangements for the Fit for Life Financial Service Centre following the move from the city office;

Despite direction, provide a reasonable and timely level of support to the Austax business (particularly in the period leading up to the tax season); 5

To provide (after requests to do so) an adequate level of documentation and/or correspondence with regard to the Austax SAN project; 6 and

Promote and maintain a close interactive relationship between all employees and foster a spirit of cooperation and teamwork (which appears to be a reference to the Applicant's uncooperativeness observed on 18 June 2012 in supporting staff generally). 7

[20] The Respondent also claimed that the Applicant had manifested inaccurate and/or incomplete work with continual mistakes and errors that were of a serious nature and constituted a fundamental breach of his duties and responsibilities under the employment contract. Principal amongst them was the claim that the Applicant had not made tape backups of the stored information for off-site storage, despite being requested to do so. 8 These backups were only completed by an external IT provider, Annitel, following the dismissal of the Applicant.9

[21] The issue here was that there was an expectation that the Applicant must provide for off-site backup tapes through the tape drive of the information contained on the IT system in the event of a system failure. It was contended by Mr Joel Bruce, the technical leader for Anittel, that the Dalle Cort/Austax IT systems provided for automated shadow volume copying, which requires the IT system to be functional in order to recover data or information. In the event of a system collapse or a fire or other like disaster, shadow volume copying is of no value. Only tape copying through the tape drive and subsequent off-site storage is a means of maintaining reliable access to business information.

[22] Mr Bruce’s evidence was that when he examined the Austax IT system he uncovered that there was no tape backup system in operation for an indeterminate amount of file data (excluding emails) and hence no off-site backup had taken place. 10

[23] There was a backup tape drive for the Dalle Cort Financial Services IT system. But the Applicant seemingly was not able to provide a copy of those tapes to the Operations Manager, Mr Andrew Cook when he was requested to do so. 11

[24] The Applicant's employment contract stipulated (at Schedule 2) that one of his benchmarked duties was to provide a “reliable backup system with demonstrated ability to recover from various scenarios including disaster”.

[25] It appears that the Applicant performed his duties in so far as he ensured that Austax data and the operating system itself was backed up in the event that the working files became corrupted or otherwise were inaccessible. But it cannot be said that he maintained a backup in the event of disaster, which he was required to do as a term of his contract of employment. Such procedures are well known to persons involved in the field of IT services.

[26] It was also claimed by Mr Cook that when Anittel was engaged it became apparent that the Applicant had failed to provide for a range of basic IT services, including: offsite Austax backup (as mentioned above); Microsoft licensing deficiencies; no proper set up and security protocols; no disaster recovery plan; no basic administration manual; no trust sharing relationships between the Dalle Cort Financial Services and Austax domains; no ability to recover archived emails or documentation from earlier software programs; no proper management of the ATO portal. 12

[27] The Respondent argued that these deficiencies had created a situation in which “the IT system could become largely inoperative and ineffective”. 13

[28] The Respondent also contended that the Applicant had failed to provide diagrams of the sever set-up in the event there was a systems disaster despite numerous requests to do so. 14

[29] The Respondent claimed that there had been numerous discussions and meetings with the Applicant, Mr Cook and Mr Dalle Cort. These meetings were said to have canvassed the performance issues raised in the above discussion. 15 Mr Cook gave evidence that in April 2012 he created a website to identify IT issues, to establish their priority and timelines for resolution. He did this to assist the Applicant in dealing with his workload, and to overcome issues such as his reluctance to prioritise Austax work or to outsource work to Anittel.16 Mr Cook did not take these steps to alleviate the Applicant from having responsibility for the Austax IT system.17

[30] The Respondent, through the evidence of Mr Cook, claimed that the Applicant had failed to show any willingness to improve his performance and had failed to adapt to its business processes and procedures. Nor did he seek to outsource any of his responsibilities to Anittel, though this could have led to a reduction in his workload and\or improved his capacity to manage the various IT issues (given that he had access to a 50 hour block of pre-paid time from Anittel). 18

[31] Such were the Respondent's concerns in the lead up to the tax season that on 12 June 2012 the Respondent engaged Anittel to come in and assist in providing IT services. 19

[32] Mr Cook claimed that prior to the Applicant's dismissal, the Applicant had indicated to him that he “was strongly considering an alternative job and further he did not wish to continue working for DCFS\Austax”. 20 Mr Cook maintained that the Applicant's general attitude was further indicative of the Applicant’s lack of desire to continue working for the Respondent.21 In the hearing, Mr Cook said that after the Applicant had made this statement his relationship with the Respondent was compromised. Indeed, as became evident, Mr Cook set about advertising (albeit it with some likely measure of surreptitiousness) for a new IT resource in the event the Applicant left.

[33] Mr Gerry Maguire, the Practice Manager for Austax, gave evidence that the Applicant was required to maintain a register by which staff could detail requests for work to be carried out. But according to Mr Maguire the Applicant did not complete the tasks and provided no feedback on which tasks he had completed. As a result, Mr Maguire contended, the IT Register fell into disuse, and when it was reinstated, the Applicant did not act on many of the requests. 22

[34] Mr Cook’s evidence as adduced at the hearing was that the Applicant's reluctance to perform duties for Austax did not arise from anything other than the Applicant's unwillingness to work with Mr Maguire. Mr Cook stated that the Applicant had informed him of this directly.

[35] It appears these concerns were exacerbated by the dramatic slowness of the new IT system set up by the Applicant as Austax moved into its peak period of work. 23 Mr Cook’s evidence reflected Mr Maguire’s concerns in these regards.

[36] The Respondent came to agitate additional concerns subsequent to the provision of the termination correspondence cited above.

[37] The Respondent also alleged that the Applicant’s employment was terminated because of his personal conduct and behaviour towards the Respondent's staff and associated business staff operating in the same building (including National Australia Bank staff) which had been the subject of complaint. In particular, it was claimed by Mr Cook, the Operations Manager for the Respondent, that the NAB (with which the Respondent had a close relationship) had been “harassed” by the Applicant for a personal loan. 24 This was said to have reflected poorly on the Respondent’s professional image.

[38] According to Mr Cook, the Applicant had “unrelentingly accused [him] of not helping him in his fight with NAB”. 25 Mr Cook’s evidence during the hearing was that he had set out to assist the Applicant in obtaining a loan from the NAB and had been critical of the NAB’s conduct. Mr Wayne Tawse, Regional Executive Retail Banker for the NAB, also gave evidence that his staff were “harassed” by the Applicant.26 This evidence, upon cross examination, was more qualified, however.

[39] Mr Tawse was more concerned with the persistent inquiries (2-3 times a month) of the Applicant about his home loan application over the period of a few months (April-June 2012). The Applicant appeared to be unwilling to accept the NAB’s decision not to approve his loan (after initially giving pre-approval at an earlier point prior to the birth of the Applicant's second child) for commercial reasons, and to have been frustrated because of this. There does not seem to have been any aggression in evidence, and Mr Tawse stepped back from using the term “harassment” to describe the Applicant's conduct.

THE DISMISSAL

[40] There was something of a lead-up to the Applicant's dismissal. On 12 June 2012 the Applicant was a “no-show” at an IT meeting to discuss preparations for the tax season. 27 No reason was given for this by way of the evidence.

[41] Following this, and given what it assessed to be an increasing number of IT issues that were unresolved, the Respondent re-engaged Anittel to provide support IT services. 28

[42] On 18 June 2012 the Applicant was said to have been “aggressive” and agitated when Mr Cook requested that he assist staff in setting up an audio visual system in the auditorium. 29 During a team building exercise later that day, the Applicant only provided assistance begrudgingly, which was conduct that attracted comment from external participants.30

[43] On 19 June 2012 there was a planned system shutdown, or at least so it seemed. However, the system could not be restarted the next day and Austax employees were without access to the network for some two hours or so. The Applicant was not at work that day as he was sick. He appears nonetheless to have provided some assistance in attempting to restart the servers from home. According to Mr Bruce of Anittel, who was called in to assist, the server required a re-boot only and was not off-line for any underlying reason or fault. 31

[44] On 22 June 2012, as mentioned above, the Applicant was dismissed from his employment. The Applicant was advised by telephone of his dismissal and correspondence was generated that day to the same effect. 32

[45] The duty to advise the Applicant of the Respondent’s decision was left to Mr Cook as the Respondent has no human resources staff. 33

LEGISLATIVE PROVISIONS

[46] The relevant legislative provisions arise under s.387 of the Act which reads as follows:

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.

CONSIDERATION

[47] The Applicant led no evidence of his own. I am therefore required to consider critically the evidence as led by the Respondent.

(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)

[48] It appears to me that the Respondent's concern about the adequacy of the Applicant's efforts to provide backups of the Austax data was an important consideration in its decision to dismiss the Applicant.

[49] The employment contract does not expressly state that the Applicant’s responsibilities extended to the maintenance and development of the Austax IT system along with that of the Dalle Cort Financial Services IT system. But, as Mr Cook explained under questioning, the Applicant appears never to have questioned the breadth of his responsibilities in this regard.

[50] By his service I am led to presume that the contract the parties formed was intended to cover both the Austax and Dalle Cort Financial Services IT systems. Indeed, in email correspondence tendered in these proceedings, the Applicant is referred to as the manager of the Dalle Cort Financial Services and Austax IT systems. 34 I also note too that the Applicant's job description as attached to his contract of employment does make reference to the Applicant carrying out certain tasks in relation to Austax.

[51] It does not appear to me that there is one single issue that motivated the Respondent to dismiss the Applicant. It would do a disservice to its decision-making to give primacy to one factor over others. The factual matrix as it has emerged from the evidence suggests that the Respondent reached a point at which, because of the cumulative impact of various conduct and performance issues, it lost all confidence in the Applicant’s capacity to perform his job reliably and effectively and to work cooperatively with others.

[52] But did the various reasons for the Respondent's loss of confidence in the Applicant, when viewed objectively, provide a valid reason for his dismissal?

Failure to provide a systems backup

[53] I appreciate that the existence of a reliable system of maintaining offsite backups is essential to the security of the Respondent's business. The Respondent is entitled to be guaranteed that this function would be performed or supervised by its most senior IT employee, and in accordance with his contract of employment.

[54] Further, the Applicant was aware of the importance of backups (as would any IT professional) and had even complained of Anittel’s failings in this regard (which led to the cessation of the contract for service in or about March 2011).

[55] But I do not consider the failure to provide a backup practice that could survive a disaster was itself a valid reason for the Applicant's dismissal, at least at the juncture at June 2012.

[56] Whilst it may be argued that the Applicant had not fulfilled his contract of employment to the letter (in respect of the performance indicator stipulated at Schedule 2, as cited above), there is no reason why that deficiency could not have been the subject of counselling and\or a final warning. As it was, the Respondent's evidence did not persuade me it had actually ever discussed the particular issue of backups with the Applicant at any point. Mr Cook for his part could only recall discussing backup issues in relation to the Anittel service issues raised in March 2011 (which did not concern the Applicant himself). 35

[57] The process of carrying out a tape backup at close of business and taking it home as part of a nightly ritual is a simple business. It is one that can be quickly put into effect on the same day a concern was voiced. Any concern about the Applicant's prioritisation of his duties or the completeness with which he was carrying out the suite of duties in this respect could have been swiftly corrected by means short of dismissal.

[58] I think that the circumstances in respect of the failure to provide a backup of the IT systems in the event of a disaster (for both Dalle Court Financial Services and Austax) warranted correction, but I do not think when considered objectively it provided in its own right a valid reason for the Applicant's dismissal at that particular juncture. Of course, any persistence of failure following an expression of the Respondent's concern would place the Applicant in a wholly different category.

Failure to provide continuity of security for buildings

[59] The Respondent made claim that the Applicant was responsible for the inability to secure the previous and the new premises to which the Respondent shifted in April 2012. According to the Respondent, this arose because of the manner in which the Applicant had modified the operation of the servers in the process of shifting. The Respondent was informed that this was the cause of the security problems by its security provider. 36

[60] That security provider did not give evidence in these proceedings, though it was recognised that the security provider had some measure of technical and operational responsibility for the security system.

[61] Mr Cook did not have any direct technical knowledge himself of what occurred in relation to the relationship between the Respondent’s servers and the security system, let alone whether any issue that arose was the responsibility of the Applicant or a matter that was in his power to affect or which had arisen because of some wilful act or omission or otherwise.

[62] The security events referred to above were no doubt a source of serious concern to the Respondent. But there is not sufficient evidence before me to attribute those security issues to some wilful action on the Applicant’s part.

Performance and Behaviour

[63] The Applicant manifested some other performance and behavioural deficiencies. They are difficult to prise apart.

[64] This is particularly so in respect of the claims that the Applicant failed to prioritise Austax work and gave limited attention to requests for assistance and when he did he provided little feedback. The Applicant's performance in this regard appears to be a result of him being ill-disposed towards Mr Maguire (a view that Mr Cook struggled in his evidence not to share). This caused Mr Cook to assume a mediation role between Austax and the Applicant. Mr Cook, in particular, had sought to address these matters directly with the Applicant, but had observed little discernible improvement in performance or behaviour.

[65] There were other behavioural deficiencies as well, such as occurred in respect of the Applicant’s conduct in response to his inability to obtain a loan, and his attitude towards providing assistance to staff activities on 18 June 2012. In the latter instance, the Applicant was said to have rendered assistance “begrudgingly” and was aggressive. 37

[66] But again, while these are issues of genuine concern that were genuinely held by the Respondent, they do not appear to me to be matters that showed the Applicant had in some manner repudiated his contract of employment, or else become an employee in whom the Respondent could place no trust or confidence at all.

[67] Further, I was not made privy to any of the detail of the alleged discussions and counsellings that were said to have occurred. The performance issues appeared to have been in generalised form and without more (by way of specificity) I am unable to gauge whether they were of such weight and substance that they warranted the Applicant's dismissal. I add that the job register as tended in the proceedings was not of any determinative value in evaluating the extent of the Applicant's actual under-performance as alleged.

[68] Nor were the behavioural issues raised by the Respondent so deeply offensive as to warrant dismissal, though they were an obvious source of frustration to the Respondent. Mr Cook himself had not observed any “aggressive” behaviour and no evidence was led by any other witness in this respect. Further, the Applicant’s conduct in relation to the NAB was concentrated over two or so months only, and was characterised by Mr Tawse as being something more akin to persistence rather than harassment.

[69] Further, while the Respondent had genuine concerns with the status of the IT system in the lead–in to the tax season, other courses of action short of the dismissal of the Applicant might have remedied its concerns. For example, the Applicant could have been given an opportunity, or directed to work with Anittel, to overcome the IT issues backlog, for a period of time upon it being re-engaged after 12 June 2012.

[70] Clearly, if the Applicant had remained uncooperative after such an opportunity was extended (or direction given), the Respondent may have then had a valid reason for his dismissal.

[71] Again, while the Applicant may well have been diffident in respect of his relationship with Anittel, a reluctance to engage external IT support to reduce his personal workload (which was one of the complaints made by the Respondent of the Applicant) does not immediately found a valid reason for dismissal. It is evident from the email tendered by the Respondent 38 that the Applicant had bona fide concerns about the effectiveness of the services that were provided by Anittel. They were shared by the Respondent who complained to Anittel (in March 2011) and as a consequence ceased the managed services contract.

[72] There is no suggestion in the evidence that the Applicant in declining to engage Anittel refused to obey a reasonable and lawful direction of his employer. The matter never appeared to have escalated to this level.

[73] I add that the interaction between the Respondent, the NAB and the Applicant about the provision of a loan facility are matters that have marginal relevance to the employment relationship. Indeed, the nature of those interactions and the involvement of the Respondent are unusual.

[74] There appears to have been a commercial relationship between the NAB and the Respondent and as a result no doubt there were sensitivities of some order arising from the Applicant's conduct in relation to NAB staff. But the issue is not one that has any particularly strong salience in relation to whether the Respondent had a valid reason for the dismissal of the Applicant. And as above, if the Respondent was of the view that it was exposed to reputational risk with the NAB (a difficult argument to sustain given the contractual particulars of the relationship between the bank and the Respondent) it was open to the Respondent to bring these concerns to the attention of the Applicant.

[75] Generally, it is not always an easy thing to discern the point at which an employment relationship transitions from stress to dysfunction. Perhaps it was the Applicant's assertion to Mr Cook that he was entertaining prospects elsewhere and no longer wished to work for the Respondent that closed the Respondent's mind towards the Applicant's future with the business.

[76] Despite this, I am of the view that the level of stress that was in evidence in the employment relationship at June 2012 (even when the various issues are considered in a cumulative context) had not reached an objectively critical point where dismissal was warranted. It may have been likely to do so in short course, but not at that particular juncture. At that particular juncture, given the dimensions of the performance and conduct issues as actually evidenced, other options short of dismissal were more appropriate.

(b) whether the person was notified of that reason

[77] The Applicant was not informed of the reason for the dismissal prior to Mr Cook conveying in writing the decision that had been taken by the Respondent. In this sense, the Applicant was not notified in advance of the reasons for the dismissal, such that he could avail himself of the opportunity to respond to those reasons. The Applicant was informed by a telephone call from Mr Cook that he was to be dismissed and that forthcoming correspondence would explain the reasoning.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[78] The Respondent’s evidence does not generate any material support for any claim that the Applicant, having been notified of the deficiencies in his conduct, in the context of a prelude to dismissal, had been given an opportunity to provide his version of events or to explain his conduct. The Applicant might have wished to expand upon his concerns with his workload.

[79] It follows that the Applicant was not afforded an opportunity to respond to the reasons for his dismissal that related to his capacity and\or conduct.

(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

[80] The circumstances of the dismissal did not provide such an opportunity. The dismissal was conveyed directly by Mr Cook and formalised in written correspondence.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[81] The evidence or Mr Cook and Mr Dalle Cort demonstrates that the Applicant was informed on a number of occasions about the Respondent's concerns with the IT system, and was provided an option to seek the assistance of Anittel. The evidence does not travel so far as to suggest that the Applicant on these occasions was being “warned” about his unsatisfactory performance in the context of threatened dismissal.

[82] Equally so, however, the Applicant would have been under no illusion that the Respondent expected improved outcomes in nominated areas and had express concerns about the Applicant's performance of his duties in a general sense at least.

(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

[83] The Respondent's size (there are about 50 employees) is not such that it was likely to impact on the procedures followed in the dismissal process. Nothing was put to me in this regard in any event.

(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

[84] The Respondent is not a large employer (more a small to medium size employer) and Mr Cook, the Operations Manager, gave evidence that because of the absence of human resource management specialists he was left with the task of effecting the Applicant's dismissal. But here again nothing in the evidence points me to any particular consequence about which I should take note. Indeed, Mr Cook struck me in the witness box as being alive to contract and employment issues.

(h) any other matters that FWA considers relevant.

[85] The Applicant had been employed for a period of almost 6 years. He was dismissed before having any opportunity to respond to the concerns that his employer had come to harbour about his performance and conduct by mid June 2012. I have mentioned as much above. This, along with my other observations bearing on procedural fairness, suggests to me there was an element of harshness in the manner in which the Applicant was dismissed.

CONCLUSION

[86] Given the above discussion, and on balance, the Applicant in my view was dismissed on terms that were harsh, unjust and unreasonable.

[87] Because I have reached this finding, I must consider the options for remedy.

REMEDY

[88] Section 390 of the Act reads as follows:

DIVISION 4—REMEDIES FOR UNFAIR DISMISSAL

390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA 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) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

[89] The Applicant is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise a discretion as to whether the Applicant can be reinstated. Section 391 of the Act provides as follows:

391 Remedy —reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

[90] I have no evidence before me of the Applicant's views of the prospect of reinstatement. He has led no evidence in these proceedings in relation to remedy whatsoever.

[91] I do know from the materials before me that the Applicant has obtained employment and did so relatively quickly after his dismissal. The Applicant's legal representative has informed me at the hearing that the employment relationship is ongoing on the remuneration basis set out below.

[92] The Applicant's first payslip from his subsequent employer was for the pay period commencing 9 July 2012. It appears that the Applicant was in paid employment within a 17 day period following his dismissal by the Respondent, and remains so.

[93] The evidence before me shows that the Applicant had difficulties in his relationship with the Respondent on a number of fronts, both behavioural and performance, and that the Respondent had reached a view that it had no confidence in the Applicant’s capacity to render the services under the contract of employment. The Respondent has even less confidence in the Applicant's ability to provide services into the future (given the Applicant's admission in this regard as revealed in Mr Cook’s evidence). The fact, as made out in Mr Cook’s evidence, that the Applicant held a negative view about continuing his employment relationship with the Respondent, and had stated he could not work with Mr Maguire is a relevant consideration as well.

[94] I am inclined in such a set of circumstances (including where the Applicant has not pressed any preference for a particular form of remedy and seemingly has secured ongoing employment) not to reinstate the Applicant. On balance I think it would be inappropriate to reinstate the Applicant, and reinstatement would be unlikely to result in a cooperative and productive working relationship over time in any event.

[95] Because I have found it would be inappropriate to reinstate the Applicant to his prior position or (for the same reasons) to appoint the Applicant to a commensurate position (which would not exist in the Respondent's business in any event), I must consider the option of compensation. Section 392 of the 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), 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.

[96] In respect of the above matters that I must take into account I find as follows:

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

There is no evidence that any order I might make for compensation would in some manner affect the Respondent's viability.

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

The Applicant was employed for almost 6 years with the Respondent, and as such would be taken to have consolidated his employment. This is a circumstance that encourages me to make an order for compensation should the wider circumstances permit.

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

The Applicant's employment is unlikely to have endured for any lengthy period at all. There were numerous issues between the parties (as set out), the Applicant demonstrably on the above evidence was disillusioned with the Respondent, could not work with Mr Maguire, revealed uncooperative conduct and, according to Mr Cook, had also made comments that suggested that he (the Applicant) was considering an alternative position elsewhere and no longer wished to work for the Respondent. Indeed, there might be some scope for an inference to be drawn from the evidence of Mr Cook and the Applicant's payslips with his new employer that the Applicant had made the application for his current position prior to such time as being dismissed from his employment.

That all said, I am of the view the Applicant would only have remained in employment with the Respondent for a further one month only (until around 27 July 2012), at the very best, given what appears to me on the available evidence to have been the parties’ mutual disenchantment with one another.

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

On the face of the statutory declaration before me, as I requested to be provided, it is evident that the Applicant obtained paid employment quite promptly after his dismissal, and has remained in full time paid employment. The Applicant made substantial effort therefore to mitigate his losses.

(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

As mentioned above, the Applicant was requested by me to provide a statutory declaration as to his earnings since the dismissal. That declaration indicated that the Applicant had received the following remuneration in gross terms (exclusive of superannuation):

Payment in lieu of notice = $5,384.62

For the two week period 9 July 2012 - 13 July 2012= $1057.69

For the two week period 14 July 2012 - 27 July 2012= $2,115.38

For the two week period 28 July 2012 - 10 August 2012= $2,115.38

For the two week period 11 August 2012 - 24 August 2012= $2,521.23

For the two week period 25 August 2012 - 7 September 2012= $2,115.38

For the two week period 8 September 2012 - 21 September 2012= $2,288.53

Further remuneration was received for the subsequent period up until the time of the making of the order.

(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

This is not a matter that requires any consideration as it is irrelevant to these proceedings. The order as made below specifies that payment must be made no later than seven days from the date of the order. There is insufficient certainty as to the time within that seven day period on which the payment is to be made for me to take into account a precise quantum of projected earnings. If the order did not need to be complied with for a longer period of time, then this statutory concern would warrant attention.

(g) any other matter that FWA considers relevant.

Section 392(3) of the Act provides as follows:

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.

I discern in the evidence some low level misconduct on the part of the Applicant (in rendering assistance and support to others, for example) and perhaps something more in the Applicant’s dealings with Mr Cook over his attempts to source a loan from the NAB. But none of this conduct, to the extent it has been revealed in the evidence, is at the higher end of the behavioural spectrum such that it attracts the application of this section of the Act, at least.

I see no reason, therefore, to discount the Applicant’s compensation.

Section 392(4) of the Act provides as follows:

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.

My order for compensation makes no allowance for the above proscribed matters or considerations.

[97] Section 392(5) of the Act provides as follows:

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.

[98] Section 392(6) of the Act provides as follows:

(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.

[99] The order that I propose to make is unaffected by the operation of the statutory cap as cited.

[100] Section 393 of the Act provides as follows:

393 Monetary orders may be in instalments

To avoid doubt, an order by FWA under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.

[101] The Respondent has made no application in the course of these proceedings to pay any amount I may order to be paid as compensation in instalments.

CONCLUSION IN RELATION TO REMEDY

[102] The Respondent made a payment of four weeks’ pay to the Applicant at the point of dismissal, as a separate amount to the outstanding wages and undischarged accrued liabilities.

[103] This amounted to a gross sum of $5,384.62 (which was subject to taxation and said by the Applicant to be an amount in lieu of four weeks’ notice and acknowledged as such in the Applicant’s statutory declaration regarding earnings). Even though acceptance of this amount was said to be subject to conditions (which seemingly were not accepted by the Applicant), the purpose of the payment (which has been retained by the Applicant) was said to be payment in lieu of four weeks’ notice. The unchallenged evidence of Mr Dalle Cort was that the Respondent had no intention of seeking recovery of the monies paid as payment in lieu of notice.

[104] I cannot in such circumstances reasonably disregard the payment accepted by the Applicant as not being a source of remuneration that the Act requires that I take into account or otherwise a payment to which I should not have regard in relation to deriving an amount in compensation. The payment was a payment for the purposes of payment in lieu of notice and accepted by the Applicant as such. The only evidence I have from the Applicant (by way of his statutory declaration) is that he was paid the relevant amount as a payment in lieu of notice (and not for some other purpose).

[105] The combined amount of remuneration from all sources for the one month period of anticipated employment (inclusive of the notice payment) from the date of the Applicant’s dismissal was $8,557.69 (gross, exclusive of superannuation).

[106] The Applicant's fortnightly remuneration (exclusive of superannuation) with the Respondent was $2,692.31 (gross, exclusive of superannuation). I derive this from the adjusted contractual annual salary of $70,000 per annum (gross, exclusive of superannuation).

[107] Had the Applicant performed his duties for the Respondent for a period of a further 4 weeks (1 month) or 2 fortnightly pay cycles, he would have earned $5,384.62 (gross, exclusive of superannuation).

CONTINGENCIES

[108] I point out that I have made no deduction for contingencies. I do not discern in the modern era where employees have access to a variety of paid entitlements (relating to species of leave) that I can reasonably make deductions on the basis of some foreseeable period (the anticipated period of employment) in which the Applicant might not have been paid. This was not a place of work, I add, that appeared to exhibit some pattern of industrial action (such that the Respondent would have cause not to pay the Applicant in the foreseeable future). Nor do the circumstances demonstrate that the Applicant was to embark on a period of unpaid absences at a known point or otherwise been engaged as a casual employee or exposed to any period of unemployment during the anticipated period of employment (that he would have enjoyed but for the dismissal.

CONCLUSION ON REMEDY

[109] In such circumstances as these, where the Applicant's remuneration (for the anticipated period of employment) from all sources after his dismissal is more than the amount of remuneration he would have received for the same period of time had he remained in the Respondent's employment, I consider no order for compensation should be made.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr D. Leakey, solicitor for the Applicant

Mr B. Marr, solicitor for the Respondent

Hearing details:

2012.

18, 19 October.

Townsville.

1 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498.

2 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 44.

3 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 90.

4 Witness statement of Mr Andrew Cook dated 21 September 2012 at PNS 65-71.

5 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 45; Witness statement of Mr Isi Dalle Cort dated 14 September 2012 at PNS 5-6.

6 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 47.

7 Witness statement of Mr Andrew Cook dated 21 September 2012 at PNS 82-83.

8 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 25.

9 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 33.

10 Witness statement of Mr Joel Bruce dated 13 September 2012 at PN 13; Transcript of proceedings dated 18 October 2012 at PNS 813-816.

11 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 25.

12 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 57.

13 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 58.

14 Witness statement of Mr Andrew Cook dated 21 September 2012 at PNS 8, 50; Witness statement of Mr Isi Dalle Cort dated 14 September 2012 at PN 7.

15 Witness statement of Mr Andrew Cook dated 21 September 2012 at PNS 16, 49; Witness statement of Mr Isi Dalle Cort dated 14 September 2012 at PN 6.

16 Witness statement of Mr Andrew Cook dated 21 September 2012 at PNS 72-75; Witness statement of Mr Isi Dalle Cort dated 14 September 2012 at PN 9.

17 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 36.

18 Witness statement of Mr Andrew Cook dated 21 September 2012 at PNS 54-56.

19 Witness statement of Mr Andrew Cook dated 21 September 2012 at PNS 78-81

20 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 97; Transcript of proceedings dated 18 October 2012 at PN 978.

21 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 101.

22 Witness statement of Mr Gerry Maguire dated 14 September 2012 at PNS 6-7.

23 Witness statement of Mr Gerry Maguire dated 14 September 2012 at PN 8.

24 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 61.

25 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 76.

26 Witness statement of Mr Wayne Tawse dated 17 September 2012 at PNS 5, 8.

27 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 78.

28 Witness statement of Mr Andrew Cook dated 21 September 2012 at PNS 78-81.

29 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 82.

30 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 83.

31 Transcript of proceedings dated 18 October 2012 at PN 856.

32 Witness statement of Mr Andrew Cook dated 21 September 2012 at PNS 90, 92.

33 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 96.

34 Witness statement of Mr Andrew Cook dated 21 September 2012 - Exhibit 2.

35 Transcript of proceedings dated 18 October 2012 at PN 991.

36 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 69.

37 Witness statement of Mr Andrew Cook dated 21 September 2012 at PN 83.

38 Witness statement of Mr Andrew Cook dated 21 September 2012 - Exhibit 2.

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