Mr Richard James Dobie v Goondi Hill Hotel

[2011] FWA 4444

[2011] FWA 4444

FAIR WORK AUSTRALIA

DECISION

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

Mr Richard James Dobie
v
Goondi Hill Hotel
(U2010/11983)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 25 JULY 2011

Summary: jurisdictional issues – whether repudiation - misconduct - female school-based apprentice – summary dismissal - small business code - whether harsh, unjust etc – summary dismissal warranted

[1] The Applicant, Mr Richard Dobie, filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”) on 27 August 2010. The Respondent was the Goondi Hill Hotel in Innisfail, Queensland.

[2] The Applicant was employed by the Respondent on 6 July 2009 as a chef, and appears to have been paid at a casual rate of pay.

[3] His employment came to an end (in circumstances that are set out below) on either 22 or 23 August 2010.

[4] The lengthy period between the filing of the application for a remedy and this hearing principally is because of the lengthy delay in the Applicant filing a completed application form with Fair Work Australia (“FWA”). The application was filed by facsimile (on 27 August 2010), but was missing the second of three pages. It appears the application was not further processed (which includes the notification of the Respondent of the application) until the Applicant provided a complete application form. This did not occur until November 2010.

[5] The reason for this delay is uncertain. It further appears that FWA sought to correspond with the Applicant on 30 August 2010 about this omission. The Applicant states he received no such correspondence. He claims, instead, that he telephoned FWA on 30 August 2010 (the same day the FWA service team apparently directed the above correspondence to him) to confirm the receipt of his application, which he did so successfully.

[6] Notwithstanding this, FWA subsequently corresponded with the Applicant once again on 28 October 2010 (and included a copy of the correspondence of 30 August 2010, it appears). Only after this time, when the Applicant was alerted to the missing page, did he provide the original to FWA. On receipt of the completed application, FWA then took the step of further processing his application.

[7] Consequently, the Respondent was not informed by FWA of the existence of the application under s.394 of the Act until November 2010, more than three months after the cessation of the Applicant's employment.

[8] I set these details out as it appears there has been some potential for confusion as to whether the application was made within the prescribed time period. This confusion arises because the Respondent did not know of the existence of the application until a time well after the 14 day period within which an application must be made to FWA for purposes of compliance with s.394(2)(a) of the Act.

[9] Upon this chronology being articulated, the Respondent was satisfied (as was I) that the application was made on 27 August 2010, within the 14 day period, and no issues arose as to its jurisdictional competence, at least for purposes of s.394(2)(a) of the Act.

[10] I add that the hearing of this matter was further delayed for reason of familial issues, and the effect of Cyclone Yasi, which caused the Applicant to move to Melbourne to obtain new employment (an endeavour in which he was successful). Further delay was caused by personal circumstances affecting the Respondent’s representative.

[11] These matters now dealt with, I turn to the application (which gives rise to a further jurisdictional objection, which is set out and determined below).

[12] The factual matrix, as it is said to be by way of the Respondent's evidence, is as follows.

[13] Over the course of July and August 2010 the Applicant's personal behaviour at work deteriorated.

[14] Ms Gail Simpson, the Hotel Manager and Director of the Respondent, recalled that on two or three occasions during this period she had cause to speak to the Applicant about a number of behaviour related concerns. These included:

• Yelling at co-workers in the kitchen;



• Being abusive to co-workers;



• Using offensive language;



• Conducting personal conversations on the telephone in the hearing range of co-workers and restaurant patrons;



• Taking about personal aspects of his personal relationships within hearing range of a female, under-age school-based apprentice Chef (Ms Nancy Horton).

[15] Ms Gail Simpson received complaints from Ms Horton’s father concerning the Applicant's conduct towards his daughter. After one occasion in early August 2010, the Applicant had been alerted to the complaints.

[16] Ms Gail Simpson’s evidence was that after she had discussed the complaint with the Applicant, his behaviour moderated towards Ms Horton. But after a short while, it again deteriorated. This was evidenced by Ms Horton’s inability to attend work (on or about 20 August 2010) owing to an unspecified illness. Ms Gail Simpson took this to be a reference to the Applicant's conduct towards Ms Horton. Ms Horton’s evidence confirmed Ms Gail Simpson’s suspicion. Ms Horton’s evidence was that the Applicant had again begun to “yell” at her in the kitchen.

[17] According to Ms Gail Simpson, at this same time, the Applicant also began failing to comply with repeated directions from her to not purchase food stocks at a nearby convenience store, where prices were relatively high compared to the larger supermarkets.

[18] On 22 August 2010 Ms Gail Simpson called the Applicant to a meeting in the beer garden and raised with him her concerns about food stock purchases and his behaviour towards other employees.

[19] According to Ms Gail Simpson the Applicant responded aggressively to her comments about his behaviour and demanded to know the identity of the person or persons who had complained about him. At this point, Ms Gail Simpson’s evidence was that the Applicant stood up in front of her and pointed his finger at her and spoke in aggressive terms.

The Applicant yelled whilst aggressively pointing his finger at me “I’m outta here. You are going down, I will see you in court.” I felt threatened by the Applicant's aggressive physical gestures and yelling. I replied in the heat of the moment “Good. Go.”

[20] After this the Applicant, according to Ms Gail Simpson, returned to the kitchen and stated to another co-worker, Mr Zain Garing (an apprentice chef) that he had been “fu..ing sacked”.

[21] Ms Gail Simpson, who had followed the Applicant into the kitchen, responded to this claim by stating that the Applicant had not been sacked at all. Mr Garing’s evidence was to the same end - that Ms Gail Simpson had rejected the Applicant’s assertion that she had acted to dismiss him. Following this initial exchange:

The Applicant continued to yell and act aggressively towards me. He told me that “I will get you for unfair dismissal. I’ll see you in court. You are going down lady.” I again told the Applicant that “You have not been sacked”.

[22] Both Ms Renee Simpson and Mr Garing gave evidence that they had also heard Ms Gail Simpson inform the Applicant that she had not dismissed him.

[23] Ms Gail Simpson’s further evidence was that she had had no intention to dismiss the Applicant at the meeting and sought instead to re-direct his behaviour. She further contended that she had a self-interest in retaining the Applicant in the Respondent's employment, as it was very difficult to source qualified chefs in the Innisfail area.

[24] It appears from Ms Gail Simpson’s evidence and that of her daughter, Ms Renee Simpson, that the exchanges thereafter took on a more personal tone, with the Applicant making comment upon Ms Gail Simpson’s marital arrangements and mental health. Ms Renee Simpson was working in the front bar at the time and entered the kitchen having overheard the incident (as had restaurant patrons) and defended her Mother. The Applicant made personal comments about Ms Renee Simpson’s social status, referring to her as a “lowey”, and stating that she had made nothing of her life and possessed no trade. Mr Garing’s evidence corroborated the evidence of both Ms Gail Simpson and Ms Renee Simpson in these latter regards. His evidence also attested to the “aggressive” nature of the Applicant's conduct in pointing at Ms Gail Simpson and yelling.

[25] The Applicant's language, according to the evidence of Ms Gail Simpson, was replete with constant references to a strong expletive and he was said to have made “wildly gesticulating” arm movements. This, again, was reflected in the evidence of Ms Gail Simpson, Ms Renee Simpson and Mr Garing. Ms Gail Simpson stated that she feared for her personal safety.

[26] Ms Renee Simpson, at the direction of her Mother, then called the Police to ensure that the Applicant would leave the premises peacefully. Thereafter, the Applicant was said to have stood in front of the Hotel entrance informing patrons as they arrived that there was no food in the restaurant. It appears as though the Applicant left the premises as this call to the police was conducted.

[27] A statement was later given to Police on their arrival at the premises and the incident number formed part of Ms Gail Simpson’s evidence.

[28] Sometime later, on 23 August 2010, the Applicant returned to the Respondent's premises and sought a certificate of separation, which was provided by Ms Gail Simpson. That certificate indicated that the Applicant had been dismissed for misconduct, and referred to his “rude” behaviour to his employer and to other staff members.

[29] As part of her evidence, Ms Gail Simpson claimed that the Applicant had been apprised of the Respondent's policies and on 18 June 2010 had signed off in recognition of being provided with a copy of these policies.

[30] Amongst these policies was a policy headed “Inappropriate Behaviour/Language”. That policy reads as follows:

Inappropriate Behaviour\Language

All employees have a right to work in conditions that they find conducive and comfortable. Aggressive, loud, lewd, obnoxious and offensive behaviours and language may be considered inappropriate in workplaces where there is a mix of age groups, cultures and genders.

Employees are expected to adhere to accepted community standards of behaviour and language in the workplace. Language and behaviour which could be considered offensive by any other person will be grounds for counselling, and continued inappropriate behaviour or language will result in disciplinary actions being commenced against offenders.

[31] The Applicant’s version of the factual matrix is profoundly different to that provided by the Respondent which has been set out above.

[32] The Applicant claims, at least in his witness statement, that he was called to a meeting by Ms Gail Simpson and his employment was terminated without explanation. Though he claimed to have repeatedly requested that Ms Gail Simpson provide reasons for his dismissal when he had been such a proficient Chef, he stated that Ms Gail Simpson would provide no further information.

[33] The Applicant's evidence under cross-examination, however, did reveal that Ms Gail Simpson did explain to him that she was concerned by the quality of his interactions with other co-workers. The Applicant's view was that he provided leadership and education in the kitchen and, in effect, that this should not be mischaracterised as aggressive or abusive behaviour.

[34] The Applicant claimed that upon being dismissed by Ms Gail Simpson, he left the Hotel without incident.

[35] The Applicant’s evidence was that it was not until Ms Gail Simpson had provided him with a separation certificate, on 23 August 2010, that the Applicant discovered that the reason for his dismissal was misconduct.

[36] The Applicant claimed that he had financial difficulties and his partner was soon to give birth at the time of the dismissal. In these circumstances, it was unreasonable to assume that he would have placed his employment in jeopardy.

[37] Further, he claims that Ms Gail Simpson, by informing Centrelink that his employment had ceased owing to misconduct, had caused him financial hardship.

CONSIDERATION

[38] Elemental to a consideration of the circumstances of this matter is whether there was a termination at the initiative of the employer, such that the application was jurisdictionally competent. In order to determine whether the application was jurisdictionally competent, it is necessary to consider whether there was a termination at the initiative of the employer.

[39] Section 385 of the Act reads as follows:

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.

[40] Section 386 of the Act reads as follows:

386 Meaning of dismissed

(1) A person has been dismissed if:

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

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

[41] Before turning to this jurisdictional concern, I will make some comments about the underpinning evidence.

[42] It appears to me that on the evidence of Ms Gail Simpson, the Applicant responded aggressively to allegations (in particular) about his further misconduct in relation to his co-workers. I accept Ms Gail Simpson’s evidence in this regard. I accept her evidence because Ms Gail Simpson contended consistently that she had raised with the Applicant her concerns about his interactions with co-workers. The Applicant, however, only came to concede that this had been raised with him under cross examination. Before that time the Applicant had only contended in his written evidence that Ms Gail Simpson had given him no reason for his dismissal, and the absence of any reasons was the primary issue in their interactions in the beer garden meeting. The fact that Ms Gail Simpson’s evidence provided a continuous narrative leads me to prefer Ms Gail Simpson’s evidence about the content of the meeting over that of the Applicant.

[43] My view in this regard is bolstered by Ms Gail Simpson’s description of the Applicant's conduct. The conduct Ms Gail Simpson claims the Applicant demonstrated in the meeting (which amounted to speaking aggressively and pointing at her) was conduct of the same kind (as further discussed below) that the Applicant demonstrated in the kitchen, which was witnessed by Ms Gail Simpson, Ms Renee Simpson and Mr Garing. That is, Ms Gail Simpson’s evidence was consistent with that of other witnesses.

[44] Turning now to the jurisdictional issue; it might be contended that the Applicant effectively repudiated his employment contract by stating he was leaving his place of work by claiming that he was “outta here” after Ms Gail Simpson had raised her concerns about his conduct in relation to other staff.

[45] This conduct might provide the basis, in other circumstances, for a reasonable person to infer that the Applicant no-longer wished to be bound by any element of his contract of employment. The Applicant's repudiation or renunciation of his contract of employment could be said to have been immediately accepted by Ms Gail Simpson, who, during the exchange in the beer garden meeting, stated “Good. Go”.

[46] But the evidence does not tend this way. Under cross examination, Ms Gail Simpson stated that when she said “Good. Go”, she did not know whether the Applicant was just leaving work for the day or whether he had resigned his position. It is therefore not possible to find that at that time, in responding to the Applicant’s intention to leave work, Ms Gail Simpson had intended to accept the Applicant's conduct in repudiation (which amounted to his refusal to be bound by an essential element of that contract any longer, being his intention to be present to provide the service in performance of the contract itself). No conclusion can be reached because Ms Gail Simpson was uncertain in her own mind at the time as to how to interpret the Applicant's conduct.

[47] It appears to me that the better characterisation of the events is that once the Applicant approached Ms Gail Simpson the following day, and requested that she provide a Certificate of Separation, Ms Gail Simpson acted to accept the Applicant's repudiation of his contract of employment and the employment relationship at this juncture. It was entirely evident from this point, having regard to the prior conduct as well, that the Applicant no longer wished to be bound by his contract. But what had changed from the time the comment had been made by the Applicant that he was “outta here” to this point?

[48] What had changed was the cumulative evidence of the intention on the Applicant's part that he no longer sought to be bound by his employment contract. Other than stating he was “outta here”, he had:

• stated that he intended to pursue legal proceedings against his employer on the basis he believed himself to have been dismissed;



• repeatedly been informed that his employment had not been terminated, but had not altered his disposition;



• spoken in aggressive and demeaning terms to his employer and staff (as further explored below); and



• having left his place of work during his shift, presented the following day requesting a separation certificate.

[49] This conduct is sufficient in my view for a reasonable person to conclude the Applicant no longer wished to be bound by his employment contract.

[50] My findings in this regard are undisturbed by the fact that Ms Gail Simpson completed the Separation Certificate on 23 August stating that the reason for the “separation” was misconduct on the Applicant's part (that he had been “rude” to his employer and staff and would “not listen to reason”). The Applicant placed great store on this certificate as providing evidence of his dismissal at his employer’s initiative.

[51] It is entirely reasonable that, given the above circumstances, Ms Gail Simpson would have filled in the Separation Certificate in the manner she did. Having done so in the terms provided for in the certificate is not determinative of the employer having dismissed the Applicant at its initiative.

[52] On the basis of this conclusion reached above, the application now before me cannot be said to be within jurisdiction. This is because, on the evidence before me, there was no termination at the initiative of the employer, which s.385 and s.386 of the Act makes clear is a precondition to an application for an unfair dismissal remedy.

[53] Even if I am wrong in my approach in relation to the jurisdictional status of the application as I have set it out above, in my view the Applicant’s conduct in the totality of the circumstances would not have rendered the dismissal harsh, unjust or unreasonable.

[54] The Respondent in this matter is bound by the small business code, which applies to the Respondent for reason that it employed, at the relevant time, fewer than 15 full time equivalent employees.

[55] Section 388 of the Act only requires that the employer, in effecting a summary dismissal, have reasonable grounds that the employee’s conduct justifies immediate dismissal.

[56] Did Ms Gail Simpson have reasonable grounds for summarily dismissing the Applicant in the beer garden as the Applicant alleges, assuming she in fact did so?

[57] This scenario presupposes that Ms Gail Simpson might have dismissed the Applicant summarily for reason of his continued conduct in relation to Ms Nancy Horton, the school-based apprentice chef. This scenario presupposes, further, that the Applicant was not dismissed for reason of his threatening conduct as discussed above, but for prior conduct. The Applicant's amended claims (in which he conceded that the issue of his conduct was raised by Ms Gail Simpson at the meeting of 22 August 2010) appear to advance an argument in support of a dismissal in this context.

[58] The evidence led by Ms Gail Simpson in this regard was that she had spoken to the Applicant about yelling at staff in the period July 2009 to August 2010. In early August 2010, a complaint was received from Ms Horton’s father that the Applicant had been yelling at his daughter and she had refused to come to work. After this complaint Ms Gail Simpson again spoke to the Applicant about his behaviour. The matter fell into abeyance for 2 weeks, but Ms Gail Simpson again observed herself that the Applicant had begun yelling at Ms Horton again.

[59] Shorty thereafter, Ms Horton’s father again communicated with her to the effect that his daughter was again refusing to come to work.

[60] Ms Gail Simpson reached a view on her evidence that “this was likely due to the Applicant's adverse behaviour towards Nancy Horton”.

[61] In my view, had Ms Gail Simpson summarily dismissed the Applicant for this reason alone, and before he had exhibited any threatening behaviour towards her, then her decision in this regard would have been consistent with the requirements of the small code. I reach this view because Ms Gail Simpson would have had reasonable grounds for concluding that the Applicant's pattern of behaviour was unlikely to cease and her duty of care reasonably commandeered her to dismiss the Applicant immediately. The evidence that supports this conclusion is:

• The Applicant had been previously spoken to about his conduct in yelling at staff;



• The Applicant had been spoken to for yelling at Ms Horton;



• The Applicant had again begun to yell at Ms Horton;



• Ms Horton had again stopped coming to work as she was “too sick”; and



• It was reasonably presumed that the Applicant was the cause of Ms Horton’s illness.

[62] Ms Gail Simpson’s presumption about the reasons for Ms Horton’s conduct was well borne out, I should add. Ms Horton’s evidence in these proceedings indeed was that she had ceased to come to work in August 2010 because of the Applicant's conduct towards her.

[63] For reasons of completion, I will assume that I am wrong on the jurisdictional point considered above, and that I am wrong in my finding that the small business code applied to the Respondent at the relevant time. I will further presume that the Respondent had not complied with the small business code in respect of either “summary dismissals” or “other dismissals”. On the basis of that the application was within jurisdiction and s.388 of the Act did not apply (for whatever reason), s.387 of the Act is enlivened and the Applicant may seek relief on the grounds his dismissal was allegedly harsh, unjust or unreasonable.

[64] The relevant legislative provisions in this regard arise under s.387 of the Act, 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.

Section 387(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)

[65] In my view, the evidence proffered by Ms Gail Simpson, Ms Renee Simpson and Mr Garing is to be preferred to that of the Applicant. The Applicant's assertion that he left the Hotel without any demonstration or incident is not credible. The evidence of Ms Gail Simpson, Ms Renee Simpson, Ms Horton and Mr Garing is interlocking and mutually corroborative. They attest candidly, and without suggestion of concoction, to the prior misconduct (particularly in relation to Ms Horton), the incident of 22 August 2010, the relevant exchanges and the aggressive language used and demeaning commentary by the Applicant in those exchanges. I have set out these exchanges out above.

[66] Whilst one might reasonably question the objectivity of Ms Renee Simpson’s evidence, given Ms Gail Simpson is her mother, I could not question Mr Garing’s evidence. Mr Garing, demonstrably, held no ill will against the Applicant, and only gave his evidence reluctantly. That evidence corroborated that of Ms Renee Simpson, in that it cast the Applicant as the aggressor in the exchanges that occurred in the kitchen on 22 August 2010 and indicated that the Applicant had spoken in demeaning and threatening terms to Ms Gail Simpson and to Ms Renee Simpson, but had otherwise been informed that his employment had not been terminated.

[67] The Applicant's conduct on 22 August 2010, adduced from the above evidence, appears to form part of a pattern of conduct characterised by strong, impulsive reactions to other people’s perceived shortcomings, and an insensitivity to the effects of his own behaviour on others.

[68] Ms Horton’s evidence, taken under some stress on her part, was that the Applicant’s conduct had caused her very considerable anxiety over time. This appeared to be because of the personalised and aggressive tone by which he ran the kitchen. I have set these claims out above. Ms Horton was 15 years of age and a school-based apprentice at the time she served in the kitchen with the Applicant.

[69] Mr Garing’s evidence under cross examination by the Applicant supported Ms Horton’s evidence in so far as he provided from memory a list of employees who had been emotionally affected, in a negative way, by exposure to the Applicant's conduct in the kitchen.

[70] I have no doubt that the Applicant believed that his manner of interacting with others in the workplace was properly motivated, seemingly by a desire to impart knowledge and set kitchen performance standards. But as the Respondent’s policies make clear, employees must exhibit reasonable self-control and an empathetic perspective, particularly in an age and gender diverse work area.

[71] The further evidence in this case does not assist the Applicant. The Applicant's written statement suggested there was no incident whatsoever after his meeting with Ms Gail Simpson on 22 August 2010, and that Ms Gail Simpson had merely dismissed him, without reason, and this caused him to leave his place of work. On the evidence available, this is an untenable characterisation of the events of Sunday, 22 March 2010.

[72] The evidence I have accepted demonstrates that the Applicant initiated a series of aggressive and demeaning exchanges. There is no surprise, in my view, that Ms Gail Simpson requested her daughter to contact the Police. Further, it is not conceivable that the Police would have been called as a mere device to fabricate misconduct on the Applicant's part (which is the only possible explanation if one were to accept the Applicant’s evidence that he left the premises without any incident whatsoever).

[73] On the basis of my discussion of the evidence above, the Applicant’s misconduct over the course of his employment, and as it was evidenced in particular on 22 August 2010, was sufficient in any event to establish a valid reason for the dismissal (should that have occurred at the initiative of the employer). The Applicant had not been able to maintain ordinary civilities in his interactions with other employees, and this was especially so in relation to Ms Gail Simpson, Ms Renee Simpson and Ms Horton.

Section 387(b) and s.387(c) of the Act: whether the person was notified of that reason and whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[74] The Applicant conceded in cross examination that Ms Gail Simpson had raised the issue of his relationship with his fellow co-workers at the commencement of the meeting in the beer garden. I would by necessity, therefore, have to find that the reason for the dismissal (should it have occurred at that juncture as the Applicant claimed) was sufficiently alluded to by Respondent for the purposes of s.387(b) of the Act. For purposes of s.387(c) of the Act, I am of the view that the Respondent provided the Applicant with an opportunity to respond to the allegation. However, for reason of his aggressive response to the allegation when it was put to him, the Applicant denied himself the capacity to avail himself of that very opportunity.

Section 387(d) of the Act: any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[75] For purposes of s.387(d) of the Act, because of the nature of the Applicant's conduct as set out above, there cannot be said to have been any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal.

Section 387(e) of the Act: if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[76] For purposes of s.387(e) of the Act, it is necessary to consider if the dismissal related to unsatisfactory performance by the Applicant and whether the Applicant had been warned about that unsatisfactory performance before the dismissal. This was not a case that was relevant to performance. Indeed, if it needs to be said, the Applicant's performance of his duties was prized by the Respondent, as it was difficult to source his skills locally.

Section 387(f) of the Act: the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[77] For purposes of s.387(f) of the Act, I need to consider if the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal. The circumstances of this case did not invite submissions on this point.

Section 387(g) of the Act: 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

[78] For purposes of s.387(g) of the Act I need to consider 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. Again, the circumstances of this case did not invite submissions on this point.

Section 387(h) of the Act: any other matters that FWA considers relevant

[79] For purposes of s.387(h) of the Act, I need to consider any other matters that FWA considers relevant.

[80] The Applicant claims that the cessation of work caused him and his partner hardship, and he was required to obtain alternative employment. But this is not an unusual circumstance by any means.

[81] On the basis of the above discussion of the evidence and the relevant statutory matters to which I need to have regard, I find that the dismissal of the Applicant, so far as it occurred at the initiative of the Respondent and s.388 of the Act did not apply, was not harsh, unjust or unreasonable for purposes of s.387 of the Act.

CONCLUSION IN SUMMARY

[82] For the reasons I have given above, I have concluded that there was no dismissal of the Applicant at the initiative of the employer. Consequently, for purposes of s.385 and s.386 of the Act, the application is not competent and must be dismissed.

[83] If I am wrong in this respect, and the Applicant was dismissed by his employer at the meeting of 22 August 2010, the employer had acted in conformity with the summary dismissal provisions of the small business unfair dismissal code. Further, even if the application had been jurisdictionally competent, and s.388 of the Act did not apply (for whatever reason) the application under s.394 of the Act would have been dismissed nonetheless as the dismissal would not have been harsh, unjust or unreasonable for purposes of s.387 of the Act.

[84] The application is therefore dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr R. Dobie for Himself

Mr C. Lentini and Ms J. Minchinton for the Respondent

Hearing details:

2011.

Cairns Family Law Courts.

July 4 and 5.

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<Price code C, PR511452>