Mr Ronald Jasen Worth v Sunshine Sydney Pty Ltd Trading as the Big Pineapple
[2010] FWA 9332
•15 DECEMBER 2010
[2010] FWA 9332 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ronald Jasen Worth
v
Sunshine Sydney Pty Ltd Trading as The Big Pineapple
(U2010/1186)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 15 DECEMBER 2010 |
Termination of employment.
[1] This matter was heard on Tuesday 16 November 2010 in Brisbane.
[2] Mr Worth represented himself. He appeared with his step father as a support person. He was somewhat emotional in his presentation. The respondent, Sunshine Sydney Pty Ltd trading as The Big Pineapple, was represented by Mr Edwards. Mr Edwards is the Manager of The Big Pineapple.
[3] There was no issue in this matter as to whether or not the applicant had been dismissed. Mr Edwards agreed that he had summarily dismissed Mr Worth from employment on 21 July 2010. I am satisfied that Mr Worth’s employment was terminated at the initiative of his employer.
[4] I am required to take into account the criteria set out below in resolving the application before me:
“Section 387
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.”
[5] For the purpose of considering remedy, if appropriate, the following provisions apply:
“Section 390
(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.
391 Remedy—reinstatement etc.
Section 391
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:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(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.
Order to restore lost pay
(3) 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 cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:
(a) 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 reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
Section 392
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.”
[6] Mr Worth’s evidence regarding the reasons Mr Edwards gave for his dismissal and Mr Edwards’ failure to give him any notice or the opportunity to respond, was set out in his outline of submissions:
“On 27th July 2010 I called Mr Edwards and was advised that I did not have a job. The reasons given were writing down incorrect working hours and that I was too ‘high maintenance’ being myself wanting my legal entitlements. I explained that I had taken time in-lieu (see Ann 8; Ann 9; Ann 10) to see doctors (see Ann 3; Ann 12) and we agreed that if I was paid my time in lieu we were ‘fair and square’. I also said that he couldn’t fire me for wanting my entitlements.” 1
…
“Many of the dismissal reasons given on the 9th August 2010 were not brought to my attention prior, and at, time of termination (see Ann 6). Therefore I had been given no opportunity to respond to these concerns.” 2
[7] At the time of termination of his employment Mr Worth was employed as Head Animal Keeper and occasionally as acting Curator at The Big Pineapple. His annual salary was between $31,000 and $32,000 gross per annum. Since termination of employment Mr Worth has been receiving New Start allowance and living with his parents. He has been looking for work in the animal care industry but has been unable to find any work in that area. He was performing volunteer work at the Daisy Hill Koala Centre as at the date of the hearing.
[8] I asked Mr Worth why he had not obtained work in other areas. His explanation was that he has expertise with animals, particularly koalas. He loves the work and he wants to pursue that interest and maintain his expertise. He said that whilst he had been doing the volunteer work and looking for work in the animal care industry, he had also been seeking other work, including work in a mobile phone shop and casual work as a maintenance worker for the Housing Commission. He had not yet been successful.
[9] Mr Edwards did not cross examine Mr Worth except as to a limited issue concerning his workers compensation claim. Mr Worth had lodged a claim. That claim has been refused. Mr Edwards asked him for the reason and he said:
“Any reason for that?---Louise Nation and Ben Norris weren’t willing to provide witness statements because you have – well, it is hearsay but they inform me they didn’t want to give evidence because you have access to that file and that information and they were afraid of losing their job as well.” 3
[10] A witness for Mr Worth, Ms Tracey Carter, provided a statement 4 and gave oral evidence declaring that “… there was a time in lieu arrangement, where any over time was put into a book and taken as needed. While working with (sic) Ronald Worth, he has always displayed a professional work ethic.”5
[11] The statement of Ms Carter had not been served on Mr Edwards. I informed Mr Edwards that, after he had heard Ms Carter’s evidence, if he considered that the non-service of the statement caused him any difficulty, he could have an adjournment to consider his position. He did not seek an adjournment.
[12] Ms Carter gave evidence that a time in lieu book was kept by the Curator, Robbie Pateman. Neither she nor Ms Pateman are any longer employed by The Big Pineapple. Mr Edwards was taken by surprise by this evidence. In cross examination of the witness he asked her whether she thought that he would have been aware of this book and she said yes. She said it was kept next to the time sheets near Bobby’s office.
[13] Mr Edwards confirmed that Mr Worth and he had had a discussion on 8 July 2010. That discussion was about superannuation and the employer’s failure to issue pay slips.
[14] Regarding the termination of Mr Worth’s employment, Mr Edwards reaffirmed that items 3, 4, 5 and 6 of his Employer’s Response were his reasons for termination.
“(3) Mr Worth left his station on three occasions without notice.
(4) Mr Worth Falsified his time sheet to reflect normal hours.
(5) Mr Worth did not advise us for four days that he was not available for work.
(6) Mr Worth advised staff not to tell management he would be absent for two weeks and possibly longer.”
[15] I asked Mr Edwards whether he had raised any of the matters with Mr Worth. He confirmed that he only did so at the time of dismissal. He did not raise them before he dismissed Mr Worth. He dismissed him summarily for those matters. His evidence was:
“How did you come to know about them?---I was made aware when I checked the time sheet, regarding item 4. I was made aware when I asked on 9 July where Mr Worth was and was told he was absent at that time, and I was made aware on 10 July by other staff when I went looking for him that he was absent at that time as well.” 6
[16] I asked him,
“…was he covered by a medical certificate for that day?---I believe he went to the doctor on the Saturday, your Honour, 10 July, to obtain that certificate.” 7
[17] There was some discussion about whether or not Mr Worth had left a message with the receptionist and whether Mr Edwards should have got that message. Mr Worth confirmed that he had informed the receptionist of his absences. I accept that Mr Worth made the call and I accept that Mr Edwards did not get the message. He denied that he told any staff not to tell Mr Edwards that he was away.
[18] Mr Edwards conceded that Mr Worth’s failure to ring him on his mobile on the Thursday, Friday or Saturday prior to the termination of his employment would not have justified termination of employment. His submission was that when he considered that issue in combination with the other issues that concerned him about Mr Worth’s conduct and performance, including Mr Worth taking time in lieu and telling the staff not to contact him, that there was a sufficient reason to terminate his employment.
[19] Mr Edwards wished to tender a statement from a Mr Norris but he was not available for cross examination. 8 I did not accept the tender of his statement. Mr Norris’ evidence went to the issue of whether or not staff were told by Mr Worth not to contact Mr Edwards about Mr Worth’s absence.
[20] Mr Edwards conceded that did not justify summary dismissal.
“THE SENIOR DEPUTY PRESIDENT: ------you say that that has been told to you and he said he would not be telling you until the Tuesday. If he knew on the Saturday and didn’t tell you but intended to tell you on the next day you came to work, which was the Tuesday, would you say that justified termination of employment?
MR EDWARDS: No, but - - -
THE SENIOR DEPUTY PRESIDENT: Summary dismissal?
MR EDWARDS: No, but with the other issues as well as regarding that he told the staff not to tell me he wasn’t coming in, considering how important the animals were to look after. That was what our argument was about on the Thursday and yet he can take two weeks off and disregard the animals without one message to me or one verbal message to me that he won’t be there to look after them.” 9
[21] In determining whether a particular termination is harsh, unjust or unreasonable consideration can be given as to whether the penalty of termination is excessive or inappropriate. See Byrne v. Australian Airlines Ltd (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
And
“Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable”. 10
[22] In regard to s387(a) I have determined that there was no valid reason for the termination of Mr Worth’s employment. As to the instances of misconduct identified by Mr Edwards there is no evidence that these took place.
[23] In regard to s387(b) and (c) it is clear that Mr Worth was first provided with the reasons for his dismissal at the time of his dismissal. He was given no prior notice and no opportunity to respond to the grounds of misconduct identified by Mr Edwards or to respond to the proposed consequence of that misconduct, which was termination of employment.
[24] Section 387(d) is not relevant.
[25] In relation to s387(e) there is no evidence of unsatisfactory performance. To the extent that Mr Edwards makes reference to matters which might be construed as performance issues he concedes that they did not amount to grounds for termination of employment and that they were ever discussed with Mr Worth prior to termination of employment.
[26] In relation to s387(f) and (g) it is clear that The Big Pineapple is a small enterprise. There is not likely to be any procedures to be followed in effecting a dismissal in this enterprise. There is not likely to be any dedicated Human Resources Management specialist or expertise in this enterprise. I have had regard to this.
[27] In relation to s387(h) I have had regard to Mr Worth’s enthusiasm for his job and his view about his expertise, his passion for the koalas and his sense of loss on termination of his employment.
[28] I have also had regard to the fact that Mr Edwards summarily terminated the employment of the applicant. No notice was paid.
[29] I have determined that the termination of Mr Worth’s employment was harsh, unjust or unreasonable. It was harsh because Mr Worth was not guilty of the misconduct on which Mr Edwards acted, it was unreasonable because it was partly decided upon unsupported conclusions which Mr Edwards drew concerning Mr Worth’s failure to make contact with him, and it was unreasonable because the penalty of termination of employment was harsh, even if the grounds relied upon by Mr Edwards had been established. It was harsh in its consequences for the personal and economic situation of Mr Worth who has been unable to find any congenial employment or any employment at all. I have taken into account the lack of procedural fairness afforded to Mr Worth in determining that the termination of employment was harsh, unjust or unreasonable.
[30] Having determined that Mr Worth’s termination of employment was harsh, unjust or unreasonable I have to give consideration to what remedy should apply to Mr Worth.
[31] I have given a consideration to the remedy of reinstatement. I do not consider reinstatement appropriate in all the circumstances of this case. Mr Worth has suffered a blow to his self esteem and I do not believe that an amicable relationship without rancour can be re-established. I am also concerned that reinstatement would be inappropriate because the difficult financial circumstances of The Big Pineapple’s operation. I have decided that an order for compensation is appropriate in all the circumstances of this case.
[32] I have considered the criteria for deciding the amount of compensation set out in s392(2).
[33] I have considered the viability of The Big Pineapple. The organization is under financial strain. I have had regard to that matter.
[34] I have had regard to Mr Worth’s period of employment. It was not insignificant and greatly valued by Mr Worth.
[35] I have had regard to the remuneration that Mr Worth would have received if he had not been dismissed.
[36] I have had regard to Mr Worth’s attempts to mitigate his loss. I am satisfied that Mr Worth has made appropriate efforts to mitigate his loss given his past work experience. Re-employment will be difficult for him, particularly as he has been summarily dismissed from his employment with the Big Pineapple.
[37] I have had regard to Mr Worth’s failure to earn any remuneration since termination of his employment.
[38] I have had regard to the manner in which the termination took place.
[39] Mr Worth was entitled to be paid notice on termination of his employment. I have not included any amount relating to notice in the order that will issue consequent upon my decision. Those entitlements can be recovered elsewhere. I recommend to the employer that consideration be given to the payment of the appropriate notice entitlement as well as the outstanding superannuation payments. Both entitlements can be recovered by instigating litigation elsewhere but it is in the interests of both parties not to engage in further litigation and expenditure of costs.
[40] I have decided that it is appropriate to order six months compensation to Mr Worth. This compensation is to be paid in three installments of two month’s compensation. An order will issue concurrent with this decision.
SENIOR DEPUTY PRESIDENT
1 Applicant’s Outline of Submissions - paragraph 15.
2 Ibid - paragraph 20.
3 Transcript PN56.
4 Exhibit Worth 2.
5 Exhibit Worth 2.
6 Transcript PN124.
7 Transcript PN126.
8 Transcript PN215
9 Transcript PN215 - PN218.
10 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
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