Mr Sean Dillon v Knight Chiropractic Pty Ltd

[2014] FWC 2244

[2014] FWC 2244

FAIR WORK COMMISSION

DECISION

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

Mr Sean Dillon
v
Knight Chiropractic Pty Ltd
(U2013/2741)

DEPUTY PRESIDENT ASBURY BRISBANE, 30 JULY 2014

Application for unfair dismissal remedy - Small Business Fair Dismissal Code - Dismissal for serious misconduct based on after acquired knowledge cannot be consistent with Code - Finding that dismissal was for a valid reason - Applicant engaged in serious misconduct by giving personal contact details to patients he treated while working for the Respondent - Application dismissed.

Background

[1] Mr Sean Dillon was employed by Knight Chiropractic Pty Ltd (Knight Chiropractic) as a Chiropractor from January 2011. Mr Dillon was sponsored by Knight Chiropractic under a subclass 457 Visa issued pursuant to the Migration Regulations 1994. Mr Dillon was dismissed in August 2013 for alleged solicitation of Knight Chiropractic’s clients. This is said to amount to serious misconduct.

[2] Mr Dillon applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy and contends that his dismissal was unfair on the ground that he was dismissed because he refused to sign a new contract reducing his hours and remuneration.

[3] With respect to the initial matters required to be considered by virtue of subsections (a), (b) and (d) of s.396, Mr Dillon’s application was made within the period required in s.394(2) of the Act; he was protected from unfair dismissal as provided in s.382 and the dismissal was not a redundancy. A jurisdictional objection on the ground that Mr Dillon was employed under a contract for a specified period of time, and was dismissed at the end of that period, was withdrawn.

[4] It is not in dispute that at the time Mr Dillon was dismissed Knight Chiropractic employed seven persons and was a small business as defined in s. 23 of the Act. Accordingly it is necessary to consider whether the dismissal was consistent with the Small Business Fair Dismissal Code. If the dismissal was consistent with the Code Mr Dillon’s application must be dismissed by virtue of s. 385(c). If the dismissal was not consistent with the Code it is then necessary to consider whether it was unfair on the basis of the criteria in s. 387 of the Act.

[5] The reason for the dismissal and the date upon which the dismissal occurred are in dispute. There are also a range of claims and counter claims about money said to be owed to Mr Dillon and Mr Dillon’s right to inform patients he treated while working for Knight Chiropractic that he was leaving the practice and that they could seek treatment from him at another practice.

[6] Mr Dillon gave evidence on his own behalf. Evidence in support of Mr Dillon’s application was also provided by the following patients treated by Mr Dillon:

• Mr Mark Belot; 1

• Ms Robyn Yould; 2 and

• Mr James Watson. 3

[7] Evidence on behalf of Knight Chiropractic was given by:

• Dr Paul Knight, owner and Director of Knight Chiropractic; 4

• Ms Susan McDonnell, Office Administrator; 5 and

• Ms Maree Lowery, Office Administrator. 6

[8] I have taken all of the statements into account. I have also considered the information provided by Mr Dillon in his Form F2 Application for an unfair dismissal remedy and by Mr Knight in the Form F3 Response to that application. The matter was dealt with by way of determinative conference and it was necessary to issue further directions after the hearing to ensure that all relevant information was before the Commission.

The Small Business Fair Dismissal Code and relevant legislative provisions

[9] By virtue of s. 385 of the Act, a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed;

(b) the dismissal was harsh, unjust and 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.

[10] The Small Business Fair Dismissal Code is provided for in s.388 of the Act, as follows:

“388 The Small Business Fair Dismissal Code

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

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

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

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

[11] The terms of the Small Business Fair Dismissal Code were declared by legislative instrument with effect from 1 July 2009. Those terms are as follows:

“Summary Dismissal

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

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

Other Dismissal

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

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

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

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

Procedural Matters

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

A small business employer may be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia. Evidence may include a completed check list, copies of written warning(s), a statement of termination or signed witness statements.”

[12] The Code provides for two kinds of dismissal - summary dismissal on the grounds of serious misconduct, and other dismissal on the basis of conduct or capacity to do the job. In determining whether a summary dismissal on the grounds of serious misconduct was consistent with the Code, the Commission must first consider whether the employer believed that the employee’s conduct was sufficiently serious to justify summary dismissal. The Commission must then consider whether the employer’s belief was based on reasonable grounds. 7 It is not necessary for the Commission to be satisfied that there was a valid reason for the dismissal or to make a finding that the employee actually engaged in the misconduct.8 It is also not consistent with the requirements of the Code for the Commission to determine whether summary dismissal was warranted.

[13] Consideration of whether the employer’s belief that an employee has engaged in serious misconduct was based on reasonable grounds, incorporates the concept that the employer has carried out a reasonable investigation into the matter, rather than that the employer’s belief was correct. 9 The requirement of reasonableness goes to the misconduct itself as well as the belief that the employee engaged in the misconduct.

[14] The terms of the Code make it clear that an employer contending that a dismissal was consistent with the Code cannot rely on knowledge acquired after the dismissal was effected in order to establish serious misconduct on the part of the employee. For the purposes of the Small Business Fair Dismissal Code, an employer cannot have a reasonable belief that an employee engaged in misconduct at a point when the employer has no knowledge of that misconduct. This is so regardless of whether the employee concealed the misconduct.

[15] If an employer cannot establish a belief on reasonable grounds that an employee engaged in serious misconduct, or that the other requirements of the Code have been met, the dismissal is not consistent with the Code and the Commission is then required to consider whether it was harsh, unjust and unreasonable on the basis of the criteria in s. 387 of the Act. It is only in seeking to establish that there was a valid reason for a dismissal as provided in s. 387(a) of the Act that the employer can rely on after-acquired knowledge. 10

[16] It is possible that a dismissal may not be consistent with the Small Business Fair Dismissal Code because the employer did not have knowledge of the employee’s misconduct at the point the dismissal was effected, and that the dismissal may be found to be for a valid reason when considered against the criteria in s. 387(a), on the basis of after acquired knowledge.

[17] Relevant to the consideration of whether an employee has engaged in serious misconduct are the examples of serious misconduct set out in the Code itself and in s.12 of the Act and Regulation 1.07 of the Fair Work Regulations 2009, which provide as follows:

“12 The Dictionary

serious misconduct has the meaning prescribed by the regulations.”

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”

[18] Serious misconduct is not confined to the specific matters listed in Regulation 1.07 but is defined to include those matters and retains its ordinary meaning. Such ordinary meaning is found in the examples in the Small Business Fair Dismissal Code Checklist, which asks the person who effected the dismissal whether any of a number of statements apply including:

● The employee was stealing money or goods from the business.
● The employee defrauded the business.
● The employee threatened me or other employees, or clients, with violence or actually carried out violence in the workplace.
● The employee committed a serious breach of occupational health and safety procedures.

EVIDENCE

The events preceding the dismissal

[19] In or around August 2010, Mr Knight agreed to sponsor Mr Dillon under a subclass 457 visa issued under the Migration Regulations 1994, and to employ him as an associate chiropractor. The visa validity period was from 21 September 2010 to 21 September 2013. A base salary of $47,480.00 per annum was stipulated in the terms of the visa. Both Mr Dillon and Mr Knight stated that Mr Dillon’s employment with Knight Chiropractic commenced on 1 January 2011. 11 The initial written contract of employment tendered by Mr Knight is dated 16 March 2011, was signed by Mr Dillon and Mr Knight on 24 March and states that it commenced from 3 January 2011.

[20] Relevantly that contract of employment provided that Mr Dillon would be paid 50% of the gross takings from fees of the patients seen by him or a minimum payment of $47,480 per annum plus 9% superannuation, as required under rules relevant to the subclass 457 visa. The 50% figure is said to be inclusive of 9% superannuation contributions. The contract provides for a probationary period up until 28 March 2011 and does not contain a specified term. It also provides that Mr Dillon’s conditions of employment would be covered by the Health Professionals and Support Services Award 2010 and otherwise makes no mention of leave or other entitlements. Further, there is no indication that Mr Dillon’s employment was casual in nature.

[21] The contract imposes a number of obligations including one highlighted in bold font, that Mr Dillon is required to arrive at work 15 minutes prior to the commencement of his shift, in order to have the practice open and ready for business. Hours of work totalling 27 per week are stipulated. The contract contains no provisions in relation to restraint of trade or otherwise regulating Mr Dillon’s dealings with patients. There was also an agreement between Mr Knight and Mr Dillon under which Mr Knight leased a vehicle for Mr Dillon’s use. Mr Dillon made the lease payments every month.

[22] For reasons not explained Mr Knight viewed the expiry of Mr Dillon’s visa on 21 September 2013 as a trigger point by which he would be required to extend Mr Dillon’s contract of employment, should Mr Knight wish to continue that contract. As previously noted, the contract of employment did not specify an end date. On 13 June 2013, Mr Knight sent an email to Mr Dillon attaching a document termed “Contract renewal as at 11 June”. Mr Knight tendered this email but not the attached document. Mr Knight also said that he sent an email about the same subject to Mr Dillon on 11 June. That earlier email was not in evidence.

[23] The email from Mr Knight to Mr Dillon dated 13 June, states that a contract renewal proposed to be discussed that day is attached. That email also states that Mr Knight had intended to discuss issues related to Mr Dillon’s frequent late arrivals for his shifts, and that a clause to rectify this problem had been included in the proposed amended contract. The email refers to “revised contract terms” which will commence on 1 July 2013 and requests that Mr Dillon sign those proposed terms by 19 June 2013 or contact Mr Knight to arrange a meeting. It goes on to state that:

“As touched on in a previous discussion, I have adjusted your remuneration to the market based rate, however the minimum wage requirement under the s. 457 visa will be maintained.” 12

[24] Mr Knight said that the email and the attached revised contract terms, was an offer to Mr Dillon of further employment and sponsorship. Mr Dillon tendered a copy of the proposed amended contract emailed to him on 13 June. It is identical to the initial contract except that:

● Mr Dillon is to be paid 40% of his gross takings less superannuation and PAYG taxation or the minimum amount set out in the subclass 457 visa requirements whichever is the greater amount;
● There is no reference to superannuation being paid in addition to the minimum amount under the subclass 457 visa; and
● Mr Dillon’s hours of work have been reduced from 27 to 21 per week

[25] Mr Dillon said that he viewed the proposal amendments to his contract of employment as illegal on the basis that the amendments reduced his rate of pay by 20%, without holiday or sick pay, and required him to pay his own superannuation contributions. Mr Dillon also said that he refused to sign the contract because he considered it unfair to reduce his current rate of pay without reason, and contrary to his contract for the past two and a half years. An arrangement was made for Mr Knight and Mr Dillon to meet at a coffee shop on 19 June 2013.

[26] Mr Knight said that he sent the email attaching the revised contract in anger, after he turned up at work to find that Mr Dillon was late and there were patients waiting on the doorstep of the practice. After setting up the meeting with Mr Dillon on 19 June, Mr Knight decided to withdraw the offer to renew Mr Dillon’s contract of employment and sponsorship.

Mr Knight’s version of the meeting on 19 June is that he discussed issues with Mr Dillon in relation to Mr Dillon’s:

● Repeated lateness in attending his shifts;
● Contribution to tension between other employees and Mr and Mrs Knight;
● Poor rate of growth in patient numbers during the previous year.

[27] Mr Knight said that in the course of the meeting, he informed Mr Dillon that he had made a decision to rescind or withdraw the offer of a further contract, and that he would not be renewing sponsorship in relation to the subclass 457 visa. Mr Knight also said that he informed Mr Dillon that he would continue to employ him until the expiry of the sponsorship period under the visa and would allow him time to find a new sponsor and provide a reference. Further, Mr Knight said that he told Mr Dillon that he would be seeking a replacement chiropractor and that if he found one, Mr Dillon would cease work and he would continue to pay Mr Dillon the minimum amount of $913.00 per week gross, as required under the conditions attaching to his visa. In his oral evidence to the Commission, Mr Knight said that he made it clear that the agreement to pay Mr Dillon until 21 September was subject to Mr Dillon not damaging the business in any way.

[28] According to Mr Knight, Mr Dillon acknowledged the withdrawal of the offer and the decision not to renew the contract, and they parted on good terms. Mr Knight subsequently wrote to Mr Dillon on 30 June 2013 purporting to confirm the discussion. That letter states:

“Further to our meeting on June 19, 2013 I wish to advise in writing that I will not seek to continue your employment relationship with Knight Chiropractic Pty Ltd on completion of your current contract.

Our records indicate that you are legally permitted to work under our sponsorship until September 21 2013.

The Department of Immigration will be notified in due course of this decision.

We thank you for your service to our clinics and wish you every success in your future endeavours.” 13

[29] Mr Dillon’s version of the meeting was that Mr Knight told him that he would not be renewing his contract or continuing his sponsorship of Mr Dillon under the subclass 457 visa after 21 September 2013, and that he would continue Mr Dillon’s employment until that date on his current terms and conditions. Mr Dillon continued to work under his current terms and conditions following the meeting on 19 June.

[30] On 25 July, Mr Knight had a further meeting with Mr Dillon. During that meeting Mr Knight informed Mr Dillon that he had employed a new chiropractor who would commence employment the following week and that he would continue to pay Mr Dillon $913.00 per week in accordance with their conversation on 19 June. According to Mr Knight, Mr Dillon indicated his disagreement with this proposal and said that Mr Knight had promised to “keep” him and that he needed money to start up his new business. Mr Knight said that he ended the conversation at that point as he was previously unaware that Mr Dillon had intended to start his own business.

[31] Mr Dillon said that during this meeting, Mr Knight told him that his last shift would be on 1 August and that he would be paid from that date until 21 September at the rate of $913.00 per week. Mr Dillon said that he strongly objected to this and told Mr Knight that he was reneging on the previous agreement. Mr Dillon said that Mr Knight told him he was “over my fucking ‘oh poor me’ whinging” or words to that effect.

[32] Mr Dillon also tendered an email sent to him by Mr Knight at 1.06pm on 25 July 2013, in relation to the payout figure of $4571.70 on the car lease. The email refers to “our discussions today” and sets out options for Mr Dillon to either pay the full amount by 29 July or that Knight Chiropractic will pay the car out so that Mr Dillon owns it free and clear and deductions will be made from his “severance pay” for the next six weeks.

[33] On the afternoon of 1 August 2013 Mr Dillon arrived at the Belmont Clinic and was told by his assistant that she had been instructed to take his keys. Mr Dillon was also given a letter, handwritten by Mr Knight, thanking him for all of his efforts over the years and stating that his patient care had been of a high standard. 14 Mr Dillon maintains that he was dismissed at this point.

[34] On 7 August there was a further meeting between Mr Knight and Mr Dillon. Mr Knight said that this meeting was to discuss the amount outstanding on the vehicle lease. Mr Knight said that during this meeting, Mr Dillon asked Mr Knight to pay the rest of his wages until 21 September in a lump sum. Mr Knight said that he responded by saying that he would first like to discuss the issue of Mr Dillon taking away patients from the business.

[35] During the discussion that ensued, Mr Dillon stated that patients were contacting him and that he had given them his mobile telephone number so that they could make appointments with him directly. Mr Knight also asserted that Mr Dillon told him that he had provided his mobile telephone number to some patients as they liked to contact him directly rather than making appointments through the administrative staff. Mr Knight said that he told Mr Dillon that their relationship was at an end and that he would be seeking legal advice.

[36] Mr Knight maintained that the dismissal of Mr Dillon took effect at this point for the reason that Mr Dillon was soliciting patients from Knight Chiropractic. Under cross-examination Mr Knight agreed that the last date that Mr Dillon worked was 1 August 2013. In response to the proposition that Mr Dillon was dismissed on 1 August when he worked his last shift, Mr Knight said that Mr Dillon was no longer seeing patients but was still employed by Knight Chiropractic and being paid the minimum payment under the subclass 457 visa requirements. Mr Dillon agreed under cross-examination that at the meeting of 7 August he had agreed that he contacted patients in an attempt to encourage them to follow him to his new work place and had subsequently been dismissed. 15

[37] In support of the proposition that Mr Knight had agreed to keep him employed until 21 September, and to continue to pay him in accordance with his original contract of employment, Mr Dillon tendered a document from the Child Support Agency which contains the following statement:

“Mr Dillon’s employer has advised that he will cease employment with them from 21 September 2013. They have advised that Mr Dillon will receive an approximate income of $18,547 from 1 July to 21 September 2013”.

[38] The amount set out in the document provided to the Child Support Agency represents Mr Dillon’s actual earnings rather than the minimum amount under the requirements of the subclass 457 visa. Mr Knight said that the statement was provided to the Child Support Agency prior to sourcing the Chiropractor who replaced Mr Dillon, and based on best estimates. Mr Knight also said that he did not envisage that he would find a replacement for Mr Dillon as quickly as he did and expected that it would take some time to find a suitably qualified chiropractor.

Alleged solicitation of patients

[39] Mr Knight said that many patients have a series of consultations and book these in advance in accordance with a recommended treatment plan. Since July 2013, Mr Knight asserts that he has observed an unusually high cancellation rate by patients who had been treated by Mr Dillon and administrative staff have reported that some 40 to 45 patients have cancelled appointments stating that Mr Dillon gave them his personal contact details. Mr Knight contends that as a result of Mr Dillon’s conduct, the business has suffered losses of approximately $24,840.00. According to Mr Knight the usual manner of patients making appointments is to contact the administrative staff directly.

[40] Ms Lowry and Ms McDonnell gave evidence to the effect that patients who cancelled appointments after Mr Dillon ceased employment, stated that they had done so because Mr Dillon had provided them with his private contact details and they intended to continue treatment with Mr Dillon. Ms Lowry said that during the week beginning Monday 29 July, she saw or heard Mr Dillon giving his personal contact details to patients and telling them that they should contact him directly, and both Ms Lowry and Ms McDonnell found a “post it” note on a patient file containing Mr Dillon’s personal contact details.

[41] The number of patients said to have followed Mr Dillon to Carina Medical Centre was said to be between 40 and 45. There was also evidence that Ms Lowry and Ms McDonnell telephoned patients who cancelled their treatments and confirmed that they were intending to seek treatment from Mr Dillon. Ms McDonnell said that since 13 August 2013, Knight Chiropractic has received 28 requests for patient files to be transferred to Carina Medical Centre. This is an unusually high number of transfer requests and aside from these requests there have been only five others in 2013.

[42] Ms McDonnell also said that a long standing patient had reported that Mr Dillon went to her work place to ask how her treatment at Knight Chiropractic was going and offered to treat her at his residence for $10 to $20 on the basis that he could not receive payment [because of his visa status] but it would be a “donation to his immigration fund”.

[43] In his evidence to the Commission, Mr Dillon stated in relation to this allegation:

So you need to respond to it?---Yes. So I say that soliciting is not a reason for dismissal, simply because I have no contract to say that I can contact my patients, and the terms in soliciting say that there's some wrong doing. I'm happy to admit that from the point forward when Dr Knight said that I was no longer - I was to be finishing on 21 September, by my rights - sorry, my duties as a chiropractor, I informed, particularly, my long terms patients that I would no longer working at Knight Chiropractic, and also that they would be open to, obviously, care from Dr Knight because I didn't know where I'd be at on 21 September. I would like - if it's admissible, I can concede the duty of care as a code of conduct for chiropractor and also duty of oath as a chiropractor which states I will place no consideration above that of the welfare of my patients. The code of conduct of chiropractors, in section 2.1, states that, "The care of patients is the primary concern for chiropractors in clinical practice providing good care includes recognising and respecting the rights of the patients to make their own decisions." I believe that informing the patients that I was no longer to be working at Knight Chiropractic was the appropriate thing to be doing and in keeping with the code of conduct with the chiropractors' oath.

Okay. And were you handing out your private mobile phone number to them?

---Yes. If patients asked - if they were concerned as to whether or not - where I'd be and whether they could contact me with regards to their health care, again, I followed the recognised rights of the patients in making their decision, and was happy to give out my personal contact details. And this wasn't - also I'd previously given a lot of my patients are - were friends, people that I sought out prior to becoming actual patients of the clinic and a lot of them already had my private telephone number. Another big issue, which is one of my witnesses, is very happy to speak about - there was a very poor working telephone system at the clinic, generally there's nobody manning the phones for around four hours a day during the middle part of the day, Tuesday mornings and Friday afternoons, so a lot of the patients were frustrated that they would call up, get a - leave a message, and then not be contacted back until quite later on that day or the following morning, which was then too late for them to actually make an appointment. So I contacted many of the patients through that way. I have no issues around this. Dr Knight had previously - not in his submission here but had said that this was something that wasn't good, but I will raise the point that Dr Knight actually has his own personal contact number of a business card on the

front desk.

Okay. Is there anything else you want to say?---That basically, yes, I'm quite happy to admit to contacting patients. I don't see that there was anything wrong with contacting patients. If the - my final part of my statement was simply that if today the Court - this hearing finds that I wasn't unfairly dismissed and that there's no - and all moneys due to me have been paid, I'm happy to walk away knowing I've stood by these code of practices and my oath and the rights of those patients. And I hold my head up high and walk away here knowing that I've kept to my duties as a chiropractor. 16

[44] Under cross-examination, Mr Dillon agreed that he had started telling patients on 19 June that he was leaving Knight Chiropractic. 17 Mr Dillon also agreed that he is currently working at Carina Medical Centre and said that he had taken approximately 30 patients of Knight Chiropractic to the Carina Medical Centre. Mr Dillon also said that when there is a change of chiropractor, a practice can reasonably expect to lose 25 - 75 % of the patient base. Further, Mr Dillon agreed that he saw “many” patients at his home as they are personal friends and gave them treatment there. Mr Dillon denied that he received payment for this treatment.

[45] Mr Dillon maintained that he had done nothing wrong and that it is the right of a patient to decide who to seek treatment from and his right as a chiropractor to inform them that after 21 September he would no longer be continuing their care. Mr Dillon also asserted that employees of Knight Chiropractic were lying to patients who were asking where he was and telling those patients that Mr Dillon had returned to England. Mr Belot said that he had an appointment with Mr Knight scheduled for September but had initially tried to book an appointment with Mr Dillon. When Mr Belot attended the appointment and asked where Mr Dillon was, Mr Knight told him that Mr Dillon had returned to England because his visa had run out. In response to a question from the Commission, Mr Belot said that he contacted Mr Dillon himself and it had taken some months and a few phone calls to obtain Mr Dillon’s telephone number.

[46] Ms Yould arrived for an appointment with Mr Dillon in August 2013 and said that she was shocked to be informed on arrival that the new chiropractor was waiting to see her. Ms Yould said that she felt pressured to see the new chiropractor. Ms Yould also said that she was a former employee of Knight Chiropractic and wrote to Mr Knight to express her disgust at “the disappearance” of Mr Dillon. Ms Yould and Mr Watson gave evidence of their unhappiness at treatment given to them by Mr Knight and said that they preferred to be treated by Mr Dillon.

[47] Ms Yould said under cross-examination that Mr Dillon told her that he was leaving Knight Chiropractic and would be working at Carina Medical Centre. Ms Yould also said that when she showed up for her appointment in July or August 2013 she was annoyed because she expected that Mr Dillon would be leaving later than August and no-one had told her that she would not be seeing Mr Dillon. The first time that Ms Yould saw Mr Dillon at the Carina Medical Centre was October 2013 - after Labour Day.

Warnings

[48] In relation to Mr Dillon’s performance and conduct, Mr Knight said that Mr Dillon made allegations about his relationship with staff and the relationship between staff and Mr Knight’s wife. This created unnecessary tension between other employees and Mr Knight’s wife. When Ms McDonnell sent an email to Mr Knight’s wife stating that she did not have issues regarding her employment and that she had asked Mr Dillon to refrain from speaking on her behalf in future 18, Mr Knight had a discussion with Mr Dillon on 11 April 2013 and told him to stop becoming involved in staff issues and to tell staff to raise their issues directly with Mr Knight. Ms McDonnell also gave evidence to the effect that there were several occasions when Mr Dillon attempted to intervene on her behalf with Mr and Mrs Knight and that she asked him not to do so.

[49] Mr Knight said that there was an issue with Mr Dillon being late for patient consultations. Mr Dillon’s contract of employment required him to be at work 15 minutes prior to beginning his shift so that he would be there before the first patient. Mr Dillon was warned about his lateness on 18 March 2013 by Mrs Knight. On 7 May Mr Knight received an email from a patient stating that he was with another patient waiting outside the Belmont clinic and there was no-one there. Mr Knight drove to the clinic and took 15 minutes to do so. Mr Dillon had arrived by the time that Mr Knight arrived at the clinic. Mr Knight’s evidence about these matters was supported by Ms McDonnell and Ms Lowery who gave evidence about Mr Knight being late on several occasions, and arriving at work to find patients waiting outside.

[50] On 8 May Mr Knight sent Mr Dillon an email about his tardiness and followed this up with a formal written warning on 9 May. That warning stated that Mr Dillon had been previously warned about the same issue and that any further breaches would be considered a serious matter. 19 Mr Dillon signed the warning to acknowledge that he had received it. Mr Dillon rectified his behaviour after the warning but was again late on 11 June. Mr Knight said that he did not discuss the matter at this time because he did not wish to do so in front of patients.

[51] In relation to the issue of lateness, Mr Dillon agreed that he turned up late for work on 11 June but denied that there was a pattern of such conduct. Mr Dillon also asserted that Mr Knight was often late for his appointments. Mr Dillon also asserted that he was not paid to turn up for work 15 minutes before his first consultation.

[52] Under cross-examination, Mr Knight agreed that timekeeping and creating issues between the administrative staff and Mr and Mrs Knight were not the reasons for Mr Dillon’s dismissal, but were reasons why Mr Knight had decided not to renew Mr Dillon’s contract. Mr Knight maintained that the reason for the dismissal was that Mr Dillon was providing patients with his personal contact details while he was still employed by Knight Chiropractic. Mr Knight further maintained that Mr Dillon was doing things to damage the business and he was dismissed as a result of that.

[53] Mr Knight was also shown an affidavit that he had provided to the Federal Circuit Court in relation to Mr Dillon travelling overseas with his son. That affidavit states that Mr Dillon is an integral part of Mr Knight’s business and that they had agreed on extending Mr Dillon’s work hours at the Acacia Ridge practice so as to increase “Mr Dillon’s ever growing and evolving practice”.

[54] In response to the proposition that this affidavit was inconsistent with his statement that Mr Dillon had not had a growth in patients, Mr Knight said that the affidavit was sworn in December 2012 and that in that calendar year Mr Dillon had grown the practice but had not advanced on those figures in 2012-2013. Mr Knight also said that he had provided the affidavit as a friend, and in support of Mr Dillon who was attempting to take his child on an overseas holiday.

[55] Mr Dillon said that he did not start work at Carina Medical Centre or elsewhere, until 7 October 2013. In relation to why he did not start working before that date, Mr Dillon said that he was not allowed to work under the terms of his s. 457 visa. As Mr Knight informed him he would be paid until 21 September Mr Dillon could not work until after that date. A subsequent visa with a new sponsor could not come into effect until the 21 September date when Mr Dillon was to be paid up to by Mr Knight, unless Mr Knight defaulted. Mr Dillon said that he was not aware that Mr Knight defaulted until 18 September. This was because Mr Knight paid Mr Dillon four weeks wages in lieu of notice and another lump sum of approximately $5,000.00.

[56] Mr Dillon said Mr Knight withheld payments to him for a plane ticket in the amount of $1,800.00 and an amount of approximately $6,000.00 owed to him for work performed between 1 July and 2 August 2013. Mr Dillon said that it was agreed with Doctor Knight that Mr Dillon would pay the remainder of the car loan by credit card, and that this would release the amounts being withheld. According to Mr Dillon, as soon as the credit card payment was processed, Mr Knight’s previously friendly attitude changed and he informed Mr Dillon that he would not be paying him because he was soliciting clients.

[57] Mr Knight’s evidence in relation to funds withheld from Mr Dillon was that he had previously reached agreement with Mr Dillon to withhold an amount of money for security on a lease for a vehicle taken by Mr Knight on behalf of Mr Dillon, and a further amount as security for his return flight to the UK. On that basis, Mr Knight withheld $3,200.00 for the 2012/2013 financial year and $579.16 for the 2013/2014 financial year. At 7 August 2013, Mr Dillon owed an amount of $4,155.00 with respect to the motor vehicle lease. This amount was paid by Mr Dillon on that date.

[58] On 7 October 2013 Mr Knight emailed Mr Dillon stating that the amount of $3, 779.16 would be paid to Mr Dillon in respect of the amounts withheld. This is said to constitute full and final satisfaction of “any perceived claim” that Mr Dillon may have against Knight Chiropractic. In relation to disputed money for the period from 2 August until 21 September, Mr Knight stated in the email that Knight Chiropractic would vigorously defend assertions about Mr Dillon’s exit from the business in light of his unethical and unprofessional behaviour in contacting patients and that this voids any payment to him due to the damage he has inflicted on the business. 20 Mr Knight said that he also paid Mr Dillon four weeks wages in lieu of notice at the rate of $913.00. There is no evidence about when this amount was paid.

[59] In response to a question from the Commission, Mr Knight said he did not make the payment of the money he had withheld until October, because he thought it prudent to wait until a conciliation conference was held in relation to Mr Dillon’s unfair dismissal claim. Mr Knight was then informed that he could not legally withhold those payments from Mr Dillon. Mr Knight also said that he did not intend to withhold payments from Mr Dillon until he found out that Mr Dillon was giving his personal contact details to patients while still an employee of Knight Chiropractic.

[60] A letter was sent by Mr Knight’s Solicitors to Mr Dillon on 8 August 2013 asserting that:

● The contract of employment between Mr Dillon and Knight Chiropractic has ended early by agreement;
● Mr Dillon has admitted that he has been soliciting clients of Knight Chiropractic;
● Mr Dillon is subject to a duty of confidence arising out of his employment with Knight Chiropractic that remains in effect even though employment has ended and he is in breach of that duty by soliciting clients;
● Due to the flagrant breach of this duty Knight Chiropractic has elected to hold back an amount of $5,486.73 owed to Mr Dillon as security for his obligation to return the clients;
● These funds will be returned to Mr Dillon upon the return of the clients and evidence that Mr Dillon has destroyed their contact details.

[61] Mr Dillon wrote to Mr Knight on 8 August 2013 requesting written confirmation of Mr Knight’s intention to pay him $913.80 per week up to and including 21 September 2013. The letter goes on to request payment of outstanding amounts of pay being held by Knight Chiropractic and to assert that Mr Knight had broken the agreement with Mr Dillon to continue to pay him at his usual rate for that period. It concludes by stating that unless Mr Knight sends a written contract in relation to payment of those amounts by 13 August, then Mr Dillon will file an unfair dismissal application with the Fair Work Commission.

Conclusions

[62] Unravelling the tangled web of dealings between Mr Knight and Mr Dillon has been a difficult exercise. Their behaviour towards each other leaves much to be desired and I did not find either of them to be particularly convincing witnesses. Both showed a propensity to put a spin on any fact or event in an attempt to support their respective cases and gave evidence that was riddled with internal contradictions and inconsistencies.

[63] As Justice Sheldon observed in Ray v Radano, 21there are few places as frequented as the courts in which embittered parties contest claims for past remuneration after severance of employment.22 The dealings between Mr Knight and Mr Dillon in the present case are illustrative of the accuracy of this observation.

[64] Mr Knight’s evidence contained a number of gaps and inconsistencies which were not adequately explained. The terms of Mr Dillon’s original contract do not indicate that it was for a fixed period and it is not apparent how Mr Knight believed that the contract would terminate on 21 September or that it would require renewal in order for it to remain in effect. While I accept that the sponsorship period expired on that date, the term of the contract was not linked to that period. In any event Mr Knight was proposing to implement the new contract terms with effect from 1 July 2013, well before the date he states that he believed that Mr Dillon’s contract of employment would end.

[65] In his evidence to the Commission, Mr Knight said that Mr Dillon’s late arrival on 11 June caused him to decide to offer him a revised contract of employment extending past 21 September 2013, when Mr Dillon believed that the existing contract ended. This can be contrasted with Mr Knight’s earlier response to alleged tardiness on the part of Mr Dillon when he warned Mr Dillon about such conduct and told him that it was considered to be a very serious matter. It cannot be said that the revised contract addressed the issue of tardiness in any way. The terms of the revised contract in relation to the requirement to be present 15 minutes before the first consultation were identical to those in the original contract.

[66] Mr Knight emailed Mr Dillon proposed terms on which he was offering to renew Mr Dillon’s contract, and then almost immediately changed his mind about renewing the contract. The decision to address the issue of Mr Dillon’s tardiness by amending his contract of employment is incongruous. The proposed terms unilaterally sought to reduce the percentage of gross takings by which Mr Dillon’s remuneration was calculated. It would have come as no surprise to Mr Knight that Mr Dillon would object to such a reduction, and his decision to communicate in the form of an email undoubtedly contributed to the situation that ensued. Mr Knight’s change of mind about this course of action is equally incongruous.

[67] Having made the decision to withdraw the proposed amendments to Mr Dillon’s contract of employment, Mr Knight failed to document the basis upon which he would continue Mr Dillon’s employment and his offer to continue to pay Mr Dillon if the services of another chiropractor were retained before 21 September. Mr Knight also failed to document the significant matter of his expectations about how Mr Dillon would conduct himself with respect to patients, in the period prior to ceasing employment.

[68] I do not accept that at the meeting on 25 July 2013, Mr Dillon said anything about opening his own business. This proposition was not put to Mr Dillon in cross-examination. I also do not accept that at that meeting Mr Knight told Mr Dillon that the offer to pay him until 21 September was contingent on Mr Dillon not damaging the business. Given Mr Knight’s reaction when he discovered that Mr Dillon was giving patients his private details, including withholding money from Mr Dillon and causing a solicitors letter to be written, it is improbable that if Mr Dillon stated that he was opening his own business, Mr Knight would have confined his comments to requesting that Mr Dillon not damage Knight Chiropractic.

[69] If agreement was reached on 19 June between Mr Knight and Mr Dillon, on the terms asserted by Mr Knight, then those terms could and should have been included in the letter Mr Knight sent to Mr Dillon on 30 June 2013. That letter confirmed that Mr Dillon’s sponsorship would not be renewed but said nothing about the other important matters that were allegedly discussed. There is no mention of the fact that Mr Knight would be looking for a replacement chiropractor and that if he found one, Mr Dillon would cease work and be paid at a lesser rate. In particular there is no mention about the continued payment of Mr Dillon being contingent on him not damaging the business, in the letter of 30 June. There is also no evidence that Mr Knight raised this issue after Mr Dillon told him, on 25 July, that he would be opening his own business.

[70] Within one day of Mr Knight discovering that Mr Dillon was giving his private contact details to patients, Mr Knight caused a solicitors’ letter to be sent, threatening Mr Dillon with dire consequences if he took patients from Knight Chiropractic. It is completely improbable that if Mr Dillon told Mr Knight on 25 July that he was opening his own business, that Mr Knight would not have been on immediate alert and that he would have confined his comments to telling Mr Dillon that he would pay him up until 21 September on the condition that he did not damage the business.

[71] Mr Knight is attempting to retrospectively establish a restraint of trade provision in Mr Dillon’s contract of employment, and to overcome his failure to deal with that issue as part of the arrangements agreed with Mr Dillon in relation to his continued employment and/or payment until 21 September 2013.

[72] Mr Knight also displayed his preparedness to use any opportunity to denigrate Mr Dillon. After the hearing concluded, I requested further information about Mr Dillon’s earnings since his dismissal. Instead of filing relevant material, or making reasonable comment on the material filed by Mr Dillon, Mr Knight took it upon himself to submit statutory declarations about matters that were not related to that issue and which made allegations about Mr Dillon that could have been raised in the hearing. This was not appropriate and I have not taken the additional material provided by Mr Knight into account in this decision.

[73] In short, Mr Knight displayed appalling communication skills in his dealings with Mr Dillon and his mishandling of events undoubtedly made a significant contribution to the debacle which ensued.

[74] Mr Dillon’s conduct was equally reprehensible. He clearly thought that he could obtain payment from Mr Knight up until 21 September, while busily going about taking patients from Knight Chiropractic. As an employee of Knight Chiropractic, Mr Dillon owed a duty of fidelity to his employer which in my view, included a duty not to cause damage by encouraging patients to follow him to another medical practice. I do not accept that Mr Dillon did this for the reason that he felt he had a duty to his patients to give them a choice as to who would continue their treatment.

[75] On Mr Dillon’s own evidence, as at 19 June he believed that he would continue to work for Knight Chiropractic until 21 September or be paid by the Company until that date at his full current rate. In those circumstances, it was reprehensible for Mr Dillon, on or around 19 June, to start telling patients that he was leaving Knight Chiropractic and to give them his personal contact details for the purpose of having them contact him to arrange treatment at another location, including his own home.

[76] I accept that there was no specific term in Mr Dillon’s contract of employment restraining him from engaging in such conduct. However, it would have been one thing for Mr Dillon to respond to a query from a patient about leaving Knight Chiropractic at a time close to his departure and to tell that patient that he or she could seek treatment from him at another location. It is another thing entirely for Mr Dillon to initiate such discussions with patients and to tell them that he was ceasing employment with Knight Chiropractic, some months from the date that he maintains was agreed with Mr Knight as the date his employment would cease.

[77] In my view, Mr Dillon’s case is as much about his attempt to obtain the benefit of an agreement which he believes that Mr Knight has reneged on by failing to pay him for the period to 21 September 2013, as it is about an application for an unfair dismissal remedy.

[78] This is evidenced by the fact that on 8 August 2013, a week prior to filing his unfair dismissal application, Mr Dillon wrote to Mr Knight and sought written confirmation of Mr Knight’s intention to pay the amount of $913 per week up to 21 September, notwithstanding that he had previously disputed that amount and continued to do so during these proceedings. It is apparent that there came a point when Mr Dillon simply decided to get whatever payment he could for the period up until 21 September, and that when this failed he made an application for an unfair dismissal remedy, and reverted to his previous position of demanding payment at a higher rate for the period to 21 September.

[79] I am also of the view that Mr Dillon sought to inappropriately rely on an affidavit that was provided by Mr Knight to assist Mr Dillon in obtaining leave of the Family Court to take his son out of Australia for a holiday. The focus of that affidavit was on establishing that there was little or no risk that Mr Dillon would not return from the holiday and in doing so Mr Knight made positive statements about Mr Dillon being an integral part of the business and his growing practice. That affidavit was sworn on 11 December 2012 and was clearly for another purpose. Mr Knight said that he provided it as a friend, to assist Mr Dillon. For Mr Dillon to tender that affidavit in these proceedings is indicative of the breakdown in the relationship between Mr Dillon and Mr Knight.

[80] In relation to the proposed amendments to his employment contract, Mr Dillon exaggerated the extent of the reduction in terms and conditions by asserting that the proposed contract also removed his annual leave entitlements, when clearly this was not the case. In relation to leave the proposed contract was identical to the previous contract insofar as it was silent about leave and referred to the Health Professional and Support Services Award 2010 in respect of entitlements. There is no basis upon which I could be satisfied that the proposed contract removed leave entitlements and in my view this indicates the propensity for Mr Dillon to put a spin on factual matters. Mr Dillon also asserted that this was a 20% reduction in circumstances where his previous contract provided for 50% of gross takings less superannuation. That assertion was not correct. However, making allowances for Mr Dillon’s exaggeration, Mr Knight was proposing to reduce the percentage basis of Mr Dillon’s income by an amount of 10% and Mr Dillon was understandably not happy about this proposal.

[81] I do not accept that there was an agreement reached between Mr Knight and Mr Dillon on 19 June in relation to the terms upon which Mr Dillon would cease employment with Knight Chiropractic. It is improbable that on 19 June 2013 Mr Dillon was told or understood, that if Mr Knight employed a replacement chiropractor before 21 September, Mr Dillon’s remuneration would be reduced to the minimum amount payable under the subclass 457 visa. Given Mr Dillon’s reaction to the proposal in the revised contract to reduce his income to 40% of gross takings, it is highly unlikely that he would have made no comment about a proposal to reduce his income further in the event that a replacement chiropractor was employed before 21 September 2013.

[82] It is apparent that there was a misunderstanding between Mr Knight and Mr Dillon about the outcome of their meeting on 19 June 2013, such that there was no meeting of minds. This misunderstanding is not surprising given Mr Knight’s sudden change of mind.

[83] In relation to the issues I am required to determine, I do not accept that Mr Dillon was dismissed because he refused to sign a contract with reduced terms and conditions of employment. By the time the contract was discussed, on 19 June 2013, Mr Knight had withdrawn the offer and simply left Mr Dillon on his previous contract arrangements up until 1 August when he ceased to perform work for Knight Chiropractic. If refusal to accept the revised contract terms was the reason for the dismissal, then Mr Knight would have dismissed Mr Dillon at the point of the refusal - 25 July 2013.

[84] I am satisfied that Mr Dillon engaged in serious misconduct by facilitating or encouraging patients of Knight Chiropractic to follow him to another medical practice. That conduct was in breach of Mr Dillon’s duty of fidelity to his employer. In terms of the Small Business Fair Dismissal Code, such conduct was sufficiently serious to justify instant dismissal. In terms of the definition of serious misconduct in s. 12 of the Act and Regulation 1.07, I am of the view that this conduct was wilful or deliberate behaviour that was inconsistent with the continuation of Mr Dillon’s contract of employment.

[85] The evidence about the date of Mr Dillon’s dismissal is evenly balanced. In support of the proposition that Mr Dillon was dismissed on 1 August, is the fact that he worked his last shift on that date, handed in his keys and received a hand written letter from Mr Knight wishing him well for the future. That letter is entirely at odds with Mr Knight’s evidence about when Mr Dillon was dismissed. Mr Dillon was paid four weeks wages in lieu of notice, but there is no clear evidence about when this payment was made or the period it covered.

[86] On the other hand, it is improbable that Mr Dillon met with Mr Knight after his dismissal and paid an amount for his vehicle in circumstances where he believed that he had been dismissed on 1 August and had been informed that he was not going to be paid the amount he believed had been agreed with Mr Knight for the period up until 21 September 2013. It is clear that on 7 August Mr Knight told Mr Dillon that he would not be paying him any further amounts.

[87] On Mr Knight’s evidence, by 7 August he had changed his mind about paying Mr Dillon up until 21 September. After securing payment for the outstanding lease amount from Mr Dillon, Mr Knight raised with Mr Dillon the allegations about soliciting clients and told Mr Dillon that “our association is at an end” and that he would not be paying him up to 21 September 2013. By 8 August Mr Knight had caused a firm of Solicitors to write to Mr Dillon about this matter, and to inform him that money owed to him for work in the weeks prior to his dismissal would be withheld and that he faced legal action if he did not cease his conduct. Significantly the letter from Mr Knight’s solicitor does not nominate the date of dismissal asserted by Mr Knight in these proceedings and simply states that employment has ended early by agreement.

[88] The date of the dismissal is not determinative of the outcome in this case. If Mr Knight dismissed Mr Dillon on 1 August 2013, it is improbable that Mr Knight knew about the alleged solicitation of clients at or before that date. On Mr Knight’s evidence, he had been told by Mr Dillon on 25 June that he wanted to start his own business. If Mr Knight had known about Mr Dillon taking his patients, it is probable that he would have taken immediate steps to dismiss Mr Dillon. There is no evidence that this allegation was discussed with Mr Dillon before 7 August 2013 and I have no doubt that if Mr Knight had any concerns about solicitation of clients before that date he would have raised them immediately upon becoming aware that he was losing patients.

[89] While Mr Knight asserts that he noticed a decline in patient numbers from July, Mr Dillon did not cease working for Knight Chiropractic until 1 August, and there is no evidence about exactly when Mr Knight became aware of the decline. There is also no evidence that Mr Knight raised this issue with Mr Dillon prior to 7 August. Accordingly, if Mr Dillon was dismissed on 1 August 2013, the dismissal was not consistent with the Small Business Fair Dismissal Code, on the basis that Mr Knight could not have had a reasonable belief at that time, that Mr Dillon’s conduct was sufficiently serious to justify immediate dismissal.

[90] Regardless of when it occurred, the dismissal of Mr Dillon was also not consistent with the provisions of the Small Business Fair Dismissal Code in respect of other dismissal. It is clear from the evidence that while there were performance issues in relation to Mr Dillon being late to work and his interaction with staff of Knight Chiropractic, that Mr Knight was prepared to keep him in employment until he employed another chiropractor. If that occurred before the expiry of Mr Dillon’s contract, on Mr Knight’s evidence, he was prepared to pay Mr Dillon a not inconsiderable amount of $913 per week until the expiration of his employment contract.

[91] If the dismissal was not consistent with the Code for the reasons set out above, or if Mr Dillon was dismissed on 7 August 2013, then I am satisfied that when considered in light of the criteria in s. 387 of the Act, that the dismissal was not harsh, unjust or unreasonable.

[92] In relation to whether there was a valid reason for the dismissal as required by s. 387(a), Mr Dillon concedes that he was providing his private mobile telephone number to clients that he treated while working for Knight Chiropractic. Mr Dillon said that he commenced doing this from 19 June when he was told that his contract was not going to be renewed. Mr Dillon was also treating some patients at his home during this period, although maintains that he did not receive payment for this. I accept that there were between 30 and 40 patients who left Knight Chiropractic as a result of the conduct of Mr Dillon and that they started to do so in July 2013. I also accept that a significant proportion of them asked for their files to be transferred to Carina Medical Centre.

[93] In light of the numbers of patients who have followed Mr Dillon to Carina Medical Centre, it is probable that Mr Dillon proactively encouraged at least a proportion of them to do so. The patients were patients of Knight Chiropractic and Mr Dillon obtained those patients by virtue of his employment with Knight Chiropractic. On his own evidence, when he commenced to engage in this misconduct, Mr Dillon had been guaranteed either employment or payment from Knight Chiropractic up until 21 September - albeit he later discovered that there was no agreement about the rate of the payment. This should have been sufficient for Mr Dillon to know that he should not have been engaging in this conduct of encouraging clients to leave Knight Chiropractic.

[94] It is also the case that Mr Dillon was doing this at a time when he was fully employed by Knight Chiropractic and receiving the full amount of wages under his contract. In this regard, it cannot be said that Mr Dillon started to engage in this conduct after he found out that Mr Knight was not going to honour the agreement that Mr Dillon believed they had reached. Mr Knight agrees that he started to give out his private contact details shortly after 19 June 2013 and he did not know until 25 July 2013 that the agreement was not in the terms that he believed had been agreed.

[95] Conduct discovered after a dismissal can provide a valid reason for dismissal. Mr Dillon, while in employment, gave his private contact details to patients and thereby encouraged patients to leave Knight Chiropractic and follow him to another practice. This was misconduct. I also accept that the number of patients involved was significant and had a real potential to cause loss and damage to Knight Chiropractic. Further, I accept that the loss of this number of patients did cause loss and damage to Knight Chiropractic. This was misconduct and provided a valid basis for dismissal.

[96] The fact that there was no restraint of trade in effect with respect to Mr Dillon’s employment does not excuse this misconduct. The fact that the full extent of the misconduct was not known about at the point Mr Dillon was dismissed, is also not determinative of whether the misconduct provided a valid reason for Mr Dillon’s dismissal.

[97] Mr Dillon was notified of the reason for this dismissal - albeit after the event - in the meeting of 7 August 2013 and by letter dated 8 August 2013 sent by Mr Knight’s solicitors. Mr Dillon was not given an opportunity to respond to the allegation given that at the point he was dismissed, the allegation had not been made and Mr Knight did not know about facts upon which it was based.

[98] There was no unreasonable refusal for Mr Dillon to have a support person present to assist him in discussions about the dismissal. Given that Mr Dillon was not expecting to be dismissed at that time, he did not seek to have another person present at the meeting. The dismissal was not on the grounds of unsatisfactory work performance and the issue of whether Mr Dillon was warned about his conduct is not relevant.

[99] Knight Chiropractic is a small business and has no dedicated human resource management staff. I have taken into account the likely impact that this had on the procedures followed in effecting Mr Dillon’s dismissal. In relation to other relevant matters, I have taken into account the fact that Mr Dillon was not able to work before 21 September because of his status as a s. 457 visa holder and that Mr Knight was his sponsor. I have also taken into account the fact that Mr Knight withheld payments that Mr Dillon was entitled to and did not pay him those amounts until some 2 months after his dismissal. It is also the case that Mr Knight did not make any payment in lieu of notice for some time after Mr Dillon’s dismissal. These matters would have caused hardship to Mr Dillon

[100] However, in circumstances where Mr Dillon has engaged in conduct while employed by Knight Chiropractic, which is a breach of duty of fidelity to his employer, I am unable to accept that he has been unfairly dismissed. I am also of the view that any deficiencies in the procedure by which the dismissal was effected, are offset by the fact that Mr Dillon was paid four weeks in lieu of notice.

[101] I accept that a case where a dismissal is not consistent with the Small Business Fair Dismissal Code, but is nonetheless found not to have been unfair, is somewhat unusual. However to find to the contrary would be inconsistent with the object of the unfair dismissal provisions as set out in s. 357(2) of according a fair go all round to both the employer and the employee concerned. It would be unfair for Mr Dillon to benefit from an unfair dismissal remedy in circumstances where he has engaged in conduct that has caused loss and damage contrary to his duty of fidelity as an employee, notwithstanding that Mr Knight’s mismanagement of the situation contributed significantly to the circumstances in which he found himself. Mr Dillon’s application for an unfair dismissal remedy is dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr S. Dillon on his own behalf.

Mr P. Knight on behalf of Knight Chiropractic Pty Ltd.

Hearing details:

2014.

Brisbane:

January 14.

Final written submissions:

14 May 2014.

 1   Witness Statement Exhibit 3.

 2   Witness Statement Exhibit 4.

 3   Witness Statement Exhibit 5.

 4   Witness Statement Exhibit 6.

 5   Witness Statement Exhibit 7.

 6   Witness Statement Exhibit 8.

 7   John Pinawan t/a RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359.

 8   Khammaneechan v Nankhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe [2010] FWA 7891.

 9   [2012] FWAFB 1359 .

 10   Metricon Homes v Bradley [2009] AIRCFB 374; Australia Meat Holdings v McLauchlan (1988) 84 IR 1.

 11   Form F2 Application for unfair dismissal remedy filed by Mr Dillon; Form F3 Employer response to application for unfair dismissal remedy filed by Mr Knight on behalf of Knight Chiropractic.

 12   Exhibit 6 Statement of Paul Douglas Knight Annexure PDK4.

 13   Exhibit 6 Statement of Paul Douglas Knight Annexure PDK-5.

 14   Annexure to Form F2 Application for unfair dismissal remedy.

 15   Transcript PN298 - PN300.

 16   Transcript PN118 - PN120.

 17   Transcript PN201.

 18   Exhibit 6 Statement of Paul Douglas Knight Annexure PDK-2.

 19   Exhibit 6 Statement of Paul Douglas Knight Annexure PDK-3.

 20   Exhibit 6 Statement of Paul Douglas Knight Annexure PDK-7.

 21   Ray v Radano [1967] AR (NSW) 471 at 480.

 22   Ibid at 480.

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