Mr Sean Kennedy v A.M. Milsom Pty Ltd
[2021] FWC 11
•8 JANUARY 2021
| [2021] FWC 11 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Sean Kennedy
v
A.M. Milsom Pty Ltd
(U2020/6729)
COMMISSIONER LEE | MELBOURNE, 8 JANUARY 2021 |
Application for an unfair dismissal remedy.
[1] On 15 May 2020, Mr Sean Patrick Kennedy (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with A.M. Milsom Pty Ltd (the Respondent). The Applicant seeks reinstatement or compensation. 1
When can the Commission order a remedy for unfair dismissal?
[2] Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
[4] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
[5] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.
Has the Applicant been dismissed?
[6] A threshold issue to determine is whether the Applicant has been dismissed from their employment.
[7] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[8] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[9] There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent. I am therefore satisfied that the Applicant has been dismissed within the meaning of s.386(1) of the FW Act.
Initial matters
[10] Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
[11] Section 394(2) requires an application to be made within 21 days after the dismissal took effect.
[12] It is not disputed, and I find that the Applicant was dismissed from his employment on 12 May 2020 and made the application on 15 May 2020. I am therefore satisfied that the application was made within the period required in subsection 394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
[13] I have set out above when a person is protected from unfair dismissal.
Minimum employment period
[14] It was not in dispute and I find that the Respondent is a small business employer, having 7 employees, which is fewer than 15 employees at the relevant time.
[15] It was not in dispute and I find that the Applicant was an employee, who commenced their employment with the Respondent on 11 April 2019 and was dismissed on 12 May 2020, a period in excess of 12 months.
[16] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
Application of an enterprise agreement
[17] It was not in dispute and I find that, at the time of dismissal, the Building and Construction General On-site Award 2010 applied to the Applicant’s employment.
[18] I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[19] Section 388 of the FW Act provides that 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.
[20] As mentioned above, I find that the Respondent was a small business employer within the meaning of s.23 of the FW Act at the relevant time, having fewer than 15 employees (including casual employees employed on a regular and systematic basis). The Applicant does not dispute that the Respondent was a small business at the relevant time. I am satisfied that the Respondent is a small business within the meaning of the FW Act. Therefore, I am satisfied that the application of the Small Business Fair Dismissal Code is relevant. I deal with the Small Business Fair Dismissal Code and whether or not it was complied with later in the decision.
Was the dismissal a case of genuine redundancy?
[21] Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
[22] It was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise. I am therefore satisfied that the dismissal was not a case of genuine redundancy.
The Hearing
[23] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
[24] After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act). The hearing was conducted via Microsoft Teams on 4 September 2020, and closing submissions heard on 21 October 2020.
[25] Permission was granted to both the Applicant and the Respondent to be represented by a lawyer. 2
Witnesses
[26] The Applicant gave evidence on his own behalf and the following witness also gave evidence on his behalf:
• Mr Dylan Beecroft, former employee of the Respondent.
[27] The following witnesses gave evidence on behalf of the Respondent:
• Mr Roger Banfield, Director;
• Mr Robert Smith, Foreman; and
• Mr Tristan Forrest, Apprentice.
Submissions
[28] The Applicant filed submissions in the Commission on 7 August 2020. The Respondent filed submissions in the Commission on 24 August 2020.
[29] Final written submissions were filed by the Applicant on 25 September 2020. Final written submissions were filed by the Respondent on 8 October 2020.
[30] It is convenient to set out some of the background evidence before assessing the threshold issue of whether the Respondent complied with the Small Business Fair Dismissal code when dismissing the Applicant.
The Evidence
Background
[31] The Respondent’s business is situated in King Island, Tasmania, and is primarily involved in the construction of domestic dwellings and small commercial buildings. 3 The Applicant was engaged by the Respondent as a mature age Apprentice Carpenter/Joiner on a full-time basis. The Applicant is 40 years of age. The Applicant was first employed by the Respondent on or about 1 April 2019 and commenced his apprenticeship on or about 26 June 2019.4 The Applicant was engaged under a ‘Apprenticeship/Traineeship Training Contract’ (the Training Contract). The apprenticeship undertaken by the Applicant as designed by legislation/regulation was Certificate III in Carpentry and Joinery.5 The Applicant had no ‘real experience’ prior to entering into the Training Contract. Prior to commencing his apprenticeship, the Applicant undertook some general labour and gardening work for Mr Banfield.6 The Applicant said he had a good relationship and a lot of respect for Mr Banfield. At the time of dismissal, the Applicant had completed approximately one year of a four-year apprenticeship with the Respondent. The Applicant’s wife is employed by another business situated in King Island.7
[32] The Applicant signed the Training Contract on 26 June 2019. The Training Contract obligations state that the apprentice/trainee agrees that they will:
“(a) attend work, do my job, and follow my employer’s instructions, as long as they are lawful
(b) work towards achieving the qualification stated in our Training Contract
(c) undertake any training and assessment in our Training Plan.”
[33] The Applicant conceded that that is what he agreed to do when he entered the contract, and states that this is what he did at all times. 8
[34] While employed by the Respondent, the Applicant generally worked on building sites with other employees of the Respondent including Mr Smith, Mr Beecroft and Mr Forrest. Mr Smith was the foreman. The Applicant states that although Mr Banfield, the director, “did come to the building sites sometimes, he was generally giving instructions and not undertaking work.” 9
Whether the Respondent complied with the Small Business Fair Dismissal Code in relation to the dismissal
[35] On or around 11 May 2020, Mr Smith, Mr Forrest, Mr Beecroft and the Applicant were working on a construction site at the King Island Council Shed (the “beam lifting incident”). 10 It is alleged that the Applicant failed to assist his colleagues to lift a heavy beam on that day. On May 11, Mr Banfield called a meeting with the Applicant regarding what happened at the job, and “his continual deliberate ostracising of Mr Smith and his refusal to follow his and Mr Forrest’s directions.”11 Mr Banfield states that they:
“discussed what had occurred on the Council Shed job and why it was that he was so difficult to work with. The Applicant took no responsibility for what occurred whatsoever. I told the Applicant that his job was in jeopardy if his bad attitude did not change and the undermining comments towards his colleagues stopped. I told the Applicant that he was very difficult to work with and had lost the support of his colleagues. The Applicant did not deny that his behaviour needed improvement instead questioning me about whether he would get the sack or not for his behaviour. However, the Applicant simply would not accept that as an apprentice he must follow the directions of Mr Smith and Mr Forest
…
That afternoon I spoke with Mr Smith and informed him of my conversation with the Applicant and his inability to reflect on his poor behaviour and the impact it was having on the team. Mr Smith was totally exasperated and told me he simply could not work with him any longer as he would not listen to him or follow his or Mr Forrest’s directions.
I took the decision then that if I did not remove the Applicant from the workplace I
would lose both Mr Smith and Mr Forrest and perhaps even more.
…
The following morning, I met with the Applicant to inform him that his employment was terminated. It was a short conversation in which I said words to the effect:
‘it is clear from our conversation yesterday with you and the other boys it is not going to work out. Sorry but I can’t afford to keep you on at the risk of losing the other. I’ve got no choice but to let you go.’ ” 12
[36] At question 3.1 of the Form F3, the Respondent outlines the following reasons for the dismissal:
“1. The applicant held a disruptive attitude towards team members
(a) On a job in February/March 2020, the client commented several times about the disruption the applicant was causing amongst the workers and asked for him to be taken off the building site.
2. The applicant refused to follow instructions, including OH&S requirements
(a) On 12 December 2019 the applicant refused to wear boots, and had bare feet whilst installing a window
(b) On that same date, the applicant put his bare foot through a cement ceiling sheet and left the site, leaving the other three men to repair the damage, which they did at their own expense.
3. The applicant made constant belittling remarks to all other workers
(a) Other employees have complained that the applicant was making continual snide and putdown remarks towards them.
4. The applicant was not a ‘team player’.
(a) On a job in 2019, the applicant refused to have a coffee break with the other workers, and instead had a coffee while continuing to work before leaving early without helping to pack up tools and materials.
(b) On 19 February 2020, we took on a school-based apprentice. The applicant made scathing comments to the respondent about taking on this apprentice and said he did not want to work alongside him.
(c) The applicant came to the respondent with a complaint about our foreman, reporting that the foreman had said he was going to resign and had been making derogatory remarks about me. Whilst the respondent felt this was a genuine concern of the applicant’s, it was untrue as he had only overheard a conversation between the foreman and our fourth-year apprentice Tristan. When the respondent questioned Tristan, he said the foreman did not say he was going to resign but rather that he "had had a gut-full of [the applicant's] behaviour".
(d) On 11 May 2020 we were installing a shed and there was a large beam to lift. Two men were on one end, another was struggling on the other side while the applicant watched. The respondent later asked the applicant why he did not help, he replied that he was not asked to.”
[37] The Respondent claims that during the course of the Applicant’s employment, the Applicant:
“exhibited a poor attitude towards his supervisors and work colleagues. The Applicant repeatedly failed to follow lawful and reasonable directions and deliberately undermined his colleagues.” 13
[38] The Respondent states that in less than 12 months as an apprentice, the Applicant’s behaviour ‘led to a total breakdown in relationship’ between the Applicant and ‘the majority of the Respondent’s employees. 14 As a result, the Applicant’s employment was terminated on 12 May 2020. The Respondent gave examples of the alleged misconduct as follows:
“• he conducted himself at all times in a manner that demonstrated he knew best and not his far more experienced colleagues;
• he would not follow instructions on how to perform tasks as directed by his Foreman – Robert Smith;
• he refused to contact Mr Smith (at the end of each working day) by telephone call like all the other employees despite repeated requests;
• he refused to put his work safety boots back on and that led directly to a workplace safety incident despite repeated requests from both Mr Smith and Fourth Year apprentice – Tristan Forrest;
• he ignored the Respondent’s school based apprentice Luke Lancaster and disparaged Mr Lancaster to Mr Smith simply because Mr Lancaster did what Mr Smith told him to do;
• he sought to undermine the relationship between Mr Banfield and Mr Smith by:
• approaching Mr Banfield to inform him of allegedly negative comments allegedly made by Mr Smith about Mr Banfield; and
• secretly informing his Apprenticeship officer – Dan Hart, about the alleged comments;
• when questioned by Mr Banfield, he [falsely] denied sending the letter to Mr Hart and refused to show Mr Banfield the actual email;
• he refused to follow the direction from Mr Banfield not to use his [unsafe] personal angle grinder fitted with a wood cutting saw and the guard removed on any of the Respondent’s worksites;
• he subsequently refused to follow the direction from Mr Forrest not to use his [unsafe] personal angle grinder fitted with a wood cutting saw and the guard removed at the King Island Racing Club worksite leading to the Applicant injuring himself and requiring medical attention;
• he refused to accept the clear direction from Mr Banfield that he must follow the direction of Mr Smith and Mr Banfield nor did he accept any responsibility for the breakdown in the relationship with his colleagues (see hierarchy meeting) including:
• subsequently continuing not to follow the direction of Mr Smith; nor
• telephoning Mr Smith at the end of each work day.” 15
(Original text retained, footnotes omitted)
[39] Mr Banfield stated that he received complaints that the Applicant:
“(a) refused to take instruction;
(b) refused to carry out instructions
(c) would often response with “smart arse comments”;
(d) made snide remarks to others to upset them; and
(e) ignored directions to conduct himself in a safe manner.” 16
The Small Business Fair Dismissal Code
[40] As noted earlier, the Respondent is a small business and therefore the application of the Small Business Fair Dismissal Code is relevant. The Respondent submits that the dismissal was consistent with the Small Business Fair Dismissal Code. The Respondent did not rely on the “summary dismissal” section of the Code but relied on the “other dismissal” part of the Code. The Respondent cites The Full Bench in Adam Miller v Urban Pedaler T/A Urban Pedaler20 at [22]17, which:
“made it clear that it is obligatory for an employer to warn an employee they are at risk of being dismissed without improvement for an employer to be able to rely on the Code:
‘The Code does not contemplate whether or not an employee should or should not have understood their employment to be at risk given the circumstances surrounding the dismissal. Rather, the Code expressly provides that an employee must be warned either verbally or preferably in writing that they are at risk of being dismissed if improvement is not shown.’”18
[41] The Respondent then goes on to submit, and I agree that, there is no precise set of words that needs to be used by an employer to demonstrate that it has given a warning to the employee. However, the warning must include a warning of the risk of dismissal. There is no evidence that the Applicant was given a warning that his conduct risks dismissal other than the day before he was dismissed.
[42] While, for reasons that follow in the decision, I am satisfied that the Applicant was repeatedly warned about his conduct, these warnings did not include a warning that his employment was at risk.
[43] The Small Business Fair Dismissal Code requires the employee to be warned of the risk of dismissal and give the employee a reasonable chance to rectify the problem. One day can hardly be considered a reasonable chance.
[44] Having considered the evidence, I am not satisfied that the Respondent complied with the Small Business Fair Dismissal Code in effecting the dismissal. As I am not satisfied that the Small Business Fair Dismissal Code has been complied with, I am required to consider the merits of the application.
[45] The evidence relevant to the claims of misconduct follow.
Following lawful and reasonable direction
Work safety boots incident
[46] On 12 December 2019, the Applicant and other employees of the Respondent were installing windows on a new house. It is alleged by the Respondent that while working on a building site, the Applicant refused to wear his safety boots. 19
[47] The Applicant indicated that he had taken the safety boots off downstairs, 20 and that this was “just as a habit and a thing of respect. When I enter someone’s house, I always take my boots off.”21
[48] The Applicant stated that he went back up on the roof to retrieve his safety boots because he thought that someone had put them up there after he had taken them off downstairs. 22 However, the Applicant subsequently fell and put his foot through a cement ceiling sheet.23 The Applicant conceded that he was not on the roof as “part of the normal procedure of installing the window”, and was actually part of a process where he had gone back up onto the roof to get his boots.24 Basically, the Applicant had climbed back up onto the roof to get his boots and it was then when he was up there by himself that he put his foot through the ceiling.25
[49] The Applicant denied that he was directed by anybody on that particular day to put his safety boots back on, or that he refused to put them back on. The Applicant states that if he was asked to put his safety boots back on, he would have put them back on. 26
[50] The Applicant stated that he felt it was very unsafe to be “clambering around the roof of a house”, 27 and that the workplace is not one that he would describe as safety orientated. In the instance that he has put his foot through a ceiling, he was climbing around the exterior of a two-story house with no scaffolding or ladders erected.28
[51] Mr Forrest stated that prior to the Applicant falling through the ceiling, the Applicant did not follow his direction to put his work boots on. Furthermore, that Mr Smith physically provided the Applicant with his boots, but the Applicant simply ignored him and continued to not wear his boots. 29
[52] Mr Forrest stated that “I told him to put his boots back on but he didn't want to”, 30 and that “Robbie tried to give him his boots”, but that the Applicant “didn’t take his boots.”31
[53] Mr Smith stated that:
“At the start of the job he’d left his boots at the front door, down at the bottom of the house at the front door. I said, ‘This (indistinct) you need to put your boots on.’ Tristan said the same thing, ‘You need to put your boots on.’ He didn't do that. I carried his boots up, he didn’t put his boots on. We were about to lift the window in. I carried his boots, and this is how the boots got outside of the building is because I carried his boots to Sean, handed them to him and said, ‘You need to put your boots on.’ Sean didn’t put his boots on. We installed the window without Sean abiding by the instruction. Sean was going inside the building, I was on the outside with Tristan. We raised the window, put the window in. His boots were sitting there. We threw the window - the boots onto the window carrier as we lowered the forklift down, carried them around down to the bottom. Now, Sean had gone to retrieve his boots that I'd taken out and handed to him. He says that he - he left them at the front door and then realised that he didn’t have his boots there, so he went out - there was no need for Sean to have gone out there, because I had carried - we had carried his boots down for him. So there was reference to physically actually handing him his boots. They were - they were passed to him.” 32
[54] Mr Smith further clarified:
“I gave him his boots on the roof. He’d stepped through the window opening and that's the window that was on the flat roof. I handed him his boots. He said, ‘I don’t’ – ‘I don’t wear them in people’s houses’, and that was - and we weren't even in the house at that stage. I gave him the boots.
…
he sat the boots down on the ground, he did not wear the boots. I offered him to wear them, I told him that it’s safe and we’re talking safety issues, I handed him the boots to wear, and he sat the boots down on the ground out on the roof. We continued without Sean wearing his boots if he said he wasn’t – didn’t wear them in people’s houses. So he ended up on the inside holding the window in, and me and Tristan were on the outside where the boots were. We put the boots onto the glass carrier and took them down that way. So three or four times through that discussion Sean was given the boots and the opportunity to wear them, and the evidence says that his boots were there because he was asked to wear them. They were on the outside of the building waiting - where we’d given him to wear them, or else they would have stayed at the front door where he took them off where he said, ‘It’s rude to wear boots in people’s houses.” 33
[55] Mr Smith accepted that there were two occasions when the Applicant went out on the roof, one was when we worked, the second one was when he went out and he put his foot through the ceiling. 34 On the second occasion, the Applicant:
“hadn’t followed an instruction … he was clambering and that’s when he put his foot through the roof, to retrieve his boots that had been taken there, that he’d been given to wear but he didn’t wear, that we’d carried down to put back at the front door where he had left them. So there was - there was two occasions, yes.” 35
[56] Mr Smith said that “the occasion upon which Mr Kennedy fell through the roof, came after the job had been completed”, and that he wasn’t going up there to perform any other role other than to go and get his boots. 36
[57] Mr Smith states that after the incident, the Applicant did not apologise and left the site without seeking his permission, coming back an hour and a half later. 37
[58] Mr Beecroft claimed that everyone but the Applicant kept their footwear on, however, he does not recall any direction or otherwise being given to the Applicant to put his shoes back on. Mr Beecroft stated that there was no scaffolding on site, and “we had to climb around the exterior of the two-storey house without any safety equipment or anything that would prevent or minimise injury” if anyone fell. Whilst climbing round the exterior of the dwelling to install windows, the Applicant’s foot went through the roof, causing damage to plaster and an internal ceiling. While the Applicant’s shoes were not on at the time, Mr Beecroft claims that he does not believe there would have been a different outcome if he has been wearing his boots. Mr Beecroft stated that he has no recollection of Mr Smith or Mr Banfield giving the Applicant a “warning, sanction or otherwise in relation to the incident.” 38
[59] When asked whether it was a usual thing to take your work boots off when working on a building, Mr Beecroft at first equivocated saying “it depends where you were really, and the level of danger involved.” However, he then said unequivocally, “no its not”. He stated that the reason why the Applicant did so was because he was going into someone’s house and he didn’t want to “trash their floor.” 39
[60] Mr Beecroft also stated that himself and the Applicant worked closely and agreed that they felt that it was appropriate in circumstances, whether it’s safety orientated or not, for a first-year apprentice and a third-year apprentice to defy their superiors in the chain of command. 40
[61] It is convenient at this point to make some findings of credit as to some of the witnesses. Mr Beecroft was for the most part a reliable witness. However, as mentioned in the preceding paragraph, he was clear on more than one occasion that he thought it was appropriate for apprentices to refuse to follow a tradesman’s directions.41 I note that Mr Beecroft and the Applicant had a long-term relationship independent of the workplace. 42 This may explain why Mr Beecroft had a tendency not to be able to recollect events that may be adverse to the Applicant’s case. For the most part, Mr Beecroft gave evidence that was forthright. The Applicant on the other hand, was a most unreliable witness who was evasive and at times argumentative.
[62] To the extent that there are conflicts between the evidence of Mr Smith, the Applicant and Mr Beecroft, I prefer the evidence of Mr Smith. Mr Smith was a most reliable witness overall, providing clear and cogent answers to questions put. To the extent that there is a conflict on the evidence, I prefer the evidence of Mr Smith.
[63] Having considered the evidence, I am satisfied that the Applicant was directed by Mr Smith to wear his boots and he defied that direction. It is hardly surprising that when working on a construction site, it is necessary to wear safety boots. The Applicant’s claim that he “always” takes his boots off out of habit and respect is quite frankly absurd. This statement is one of many of the Applicant’s which demonstrates that the Applicant had a tendency to ignore basic directions, including a direction such as this which has clear health and safety consequences. I am satisfied that the Applicant engaged in misconduct in December 2019 by failing to put his safety boots on. In doing so he failed to follow his employer’s instructions in breach of his training contract obligations.
[64] I note further that in the hearing the Applicant took no responsibility for putting his foot through the ceiling while not wearing boots when he said:
“If we did have ladders -if we had a ladder that day, I would never have put my foot through the ceiling, because I wouldn’t have been where I was when it happened. 43
…
So it wasn’t in fact part of the normal procedure of installing the window. It was actually part of a process where you had gone back up onto the roof to get your boots?---Yes, but the fact of the matter is that if we didn’t have to go past that solar panel in the first place.” 44
[65] Further reflecting the lack of insight of the Applicant regarding this incident was the following exchange:
“Just one more question on this. Do you think it’s safe - as a man who is obviously concerned with safety issues as you’ve pointed out in your statement - to be working on a building site in your socks?---Well, it’s just a habit and a thing of respect. When I enter someone’s house, I always take my shoes off.” 45
This statement also reflects the Applicant’s reckless attitude to safety matters.
Angle grinder incident
[66] Mr Banfield indicated that on or around mid-December 2019, he directed the Applicant not to use an unsafe electrical appliance he brought with him to the workplace. The Applicant instead attempted to use the appliance on a building site supervised by Mr Forrest. Mr Banfield stated that the Applicant was directed by Mr Forrest not to use the appliance, and after defying the direction of his supervisor, the Applicant was consequently injured and was required to be taken for treatment. 46
[67] Mr Forrest indicates that on or around November or December 2019 “the Applicant produced his personal angle saw/grinder to use at a worksite at the King Island Racing Club, which appeared unsafe and not in a safe working condition. I directed the Applicant that I did not want the Applicant or anyone on the worksite to use the saw due to safety concerns.” 47
[68] Further, that “the Applicant did not follow my clear direction and instead used the saw in performing work at the worksite. I also witnessed the Applicant remove the saw’s blade guard shortly after commencing use of the saw. Due to the obvious safety concerns, I again directed the Applicant to discontinue using the saw.” 48
[69] This behaviour was consistent with the evidence of Mr Forrest that “dealing with the Applicant was consistently difficult as he simply refused to listen to me and would not follow the instructions I gave him. His usual response was that he was older than me and ‘knew more.’” 49
[70] The Applicant denied that either Mr Banfield or Mr Forrest directed him not to use the saw. 50
[71] The Applicant continued using the saw and subsequently injured his finger. Mr Forrest indicated that he “was required to take the Applicant to the hospital” and was “aware that the Applicant had already been told by Mr Banfield not to use the saw on any of the Respondent’s sites.” 51
[72] The Applicant indicated that the “guard was off the saw only because of the awkward nature of the timber that we were trying to cut.” 52 However, he did not dispute that the guard was off the saw. The Applicant accepted that had they given him that direction not to use that saw, he accepts that it was a reasonable direction for them to give a first-year apprentice.53
[73] Mr Forrest stated that:
“I told him that he shouldn’t be using it and it’s dangerous and unsafe. He continued to use it. There was … not much I could have done to stop him because he just wanted to use that blade.” 54
[74] Mr Banfield’s evidence was that:
“I was really disappointed again with the Applicant’s deliberate refusal to follow my directions. I went out to the building site and investigated what had occurred and when the Applicant came back from the medical centre I made it clear to him how disappointed I was. When I asked him why he did it after he had been told not to use the appliance all he replied was “I didn’t tell the doctor that it was a workplace accident as I knew I shouldn’t have been using it.” 55
[75] Mr Forrest was a credible witness, and I prefer his evidence to that of the Applicant. Mr Forrest was often slow to answer and appeared excessively nervous about being involved in the proceedings. However, his evidence was on the whole, reliable evidence. I am satisfied on the balance of probabilities that the Applicant refused a direction not to use the blade on the angle grinder and removed the safety guard when he should not have. He showed no insight into the matter, trying to make light of the injury and that going to hospital was just a precaution. This is not the point. The Applicant should have followed the direction not to use the saw. This event is further evidence of the Applicant’s view that he knew better than his superiors. The actions of the Applicant in refusing to follow this lawful and reasonable direction were wilful and deliberate.
Beam lifting incident
[76] On the Form F3, the Respondent indicated that on 11 May 2020, the employer was installing a shed and there was a large beam to lift. Two men were on one end, and another was struggling on the other side while the Applicant watched.
[77] Mr Beecroft claimed that he was present on this occasion, and the Applicant did not assist, but believes that the Applicant was ‘bolting down steel footings at the time’. 56 Mr Beecroft states that he did not hear Mr Smith ask the Applicant to assist them in carrying the item.57 However, at the hearing, Mr Beecroft then asserted that he himself had asked the Applicant if he would give them a hand, and got no response, so they just carried on moving the beam/s.58
[78] Mr Beecroft did not recall that the Applicant was spoken to by anybody from above him in the ‘chain of command’ about the inappropriateness of not assisting on that day on the site, but that he had spoken to the Applicant later on who informed him that Mr Banfield had taken him to the shed, “almost to the point where he got fired on the spot but then didn’t and then got fired the next day.” 59
[79] Mr Beecroft stated that the Applicant’s employment was terminated the day after as the Applicant did not assist in helping Mr Smith, Mr Forrest and himself carry the beam. 60
[80] Mr Smith does not mention this incident in his witness statement and was not questioned about it at the hearing.
[81] Mr Banfield indicated that Mr Smith informed him of this incident, and that this caused his colleagues to feel like the “Applicant took enjoyment form their physical struggle with the beam.” 61 Mr Banfield also accepted that Mr Smith had told him about this incident, and then others when he questioned them.62
[82] Mr Forrest stated that:
“Myself, Robbie and Dylan were lifting a heavy beam and Sean was sitting with his impact gun doing up some nuts at the time. We lifted the beam - we went to lift the beam and I could see Robbie was struggling and Sean took - looked at him and didn't get up to help him or anything. And I said, ‘Sean, like, give Robbie a hand’” 63
[83] Mr Forrest said that it looked like the Applicant “enjoyed watching Robbie struggle.” 64
[84] The Applicant submits that at the very highest, this incident might lead to an inference that the Applicant requires direction in the workplace but does not justify his dismissal. 65
[85] The Applicant’s final submissions contend that:
“Mr Forrest denied alleging that the Applicant “enjoyed” watching his workmates struggle to lift a heavy beam and not assisting. It was not until he was taken to his statement and it was put to him that the content was not accurate. In response he claimed that it was, which of course is inconsistent with the evidence he had given moments earlier.
Mr Forrest’s evidence from that point basically floundered in relation to the beam carrying incident.” 66
[86] I agree that the evidence of Mr Forrest as to whether the Applicant was “enjoying” himself is not reliable and I don’t accept it. However, it is clear on the evidence that Mr Forrest and/or Mr Beecroft asked the Applicant to help and he did nothing.
[87] I am satisfied on the balance of probabilities that Mr Forrest and/or Mr Beecroft asked the Applicant to assist in carrying the beams and he ignored the request. In doing so, he engaged in misconduct.
Other Matters
The breakdown of the relationship between the Applicant and the foreman, Mr Smith
[88] The Applicant claimed to have a good relationship with Mr Banfield, Mr Beecroft, and Mr Forrest. However, while he had a good relationship with Mr Smith when he first commenced his apprenticeship, this “deteriorated with time.” 67 The Applicant stated that:
“I thought I had a really good relationship with everyone apart from Robbie from time to time.” 68
[89] When asked about his relationship with Mr Smith, the Applicant was taken to his statement where he referred to a particular derogatory comment that was allegedly made towards him by Mr Smith. 69 The Applicant stated that Mr Smith had called him a “dead cunt”70 on two occasions.71 The Applicant indicated that he told Mr Banfield about both occasions,72 and was told by Mr Banfield that he needed to sort it out with Mr Smith.73 Mr Banfield denies that the Applicant told him.
[90] When asked about the derogatory comment that Mr Smith had said about the Applicant, Mr Smith said:
“I can’t actually recall saying that, and if I did I explained to Sean that I didn’t mean anything by it. I have no recollection of actually saying, physically saying them words, and I said that to Sean after it happened, and I explained to him, I said, ‘Look, I’m sorry, I do not - if I’ve said it I didn’t mean anything by it.’ We had - we had a lengthy conversation about it and it was - yes. I mean if I had said it I was sincerely sorry. If I’d said it to anyone I’m sincerely sorry, but I could not recall actually physically saying it. Other people that were there when I raised it with him didn’t actually hear me say it either.” 74
[91] While the Applicant claimed that Mr Forrest was present the first time that Mr Smith was said to have made the insult, 75 the evidence was that Mr Forrest was not even on King Island at that time.76
[92] The Applicant stated that when he spoke to Mr Smith about the comment, that Mr Smith said that he “didn’t remember saying it but he apologised, anyway, and he said if I've ever got a problem with him to just talk to him about it.” 77
[93] However, Mr Banfield stated that:
“if the Applicant had told me that Mr Smith had referred to him as a “dead cunt” I would have disciplined Mr Smith. The Applicant did not report this issue to me.” 78
[94] The Applicant stated that:
“From that point forward I would say that my relationship with Robbie was strained. It was not because I did not have respect for him as my superior or because I did not think he was a good builder, but I found it difficult to work with someone who could be so derogatory towards his colleagues and also Roger.” 79
However, during the hearing, Applicant denied that “this difficult road hump” in his relationship with Mr Smith made it more difficult for him to follow his directions. 80
[95] Mr Forrest said that the Applicant stated to him while working on-site in or around December that, “‘I don’t like Robbie and I don’t respect him.’” 81
[96] Mr Banfield stated that the Applicant raised Mr Smith’s behaviour with him in March 2020, namely, that Mr Smith was being disloyal to Mr Banfield, was bad naming him to other people. 82
[97] Mr Smith stated that he was mentioning to some of the Respondent’s clients that Mr Banfield was “having problems and suffering from stress”, but that this “wasn’t just me pinpointing him and slurring and sledging him, it was a genuine discussion.” 83
[98] After speaking to Mr Banfield, the Applicant sent an email to Mr Hart, the Applicant’s apprenticeship facilitator, to the following effect:
“Hi,
I really hate to have to contact you under these circumstances. I recall you saying to contact you if I had any problems. I had a discussion with Roger on Thursday about my concerns about our Leading Hand (Robert Smith). Unfortunately when it comes to Robbie, Roger finds it hard to accept the truth as Roger is counting on Robbie to take over his Business! The main reason I am contacting you is to cover myself if anything happens to me. Robbie is making our current work environment very disruptive constantly telling people he is resigning & slandering Roger to his Employees & Clients. His poor Behavior & Leadership skills are having an adverse effect on Roger’s Business & his Employees. This is not the first time I have voiced my concerns to Roger, but Robbie is currently the only qualified Tradesmen on our crew which is possibly why Roger won’t accept what I have told him. I hope I am doing the right thing coming to you with this. I am very stressed about this as Robbie has created a very Toxic work environment, He is very disrespectful to Roger in front of people and is constantly arguing with Roger. Robbie does not respect Roger’s years of experience & his disregard for this sets a bad example for Me & the other Boys. I just want to be able to go to Work & learn new skills without all the stress!
Thanks, Sean” 84
[99] Some observations can be made about this letter. Firstly, to slander someone means to make “a malicious, false, and defamatory statement or report.” 85 Even if it was the case that Mr Smith was making “slanderous” comments, which even on the evidence of the Applicant he was not, this does not translate to an adverse effect on the employees of the business. What was going on between Mr Smith and Mr Banfield should not be a concern of the Applicant. This letter was simply a blatant attempt to denigrate the character of Mr Smith by the Applicant to a third party. It is clear evidence that the employment relationship has broken down between the Applicant and Mr Smith, and this breakdown has been driven almost entirely by the behaviour of the Applicant. It was an attempt by the Applicant to undermine Mr Smith without any basis to do so. This is underlined by the concession of the Applicant in the hearing that he did not expect the apprenticeship facilitator to do anything.86 On the balance of probabilities, the Applicant wrote the letter for no other reason than to undermine the position of the foreman, Mr Smith.
[100] Mr Banfield states that Mr Smith made him aware that the Applicant sent the letter to Mr Hart, and that he:
“knew the Applicant had sent this letter but believed it to pertain to the issues of supervision, change of command and delegation of work. I have since seen the letter and know its precise contents and I know that it greatly angered Robbie at the time.” 87
[101] Mr Smith stated that he believed that the Applicant wrote the letter to deliberately undermine him and his role with the Respondent, this is due to the “lead up to it” where:
“Sean was basically on site, would not talk to me, would not communicate to me. When I’d asked him to perform certain tasks he would not communicate. I know that Sean has - yes, Sean’s - when he’s into a mood and he’s upset with someone he really strongly has – he’s very focused on - on making that point clear. I knew where I stood with Sean on a day to day basis because his emotions, they’re right out there, he doesn’t hide his emotions, he’s very - when he’s upset he’s - yes, he’s very standoffish, you know how to – I’ve worked with enough people on building sites to know someone’s emotions and where you actually stand.” 88
[102] When asked why it was on the day before the Applicant was terminated, Mr Smith gave Mr Banfield an ultimatum to either “get rid of” the Applicant or he would leave, Mr Smith said:
“For me it was a lot to do with obviously the stress levels that Sean had created for me, not following simple instructions, not talking to me.” 89
[103] Mr Smith’s evidence is that working with the Applicant made him feel uncomfortable and unsafe and this was the first time he had experienced this with an apprentice. 90
[104] Mr Beecroft recalled Mr Smith speaking to the Applicant about not following his directions. 91
[105] Mr Smith accepted that he was upset that the Applicant has written the letter, and that this was “the straw that broke the camel’s back”:
“I was a bit cautious to where he was going to go from there. I wanted to remove myself out of the situation. There’s been incidences on the job site where Sean does not like to feel as though someone is thinking less of him. He gets quite - yes, offended by it. I didn’t - yes, I didn’t know where Sean would take it, and removing - where I’ve actually said to Roger is - yes, I can’t - I can’t work in that environment. Yes, I’m not going to stick around and wait for the penny to fall. Yes, I removed myself out of that situation, I gave him that ultimatum. I didn't really give him that ultimatum, that’s what I said to him, I said - yes, I can’t do it, I’m done was my words.” 92
[106] Mr Smith accepted that he was worried about what would come of the letter or what he might do after that, 93 and that “the letter was just something that was probably the result of everything else that had been happening”.94
[107] Having considered the evidence on these matters, I make the following findings. Firstly, I am satisfied that Mr Smith did not call the Applicant a “dead cunt” on either of the two alleged occasions. I prefer the evidence of Mr Smith on this point. In any case, even if I am wrong about this, it is common ground that he apologised to the Applicant in the event that he did say it and according to the Applicant “that was that.” 95
[108] The real issue in the relationship between the two men is the attitude of the Applicant towards Mr Smith. I am satisfied the Applicant said to Mr Forrest in December “I don’t like Robbie and I don’t respect him.” This disrespect is reflected in the self-serving email the Applicant sent to his apprenticeship facilitator, an email that seems to serve no other purpose than to undermine Mr Smith. It makes claims of poor behaviour and leadership skills and a toxic work environment with no particulars. This disrespect towards Mr Smith by the Applicant was not displayed by other employees, including Mr Beecroft who gave evidence that Mr Smith was a good builder and he had no issue working with him. 96 Mr Beecroft confirmed that the Applicant had a lack of respect for Mr Smith.97
[109] True enough, the atmosphere in the workplace was toxic, but the toxicity was generated by the Applicant. I accept the evidence of Mr Smith that the Applicant would not talk to him when on site.
[110] Mr Smith, not unreasonably, saw the undermining letter as the “straw that broke the camel’s back”, and he then gave “the ultimatum to Roger.” It is apparent the relationship between Mr Smith and the Applicant has completely broken down. The Applicant maintained the breakdown down in the relationship between himself and Mr Smith created a toxic work environment and stood by that statement in the hearing. 98
The chain of command
[111] In March 2020, Mr Banfield held a meeting “to reiterate the chain of command on the worksite.” 99 The Respondent indicates that the meeting had been called because the Applicant’s colleagues had raised concerns about the Applicant and that he wasn’t “following the chain of command” or instructions. The Applicant denied that this was ever brought up at that meeting,100 and stated that “it was a group meeting, it wasn’t just me being singled out.”101 The Applicant denied in cross examination that at the meeting he was informed that he wasn’t following the chain of command and that it was something he must do if he wanted to remain with the Respondent.102
[112] However, in his statement, the Applicant stated that he understood that:
“the Meeting was to discuss chain of command, apprentice supervision on job sites and allocation of work. I was frustrated at the end of the Meeting when none of these issues were resolved. The purpose of discussing the chain of command was to remind us that we had to do as we were told by staff who were senior to us.
…
Following the Meeting I was very upset and frustrated. The Meeting itself was of no benefit and Roger spoke to me in a very patronising way. I was still very upset by the incident where Robbie had been threatening to resign and that nothing was being done about it. This was not the first threat of Robbie resigning. I just did not want have to put up with it moving forward.” 103
[113] Mr Smith gave evidence that this meeting occurred about a week before the Applicant was dismissed. 104 Mr Smith’s evidence was that the purpose of the meeting was to inform the Applicant clearly that he was to listen to others he worked with and telephone Mr Smith every day. However, he ignored both directions.105
[114] This is broadly consistent with the evidence of Mr Banfield which was that:
“On or around March 2020 I called a meeting of all the Respondent’s employees to reinforce the chain of command. I called this meeting to reiterate to the Applicant [and one other employee] that he must follow directions from Mr Smith and Mr Forrest. After the meeting Mr Smith thanked me for calling the meeting and informed me that he had enough of the Applicant defying directions and his continuous snide remarks.
The Applicant approached me and informed me of his discontent about the meeting as I had not criticised the conduct of Mr Smith. He simply would not take responsibility for his actions. I explained to him again that the meeting was not about Mr Smith – instead about getting everyone to work together and respect and respond to the authority of Mr Smith and Mr Forrest.
…
the meeting was called to confirm with the Applicant how the Respondent’s chain of command worked so that he would follow it. I told the Applicant in clear language – he must follow the directions of Mr Smith and in his absence his must follow the directions of Mr Forrest.” 106
[115] When told that during the meeting he was informed that he wasn’t following the chain of command and that it was something he must do if he wanted to remain with the Respondent, the Applicant denied this. 107 However Mr Beecroft said that:
“In relation to the chain of command issue, I believe that this was an attempt to effectively pull apprentices into line, forcing them to realise their capabilities and requiring them to follow the direction of senior team members.” 108
[116] As the Applicant was one of the two apprentices, presumably the meeting was directed at him and the other apprentice. Mr Beecroft agrees that the Applicant thought his ways were better as an older apprentice, 109 and that Mr Beecroft understood this.
[117] The Applicant conceded that on the “hierarchy” of the chain of command with the Respondent, he was ‘at the bottom’ and had to follow the instructions of Mr Banfield, Mr Smith, Mr Forrest and Mr Beecroft. 110 However, he did not find it difficult to take instructions from them.111 However the overwhelming evidence is to the contrary.
[118] Mr Forrest stated that:
“As is usual practice in training a first year apprentice, when questioned him about why he [had] undertaken a task in a certain fashion and how it had led to mistakes being made, the Applicant would simply reply with ‘I know what I am doing’.” 112
[119] Mr Forrest gave evidence that the Applicant (and Mr Beecroft when he was employed by the Respondent) actively ignored his directions. 113
[120] The Respondent’s representative put to the Applicant that he would simply ignore the directions of Mr Forrest, 114 a more experienced but younger apprentice.115 The Applicant denies that the difference in age between himself and Mr Forrest made it difficult to follow his reasonable directions.116
[121] Mr Smith stated that the Applicant would constantly defy his instructions. 117 During the hearing the evidence of Mr Smith was that:
“I found it hard to administer jobs to Sean. He was - his mood can change at the drop of a hat. You had to be very careful in the way that you approach Sean, so you couldn’t - yes, as defiant. It was also a matter of making sure that - yes, if you lost Sean’s concentration, if Sean got angry he would be of no use to you. So, yes, in many different ways he was defiant.” 118
[122] I am satisfied on the evidence that the so “called chain of command” meeting was arranged primarily to provide an opportunity for Mr Banfield to reinforce with the Applicant the requirement for him to follow directions from his superiors. There is no indication (with the exception of Mr Beecroft) that there were issues with following directions by any other employee. Given the continual pattern of the Applicant ignoring directions from his superiors, I am satisfied that the meeting was called to ensure that the Applicant (and possibly Mr Beecroft) was aware of his responsibilities. I am satisfied that he was told a week before the dismissal, at the chain of command meeting, that he was not following the chain of command, and must do so.
Directions to phone the foreman daily for instruction
[123] In his statement, the Applicant indicated that although he was directed by Mr Smith to call him when it was appropriate, he prefers text messaging. 119 The Applicant confirmed that he prefers text messages because “it gives the person a longer time to reply and they might not have their phone on them at the time.”120 However, the Applicant did not accept that he was defying the direction to call Mr Smith under the circumstances.121 Nonetheless, the Applicant admitted that when Mr Smith indicated that he “didn’t do text messages”, he responded that he “didn’t do phone calls”, and that this was not an appropriate response from a first year apprentice to the foreman.122
[124] Further reflecting the lack of insight of the Applicant into his behaviour on this issue was the follow exchange:
“Let’s just cast your mind back to the chain of command that we just discussed then again. I think we’ve all agreed that Mr Smith is able to give a direction. Do you accept that that was you defying a direction of Mr Smith to call him under the circumstances?---No.” 123
[125] Mr Smith accepted that he had “control of the sites which would mean the boys should be ringing you and only you at the end of the day to say, ‘What I am doing tomorrow, where am I going, what’s the story?” 124 Mr Smith also stated that the Applicant never called him.125 The refusal of the Applicant to make phone calls and his rather rude and disrespectful response to Mr Smith that he didn’t “do phone calls” are further evidence of the Applicant’s failure to follow lawful and reasonable directions, and further evidence of his continuing pattern of disrespectful behaviour towards Mr Smith. The Applicant’s failure to follow the direction of Mr Smith was a further case of the Applicant’s engaging in misconduct.
Leaving the worksite early
[126] The Respondent stated that Applicant is not a “team player” as he would continue to work through his break before leaving early without helping to pack up tools and materials. 126
[127] The Applicant accepted that he left on time on most days, 127 and this was because he was not interested in doing any overtime, and so “so there’s no point me cleaning up the work site if the rest of them are going to stay and do overtime, because I might be packing up tools that they’re still using.”128 The Applicant also reiterated that there was an agreement with Mr Banfield that he would work eight hours per day.129
[128] However, the Respondent’s representative asserted that this was a short-term arrangement with Mr Banfield:
“in times when your wife’s car had broken down and you were allowed to leave work right on the hour so that you could then get home with your car so your wife could then go to work, I think, or do whatever it is she needed to do.”
The Applicant denied that this was the occasion for the agreement to “knock off right on the clock.” 130
[129] The Applicant accepted that it is a reasonable direction for a first year apprentice to help clear up the work site on any given day. 131 When told that this was not something that he did, the Applicant stated that “I would clear up as much stuff as I could if I thought they weren't going to use it when I left.”132
[130] Mr Beecroft stated that the Applicant would not stay back and do overtime as it was usually optional to do overtime; he believed that the Applicant had discussed his departure from work with Mr Banfield, and he was allowed to leave at a particular time, even if the other employees stayed back and continued to work. Mr Beecroft sates that the Applicant would not take a ‘smoko’ break so that he could leave at a set time. This would mean that he did not assist with cleaning up beyond his own tools and materials. This caused unrest because other staff were not happy about staying back and continuing to work, as generally the apprentices clean up. 133
[131] The Applicant indicates that he would work through his break because he did not wish to work late. 134
[132] Mr Smith stated that the accepted practice is for all employees to assist with the setting up of tools and the cleaning up of the site each day. The Applicant refused to do that and would arrive after set up and simply get in his car and leave at the end of the day. Mr Smith stated that the Applicant used the excuse of “working through his smoko as justification for not helping the team clean up the site”. 135
[133] Mr Smith stated that if the Applicant “was working through his smoko he wanted to leave 15 minutes earlier than everyone else. If he was on time he would have had smoko with us and not left, not left early.” Mr Smith also acknowledged that it was plausible that the Applicant was doing something he had been permitted to do and there was a breakdown in communication. 136
[134] Mr Forrest stated that the Applicant would pack up his own tools and leave the workplace without cleaning, leaving the other employees of the Respondent to pack up the materials and leave the site safe. 137
[135] Mr Banfield stated that he did not exactly have an agreement with the Applicant that he could work through his smoko and leave early without having to clean up. That he suggested to him that he should be going and having a smoko, and that the only time that he gave him permission to leave early was:
“when his wife’s car was broken down and he would take her to work before he came to our work and then he would leave a bit earlier to go and pick her up to take her home, and that was the only time that I expressly gave him permission to leave before everyone else.” 138
[136] Mr Banfield stated that as far as overtime goes:
“I did not encourage overtime unless - especially if there was somebody with - it's very rarely that they did work overtime. We did have a system where if they wanted to work a couple of hours they could, and in return, because we're on the island, if they wanted to go to Melbourne for a weekend they could take an extra day or whatever they needed to do.” 139
[137] Mr Banfield stated that when he talked to the Applicant about leaving early because of the complaints by the other employees, the Applicant said, “Well, I’ve got a life”, and that was the response most times. 140
[138] Mr Smith accepted that the Applicant told him that he had an arrangement with Mr Banfield to leave early. 141
[139] Taking into account all of the evidence, I am satisfied that the Applicant was leaving the worksite earlier than other employees. I am not satisfied that this was inconsistent with a direction not to do so. Mr Banfield’s evidence that he did not exactly have an agreement with the Applicant that he could work through his smoko was vague. 142 I am not satisfied that the Applicant’s early leaving of site was an act of misconduct.
The process leading to the dismissal
[140] The Applicant stated that on the day before he was terminated, he was called into a meeting with Mr Banfield and his wife, Ms Milsom, the Applicant also stated that:
“I had no idea why I was asked to attend the meeting before it occurred. I was not given any advance notice or an opportunity to have a support person present, or any notice of what was going to be put to me during the meeting. I felt ambushed.
…
He said that I had a bad relationship with Robbie and that he couldn’t put up with it.
At no time prior to that day did he try to mediate between Robbie and I, or encourage me to speak with Robbie myself in relation to any concerns that either Roger or Robbie may have raised in relation to our relationship.
I was very shocked about what was being said. I remember Roger saying to me that “if this poor relationship between you and Robbie continues, you are out”.
I left that meeting shocked and upset but was not under the impression that I would lose my job. I understood that I had received a warning in relation to my relationship with Robbie and that I could not complain about him again, but that was the extent of what Roger had said.
The following day … as I arrived to start work, I entered Roger’s office. This time Roger said words to me to the effect that “he cannot afford to lose Robbie, Robbie will not work with you anymore, I had to go, he had no choice”.
It was never suggested to me that any other staff had issues working with me, or that they too had refused to continue working with me.” 143
[141] The Applicant stated that he was in shock when Mr Banfield dismissed him. 144 The Applicant denied that Mr Banfield spoke to him on numerous occasions to say to him that he needs to work with his colleagues, and that they couldn’t continue to work this way, or words to the effect that the Applicant needed to change his behaviour.145
[142] The Applicant stated that Mr Banfield did not convene a mediation between himself and his colleagues with a view to trying to mediate any issues between them, nor were there any training manuals or codes of conduct in the workplace that he could refer to in relation to how he should conduct himself in the workplace. 146 The Applicant states that there was no form of training to help the Applicant familiarise himself with exactly how he was supposed to conduct himself in the workplace.147
[143] The Applicant stated that:
“1. I was not given any opportunity to rectify the issue that led to my dismissal, that is that Robert Smith (foreman) was not able to work with me anymore and would not work with me any more
2. No mediation, counselling or otherwise was offered
3. In relation to the various issues that have been raised in the F3 Response, the Respondent never had a discussion or discussions with me in relation to managing my attitude or performance at work, including with reference to specific incidents referred to in the Response
4. In relation to the issues in the Response or otherwise, the Respondent never made a request or gave a direction that I participate in formal performance management to deal with any issues, such as those listed
5. The Respondent never gave any warnings to me, even by way of implication, in relation to being dismissed except on the day prior to my dismissal, saying if “it kept happening [the problems between Robert Smith and myself] then I would have to go”
6. The next day at the commencement of the working day I was advised that I my employment was terminated
7. I was given no opportunity to respond, to rectify the alleged issues or otherwise
8. I did not ask for a support person at the meeting on 12 May 2020 or 13 May 2020, because I was given no warning that the meetings were happening, what was to be discussed or anything
9. There was no independent, or person with human resource training present at the 12 May meeting, only Roger Banfield, his wife Alison Banfield and myself, or the 13 May meeting at which Roger Banfield and myself were present
10. There was no workplace manual, code of conduct or otherwise that dictated processes and procedures to be followed before terminating employment
11. There was no given reason for why I was not permitted to seek assistance and/or guidance from my apprenticeship facilitator when I was experiencing issues with Robert Smith
12. There was no policy, direction or otherwise that provided that I was not permitted to do so
13. I did not consent to the email I had sent to my apprenticeship facilitator being disclosed to Roger Banfield” 148
[144] In summary, the Applicant asserts that there was:
“1. never a discussion or discussions with my client in relation to managing his attitude or performance at work, including with reference to specific incidents referred to in the Response;
2. never a request or direction that my client participate in formal performance management to deal with any issues, such as those listed;
3. never any warning given to my client, even by way of implication, in relation to being dismissed.
The exception to the third point … relates to warning [the Applicant] was given on the day prior to his dismissal by Mr Banfield.” 149
[145] Mr Banfield explained that:
“Even if I had to talk to somebody about their behaviour or what was happening that was personal to them I would take them to one side. I would either do it in the workshop or outside the building site so that they’ve got the position clear and they weren’t going to get flak from anyone in the community, because it is a small community and I didn't want people to say, ‘He got told off’, you know, ‘because he did this’, sort of thing.” 150
Mr Banfield conceded that the conversations he had with his employees are generally in private and not in front of other people. 151
[146] Mr Banfield stated that he had discussed the Applicant’s behaviour quite a lot of times, 152 but had not kept any record of discussions whatsoever.153 In his statement, Mr Banfield indicates that he spoke to the Applicant approximately seven times during his employment, and that these meetings were designed to put him on notice that his behaviour was not okay, but that he kept no note of what was said during these discussions.154
[147] However, Mr Banfield stated that he is able to say with certainty that he spoke to the Applicant on 27 and 29 May 2019 about a complaint that another employee made about the Applicant’s swearing and attitude because he knew what jobs they were doing and went back through the time sheets. 155
[148] Mr Beecroft stated that he did have a recollection of the Applicant being spoken to by Mr Smith about not following directions, and that this happened a number of times. 156 Mr Beecroft stated that there were discussions with the Applicant about his conduct, but “they weren’t official warnings”.157
[149] Mr Banfield accepted that he had known about a “bad relationship” between the Applicant and Mr Smith for quite a while before the Applicant was dismissed. Mr Banfield also acknowledged that he did not convene a meeting between them to try and sort out their differences, nor did he send them off to an independent mediator to try and sort out the issues. Instead, he spoke to them individually. 158
[150] In his statement, Mr Banfield states that:
“That afternoon I spoke with Mr Smith and informed him of my conversation with the Applicant and his inability to reflect on his poor behaviour and the impact it was having on the team. Mr Smith was totally exasperated and told me he simply could not work with him any longer as he would not listen to him or follow his or Mr Forrest’s directions.
I took the decision then that if I did not remove the Applicant from the workplace I would lose both Mr Smith and Mr Forrest and perhaps even more.” 159
[151] Mr Banfield accepted that the day before the Applicant was formally terminated from his employment, that he had a meeting with him, and said words to the effect of, “This behaviour needs to stop or you may lose your job”. 160 Mr Banfield also accepted that the next day he called the Applicant and said:
“‘Look, sorry, I can’t afford to lose Mr Smith, you’re fired’” 161
[152] Mr Banfield stated that the day before the Applicant was terminated, he spoke to the Applicant about his behaviour and then:
“had the other workers come in and I interviewed them to see who was telling the truth and what was actually happening”. 162
[153] Mr Banfield accepted that the next morning he fired the Applicant as he had determined who was telling the truth, based on a “gut feeling”. 163 Mr Beecroft gave evidence that a few days after dismissing the Applicant, Mr Banfield told him he felt like he had lost a friend and had been crying.164
[154] Having considered the evidence, I prefer the evidence of Mr Banfield that he spoke to the Applicant on numerous occasions about his conduct and behaviour. I am also satisfied that Mr Smith also spoke to the Applicant on numerous occasions about his conduct and behaviour. However, neither of them until the day before the Applicant was terminated informed the Applicant that his employment was at risk. Given the Applicant’s attitude that he could do things his own way if he thought they were better, he ignored these conversations and continued his behaviour and conduct of ignoring directions.
Was the dismissal harsh, unjust or unreasonable?
[155] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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 the FWC considers relevant.
[156] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 165
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[157] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 166 and should not be “capricious, fanciful, spiteful or prejudiced.”167 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.168
[158] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.169 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 170
[159] As set out earlier in the decision, I am satisfied that the Applicant has engaged in numerous acts of misconduct by way of failing to follow reasonable directions from his employer in breach of the terms of his training contract, as well as treating the foreman, Mr Smith, in a disrespectful manner over a significant period of time.
[160] This conduct and behaviour includes:
• Taking off his work boots on a building site and refusing to put them back on when directed.
• Continuing to use a saw blade on an angle grinder when asked not to and removing the safety guard.
• Refusing a request to assist his colleagues when they were lifting a heavy beam.
• Writing a self-serving email to the apprenticeship facilitator with an objective to undermine and attack the character of Mr Smith, the foreman.
• Refusing a reasonable direction to telephone his foreman daily for instructions as opposed to sending text messages.
• Engaging with Mr Smith in a disrespectful manner including simply not speaking to Mr Smith at all.
[161] The reasons are sound and defensible and well founded.
Was the Applicant notified of the valid reason?
[162] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 171 and in explicit172 and plain and clear terms.173
[163] It is apparent from the largely uncontested chronology of events leading up to the Applicant’s dismissal that he was not notified of a valid reason for termination before the decision was made to terminate him. He was given one reason, that being that Mr Smith could no longer work with him in light of his poor behaviour. The other valid reasons relied on for the dismissal in these proceedings were not put to the Applicant before he was dismissed as reasons for his termination.
[164] In all the circumstances, I find that the Applicant was not notified of the reason for his dismissal.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct
[165] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 174
[166] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 175 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.176
[167] The process followed to effect the dismissal was set out earlier. It is apparent that there was no real opportunity for the Applicant to respond to the reason for dismissal. The Applicant had been advised the day before that he may be dismissed if he was not to change his attitude and his undermining comments did not stop.
[168] Having regard to the matters referred to above, I find that the Applicant was not given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[169] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[170] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”177
[171] The Applicant did not request a support person for either meeting on the 11 or 12 May 2020. This is a neutral consideration.
[172] In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[173] It was the conduct of the employee, rather than his performance, that was relied on by the Respondent as a reason for dismissal. In the circumstances, this is a neutral consideration. However, I have taken into account that the Applicant was warned about his conduct on numerous occasions under s.387(h) of the FW 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; and 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
[174] The Respondent is a small business with no human resource capability. I am satisfied this impacted on the procedures followed and weighs against a finding that the dismissal was unfair.
What other matters are relevant? – s.387(h)
[175] I consider the following matters to also be relevant.
• The Applicant was looking to complete an apprenticeship and is unlikely to secure another. He had at the time of the hearing failed to secure any work. This weighs in favour of a finding that the dismissal was harsh. The Applicants evidence is that travel to the Tasmanian mainland is difficult and extensive, making it difficult for him to find work to finish his apprenticeship. Consideration of this factor weighs in favour of a finding that the dismissal is unfair given the harsh consequences for the Applicant.
• The Applicant was informally warned about his conduct on a number of occasions.
• The Applicant has virtually no insight into his conduct and showed little prospect that he would alter his pattern of behaviour. He had no insight into the impact of his behaviour on others, particularly Mr Smith.
The above two factors weigh against a finding that the dismissal is unfair.
Am I satisfied the dismissal was harsh, unjust or unreasonable?
[176] I have made findings in relation to each matter specified in section 387 as relevant.
[177] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 178
[178] Taking all of the factors into account, I am satisfied that there was a number of valid reasons for the Applicant’s dismissal. This weighs against a finding that the dismissal was unfair. The Applicant was however not notified of the valid reasons, nor given an opportunity to respond to the reasons. These factors weigh in favour of the Applicant. There was no refusal to allow a support person, and this is a neutral consideration. In all of the circumstances, the factors in s.387(f) and (g) weigh against a finding that the dismissal was unfair. The loss of apprenticeship and difficulty with finding work weigh in favour of a finding of unfairness. The lack of insight of the Applicant and the warnings given during his employment weigh against the Applicant.
[179] I do not consider the termination to be unjust particularly given the numerous valid reasons for the dismissal. However, the significant failures in the process of effecting the dismissal, even taking into account the small size of the Respondent’s business and lack of human resource expertise, and all other factors, in my view renders the dismissal as unreasonable. Having regard to the particular circumstances of the Applicant, the lack of likelihood he could complete his apprenticeship and difficulty in securing further work on King Island leads me to conclude, taking into account all other factors, that I consider the dismissal of the Applicant to be harsh.
[180] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was harsh and unreasonable.
Conclusion
[181] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.
Remedy
[182] Being satisfied that the Applicant:
• made an application for an order granting a remedy under section 394;
• was a person protected from unfair dismissal; and
• was unfairly dismissed within the meaning of section 385 of the FW Act,
I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
[183] Under section 390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of the applicant inappropriate?
[184] The Applicant seeks reinstatement. However, reinstatement is strenuously opposed by the Respondent. The Respondent submits that the Applicant’s relationship with his colleagues has been destroyed and they will not work with him and that there has been a loss of trust and confidence.
[185] It is apparent that the relationship between the Respondent, in particular with the foreman, Mr Smith, whom the Applicant would have to take instruction from if reinstated, has completely broken down. This occurred some time before the dismissal and the evidence in the proceedings supports a finding that this is still the case. The Applicant is largely responsible for this breakdown and shows little to no insight into his behaviour. The Applicant has proven himself incapable of following lawful and reasonable directions from the foreman, Mr Smith, and has sought to deliberately undermine the position of Mr Smith. The Applicant’s final submissions noted that Mr Smith said in his evidence that he does not ‘hate’ the Applicant, leading the Applicant’s representative to claim they could work together again. I do not agree. Firstly, the fact that Mr Smith does not hate the Applicant is not determinative as to whether there has been a breakdown of the relationship. Further, the Applicant’s representative sidesteps the deluge of evidence demonstrating the breakdown in the employment relationship. Reinstatement can be inappropriate where there has been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship. 179 I am satisfied that in this matter, there is a loss of trust and confidence and the lack of insight of the Applicant means that re-establishing the relationship is not feasible. In the circumstances, reinstatement is clearly inappropriate.
[186] Having regard to the matters referred to above, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all of the circumstances.
Compensation
[187] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…” 180
[188] The Applicant submitted that payment of compensation should be the maximum amount payable, though there were no particulars underpinning that submission.
[189] The Respondent submitted correctly that it does not automatically flow that reinstatement is inappropriate. However, the Respondent did not make any particular submissions that compensation was not appropriate at all in the circumstances of this particular case.
[190] In all the circumstances, I consider that an order for payment of compensation is appropriate because the Applicant should be compensated for losses reasonably attributed to the unfair dismissal.
Compensation – what must be taken into account in determining an amount?
[191] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
(a) the effect of the order on the viability of the Respondent’s enterprise;
(b) the length of the Applicant’s service;
(c) the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f) the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the Commission considers relevant.
[192] I consider all the circumstances of the case below.
[193] As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg). 181 This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages182.”183
Effect of the order on the viability of the Respondent’s enterprise
[194] The Respondent submitted that it was a small business but made no other submissions on this point. The Applicant made no submissions also.
[195] I am satisfied that an order for compensation would not have an effect on the viability of the employer’s enterprise.
Length of the Applicant’s service
[196] The Applicant’s length of service was a little more than one year. The Applicant made no submissions on this point. The Respondent relied on the decision of SDP Richards in Davidson v Griffiths Muir’s Pty Ltd at paragraph [40]. 184 I take this as a submission to determine a lesser amount. I accept that short period of service may warrant reducing the amount of compensation ordered. However, I am not satisfied is it appropriate to do so in this case.
Renumeration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed.
[197] The Applicant submitted that if there were appropriate procedures to dismiss the Applicant, there is every reason to suspect he would have changed the course of his behaviour. However, I disagree that this is a likely scenario for the reasons set out earlier, particularly those relating to the Applicant’s lack of insight into his behaviour.
[198] I agree with the Respondent’s submissions to some extent which were to the effect that the employment relationship would not have continued for a long period. However, the Respondent submits that it would have been for up to a week longer. I am not satisfied that this would have been a sufficient period to afford the Applicant an opportunity to be responsive. In my view, the Applicant’s employment would have continued for a further four weeks, which would allow sufficient time for the company to notify the Applicant of the reason for dismissal, provide an opportunity for the Applicant to respond, and to give him notice of dismissal.
The compensation amount
[199] As the Applicant was earning $937.59 per week at the time of dismissal. This is an amount of $3,750.36 gross, less tax as required by law, plus 9.5% of superannuation.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal
[200] The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal. 185 What is reasonable depends on the circumstances of the case.186
[201] The Applicant’s unchallenged evidence is that he has contacted other builders on King Island, and none are willing to take him on the complete his apprenticeship. 187
[202] I am satisfied that the Applicant made reasonable efforts to mitigate his loss. It is not appropriate to make a deduction from the compensation amount.
Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation
[203] The evidence is that the Applicant earnt no income in the period after his dismissal. He was unsuccessful in securing employment. There is no need to deduct any further amount from the compensation amount.
Other relevant matters
[204] The other relevant matter to take into account is the remoteness of King Island, and the associated difficulty in securing future employment. I will take this factor into account in determining compensation.
Contingencies
[205] I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment. 188
[206] In this matter there is no period of anticipated employment that is prospective to the date of the decision. There is no discount for the period actually known.
[207] I have considered the impact of taxation but have elected to settle a gross amount of $3,750.36 and leave taxation for determination.
[208] Having applied the formula in Sprigg, 189 I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case,”190 including my findings that the Applicant faces particular difficulty obtaining further employment given the remoteness and small size of King Island. I therefore consider the amount should be increased to take account of that factor. I consider an additional two weeks compensation to be appropriate. This leaves an amount of $5,625.54.
Compensation – is the amount to be reduced on account of misconduct?
[209] If I am satisfied that misconduct of the Applicant contributed to the employer’s decision to dismiss, I am obliged by section 392(3) of the FW Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.
[210] I am satisfied that the misconduct of the Applicant contributed to the employer’s decision to dismiss.
[211] I determine in the circumstances of this case a deduction of 25% is appropriate having regard to the Applicant’s misconduct.
[212] This leaves an amount of $4,219.16 gross, less tax as required by law, plus 9.5% superannuation. It accords a fair go all round to both the Respondent and the Applicant.
[213] This amount is less than the high income threshold and no deduction is required to account for that.
[214] In light of the above, I will make an order that the Respondent pay $4,219.16 gross less taxation as required by law, plus 9.5% superannuation to the Applicant in lieu of reinstatement within 14 days of the date of this decision.
COMMISSIONER
Appearances:
P. Sutherland for the Applicant
M. Reid for the Respondent
Hearing details:
2020.
Melbourne (by Microsoft Teams):
September 4
October 21.
Printed by authority of the Commonwealth Government Printer
<PR725946>
1 Applicant’s Outline of arguments: merits, at question 7.
2 Transcript at PN13.
3 Statement of Roger Banfield dated 24 August 2020, at paragraph 4.
4 Statement of Sean Patrick Kennedy dated 7 August 2020, at paragraph 2.
5 Court Book, Apprenticeship/Traineeship Training Contract, at page 70.
6 Statement of Sean Patrick Kennedy dated 7 August 2020, at paragraph 13.
7 Ibid at paragraph 7.
8 Transcript at PN83 and PN88.
9 Statement of Sean Patrick Kennedy dated 7 August 2020, at paragraph 18.
10 Statement of Roger Banfield dated 24 August 2020, at paragraph 25.
11 Ibid at paragraph 26.
12 Ibid at paragraphs 26-30.
13 Respondent’s Outline of Submissions dated 24 August 2020, at paragraph 1(b).
14 Ibid at paragraph 1(c).
15 Respondent’s Final Outline of Submissions dated 8 October 2020, at paragraph 1(i)-(x).
16 Statement of Roger Banfield dated 24 August 2020, at paragraph 9.
17 [2018] FWCFC 4166.
18 Respondent’s Final Outline of Submissions dated 8 October 2020, at paragraph 2(a).
19 Form F3 – Employer response form, at question 3.1; Statement of Roger Banfield dated 24 August 2020, at paragraph 21.
20 Transcript at PN172.
21 Transcript at PN170.
22 Transcript at PN163; PN172.
23 Form F3 – Employer response form, at question 3.1.
24 Transcript at PN164.
25 Transcript at PN169.
26 Transcript at PN161-PN162.
27 Transcript at PN311-PN312.
28 Statement of Sean Patrick Kennedy dated 7 August 2020, at paragraph 28; see also Court Book, at page 63 (Letter dated 1 June 2020).
29 Statement of Tristan Forrest dated 24 August 2020, at paragraph 15.
30 Transcript at PN1098.
31 Transcript at PN1104-PN1105.
32 Transcript at PN826.
33 Transcript at PN827-PN828.
34 Transcript at PN833-PN834.
35 Transcript at PN832.
36 Transcript at PN899.
37 Transcript at PN834-PN835.
38 Statement of Dylan Beecroft dated 7 August 2020, at paragraphs 47-53.
39 Transcript at PN394.
40 Transcript at PN403-PN405.
41 Transcript at PN384.
42 Statement of Sean Patrick Kennedy dated 7 August 2020, at paragraph 21.
43 Transcript at PN155.
44 Transcript at PN164.
45 Transcript at PN170.
46 Statement of Roger Banfield dated 24 August 2020, at paragraph 22.
47 Statement of Tristan Forrest dated 24 August 2020, at paragraph 12.
48 Ibid at paragraph 13.
49 Ibid at paragraph 11.
50 Transcript at PN177 and PN181.
51 Statement of Tristan Forrest dated 24 August 2020, at paragraph 14.
52 Transcript at PN184.
53 Transcript at PN191.
54 Transcript at PN1084.
55 Statement of Roger Banfield dated 24 August 2020, at paragraph 23.
56 Statement of Dylan Beecroft dated 7 August 2020, at paragraph 41.
57 Ibid at paragraph 43.
58 Transcript at PN407.
59 Transcript at PN411.
60 Statement of Dylan Beecroft dated 7 August 2020, at paragraph 72.
61 Statement of Roger Banfield dated 24 August 2020, at paragraph 25.
62 Transcript at PN699.
63 Transcript at PN1005.
64 Transcript at PN1016.
65 Court Book, page 63 (Letter dated 1 June 2020), as referred to in the Statement of Sean Patrick Kennedy dated 7 August 2020 at paragraph 28.
66 Applicant’s Final Outline of Submissions lodged 25 September 2020, at paragraphs 49-50.
67 Statement of Sean Patrick Kennedy dated 7 August 2020 at paragraph 20 and 23.
68 Transcript at PN279.
69 Transcript at PN109-PN110.
70 Statement of Sean Patrick Kennedy dated 7 August 2020 at paragraph 24.
71 Transcript at PN123; Statement of Sean Patrick Kennedy dated 7 August 2020 at paragraph 25.
72 Transcript at PN127.
73 Transcript at PN134.
74 Transcript at PN849.
75 Transcript at PN118.
76 Transcript at PN1119.
77 Transcript at PN136.
78 Statement of Roger Banfield dated 24 August 2020, at paragraph 32(a).
79 Statement of Sean Patrick Kennedy dated 7 August 2020 at paragraph 27.
80 Transcript at PN139.
81 Transcript at PN1110-PN1116.
82 Transcript at PN577-PN579.
83 Transcript at PN868.
84 Court Book, at page 66.
85 Macquarie Dictionary (online ed, at December 2020).
86 Transcript at PN262.
87 Statement of Dylan Beecroft dated 7 August 2020, at paragraph 71.
88 Transcript at PN843.
89 Transcript at PN875.
90 Statement of Robert Smith dated 24 August 2020, at paragraph 6.
91 Transcript at PN385.
92 Transcript at PN876.
93 Transcript at PN877.
94 Transcript at PN881.
95 Transcript at PN137.
96 Statement of Dylan Beecroft dated 7 August 2020, at paragraph 35.
97 Transcript at PN393.
98 Transcript at PN265.
99 Transcript at PN231.
100 Transcript at PN232.
101 Transcript at PN235.
102 Transcript at PN237.
103 Statement of Sean Patrick Kennedy dated 7 August 2020, at paragraphs 42 and 46.
104 Transcript at PN893-PN894.
105 Statement of Robert Smith dated 24 August 2020, at paragraph 16(g).
106 Statement of Roger Banfield dated 24 August 2020, at paragraphs 19, 20 and 32(g).
107 Transcript at PN237.
108 Statement of Dylan Beecroft dated 7 August 2020, at paragraph 22.
109 Ibid at paragraph 37.
110 Transcript at PN96-PN97.
111 Transcript at PN98.
112 Statement of Tristan Forrest dated 24 August 2020, at paragraph 8.
113 Ibid at paragraph 6.
114 Transcript at PN276.
115 Transcript at PN277.
116 Transcript at PN278.
117 Statement of Robert Smith dated 24 August 2020, at paragraphs 8 and 11.
118 Transcript at PN797.
119 Statement of Sean Patrick Kennedy dated 7 August 2020, at paragraph 43.
120 Transcript at PN240.
121 Transcript at PN241.
122 Transcript at PN245-PN246.
123 Transcript at PN241.
124 Transcript at PN814.
125 Transcript at PN807.
126 Form F3 – Employer response form, at question 3.1(4).
127 Transcript at PN201.
128 Transcript at PN200.
129 Transcript at PN210.
130 Transcript at PN216.
131 Transcript at PN203.
132 Transcript at PN204.
133 Statement of Dylan Beecroft dated 7 August 2020, at paragraphs 62-64.
134 Court Book, page 63 (Letter dated 1 June 2020).
135 Statement of Robert Smith dated 24 August 2020, at paragraph 16(d).
136 Transcript at PN865 – PN866.
137 Statement of Tristan Forrest dated 24 August 2020, at paragraph 16(e).
138 Transcript at PN449.
139 Transcript at PN449.
140 Transcript at PN460.
141 Transcript at PN909.
142 Transcript at PN449.
143 Statement of Sean Patrick Kennedy dated 7 August 2020, at paragraphs 51-60.
144 Transcript at PN280.
145 Transcript at PN281-PN282.
146 Transcript at PN287-PN288.
147 Transcript at PN289.
148 Applicant’s Outline of arguments: merits.
149 Court Book, page 64 (Letter dated 1 June 2020).
150 Transcript at PN446.
151 Transcript at PN447.
152 Transcript at PN543.
153 Transcript at PN27.
154 Transcript at PN548-PN552.
155 Transcript at PN631-PN635.
156 Transcript at PN385-PN386.
157 Transcript at PN389.
158 Transcript at PN712-PN717.
159 Statement of Roger Banfield dated 24 August 2020, at paragraphs 28-29.
160 Transcript at PN717.
161 Transcript at PN718.
162 Transcript at PN721.
163 Transcript at PN723-PN729.
164 Statement of Sean Patrick Kennedy dated 7 August 2020, at paragraph 73.
165 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
166 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
167 Ibid.
168 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
169 Edwards v Justice Giudice [1999] FCA 1836, [7].
170 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
171 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
172 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
173 Ibid.
174 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
175 RMIT v Asher (2010) 194 IR 1, 14-15.
176 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
177 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
178 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
179 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 (Ross J, Gostencnik DP, Wilson C, 21 October 2014) at paras 19–20.
180 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
181 (1998) 88 IR 21.
182 [2013] FWCFB 431.
183 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].
184 [2010] FWA 4342, [140].
185 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
186 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
187 Applicant’s Outline of arguments: merits.
188 Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].
189 (1998) 88 IR 21.
190 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].
0
11
0