Mr Troy Andrew Said v Jokar Holdings Pty Ltd

[2011] FWA 977

Note: An appeal pursuant to s.604 (C2011/3542) was lodged against this decision - refer to Full Bench decision dated 6 May 2011 [[2011] FWAFB 2628] for result of appeal.

[2011] FWA 977

FAIR WORK AUSTRALIA

DECISION

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

Mr Troy Andrew Said
v
Jokar Holdings Pty Ltd
(U2009/10962)

COMMISSIONER ASBURY BRISBANE, 15 FEBRUARY 2011

Application for unfair dismissal remedy - jurisdiction - whether the Small Business Fair Dismissal Code was complied with - whether the dismissal was unfair.

Overview

[1] This is an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the FW Act), by Mr Troy Andrew Said. The Respondent is Jokar Holdings Pty Ltd (trading as Moving Again) (Jokar). Mr Said was employed by Jokar from 21 January 2008 and undertook administrative tasks associated with furniture removal. Mr Said was summarily dismissed on 22 July 2009, on the ground that he fraudulently used a mobile telephone.

[2] In relation to the initial matters to be considered: the application was made within the period required in s.396(2); Mr Said was a person protected from unfair dismissal; and the dismissal was not a redundancy. While it was not contended for Jokar that the dismissal of Mr Said was consistent with the Small Business Fair Dismissal Code (the Code), this is a matter I am required to consider before the merits of the application. The Form F3 - Employer’s Response to Application for an Unfair Dismissal Remedy filed by Jokar, indicates that the Company has three employees. There was nothing from Mr Said to indicate that this was not the case. On this basis, I accept that Jokar was a small business employer within the meaning of s.23 of the Act and Schedule 12A, Item 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Accordingly, at the date of the dismissal, the Code applied to Jokar.

Legislation

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

(a) the person has been dismissed;

(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.

[4] If a dismissal is found to be consistent with the Code, the dismissal is withdrawn from the general operation of s.385 of the Act and FWA cannot find that the dismissal was otherwise unfair on the basis that it was harsh, unjust and unreasonable. An employer carries the onus of establishing, on the balance of probabilities, an assertion that a dismissal is consistent with the Code.

[5] If a dismissal is found to be not consistent with the Code it is not automatic that a finding will follow that the dismissal was unfair on the basis that it was harsh, unjust or unreasonable. The onus is on the applicant for an unfair dismissal remedy to establish that this was the case.

The Code provides:

“Summary Dismissal

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

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

Other Dismissal

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

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

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

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

Procedural Matters

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

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

[6] The provisions dealing with the Code must be viewed in the context of Part 3-2 of the Act, in which they are found. That Part has as its object, ensuring that a “fair go all round” is accorded to both the employer and the employee concerned. The effect of section 385(c) is to deprive a dismissed employee of access to relief that is otherwise generally available to dismissed employees on the ground that their dismissal is harsh, unjust or unreasonable, in circumstances where the employer is a small business and has complied with the Code. The further effect of the Code is that where misconduct is serious so that the provisions of the Code dealing with summary dismissal apply, the employee is not entitled to the other provisions of the Code dealing with elements of procedural fairness, including:

• The right to be given a valid reason why he or she is at risk of being dismissed;



• A warning that there is a risk of dismissal if there is no improvement;



• An opportunity to respond to the warning and a reasonable chance to rectify the problem, having regard to the response; and



• The choice to be represented in discussions in circumstance where dismissal is possible.

[7] In my view, the object of “a fair go all round” requires that before the employee is subjected to the detriment of being deprived of the provisions of the Code relating to procedural fairness, and of access to the general provisions of the Act dealing with unfair dismissal, the misconduct must be of the kind set out in the examples which are said to include theft, fraud, violence, and serious breaches of occupational health and safety procedures. To be properly described as “serious”, misconduct must be: “significantly worse than negligence and serious in its culpable quality as misconduct, as distinct from the results”. 1 The term “serious misconduct” as it appears in the Code is not associated with the term wilful. Serious misconduct is judged on an objective basis, and it is therefore not necessary that the employee should intend to do wrong. If the employee knows of a specific relevant risk there may be misconduct depending on its seriousness. If the employee does not know of a specific relevant risk, then the negative element of misconduct requires a disregard or recklessness of possible risk.2

[8] In circumstances where the reason for a dismissal is serious misconduct said to amount to theft or fraud, it is critical that an assessment be made as to whether, on the balance of probabilities, the employee did actually engage in such misconduct. The standard of proof to be applied is proof on the balance of probabilities. As a Full Bench of the Australian Industrial Relations Commission noted in Brinks Australia Pty Ltd v Transport Workers’ Union of Australia:

“It seems to us beyond doubt that the standard of proof to be applied in Commission proceedings is proof on the balance of probabilities. While it is true that the strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what it is sought to prove, the standard of proof never changes.” 3

[9] The Full Bench also cited the judgment of the majority of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others 4 to the effect that a finding should not lightly be made that, on the balance of probabilities, a party in civil proceedings has engaged in fraudulent or criminal conduct, on the basis that there is a conventional perception that members of our society do not ordinarily engage in such conduct.5 However, the need for clear or cogent proof in order for such a finding to be made, does not alter the standard of proof in civil proceedings, to that required in criminal proceedings.

[10] The dismissal of an employee on the ground of serious misconduct, including theft or fraud, can have a potentially far reaching and catastrophic effect on the employee’s future employment prospects. Such allegations should not be lightly levelled or bandied about.

[11] If the dismissal is not removed from the operation of the general provisions of the Act relating to unfair dismissal, FWA must decide whether it was harsh, unjust or unreasonable. In deciding whether a dismissal is harsh, unjust or unreasonable, FWA must take into account the following matters as set out in s.387 of the Act:

(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 the dismissal; and

(e) If the dismissal related to unsatisfactory performance – 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 FWA considers relevant.

[12] The criteria in s.387 go to both procedural and substantive matters, and FWA is required to weigh the evidence and material before it and to decide on balance whether a dismissal is harsh, unjust or unreasonable. A dismissal may be:

• harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;

• unjust, because the employee was not guilty of the misconduct on which the employer acted; and/or

• unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer. 6

[13] A valid reason for termination of employment is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.” 7 The reason for termination must also be defensible or justifiable on an objective analysis of the relevant facts8, and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.9 In determining whether a reason is valid:

“It is not the court’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct...”. 10

Issues in Dispute

[14] The issues in dispute in this case are:

• Whether Mr Said’s dismissal was consistent with the Code; and



• In the alternative, whether Mr Said’s dismissal was unfair because it was harsh, unjust or unreasonable, within the meaning of s.387 of the Act.

The evidence relevant to both issues in dispute is summarised below.

Evidence

[15] Evidence in support of the application was given by Mr Said. Evidence for Jokar was given by:

• Mrs Amanda Hill, Owner and Sole Shareholder of Jokar;



• Mr Jason Hill, Sole Director of Jokar;



• Ms Deborah Barr, Employee of Jokar;



• Ms Kirsten Hicks, Employee of Jokar; and



• Ms Sharon Wilton, Employee of Jokar.

[16] In relation to the use of the mobile telephone, Mr Said’s evidence was that he had been employed for approximately three weeks, when he was given a mobile telephone by Mr Hill, and told that he could take the telephone home with him to use for after hours work. Mr Said also maintained that Mr Hill told him that the telephone could be used for personal calls as Jokar had an “unlimited cap plan”, but that he should not “go crazy with the phone”. According to Mr Said, these were the only comments made during his employment about his use of the mobile telephone.

[17] Mr Said said that he took the phone home nearly every night, for approximately 17 months and used it in the same manner for the entire period of his employment. Mr Said used the phone when he was required to make after hours calls for work purposes and to make personal calls from time to time. Mr Said also had a personal mobile telephone which he used to make personal calls. Mr Said maintained that at no stage during his employment was he shown a company policy and Jokar’s expectations with respect to the mobile telephone were not explained to him. Mr Said also maintained that Mr and Ms Hill and other staff members of Jokar were aware that he was authorised to take the mobile telephone home after work hours and he was contacted by Ms Hill and Mr Hill from time to time, after hours, on that telephone. Ms Hill and Mr Hill did not give any evidence to contradict that of Mr Said, in relation to them contacting him from time to time on the mobile telephone outside working hours.

[18] Mr Said tendered copies of pay advice slips for periods ending: 1 July 2008; 8 July 2008; 16 December 2008; 4 February 2009; and 17 June 2009. These indicated that Mr Said was paid overtime for some 21 hours. Mr Said said in his evidence that in order to claim overtime, he simply filled in a time sheet indicating the hours he had worked and handed it to the office manager, Deborah Barr, who would then hand it to a Book Keeper who is Ms Hill’s mother. The time sheet would be checked by Ms Hill and the Book Keeper. Mr Said conceded that overtime was not a daily thing, but when Ms Hill and Mr Hill went on holidays, he did work overtime to keep things in order. Under cross-examination, Mr Said maintained that he was required to work overtime and was requested to do so when Ms Hill and Mr Hill went on holidays.

[19] Ms Hill said that Jokar has two mobile telephones, which are used to field outgoing calls to clients to ensure that land lines are maintained for incoming calls so that clients can contact Jokar at all times. It is, and at all times was, Jokar’s policy that mobile telephones are not to be used for personal purposes and are not to be taken from the office by any employee. Mr Hill confirmed that the policy of Jokar is that mobile telephones are to remain at the company’s premises at all times and are not to be removed or used for personal purposes. Mr Hill also said that the only occasion on which permission had been given to an employee to use the company mobile telephone for personal purposes, was when Ms Hicks was granted this privilege because her father was seriously ill and undergoing surgery. Mr Hill also denied that he had ever required or allowed Mr Said to use a company mobile telephone outside of work hours or for personal purposes.

[20] Ms Hill said that in the course of his employment, Mr Said was only ever required to undertake tasks on-site at Jokar’s premises and was at no time required to work after hours or on weekends. Ms Hicks said that employees of Jokar are not expected to work after hours or on weekends. It was also asserted by Ms Hill that Mr Said consistently misstated the hours he worked on his time sheets, and that this was noted by Ms Barr who would reconcile the time sheets with her records of when each employee arrived at work. Under cross-examination, Ms Hill agreed that truck drivers did not only drive between the hours of 9.00 am and 5.00 pm and would drive all day and at different times of the day. Mr Hill said under cross-examination that drivers did not make telephone contact with Jokar if they had issues, but rather with their own employers. Further, Jokar had an email address for out of hours contact.

[21] Ms Barr and Ms Wilton said that they had never been given company mobile telephones to take home and that they are to be used only for contacting customers during work hours. Ms Barr and Ms Wilton also said that it was not the practice of Jokar to require employees to work outside of their ordinary working hours so that they would be required to take a mobile telephone home. Ms Barr did not give evidence about the alleged issues with Mr Said’s time sheets.

[22] In the week leading up to 22 July 2009, Ms Hill received a bill for one of the mobile telephones, and noted that it was unusually high - an amount of $1,256.00 instead of the usual amount in the vicinity of $99.00. Ms Hill put calls through to numbers listed as having been called on the mobile telephone during this period, and on each occasion asked the person answering the telephone whether they knew Mr Said. One of the numbers called was Mr Said’s girlfriend.

[23] The mobile telephone bills were not in evidence. In submissions filed on behalf of Jokar, it is asserted that the total cost of the personal telephone calls made by Mr Said amounted to some $2,510.10. The latter amount was calculated by Ms Hill after going back through earlier bills for the mobile telephone and identifying calls on Fridays, Saturdays and Sundays. Ms Hill said under cross examination, that at the point Mr Said was dismissed, her concern was in relation to a mobile telephone bill of approximately $1,300.00.

[24] In relation to the dismissal, Mr Said’s evidence was that on 22 July 2009, he arrived for work at Jokar’s premises, at 9.00 am. Mr Said attempted to use his key to the premises, but it did not work. The lock is key operated, and Mr Said’s key did not fit into the barrel of the lock. According to Mr Said, the lock had not been changed during the period of 17 months he was employed by Jokar, and had been changed between 5.00 pm on 20 July when he left work, and 9.00 am on 22 July when he arrived for work after an absence on sick leave on Tuesday 21 July. Mr Said was let in to the premises by Mr Hill, and told that the locks had been changed the night before.

[25] Mr Hill asked Mr Said to accompany him to the office to meet with Ms Hill. Upon entering the office, Mr Said was told that he was dismissed, due to fraudulent use of business phones. Mr Said said that he was in shock and confused, and Ms Hill and Mr Hill would not answer any questions that he asked. Mr Said’s explanation that he had been given permission to use the phone by Mr Hill was ignored. According to Mr Said, the dismissal meeting went for no more than two minutes. Mr Said maintained that at no time during the meeting was he asked to provide any information regarding the mobile phone usage.

[26] Ms Hill said that during the meeting prior to Mr Said’s dismissal, he was asked about the mobile telephone bills and about who had given him permission to use the phone. Mr Said responded that no one had given him permission to use the telephone. Mr Said was also asked what he intended to do about the situation and responded by saying, “nothing”.

[27] In relation to the locks being changed prior to the dismissal of Mr Said, Ms Hill said that this had occurred three times since Jokar had been operating from those premises, but this was after the applicant was dismissed. Under cross examination, Ms Hill said that the lock was changed on Monday [20 July 2009]. The proposition was put to Ms Hill that the lock was changed on Tuesday [21 July 2009], on the basis that Mr Said attended work on Monday [20 July 2009] and his key worked and that he was absent from the workplace on sick leave on Tuesday [21 July 2009]. Ms Hill then agreed that the lock must have been changed on Tuesday [21 July 2009]. In response to a question from the Tribunal, Ms Hill agreed that changing the locks had not been planned in advance of the day on which it occurred and said: “we just suddenly thought it up”. No evidence was produced of when the arrangement was made for a locksmith to attend the premises of Jokar to change the lock.

[28] Mr Said’s evidence was that he was not given written reasons for his dismissal until 11 August 2009, when he received a letter in the following terms:

“Dear Troy Said,

As per our meeting today, we are exercising our right to instantly dismiss you today, 22/07/2009.

The reason for instant dismissal is fraudulent use of business phones for personal use outside of work hours without permission.”

[29] The letter was dated 22 July 2009. Mr Said was not cross-examined in relation to his contention that he did not receive the letter until 11 August 2009.

[30] Mr Said’s evidence was that following the dismissal, Jokar filed two minor debt claims against him in the Magistrates Court on 10 August 2009. The first claim related to a loan amount which Mr Said had repaid. The second claim was for the amount of $2,550.10 which was claimed for personal calls made from the mobile telephone. According to Mr Said, the Magistrate decided that he did have permission to use the mobile telephone for personal calls, however, personal calls over 20 minutes would be considered excessive. An order was made that Mr Said repay the amounts charged for personal calls over 20 minutes, and this was calculated to be $624.95. In addition, Mr Said was ordered to pay court costs of $97.30. A copy of the judgement was exhibited to Mr Said’s witness statement. Also exhibited was an email from Mr Said to Ms Hill, seeking details of the manner in which she wished to have the amount paid, and a copy of the cheque forwarded by Mr Said in satisfaction of the judgement amount. Ms Hill agreed under cross-examination that the amount of the judgement had been paid by Mr Said. Mr Said also said that he attempted to obtain a copy of the Magistrate’s comments in relation to the minor debt claim, but had been informed proceedings relating to claims in the Minor Debt Court are not recorded unless the request for a transcript is made prior to the hearing.

[31] Mr Said’s evidence was that following his dismissal, Jokar withheld payment of his wages for work performed in the week prior to his dismissal, and refused to pay his accrued annual leave entitlements. According to Mr Said, the wages and the annual leave entitlements were paid four to six months after his dismissal, and only following the intervention of the Fair Work Ombudsman. Mr Said agreed under cross-examination that it took him 22 days to cash the cheque sent to him in payment of his outstanding entitlements.

Mr Said also gave evidence that Jokar sent a letter to contractors in the following terms:

“This is a memo to all contractors,

URGENT

To notify all contractors that Troy Said is no longer employed or affiliated (sic) this or any of our companies. He no longer represents us in any way.

He has been instantly dismissed due to misconduct.

Please confirm by email that you have acknowledged this important information.

Regards

Jason Hill

Moving Again”

[32] Mr Said contended that the transport industry is small, and that this letter was impacting on his ability to find alternative employment.

[33] Mr Said gave evidence that on or around 18 November 2008, he was approached by Mr Hill in relation to starting a company together. Mr Hill, Ms Hill and Mr Said opened a new company called Moving Insurance Pty Ltd, and are Directors and Shareholders of the Company. According to Mr Said, he has not been provided with any information or documents by the other directors in relation to the Company, and to the best of his knowledge the Company is making a profit in the order of $2000 to $4000 per month. Under cross-examination Ms Hill agreed that Moving Insurance Pty Ltd was still operating at the time Mr Said was dismissed. According to Mr Said, Ms Hill and Mr Hill could have come to an arrangement with him to repay a portion of the mobile telephone bill out of his share of the profits of this company, and did not do so.

[34] Under cross-examination, Mr Said agreed that he has three businesses and the name of one business was registered while he was employed by Jokar. Mr Said rejected the proposition that he had set up a business in competition with Jokar, some six months prior to his dismissal. A business by the name of Quality Backloading was started by Mr Said a few months after his dismissal and a business by the name of Interstate Removals was started about three to six months after Mr Said’s dismissal. Mr Said maintained that he was being assisted by a Government small business program to get that business up and running. Mr Said also agreed that he had used contacts gained through Jokar’s business to contact sub-contractors to do work for his business, and that some of them had performed work for his business.

[35] In response to a question from the Tribunal, Mr Said said that he had been receiving an amount of $698.06 per week while employed by Jokar. Mr Said was in receipt of unemployment benefits totalling $440 per month following his dismissal.

[36] Mr Said also gave evidence that he had been given permission to store items including a refrigerator, boxes of his personal belongings and some belongings of his house mate, at Jokar’s premises, and that Ms Hill and Mr Hill now refused to return the refrigerator or his personal belongings, and was not allowing him access to collect those items. Mr Said’s housemate had been allowed access to collect his belongings. Mr Said maintained that he had not taken or used Jokar’s cartons, in connection with the storage of these items.

[37] Ms Hill said that in or about July 2008, Mr Said requested and was granted permission to store a refrigerator in the storage facility operated by Jokar. Some time later, it became apparent that Mr Said had not only moved the fridge into the facility, but had also stored other furniture including a large wardrobe and queen sized bed. Mr Said represented that this was his furniture, and issue was not taken by Jokar at that time. The furniture remained in the storage facility until about September 2009. After Mr Said was dismissed, Ms Hill became aware that the furniture, with the exception of the refrigerator, belonged to one of Mr Said’s associates. On moving the furniture so that it could be returned to its owner, it was found that Mr Said had allowed his associate to use packing cartons which were the property of Jokar. These cartons are usually sold to clients.

[38] Ms Hill asserted that:

“... the conduct engaged in by [Mr Said] ...amounts to serious misconduct in that he wilfully and deliberately mislead or attempted to mislead [Jokar] (with regard to the time sheets and representations about the ownership of the furniture), stole from [Jokar], and acted outside the authority granted to him to use the storage facility.”

Conclusions

Was the dismissal consistent with the Code?

[39] I am not satisfied that the dismissal of Mr Said was consistent with the Code. In my view, Jokar has not provided clear and cogent evidence to support a finding that on the balance of probabilities, Mr Said engaged in theft, or that he fraudulently used the mobile telephone. It is not in dispute that Mr Said made a number of personal telephone calls on a company supplied mobile telephone. The proceedings in the Magistrate’s Court in relation to that matter resulted in a finding that the duration of some of the calls was unreasonable, and an Order being made that Mr Said pay an amount of approximately 25% of the total claimed by Jokar. The outcome of those proceedings can in no way support a finding that Mr Said’s conduct amounted to theft.

[40] Mr Said’s uncontested evidence was that he was given the mobile telephone some three weeks after he commenced employment on 21 January 2009, and that he used the telephone in the same way until the issue was raised in July 2009. Mr Said maintained that he believed that the mobile telephone was on an uncapped plan, and that he had approval from Mr Hill to use it in the manner that he did. While Mr Hill denied that he told Mr Said that this was the case, there is evidence to support Mr Said’s version of events. In particular, the evidence supports a finding that the bills for that mobile telephone were in excess of what Ms Hill believed was the usual amount, for that telephone - some $99 per month. The bill that concerned Ms Hill was for an amount of $1,256.00. The total amount for the calls relied on to justify the allegation of theft against Mr Said was $2,510.10. Given that Mr Said had the phone in his possession from February 2008, it is more probable than not that there were other months where the bill was well in excess of $99.00 and no issue was raised.

[41] I am also of the view that Ms Hill and Mr Hill were not reliable witnesses. Their attempts to claim that Mr Said claimed overtime to which he was not entitled were at odds with the process by which Mr Said’s time sheets were checked and wages paid. Ms Barr, who supposedly noted these alleged inconcistencies, gave no evidence on this point, and no issue was taken in relation to time sheets during Mr Said’s employment. Further, neither Ms Hill nor Mr Hill disputed Mr Said’s claim that on occasion they contacted him on the mobile telephone, outside of ordinary working hours.

[42] At best, the evidence establishes a misunderstanding on the part of Mr Said in relation to permitted use of a company supplied mobile telephone, and that Mr Said made some personal calls on the phone which were of an unreasonable duration. This is not sufficiently serious conduct to justify immediate dismissal or to attract epithets such as fraud and theft.

[43] I am also of the view that Jokar did not have reasonable grounds to believe that Mr Said was guilty of theft. Although the Code does not require that a person dismissed for serious misconduct be given warnings or an opportunity to respond to warnings, the reference to the employer having reasonable grounds for believing that an employee has engaged in serious misconduct, may require some discussion of allegations with the employee. This is particularly so in circumstances where the facts the employer relies on are in question or capable of some other explanation.

[44] In the present case there was a total failure on the part of Ms Hill and Mr Hill to properly discuss the allegations with Mr Said or to give him any warning that he was to attend a meeting in circumstances where dismissal was possible. In my view, the evidence establishes that dismissal was probable rather than possible and that before the meeting of 22 July 2009, a decision had been made to dismiss Mr Said, regardless of the outcome of the discussion with him on that date.

[45] The evidence on behalf of Jokar about the circumstances leading to the locks being changed was entirely unconvincing. The locks were changed while Mr Said was absent from the workplace. It is clear that the locks were changed to restrict Mr Said’s entry to the workplace prior to the meeting at which he was to be dismissed, and to thereafter exclude him. This is an indication that the outcome of the meeting at which Mr Said was dismissed had been pre-determined, in advance of any discussion with Mr Said. In all of the circumstances, Ms Hill and Mr Hill had no reasonable grounds to form the view that Mr Said’s conduct was sufficiently serious to justify immediate dismissal.

[46] For these reasons, the dismissal of Mr Said was not consistent with the Code, and it is necessary to determine whether it was otherwise unfair, on the grounds that it was harsh, unjust and unreasonable.

Was there a valid reason for the dismissal?

[47] It was not disputed on behalf of Jokar, that Mr Said was provided with a company mobile telephone or that it was given to him by Mr Hill. Mr Said maintained that he was told by Mr Hill that the phone had an unlimited cap and that he could use it for personal calls, provided that he did not “go crazy”. Mr Hill denied that he told Mr Said these things, without giving any evidence about what, if any, conditions he did place on the use of the mobile telephone when he provided it to Mr Said. No evidence of any written policy in relation to the use by employees of company supplied mobile telephones was placed before the Tribunal. The only evidence about the alleged policy was that of other employees who gave their views about the fact that mobile telephones were not permitted to be taken from the premises of Jokar. There is no evidence that Mr Said was informed of this by any representative of Jokar, and there was no evidence of this policy being made known to Mr Said.

[48] Proceedings initiated by Jokar in the Magistrates Court of Queensland resulted in an order that the cost of some 25% of the calls made by Mr Said be reimbursed to Jokar on the grounds that the length of those calls was unreasonable. This finding does not provide any support for the allegation of theft, relied on by Jokar to justify the dismissal of Mr Said.

[49] At best, the evidence establishes that Mr Said made unreasonable use of a company supplied mobile telephone, in circumstances where he did not receive a clear instruction about what, if any, personal use was acceptable. The evidence does not establish that Mr Said engaged in conduct amounting to theft of telephone credit or that there were any reasonable grounds upon which a conclusion could be drawn that this was the case.

[50] Accordingly, I am not satisfied that there was a valid reason for the dismissal of Mr Said. The reason for the dismissal - that Mr Said was guilty of theft - was not sound, defensible or well founded, and it was not justifiable on an objective analysis of the relevant facts.

[51] Issues relating to the time sheets and the storage of furniture in Jokar’s premises, were raised after the dismissal, and did not form any part of the reasons that Mr Said was dismissed. In any event, there is no basis upon which it could be found that Mr Said deliberately mislead or attempted to mislead Jokar in relation to the time sheets. Mr Said’s evidence that his time sheets were checked by Ms Hill and her mother, Jokar’s book keeper, was not contested. No evidence was given by Ms Barr about the matter, despite the assertion by Ms Hill that Ms Barr had noted that Mr Said misstated the hours on his time sheets. It is simply not open to Ms Hill to attempt to call into question Mr Said’s honesty as a basis for his dismissal, in those circumstances.

[52] I am also of the view that there is insufficient evidence upon which I could make a finding in relation to the storage of furniture by Mr Said on Jokar’s premises. It is clear that there was an agreement for Mr Said to store some items. Issues in relation to this matter arose after Mr Said’s dismissal. Further, Ms Hill and Mr Hill appear to have dealt with the matter by refusing to allow Mr Said to have access to the premises to collect his property. In my view this is not a matter relevant to these proceedings.

Was Mr Said notified of the reason for the dismissal?

[53] It is not in dispute that Mr Said was notified of the reason for his dismissal in the meeting of 22 July 2009.

Was Mr Said given an opportunity to respond to any reason for his dismissal related to his capacity or conduct?

[54] Upon his arrival at the workplace on 22 July 2009, Mr Said was confronted with the fact that his key to the lock on the company premises would not work. As previously stated, the evidence of witnesses for Jokar in relation to the changing of the locks was entirely unconvincing and indicates that it had already been decided that Mr Said was to be dismissed regardless of the outcome of the meeting. Even if the evidence of Ms Hill and Mr Hill about the meeting is accepted, it is clear that Mr Said had no notice of the meeting or what it was about, until he went into an office and was confronted with an allegation of theft.

[55] In those circumstances, it is understandable that Mr Said had no suggestions to make about how to rectify the situation and was not given any opportunity to consider his response.

[56] There were no alternatives considered. Given that Ms Hill and Mr Hill trusted Mr Said sufficiently to start a company, of which they were all Directors, it is surprising that some consideration was not given to putting a proposal to Mr Said about repaying the amounts in dispute, rather than simply asking Mr Said what he intended to do about the situation. Further, in circumstances where the decision to dismiss had already been made and Mr Said had been confronted with changed locks; a meeting about which he had no warning; and allegations of theft, it would be entirely understandable if he did not volunteer a solution.

[57] For these reasons, I do not accept that Mr Said was given an opportunity to respond to the reason for his dismissal.

Was there an unreasonable refusal by Jokar to allow Mr Said to have a support person present to assist at any discussions relating to the dismissal?

[58] There was no direct refusal to allow Mr Said to have a support person present to assist him at discussions relating to his dismissal. However, the conduct of Ms Hill and Mr Hill on the morning of 22 July 2009, effectively precluded Mr Said from having a support person present at the meeting relating to his dismissal. Mr Hill arrived at the workplace to find that his key did not fit the lock due to the fact that the locks had been changed. He was invited to a meeting to discuss serious allegations of theft, with no notice of the fact that the meeting was to take place, much less of the subject.

What was the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management specialists would be likely to impact on the procedures followed in effecting the dismissal?

[59] Jokar is a small business and does not have dedicated human resource management specialists. It is clear that the size of the enterprise and the lack of dedicated human resource management specialists had an impact on the procedures followed in effecting the dismissal.

[60] However, even making allowances for these matters, the manner in which the dismissal was effected left much to be desired. Mr Said had been working for Jokar for a period of 18 months. Other than the matters which lead to his dismissal, there was no evidence of any issues with his conduct, capacity or work performance. Such was the relationship between Ms Hill, Mr Hill and Mr Said, that a business was formed of which they were all directors and shareholders, at the instigation of Mr Hill. Given the level of trust required between persons who are the directors and shareholders of a company, it is surprising that Ms Hill and Mr Hill dealt with the applicant in the way that they did, in relation to their concerns about his use of the mobile telephone.

[61] In all of the circumstances of this case, the fact that Jokar is a small business, lacking in dedicated human resource management specialists, is not sufficient to outweigh the lack of a valid reason for the dismissal and the failures to afford Mr Said procedural fairness.

Other relevant matters

[62] In my view there are other relevant matters in determining whether Mr Said’s dismissal was unfair. Mr Said was summarily dismissed and received no payment in lieu of notice. Further, Mr Said was not paid for his wages for the week prior to his dismissal, or his accrued entitlement to annual leave at the time of his dismissal. These amounts were not paid until several months after Mr Said was dismissed, and only after he was put to the time and effort of making a complaint with the Office of the Fair Work Ombudsman. I am of the view that these matters can be taken into account in the general weighing up of unfairness.

[63] I am also of the view that it is relevant to the consideration of whether Mr Said’s dismissal was unfair, that Mr Hill sent a potentially damaging email to contractors. Although the email does not state that Mr Said was dismissed for theft, it does state that Mr Said has been instantly dismissed due to misconduct. Mr Said’s uncontested evidence was that this caused him some difficulty in obtaining other employment. Given the tone of the email, this is not surprising. In my view, the email adds to the general unfairness surrounding the dismissal of Mr Said.

[64] After considering the required matters, I have concluded that Mr Said’s dismissal was unfair because it was harsh, unjust and unreasonable. The dismissal had consequences for Mr Said’s personal and economic situation. He had difficulty finding other employment, which, as previously stated, is understandable, given the correspondence forwarded to contractors by Mr Hill after the dismissal. Summary dismissal was also disproportionate to the gravity of Mr Said’s conduct. The dismissal was unjust because Mr Said was not guilty of theft or fraud as alleged. The dismissal was also unreasonable because it was decided on inferences which could not have been reasonably drawn from the material before the employer.

Remedy

[65] FWA may order a remedy for unfair dismissal as provided in s.390 of the Act. As required by s.390(1)(a) I am satisfied that Mr Said was a person protected from unfair dismissal at the time he was dismissed. I am also satisfied that Mr Said was unfairly dismissed. As required by s.390(2) Mr Said has made an application under s.394.

[66] I am satisfied that reinstatement of Mr Said is inappropriate. Jokar is a small business. Ms Hill the owner and sole shareholder and Mr Hill the sole director of Jokar, have accused Mr Said of theft and have written a letter to all contractors to their business stating that Mr Said was instantly dismissed due to serious misconduct. Mr Said has started his own business and does not seek reinstatement. I consider that in all of the circumstances of this case, an order for payment of compensation is appropriate.

[67] In relation to the criteria for determining an amount of compensation set out in s.392(2) of the Act, there is no evidence about the viability of Jokar. I assume that like most small businesses, it is impacted by the economic climate, and an order for compensation to be paid to Mr Said will have some impact on its viability. Mr Said was employed for a relatively short period of some 18 months.

[68] Mr Hill had approached Mr Said about starting a new business, and steps had been put into place whereby Mr Said, Mr Hill and Ms Hill were all directors of a company. There was no evidence of any warnings or issues with Mr Said’s conduct, capacity or work performance. It is likely that had Mr Said not been dismissed, he would have continued to receive remuneration from Jokar.

[69] Mr Said gave evidence of unsuccessful attempts to find other employment. Mr Said also gave evidence of a damaging communication to contractors in the moving industry, and maintained that this had impacted adversely on his attempts to find other employment. Further, Mr Said gave evidence of having started his own business, with assistance in the form of a Government program. Mr Said started this business three to six months after his dismissal.

[70] In my view, an appropriate amount of compensation in the circumstances of this case, is an amount of three months wages or 12 weeks at the rate of $696.06 per week. I am also of the view that a deduction should be made from this amount to reflect the unemployment benefits received by Mr Hill in that period in the amount of $110.00 per week, for that period.

[71] I Order that Jokar Holdings Pty Ltd pay to Troy Andrew Said the sum of $7,032.72 less taxation deductions as required by law, within twenty-eight days of the date of release of this decision.

COMMISSIONER

Appearances:

Mr T. Said on his own behalf.

Ms A. Hill on behalf of the Respondent

Hearing details:

2010.

Brisbane:

July 29.

 1   Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25 at 41 per Derrington J.

 2   Ibid at 41.

 3   Brinks Australia Pty Ltd v Transport Workers’ Union of Australia PR922612 per Giudice J, Acton SDP and Hingley C at [7].

 4 (1992) 110 ALR 449.

 5   Ibid at 449-450.

 6   Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-468 per McHugh and Gummow JJ.

 7   Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 8   Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

 9   Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

 10   Walton v Mermaid (1996) 142 ALR 681 at 685.

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