Mr Wayne William Jones v Perfmet Engineering

Case •

[2023] FWC 1857

•

10 AUGUST 2023
[2023] FWC 1857

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Wayne William Jones
v

Perfmet Engineering

(U2023/1074)

DEPUTY PRESIDENT BINET

PERTH, 10 AUGUST 2023

Application for an unfair dismissal remedy

  1. On 10 February 2023 Mr Wayne William Jones (Mr Jones) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Intercruit Australia Pty Ltd trading as Perfmet Engineering (Perfmet Engineering).

  1. On 22 March 2023, Perfmet Engineering filed a Form F3 - Employer Response to Unfair Dismissal Application, stating that it objected to the Application on the grounds that Perfmet is a small business employer and that it had complied with the Small Business Fair Dismal Code in effecting the dismissal of Mr Jones. 

  1. On 17 February 2023 the parties were notified that the Application had been listed for conciliation with a staff conciliator on 13 March 2023.  The staff conciliator contacted Mr Roy Tierney (Mr Tierney) the owner of the business at the listed time of the conference.  According to the staff conciliator:

“When I rang Roy Tierney's mob no it went to voicemail. There was no reply to my call. He also never sent in a F3 nor provided contact details for the concil conf. When I then rang the landline no, They confirmed he was present but stated they were told to tell me that he did not have time to talk to me as he had another important meeting to attend. The A believed that the R was intentionally avoiding the process, which he stated was also happening with his W/C paperwork.”

  1. The Application was subsequently allocated to my Chambers.

  1. On 20 March 2023 my Associate contacted Mr Tierney and explained the hearing process.  Mr Tierney agreed to participate in conciliation conference in an effort the resolve the matter more efficiently.  The parties were therefore notified that the Application would be listed for a conciliation conference on 29 March 2023.

  1. On 22 March 2023, the conference was relisted for 12 April 2023 at Mr Tierney’s request to accommodate Mr Tierney’s holiday plans.  Mr Tierney subsequently indicated that 12 April 2023 was not convenient to him.  To avoid further delaying the determination of the Application, directions for the filing of materials were issued to the parties on 4 April 2023 (Directions).

  1. Mr Jones failed to file his materials in accordance with the Directions.  Based on evidence which he provided to Chambers, he was granted an extension to file his materials.  Both parties were also granted additional extensions on the grounds that the materials which they initially filed were incomplete or insufficient.

  1. Taking into account the parties wishes and circumstances, a hearing, rather than a determinative conference, was determined to be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a hearing in Perth on 13 June 2023 (Hearing).

  1. Mr Tierney indicated that he was overseas on holiday at this time and uncertain when he would return so the Hearing was relisted to 28 July 2023.  Mr Tierney sought a further adjournment of the Hearing.  In support of the request he provided evidence that he was due to check in to a Perth hotel at 3pm on 28 July 2023.  Chambers advised Mr Tierney that the Hearing would most likely be concluded by that time. Mr Tierney again confirmed that he would not attend the Hearing. 

  1. Given the onus on the FWC to determine matters expeditiously, and in light of Mr Tierney’s failure to participate in any of the other listed proceedings in relation to this Application, the adjournment request was refused. Mr Tierney did not attend the Hearing nor did any other representative of Perfmet and the Hearing proceeded in their absence.

  1. At the Hearing, Mr Jones represented himself.

Evidence

  1. The Directions required the parties to file their witness evidence in chief in advance of the Hearing.

  1. Mr Jones filed two witness statements setting out his evidence in chief.[1]  At the Hearing Mr Jones gave further oral evidence. 

  1. Perfmet Engineering filed witness statements setting out the evidence in chief of the following witnesses:

a.Mr Roy Tierney (Mr Tierney) – Mr Tierney is the owner of Perfmet Engineering;[2]

b.Mr Binh Lieu (Mr Lieu) – Mr Lieu is an employee of Perfmet.[3]

  1. Neither witness attended the Hearing.

  1. The Perfmet Engineering witnesses did not give any evidence under oath and were not available for cross examination.  Mr Jones confirmed the accuracy of his evidence under oath and appeared a truthful and reliable witness.  I have therefore favoured the evidence of Mr Jones over the evidence of the Perfmet Engineering witnesses to the extent of any conflict which cannot be resolved by references to contemporaneously created documents filed in these proceedings.

  1. In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.

Background

  1. Perfmet Engineering is a metal fabrication business with premises in Wangara, Western Australia serving residential and commercial clients.  

  1. Mr Jones commenced full time employment with Perfmet Engineering on 18 November 2020 in the role of a fabrication tradesman. 

  1. Mr Jones took full time custody of his son in early 2021.  His son has special needs which make it necessary for his son to be taken to various NDIS appointments and activities.  Mr Jones was able to secure before school care for his son so that he could commence work at 7am after dropping his son at before school care.[4]

  1. Mr Jones was subsequently asked to act in the role of Workshop Foreman. 

  1. Mr Jones says that in June 2021 he approached Mr Tierney and suggested that he commence work prior to 7am in order to oversee the dispatch of materials being sent to site each morning.  Mr Jones says Mr Tierney agreed that Mr Jones’ son could come to work with Mr Jones and be taken to school by one of the company employees when they did their deliveries.[5] 

  1. Mr Jones says that he agreed with Mr Tierney that he would record the time taken for the staff member to drop his son at school as a break on his timesheet.  Mr Jones says that Mr Tierney also agreed that Mr Jones could start late and finish early where necessary to take his son to his various NDIS and other appointments.[6]

  1. In his witness statement, Mr Lieu says that he took Mr Jones’ son to school on more than twenty occasions and that the journey took about 45 minutes return.[7]

  1. Mr Tierney was impressed with his work as acting Workshop Foreman and promoted him to the role on a permanent basis on new terms and conditions of employment stating that:[8]

“… it has been a pleasure having you on board and I am really hoping I can keep the team we now have for a long time.”

  1. The new terms and conditions of employment included an hourly rate of $50.60 per hour, a production bonus, a company fuel card and the use of a company vehicle for business and for some personal use.[9]  Mr Jones says that he was presented with a written contract of employment but he did not ultimately sign it because he did not agree with some of the terms.[10]

  1. Mr Jones lost his licence in August 2021. He says Mr Tierney assured him this would not impact on his employment.[11]

  1. In his witness statement, Mr Tierney denies that he agreed that Mr Jones could bring his son to the workplace or that his staff could drive the child to school.  He says that he only discovered that Mr Jones was bringing his son to work and that his employees were driving the child to school in December 2022.  He admits he did not raise his concerns directly with Mr Jones because he could not afford to dismiss Mr Jones given the company workloads.  However, Mr Tierney says that he told the two staff members he believed had been involved that they were not to take the child to school in future:[12]

“I was notified in December last year that Wagne have been utilising company staff to commute his child to school. 

I never approached Wayne on the matter directly as I knew this would result in immediate termination of employment and we were under great pressure with workload,, but I both parties Leo McCrory Binh Lieu this was not to occur …”

  1. Mr McCrory did not file a witness statement in these proceedings.  In his witness statement Mr Lieu gave evidence only of the frequency in which he took Mr Jones’ child to school.  He provided no evidence that he was instructed not to do so by Mr Tierney or that Mr Tierney did not approve of the arrangements for the care and transport of Mr Jones’ child.

  1. In his witness statement Mr Tierney concedes that notwithstanding his instructions to his employees Mr McCrory and Mr Lieu, he was aware that Mr Jones continued to bring his child to work and have employees drive the child to school and he took no other steps to stop it occurring.[13]

  1. In the lead up to Christmas, Mr Jones cut the end of his finger at work and required stiches.  He says that despite feeling ill, he continued to go to work.[14]

  1. On 2 January 2023, Mr Tierney sent Mr Jones and email setting out the tasks that he wanted Mr Jones to oversee moving forward as Workshop Foreman.  In the email Mr Tierney stated that he was happy to assist with any necessary training and that he had hired another employee to assist Mr Jones.  In the same email Mr Tierney expressed sympathy for the challenges Mr Jones faced without a drivers licence and with his caring responsibilities for his son.  He went on to say:[15]

“Unfortunately I really cannot have your young fella hanging around at work it is to risky and our insurance would not have a Barr [SIC] of this so we need to somehow address this. 

Please let me know the most ideal arrangement for yourself with your current situation and possibly also with your daughter so we can review and see what we can do to make things work for both yourself and company”

  1. Mr Tierney concluded the email with the following comments:[16]

“Thanks for all your efforts in 2022 I am looking forward to 2023 and what it brings!!!

As I believe you are aware I am away from the 4th -14th returning to work on the 16th so shall see you then or may touch base on the 4th before I depart.”

  1. Mr Jones fell ill in January and required both blood and iron transfusions.[17]  He provided Perfmet with a medical certificate dated 10 January 2023.  The certificate certifies Mr Jones unfit for work from 10 January 2023 until 20 January 2023 but notes that Mr Jones reported feeling unwell from 3 January 2023, was hospitalised and seen by his doctor on 5 January 2023.[18]

  1. On 18 January 2023, Mr Tierney sent Mr Jones an email acknowledging that Mr Jones had been unwell but noting that Mr Jones had not responded to his request that he suggest an arrangement which would accommodate Mr Jones’ caring responsibilities (18 January Email).  In the email Mr Tierney acknowledges that Mr Jones had been doing his best in his circumstances, however, he states that the business could no longer maintain Mr Jones’ employment in the role of Workshop Manager given:[19]

a.The loss of his motor vehicle licence.

b.Regularly bringing his child to work.

c.Utilising company employees without permission to take his child to school.

d.Not managing the workshop to a satisfactory level.

e.Storing his belongings at the workshop.

  1. Mr Tierney concluded the email as follows:[20]

“I do totally understand you have been doing your best based on your own current situation and there has been times where things have been very good and your efforts have not going unnoticed.

Moving forward we will no longer be proceeding with your current role as a factory foreman and shall look at other ways we can manage the factory to meet company requirements.  I however I am happy to discuss as previously mentioned and see how we can accommodate your current situation. 

Please feel free to give me a call or respond to this email at your earliest to see if we can meet a better arrangement more suitable to your current circumstances.”

  1. Mr Jones responded by email the same day explaining that he had not responded to Mr Tierney’s 2 January 2023 email because he planned to discuss the matter in person when Mr Tierney returned from leave as Mr Tierney had proposed in his email (Jones 18 January Response).  Mr Jones stated that no performance issues had been raised with him previously.  He explained that he understood that Mr Tierney had agreed that he store some of his belongings at the workshop.  Mr Jones also stated he had recorded on his time sheet as a break any time employees had taken to drop his son at school.[21]

  1. Mr Jones concluded his reply email with the following:[22]

“Let me know how you want to proceed with this matter and your views of moving forward are with me being with the company or not and if I am coming back or not n need to collect my tools also.  Does this have anything to do with the bills for my hand injury not being paid also?”

  1. Later the same day Mr Tierney responded as follows (Tierney 18 January Response):[23]

    “Hi Wayne,

    I will call you tomorrow for a chat I’m just heading out the door.

    There has been a lot of things that just should not have occurred such as utilising company staff to deliver your boy to school that was very disappointing, I was informed of this and should have been discussed, we have been able to make an arrangement. Also having him present at work without discussion I also feel not acceptable and is really quite dangerous.

    It was also not communicated that you would be delivering all your goods to store in the factory in which cost myself 1.5 hours one day moving them around to get stuff out, or you would be opening up at Midnight to do this which left a bitter taste again maybe just some communication.

    Can you update me on your current situation with your son?

    What current work hours do you require? Are you required leave 230 each day?

    Do you require to take him to school in the mornings?

    What is your preferred work hours?

    Would you prefer jump back on the tools casual? Full time?

    Please don’t take this the wrong way as I previously mentioned performance has been good when your good but also lacking a lot due to personal circumstances.

    Also, certainly nothing to do with any Bills please forward on what your are referring to as I am unaware.

    Regards,

    Roy Tierney”

  1. Mr Jones responded with information about his availability as follows:[24]

    “I’m very disappointed also musta [SIC] been talking bout [SIC] different things once again and had wires crossed I’m very sorry to make you feel that way.
    I had my lad organised for before n after school care and holiday program.
    So I could drop him at 6:30 open time so I start at 7-2.45 n [SIC] I collect him from school @3 Monday, Wednesday n [SIC] Thursday for his behaviour therapist appointment.
    Can work back late till 5.30 Tuesday.
    I have still always maintained the minimum hours and most weeks banked hours and can continue to.

    Let me know if that’s something your [SIC] willing to work with and what rates Full-time or casual as we know that’s will be depending any out come. And what else I need to know?

    Cheers”

  2. Over the weekend, after receiving the email, Mr Jones removed his toolbox from the workshop but left other belongings because he said he did not need all the tools the box contained.

  1. On 23 January 2023, Mr Jones sent an email to Mr Tierney asking him to confirm whether or not his employment had been terminated and inquiring what other roles and rates he might be offered.[25] 

    “Furthering to recent emails I am seeking clarity being no response.

    You have stated

    “Moving forward we will no longer be proceeding with your current role as factory foreman and shall look at other ways we can manage the factory to meet company requirements.”
    I require Clarity on this as it can be read as either redundancy which is how it reads or termination.  This is fine both will require a pay out of current money owing.

    Once this is finalised we can look at what you want to offer me as re employment and into what position and responsibilities.

    I will be off on sick leave for the rest of this week as per doc cert attached. 

    Hope we can sort this out soon.”

  1. Mr Tierney replied confirming that Mr Jones’ employment had been terminated and noting that Mr Jones had removed his belongings over the weekend (Termination Letter).[26]

    “We are terminating employment. 

    I will go through what is owed this week with Dale and have her pay out what is owing.

    I am being advised you attend the workshop yesterday on Sunday is this correct and collected your things?”

  1. On 25 January 2023, Mr Jones was paid out his accrued annual leave of 153.31 hours and time in lieu of 67.50 hours.[27]  He was not paid any notice of termination.[28]  A Separation Certificate was completed by Perfmet Engineering which identifies the termination date as 23 January 2023.

  1. In the 12 months prior to his dismissal Mr Jones says he earned $145,316.97 Perfmet Engineering say he earned $133,190.[29]

  1. Mr Jones says that he has been unable to secure ongoing employment since his dismissal due to an injury to his hand.[30]

  1. Mr Jones seeks an order for payment of compensation in accordance with sections 390(3) and 392 of the FW Act up to the maximum amount allowable.[31]

Is Mr Jones protected from unfair dismissal?

  1. An order for reinstatement or compensation may only be issued if Mr Jones was unfairly dismissed and Mr Jones was protected from unfair dismissal at the time of his dismissal. 

  1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

  1. 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
  2. one or more of the following apply:

i.a modern award covers the person;

i.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 Fair Work Regulations 2009 (Cth) (FW Regulations), is less than the high income threshold.

  1. For the purposes of Part 3-2 of the FW Act a person is an employee if they are employed by a national system employer. There is no dispute and I am satisfied that Perfmet Engineering is a national system employer and Mr Jones is therefore a national system employee.

  1. Depending on the number of employees employed by an employer the minimum employment period is either six or twelve months.

  1. Mr Jones commenced employment with Perfmet Engineering on 18 November 2020.[32] Mr Jones was dismissed on 23 January 2023.[33]

  1. I am therefore satisfied that, at the time of dismissal, Mr Jones was an employee who had completed a period of employment of at least the minimum employment period.

  1. There is no dispute that the sum of the Mr Jones’ annual rate of earnings, and such other amounts (if any) worked out in relation to him in accordance with the Regulations, is less than the high income threshold of $162,000 which prevailed at the time of his dismissal.

  1. Consequently, I am satisfied that Mr Jones was a person protected from unfair dismissal.

Was Mr Jones unfairly dismissed?

  1. Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:

    1. the person has been dismissed;
    2. the dismissal was harsh, unjust or unreasonable;
    3. the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and
    4. the dismissal was not a case of genuine redundancy.

Was Mr Jones dismissed?

  1. Section 386(1) of the FW Act provides that a person has been dismissed if the person’s employment was terminated at the employer’s initiative or the person resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.

  1. Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

  1. There was no dispute,[34] and I find, that Mr Jones’ employment with Perfmet Engineering was terminated at the initiative of Perfmet Engineering.

  1. I am therefore satisfied that Mr Jones has been dismissed within the meaning of section 385 of the FW Act.

Was Mr Jones’s dismissal a case of genuine redundancy?

  1. Pursuant to section 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.

  1. There is no dispute that Mr Jones’ dismissal was not due to Perfmet Engineering no longer requiring his job to be performed by anyone because of changes in Perfmet Engineering’s operational requirements.

  1. I am therefore satisfied that the dismissal was not a case of genuine redundancy.

Was Mr Jones’ dismissal consistent with the Small Business Fair Dismissal Code?

  1. Section 388 of the FW Act provides that a person’s dismissal is consistent with the SBFD 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 SBFD Code in relation to the dismissal.

  1. A “small business employer” is defined in section 23 of the FW Act as:

“23 Meaning of small business employer

(1)A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2)For the purpose of calculating the number of employees employed by the employer at a particular time:

(a)subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b)a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3)For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4)To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a)the employee who is being dismissed or whose employment is being terminated; and

(b)any other employee of the employer who is also being dismissed or whose employment is also being terminated.”

  1. Perfmet Engineering submits that at the time of giving Mr Jones’ notice of his dismissal it was a small business employer within the meaning of section 23 of the FW Act.

  1. Mr Jones gave evidence that he was aware that Perfmet Engineering employed at least nineteen employees.  Seventeen on a full-time basis and two on a casual basis.  According to Mr Jones the two casual employees were employed on a regular and systematic basis performing full time hours of work.

  1. Perfmet Engineering submitted that at the time it gave Mr Jones notice of his dismissal it employed twenty employees.[35]

  1. In these circumstances I am satisfied that at the time of giving Mr Jones notice of his dismissal Perfmet Engineering did not employ fewer than 15 employees.

  1. Consequently, I find Perfmet Engineering was not a small business employer within the meaning of section 23 of the FW Act at the time of giving Mr Jones notice of his dismissal.

  1. As Perfmet Engineering is not a small business employer within the meaning of the FW Act, I am satisfied that the SBFD Code does not apply to Mr Jones’ dismissal.

Was the Application made within the period required?

  1. Pursuant to section 396 of the FW Act, the FWC is obliged to decide whether an application was made within the period required in subsection 394(2) of the FW Act before considering the merits of an application.

  1. Section 394(2) of the FW Act requires that the Application is to be made within twenty-one (21) days after the dismissal took effect.

  1. It is not disputed[36], and I find, that Mr Jones was dismissed from his employment effective 23 January 2023 and made the Application on 10 February 2023. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.

Was the dismissal harsh, unjust or unreasonable?

  1. The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd by McHugh and Gummow JJ as follows:

“…. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”[37]

  1. Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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);

b.   whether the person was notified of that reason;

c.   whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

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;

e.   if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;

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;

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.

  1. Each of these criteria must be considered to the extent they are relevant to the factual circumstances of the Application.[38]

Was there a valid reason for the dismissal related to Mr Jones’ capacity or conduct?

  1. In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[39] and should not be “capricious, fanciful, spiteful or prejudiced.”[40] It is not the role of the FWC to stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.[41]

  1. The employer carries the onus of establishing a valid reason.[42]

  1. The 18 January Email identified the following matters as the reasons why Perfmet Engineering could no longer maintain Mr Jones employment in the role of Workshop Manager:[43]

a.The loss of his motor vehicle licence.

b.His practise of bringing his child to work.

c.His utilisation of company employees to take his child to school.

d.His management of the workshop.

e.His storage of belongings at the workshop

  1. However, ultimately in their submissions Perfmet Engineering rely solely on ground c.  On the evidence before me it would appear likely that the other grounds were abandoned because they held little merit.

  1. Mr Jones lost his licence in August 2021.  There is no evidence before me that the loss of his licence prevented him performing his work duties.  His employment continued for a further 4 months after he lost his licence.  This is consistent with the evidence of Mr Jones that Mr Tierney told him the loss of his licence would not impact on his employment.

  1. The 2 January Email clearly contemplates Mr Jones continuing in the role of Workshop Foreman in 2023.  The email sets out in detail how Mr Tierney wanted Mr Jones to run the workshop in 2023 concluding with the statement “Thanks for all your efforts in 2022”.  The email makes no reference to any concerns about Mr Jones management of the workshop or his storage of goods there. 

  1. Although the email does make clear that Mr Jones should not have his child in the workplace, the email does not any way suggest that Mr Jones’ employment is at risk. Rather it expresses a willingness to explore arrangements to accommodate Mr Jones’ parenting obligations.

  1. Relevantly the email does not suggest an urgency to resolve this issue:

“As I believe you are aware I am away from the 4th -14th returning to work on the 16th so shall see you then or may touch base on the 4th before I depart.”

  1. This is consistent with Mr Tierney’s own evidence that he was aware that his employees were driving Mr Jones’ son to work from at least December. 

  1. The 18 January Email and the Tierney 18 January Response Email both offer ongoing employment to Mr Jones and therefore suggest that the loss of licence, storage of materials and Mr Jones’ performance were in fact not matters which made Mr Jones’ employment untenable.

  1. In relation to the presence of Mr Jones’ child in the workplace and the use of employees to transfer the child to school, it is Mr Jones’ evidence that Mr Tierney approved these arrangements in June 2021. 

  1. It seems improbable that Mr Tierney was unaware that for 6 months a child was in the workshop each morning and/or that his employees were driving the child to school.  In any event Mr Tierney’s own evidence is that even when he became aware he did not raise this with Mr Jones and that he was aware that Mr Jones continued to bring his child to work and have employees drive the child to school.  The arrangements were not therefore so deplorable to make ongoing employment impossible.  The 2 January Email makes it clear that Mr Tierney was prepared to retain Mr Jones in the role of Workshop Manager and accommodate his caring responsibilities.[44]

  1. Given the series of emails exchanged between Mr Tierney and Mr Jones from 2 January 2023 to Mr Jones’ dismissal it appears that Mr Tierney decided to dismiss Mr Jones from the role of Workshop Manager only after Mr Jones commenced sick leave.  It appears that Mr Tierney then decided to withdraw his offer of redeployment to a different role after Mr Jones removed some of his tools from the workshop.

  1. Mr Tierney decided to dismiss Mr Jones without alerting Mr Jones to the fact that his employment was in jeopardy and without giving Mr Jones an opportunity to show cause why he should not be dismissed from his role as Workshop Manager.

  1. Given the 18 January Email and Tierney 18 January Response it appears that even Mr Jones’ caring responsibilities could potentially have been accommodated had Mr Tierney met with Mr Jones before informing him that he intended to dismiss him as Workshop Foreman.  Had Mr Jones been aware that his employment was at jeopardy he may well have been able to propose an arrangement which would have satisfied Mr Tierney.

  1. Based on the submissions of the parties and the evidence before me I find that Perfmet Engineering have failed to identify a valid reason for Mr Jones’ dismissal.

Was Mr Jones notified of the valid reason?

  1. 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,[45] and in explicit,[46] plain and clear terms.[47]

  1. The 2 January Email made clear that Mr Jones should not have his child in the workplace.  However, the email does not in any way suggest that Mr Jones’ employment is at risk. Rather it expresses a willingness to explore arrangements to accommodate Mr Jones’ parenting obligations.

  1. Relevantly the email does not suggest an urgency to resolve this issue:

“As I believe you are aware I am away from the 4th -14th returning to work on the 16th so shall see you then or may touch base on the 4th before I depart”

  1. This is consistent with Mr Tierney’s own evidence that he was aware that his employees were driving Mr Jones’ son to work from at least December.

  1. The 18 January Email informed Mr Jones that a decision had been made that his employment in that role would cease.  The decision to dismiss him from the role occurred before he was aware that his employment was in jeopardy and before he had an opportunity to propose alternative caring arrangements. 

Was Mr Jones given an opportunity to respond to any valid reason related to his capacity or conduct?

  1. 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.[48]

  1. 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.[49] 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.[50]

  1. The 2 January Email made clear that Mr Jones should not have his child in the workplace.  However, the email does not any way suggest that Mr Jones employment is at risk. Rather it expresses a willingness to explore arrangements to accommodate Mr Jones’ parenting obligations.

  1. Relevantly the email does not suggest an urgency to resolve this issue:

“As I believe you are aware I am away from the 4th -14th returning to work on the 16th so shall see you then or may touch base on the 4th before I depart”

  1. This is consistent with Mr Tierney’s own evidence that he was aware that his employees were driving Mr Jones’ son to work from at least December.

  1. The 2 January Email clearly suggested that Mr Jones could provide a response on or after 16 January 2023.  Mr Jones was certified unfit for work until 20 January 2023.  There is no dispute that Mr Tierney was aware that Mr Jones was unwell making reference to Mr Jones state of health at the outset of the 18 January Email.

  1. The 18 January Email then went on to inform Mr Jones that a decision had been made that his employment in the role of Workshop Foreman would cease.  The decision to dismiss him from the role occurred before he was aware that his employment was in jeopardy and before he had an opportunity to propose alternative caring arrangements. 

Did Perfmet Engineering unreasonably refuse to allow Mr Jones to have a support person present to assist at discussions relating to the dismissal?

  1. 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.

  1. There is however 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.” [51]

  1. Mr Jones was unaware that his employment as Workshop Foreman was at risk until he was notified that a decision had been made to dismiss him from the role. He therefore did not have an opportunity to seek to have a support person present.

Was Mr Jones warned about unsatisfactory performance before the dismissal?

  1. Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.[52]

  1. As the dismissal did not relate to unsatisfactory performance, this consideration is not relevant to this Application.

To what degree would the size of Perfmet Engineering’s enterprise and the absence of dedicated human resource management specialists or expertise be likely to impact on the procedures followed in effecting the dismissal?

  1. Where an employer is substantial and has dedicated human resources personnel, and access to legal advice, there will likely be no reason for it not to follow fair procedures.[53] 

  1. Perfmet Engineering is a small-scale business without internal human resources support and with limited financial capacity to secure advice externally. This is reflected in the deficiencies in the process they adopted in effecting the dismissal.

What other matters are relevant?

  1. Section 387(h) of the FW Act requires the FWC to take into account any other matters that the FWC considers relevant to determining whether the dismissal was harsh, unjust or unreasonable.

  1. I have taken into account the submissions and the evidence of the parties relevant to section 387(h) as well as the length of Mr Jones’ service, his age and his employment prospects given his hand injury and his caring responsibilities.

Conclusion

  1. I have made findings in relation to each matter specified in section 387 of the FW Act as relevant.

  1. I have considered and given due weight to each factor as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.

  1. Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Mr Jones was harsh, unjust or unreasonable.

  1. I am satisfied that the dismissal was harsh given Mr Jones’ personal circumstances, unjust given that he was not alerted to the fact that his employment was in jeopardy before the decision was taken to terminate his employment as Workshop Manager and was unreasonable because the opportunity to avoid dismissal was not properly explored and if it had been could have avoided the need for the dismissal to occur.

  1. I am therefore satisfied that Mr Jones was unfairly dismissed within the meaning of section 385 of the FW Act.

Remedy

  1. Being satisfied that Mr Jones:

a. made an application for an order granting a remedy under section 394;

b. was a person protected from unfair dismissal; and

c. was unfairly dismissed within the meaning of section 385 of the FW Act.

  1. I may, subject to the FW Act, order the reinstatement of Mr Jones, or the payment of compensation to Mr Jones.

  1. The parties were directed in the Directions to make submissions and provide evidence in relation to remedy.  The Directions included a checklist of the relevant issues and evidentiary requirements and provided links to further resources. 

  1. Under section 390(3) of the FW Act, I must not order the payment of compensation to the Mr Jones unless I am satisfied that his reinstatement is inappropriate and I consider an order for payment of compensation is appropriate in all the circumstances of the case.

  1. Mr Jones does not seek reinstatement.[54]  A review of the correspondence exchanged between the parties since the dismissal suggests that the relationship of trust and confidence necessary for an effective employment relationship no longer exists.  I am therefore satisfied that reinstatement is not appropriate.

  1. 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…”[55]

  1. Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[56]  Mr Jones says that he has been unable to secure any ongoing employment since his dismissal because of a hand injury which he says he suffered during the course of his employment.

  1. In all the circumstances, I consider that an order for payment of compensation is appropriate because on the evidence before me it appears that Mr Jones’ employment and his source of income would have continued had Mr Tierney informed Mr Jones that his employment was in jeopardy and discussed with Mr Jones arrangements to ensure it was not necessary for his child to attend the workplace.

  1. 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 Perfmet Engineering’s enterprise;

  1. the length of Mr Jones’ service;
  2. the remuneration that Mr Jones would have received, or would have been likely to receive, if Mr Jones had not been dismissed;
  3. the efforts of Mr Jones (if any) to mitigate the loss he has suffered because of the dismissal;
  4. the amount of any remuneration earned by Mr Jones from employment or other work during the period between the dismissal and the making of the order for compensation;
  5. the amount of any income reasonably likely to be so earned by Mr Jones during the period between the making of the order for compensation and the actual compensation; and
  6. any other matter that the FWC considers relevant.

  1. There is no evidence before me to suggest that an order for compensation would effect the viability of Perfmet Engineering’s enterprise.

  1. Mr Jones was employed by Perfmet Engineering for just over two years.

  1. I consider that Mr Jones’ limited period of service warrants reducing the amount of compensation ordered.

  1. As stated by a majority of the Full Court of the Federal Court:[57]

    “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”[58]

  1. Mr Jones submits that his employment as Workshop Manager would have been likely to continue indefinitely. Mr Jones submits that the amount of remuneration that he would have received or would have been likely to receive was $50.50 per hour plus bonuses.

  1. Perfmet Engineering submitted that Mr Jones’ employment would not have continued because his position would have been made redundant and he would have received three weeks’ pay.

  1. The 2 January 2023 email foreshadowed Mr Jones continuing in his role as Workshop Foreman for the upcoming year.  There is no evidence before me to explain why that position would have become redundant. 

  1. An applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal.[59] What is reasonable depends on the circumstances of the case.[60]

  1. Mr Jones submitted that he had taken reasonable steps to minimise the impact of the dismissal but was unable to secure employment because of a hand injury.

  1. Mr Jones provided no medical evidence as to his diagnosis or its impact on his capacity to perform work in his trade.  Given the current extraordinary low rates of unemployment I do not accept, in the absence of medical evidence to the contrary, that Mr Jones is incapable of securing any paid employment.

  1. I am not satisfied that Mr Jones took reasonable steps to mitigate his loss, which warrants a reduction in the amount of compensation awarded to him.

  1. Mr Jones’ evidence is that he has been unable to earn income from employment or other work since the dismissal.

  1. That evidence was not challenged by Perfmet Engineering.

  1. Mr Jones’ evidence is that he is likely to earn any income in the period between the making of the order for compensation and the payment of compensation.

  1. That evidence was not challenged by Perfmet Engineering.

  1. No other relevant matters were raised by the parties.

  1. 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).[61] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[62].”[63]

  1. The approach in Sprigg is as follows:

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

  1. Given the changing custody challenges Mr Jones was faced with and the needs of his son, it is appropriate to deduct from any compensation awarded a portion for the contingency that his caring responsibilities made it impossible to effectively perform his role as Workshop Manager and that his hand injury prevented him returning to his role as a fabricator.

  1. In light of the above, I will make an order that Perfmet Engineering pay to Mr Jones an amount of $46,100 gross (less taxation as required by law) in lieu of reinstatement within 14 days of the date of this decision.

  1. An Order[64] to this effect will be issued with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr W Jones, for the Applicant.

Hearing details:

2023
PERTH
28 July


[1] Digital Court Book (DCB) 22-24.

[2] Ibid 94-96.

[3] Ibid  97.

[4] Ibid 22.

[5] Ibid 12-13.

[6] Ibid 22, 32.

[7] Ibid 97.

[8] Ibid 33, 45.

[9] Ibid 63-64.

[10] Ibid 21-26.

[11] Ibid 22.

[12] Ibid 95.

[13] Ibid 95.

[14] Ibid 33.

[15] Ibid 53.

[16] Ibid 54.

[17] Ibid 33.

[18] Ibid 37.

[19] Ibid 54-55.

[20] Ibid 55-56.

[21] Ibid 57.

[22] Ibid 57.

[23] Ibid 58.

[24] Ibid 60.

[25] Ibid 61.

[26] Ibid 62.

[27] Ibid 77.

[28] Ibid 86.

[29] Ibid 76, 3.

[30] Ibid 12-13.

[31] Ibid 12-13.

[32] Ibid 75.

[33] Ibid 77.

[34] Ibid 77.

[35] Ibid 80.

[36] Ibid, 77.

[37] (1995) 185 CLR 410, 465 (McHugh and Gummow JJ).

[38] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, 4 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB), (Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[39] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[40] Ibid.

[41] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

[42] Culpeper v Intercontinental Ship Management Pty Ltd (2004) 134 IR 243.

[43] DCB 54-55.

[44] Ibid 95.

[45] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [73].

[46] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[47] Ibid.

[48] Crozier (n 45), 151 [75].

[49] Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 – 15 [26] quoting Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).

[50] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).

[51] Explanatory Memorandum, Fair Work Bill 2008 (Cth), Ibid [1542].

[52] Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

[53] Jetstar v Meetson-Lemkes (2013) 239 IR 1, Ibid [21] – [22], [68].

[54] DCB (n 1) 13.

[55] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].

[56] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].

[57] He v Lewin [2004] FCAFC 161.

[58] He v Lewin [2004] FCAFC 161, [58].

[59] 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].

[60] 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.

[61] (1998) 88 IR 21.

[62] [2013] FWCFB 431.

[63] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].

[64] PR764988.

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Byrne v Australian Airlines Ltd [1995] HCA 24
Jones v Dunkel [1959] HCA 8
Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333