Paul Sibley v Isuzu Australia Limited

[2015] FWC 2987

[2015] FWC 2987

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Sibley
v
Isuzu Australia Limited
(U2014/15912)

COMMISSIONER HAMPTON ADELAIDE, 22 MAY 2015

Application for relief from unfair dismissal - whether dismissal harsh, unjust or unreasonable - attendance at cricket carnival - whether applicant working - whether breached time off in lieu policy - conduct at dismissal interview relevant - valid reason for dismissal found - absence of procedural fairness - on balance dismissal unreasonable - compensation awarded.

1. Background and Case Outline

[1] Mr Paul Sibley has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal by his former employer, Isuzu Australia Limited (Isuzu).

[2] Isuzu is in the business of selling and servicing trucks and related equipment and operates throughout Australia. It has offices and personnel covering each of the States and Territories which are divided into zones. It employs in the order of 96 staff and has annual turnover in the order of $.6b.

[3] Mr Sibley commenced employment in November 2007 and worked in the role of a Zone Fleet Sales Manager based in Adelaide until his dismissal in December 2014.

[4] Mr Sibley was terminated on the basis of alleged misconduct principally associated with his attendance at his son’s cricket carnival in Melbourne, without applying for leave, which took place on 1 and 2 December 2014.

[5] There is no dispute that Mr Sibley was protected from unfair dismissal within the meaning of s.382 of the FW Act and there is a valid application before the Commission.

[6] Mr Sibley contends that his dismissal was unfair on a number of grounds including that it was harsh given that his conduct was in effect, a failure to follow the relevant policy, and he did not mislead his Manager or Isuzu about his whereabouts and was available for “passive” work during the two days concerned.

[7] Mr Sibley also contends that he was denied procedural fairness in that he was required to attend a meeting and was not informed that it was to be a disciplinary meeting, he had received no warning in relation to his conduct, and was denied an opportunity to explain his circumstances or to advance mitigating factors. This, he contends, is demonstrated by the fact that a letter of dismissal was prepared in advance of the dismissal meeting and given to him without any consideration of the discussions at the meeting.

[8] Ms Sibley seeks compensation equating to 17 weeks at the rate of the wage he was being paid by Isuzu.

[9] Isuzu contends that it had valid reasons for dismissal connected to Mr Sibley’s misleading of his manager, his failure to follow procedure to apply for leave or time off in lieu, his lack of honesty about his whereabouts and reasons for being in Melbourne, and the associated loss of trust and confidence. Isuzu further contends that Mr Sibley failed to keep his electronic diary updated to reflect his whereabouts and that he failed to attend (or ring into) a sales meeting during the two days in question.

[10] Isuzu also contends that procedural fairness was, in effect, provided to Mr Sibley and that any potential deficiency in the process did not lead to unfairness. In the alternative, Isuzu contends that any compensation should be minimal in light of Mr Sibley’s conduct.

[11] This application was subject to a hearing following consultation with the parties as contemplated by s.399 of the FW Act.

2. The evidence

[12] Mr Sibley provided a witness statement and gave evidence in the matter.

[13] Isuzu Australia provided witness statements and led evidence from the following employees:

● Alan Miller, Dealer Sales Manager WA/SA and NT;
● Aninka Morhall, Staff Operations Manager (Head of Human Resources);
● Andrew Harbison, National Sales Manager;
● Les Spaltman, National Fleet Sales Manager; and
● Phil Taylor, Director and Chief Operating Officer (COO).

[14] I find that Mr Sibley did not attempt to mislead the Commission and he made reasonable concessions about what was actually said and done in the disciplinary meeting of 4 December 2014. However, his attempts to justify his position of being, in effect, at work on 1 and 2 December 2014 were not convincing. I also found Mr Sibley’s evidence, about his lack of awareness of the seriousness of the meeting on 4 December 2014 during which he was dismissed, to be improbable.

[15] Further, where there is conflict over the detail of the discussions involving Mr Harbison, I prefer the evidence of Mr Harbison who gave direct and convincing evidence on those particular matters.

[16] I generally accept the evidence of the respondent’s witnesses on the critical facts however there was a tendency to exaggerate on certain matters. This included the initial evidence of Ms Morhall about whether Mr Sibley directly denied being in Melbourne, as opposed to not directly admitting that fact. Further, the suggestions by a number of the employer’s witnesses about more general concerns with Mr Sibley’s work performance were not supported by the evidence.

3. Mr Sibley’s employment and the events leading to his dismissal

[17] Mr Sibley commenced employment in November 2007. He was initially employed on the basis of a six month probationary period. Isuzu purported to extend that period for a further six months and it is unnecessary for the Commission to determine whether that extension was effective. It is sufficient to note that senior management had some concerns with Mr Sibley at that time and that his employment was subsequently confirmed and has continued until his dismissal in December 2014.

[18] Upon commencement, Mr Sibley had a salary of $85,000 plus 15 percent superannuation and it is clear that this salary, and his contract, contemplated a degree of out of hours work. At the time of his dismissal, Mr Sibley salary was $110,053. Mr Sibley was also entitled to other benefits including a fully maintained company car (with an employee contribution of $50.00 per fortnight), a mobile phone and laptop computer, and access to a company subsidised lease car.

[19] Mr Sibley undertook the role of Fleet Sales Manager - SA, WA and NT and was based in the Adelaide office of Isuzu. He reported to Mr Spaltman, who is based in Melbourne and for that reason Mr Sibley worked with a large degree of autonomy.

[20] As his title suggests, Mr Sibley was responsible for managing the fleet sales efforts of Isuzu in two States and one Territory and this involved a degree of travel. There is a dispute about the extent of travel and it is clear that it involved at least two trips, and in the order of six nights, away per month.

[21] When Mr Sibley travelled on company business, he was required to complete a travel requisition and obtain prior approval of his manager.

[22] There was a system of time off in lieu (TOIL) and this operated within defined parameters and required approval in advance by the relevant manager. The guidelines surrounding the TOIL system were confirmed by Mr Taylor to all relevant staff in early 2014 and Mr Sibley was aware of those requirements.

[23] The managers were expected to keep their Lotus notes (diary) up to date with their appointments including so as to confirm their location from time to time.

[24] Isuzu does permit its managers to work from home from time to time. When working from home, the managers are however expected to complete a full day of work and to undertake all of the responsibilities of their position.

[25] Mr Spaltman had organised a monthly fleet sales team meeting and all relevant employees, including Mr Sibley, were expected to ring into (or attend) those meetings except when on leave.

[26] In terms of performance reviews, these were generally conducted on a bi-annual basis. In general terms, Mr Sibley was rated as achieving the required and expected standards with a number of assessments recording excellent competency achievements on certain elements. There were also a number of areas where Mr Spaltman had recorded a need for Mr Sibley to improve. Subject to the discussion of the events in September 2014, and those leading to the dismissal, there were no warnings or disciplinary issues taken up with Mr Sibley during his 7 years of service.

[27] On Friday 26 September 2014, Mr Sibley advised Mr Spaltman via email that he was taking (the next) Monday off as a day in lieu. Mr Harbison became aware of the email and subsequently confirmed with Mr Sibley that the TOIL requirements were covered at a previous meeting with the sales team, it was not automatic, and that it was necessary to seek approval in advance.

[28] Mr Sibley subsequently confirmed that he should have requested approval for the day in lieu instead of advising that he would be taking “leave” and that he would not do that in the future.

[29] Mr Harbison subsequently confirmed the TOIL requirements to Mr Sibley via email including:

“ ... ...
Secondly, the issue of Time of In lieu was discussed at length at the February off-site meeting (I have attached copies of the relevant slides below for your reference). When you refer to your employment contract it states: “Given the nature of the industry and your duties and responsibilities, you may also on occasion be required to work reasonable additional hours, without any entitlement to any specific additional salary or benefits, other than those specified in this Contract. No overtime payments will be made. Your remuneration has been specifically set at a level that incorporates your basic minimum rate of pay (including any federal minimum rate of pay) and an additional amount for hours worked in excess of 38 hours per week.” Company policy HR08-04 specifically refers to Travel on Weekend and Overtime - the key points are Weekend travel is defined as International travel, and secondly that Time off In lieu is only by agreement with your manager. As you can see from both your contract and company policy point of view, time of in lieu is not a right you can just take when you feel it is necessary.

Thirdly, for future reference, anytime that you are not in the office, other than either on local customer and/or dealer visits, or interstate on company business must be discussed and approved by Les or myself at least 48 hours prior.

If you have any specific questions regarding this matter, please feel free to either contact myself or Phil Taylor or HR.
... ...” 1

[30] In early November 2014, Mr Sibley informed Mr Miller, who also worked in the Adelaide office, that if his son was selected to play in a junior cricket side in a carnival in Melbourne, he would seek to take time off to see him play. Some two weeks later, Mr Sibley confirmed that his son had been selected and that he may drive across to Melbourne to see him play.

[31] Mr Sibley did not apply for leave or TOIL in relation to any intended trip to Melbourne associated with his son’s cricket.

[32] On Sunday 30 November 2014, Mr Sibley sent the following email to Mr Spaltman that was headed “Monday/Tuesday”:

“I will not be in the office on these two days however will be available on mobile and email” 2

[33] Mr Spaltman responded with “Cheers”. 3

[34] I will return to the significance of this exchange however I note that Mr Spaltman assumed that Mr Sibley intended to work from home on the Monday and Tuesday concerned.

[35] On Sunday 30 November 2014, Mr Sibley flew to Melbourne and subsequently attended cricket matches with his son on Monday 1 December and Tuesday 2 December 2014.

[36] Mr Sibley contends that the decision to fly to Melbourne was a last minute decision associated with the tragic death of Australian cricketer Phil Hughes and the potential impact upon his son. It is the case that this is not consistent with the earlier indication given to Mr Miller. Further, if Mr Sibley waited for the approval from Mr Spaltman, this involved booking the flights within a few hours of his departure. I accept that Mr Sibley only booked the flight to Melbourne on the day that he left. However, there is insufficient evidence to determine whether the final decision to attend the cricket carnival was taken only after the email exchange with Mr Spaltman.

[37] During 1 and 2 December 2014, Mr Sibley did make a small number of work related phone calls and forwarded one of a small number of work related emails that he read at the time.

[38] Mr Sibley did not however ring into the monthly sales meeting on Monday 1 December as expected and neither Mr Spaltman nor Mr Harbison were aware of Mr Sibley’s actual whereabouts. Mr Harbison sought clarification about Mr Sibley’s circumstances from Mr Spaltman on Tuesday 2 December and was later advised by Mr Miller that Mr Sibley had taken two days off to take his son to Melbourne to compete in a school cricket competition.

[39] Mr Harbison advised Mr Spaltman of the information provided by Mr Miller and directed him to contact Mr Sibley and confirm the situation. Mr Spaltman then rang Mr Sibley and the following exchange took place:

“(The) Conversation started with stating I understand you are not in the office today. Mr Sibley acknowledged that that was correct, I asked Mr Sibley if he was in Melbourne at the cricket to which he replied yes, I then informed Mr Sibley that this had put me in a bad position, as when discussing with Andrew this morning, I told Andrew that Mr Sibley was working from home. Mr Sibley advised that he had not stated anything about working from home in his email. He then stated that he had been working sending emails and making phone calls. I acknowledged that, as Mr Sibley had sent me an email in relation to extended care for Veolia. Mr Sibley said if it was a problem to put the days in as holidays, but that he had followed the procedure and informed his direct manager that he would not be in the office. Mr Sibley asked if he could ring Andrew to address the matter but I said I would call Andrew (Mr Harbison) and sort it out.” 4

[40] On Wednesday 3 December 2014, various discussions occurred between Mr Taylor, Mr Harbison, Ms Morhall, and later with Mr Spaltman, concerning Mr Sibley’s conduct. Given Mr Sibley’s role, Mr Taylor as the COO took responsibility for making the decision concerning Mr Sibley’s employment.

[41] Mr Harbison, with the support of Mr Spaltman recommended that Mr Taylor dismiss Mr Sibley. The recommendation was based upon the following stated reasons as confirmed by Mr Taylor:

“(a) Deliberately misleading his manager regarding his time off work on Monday 1 December and Tuesday 2 December 2014;
(b) Not adhering to Isuzu policy regarding required notice for time off;
(c) Diminished trust with Isuzu;
(d) Not attending the monthly meeting as requested by Andrew Harbison; and
(e) Not maintaining his Lotus Notes Calendar to reflect his movements”. 5

[42] Mr Taylor accepted the recommendation and determined that Ms Morhall and Mr Harbison would meet with Mr Sibley and in the absence of him seeking to remedy the situation by apologising, offering to take the days as annual leave and/or providing a suitable explanation, they would proceed to terminate Mr Sibley. A letter of termination reflecting the reasons outlined above was prepared and signed by Mr Taylor. In effect, Ms Morhall was delegated with the responsibility to determine whether Mr Sibley’s response at the meeting was sufficient to proceed with an alternative outcome, such as the issuing of a warning.

[43] On Wednesday 3 December 2014, Mr Harbison advised Mr Sibley that he was to attend a meeting in Melbourne on the following day to discuss the circumstances on Monday 1 and Tuesday 2 December 2014. Mr Sibley sought clarification about who was attending the meeting and what the agenda would be. Mr Harbison sent the following email response:

“Paul
As discussed on the phone earlier this afternoon I require you to attend a meeting at Head Office tomorrow morning, 4th December.
The meeting will be with yourself, Aninka Morhall and myself.
The meeting will be to discuss your work arrangements on Monday 1st and Tuesday 2nd December.
Milena has made flight arrangements and will shortly send through the itinerary to you.
Thanks.
Andrew.” 6

[44] Mr Sibley accessed a confidential Employee Assistance Program (EAP) made available by Isuzu and he understood as a result of that conversation that he may face some disciplinary action but that no grounds for his dismissal existed. I note that EAP is a counselling and support service and is not an advisory or representational service. Mr Sibley was apparently informed by the EAP provider that if he was terminated, he should call the EAP immediately.

[45] Mr Sibley has contended that he was not aware of the seriousness of the meeting. There is little doubt that Isuzu should, in advance of the meeting, have made clear what the meeting was about and what the potential consequences were. This is particularly so given that the employer had already determined a default position to dismiss Mr Sibley.

[46] However, Mr Sibley was a senior employee, had been summonsed at short notice to attend a meeting with his Manager’s Manager and Human Resources staff in Melbourne to discuss the two days concerned, and he was so anxious that he had already contacted the EAP. It is evident to me that Mr Sibley was aware that it was a disciplinary meeting, albeit he had no expectation that he could/would be dismissed.

[47] Mr Sibley attended the meeting in Melbourne with Ms Morhall and Mr Harbison on Thursday 4 December 2014 as arranged. He did not bring a support person with him or seek to have one permitted by Isuzu.

[48] The meeting progressed as follows:

● Mr Harbison put the allegation that Mr Sibley had not been working and was in Melbourne on 1 and 2 December 2014, despite not having taken leave. I find that Mr Sibley did not directly deny being in Melbourne but did suggest words to the effect that he was “working as normal” and did not confirm that he had been in Melbourne.

● When pressed about his whereabouts, Mr Sibley eventually confirmed that he was in Melbourne and when asked about what he was doing he indicated words to the effect that he was working. When questioned by Ms Morhall whether he was in Melbourne on business, Mr Sibley responded “yes”. When advised that there were no approved travel arrangements and confronted with the allegation that he was in Melbourne to watch his son play cricket, Mr Sibley confirmed that this was correct but insisted that he was still working.

● Mr Sibley also indicated that the decision to travel was taken at the last minute. There was then a discussion about the difference between what he had done at the cricket and the work required when working from home. Ms Morhall also inquired why Mr Sibley had not called into the sales meeting if he was working and Mr Sibley indicated words to the effect that “it would have been too difficult to call.”

● Ms Morhall then explained the concerns with him being in Melbourne when unauthorised and Mr Sibley confirmed again that he had been working. Ms Morhall referred to the 29 September 2014 event and that this incident now represented a further incident of time off work without prior approval.

● At this point, Ms Morhall, without discussion with Mr Harbison, handed the pre-prepared letter of termination to Mr Sibley, requested him to hand over all Isuzu property. Mr Sibley was escorted from the building.

[49] The letter of termination provided as follows:

“... ...

Paul,

The purpose of this letter is to advise that your contract of employment with Isuzu Australia Limited will end today, 4th December, 2014

Your conduct of employment is not acceptable and the company has decided to terminate your employment.

The reasons for your termination include:
● Deliberately misleading your manager regarding your time off work on Monday 1st December and Tuesday, 2nd December, 2014
● Not adhering to policy regarding required notice for time off work
● Diminished trust with your employer
● Not attending monthly meeting as requested by manager

● Not maintaining your Lotus Notes calendar to reflect your movements

You are able to maintain your lease vehicle until Friday, 19th December 2014. Please ensure it is returned to 240 Currie Street, Adelaide in good condition by 5pm on this date.

You will receive five weeks’ pay in lieu of notice and your outstanding leave entitlements. This will be deposited into your bank account on Friday 19th December 2014.

You are to return the following items immediately:
● Job related vehicle
● Laptop computer
● Mobile phone
● Corporate Credit Card
● Fuel Card
● Keys to the office and building

All other IAL owned property including files, documents, recipients, equipment, software phone accessories and chargers must be returned no later than 8th December, 2014.” 7

[50] Mr Sibley’s position has not yet been filled however it remains a role required by Isuzu and there is no suggestion that Mr Sibley was made redundant.

[51] As indicated in the termination letter, Mr Sibley was paid 5 weeks in lieu of notice.

[52] Mr Sibley commenced new employment in a senior sales role some seven weeks after his dismissal, albeit with lower remuneration than applied to his position at Isuzu.

4. The conduct of Mr Sibley based upon evidence before the Commission

[53] I will say more about potential valid reasons for dismissal later in this decision. It is however evident from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason. 8

[54] Accordingly, before dealing with the relevant statutory considerations, it is appropriate to determine whether there was conduct of the kind now relied upon by Isuzu, based upon the evidence before the Commission.

Deliberately misleading his Manager (Mr Spaltman) regarding time off work on 1 and 2 December 2014

[55] This arises from the emails sent by Mr Sibley to Mr Spaltman on Sunday 30 November 2014.

[56] Given the events of September 2014, Mr Sibley would have understood that this was not an appropriate manner to apply for TOIL and he did not make an application for leave of any sort.

[57] Mr Spaltman assumed that Mr Sibley intended to work from home. This was reasonable in the circumstances, including the outcome of the September 2014 exchange and certain matters associated with Mr Sibley’s family that it is not appropriate to disclose in a decision of this nature.

[58] Mr Sibley sought to, in effect, characterise his activities on 1 and 2 December 2014 as “reactively working”. I accept that it is feasible to work from home under Isuzu’s practices and at least in theory it would be possible to work remotely. However in this case, it is evident to me that Mr Sibley considered that he was owed time in lieu due to his travel and that this was in effect what he intended to do on 1 and 2 December 2014. The acknowledgment by Mr Spaltman (“cheers”) was not permission to take the TOIL and was certainly not permission to conduct work from Melbourne.

[59] The related important consideration is whether Mr Sibley deliberately intended to mislead Mr Spaltman through the email of 30 November 2014?

[60] I find that Mr Sibley was deliberately obtuse and that the email was capable of multiple meanings. In that sense, Mr Sibley was not up front with his Manager and was in effect, attempting to avoid the requirements of the TOIL policy. That is, he was deliberately attempting to take time off in lieu without following the correct procedure.

Not adhering to the TOIL policy

[61] This is closely associated with the conduct described above. It is evident to me that Mr Sibley knew of the requirements, and for his own reasons, did not adhere to the policy.

[62] Mr Sibley, in effect, reluctantly conceded this aspect during his evidence. 9

Diminished trust

[63] This arises from the conduct directly associated with 1 and 2 December 2014 and the exchanges that occurred during the course of the meeting on 4 December.

[64] The events of 1 and 2 December objectively contributed to a reduced level of trust that Mr Sibley’s Managers would have about his honesty and openness with them.

[65] I will deal further with the context and conduct of the dismissal meeting, however it is presently sufficient to confirm that I have found that Mr Sibley was obtuse and did not recognise that he had breached the TOIL policy and should have owned up to that fact. His attempts to avoid those implications and to initially suggest that he was in Melbourne on business, were not only incorrect but added to the concerns about his integrity.

Not attending the monthly sales meeting

[66] Mr Sibley did not attend (phone into) the sales meeting. Given that he was not on leave and did not take approved TOIL, I find that he was required to phone into the meeting and his failure to do so was inappropriate. I also note that the reasons for not doing so cast further doubt on the suggestion that he was in fact still “reactively working” at that time.

Not maintaining Lotus notes calendar to reflect movements

[67] I find on balance that it was a requirement upon Mr Sibley to maintain his calendar to reflect his movements. This was accessible by management and it was reasonable, if Mr Sibley was intending to travel to Melbourne to work (as he claimed) or was intending to take leave, that the calendar be updated to record that fact.

[68] There does not appear to be any dispute that the calendar notes did not record his attendance in Melbourne or his actual “work” status at that time. I note that Ms Morhall made a related suggestion that Mr Sibley had removed the Lotus and other records from his computer however this allegation was not put to Mr Sibley during these proceedings (or at any other time) and I have placed no weight at all on that suggestion.

5. Was Mr Sibley’s dismissal unfair within the meaning of the FW Act?

[69] Section 385 of the FW Act provides as follows:

“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”

[70] Mr Sibley was dismissed, the employer is not a small business within the meaning of the FW Act, and the concept of a genuine redundancy is not relevant here.

[71] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.

[72] The FW Act relevantly provides as follows:

“387 Criteria for considering harshness etc.

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); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”

[73] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.

[74] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to Mr Sibley’s capacity or conduct (including its effect on the safety and welfare of other employees)

[75] Valid in this context is generally considered to be whether there was a sound, defensible or well founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly. 10

[76] There is a duty upon Mr Sibley to be honest in his dealings with his employer. This includes being frank during disciplinary interviews and a failure to do so can impact upon the necessary relationship of trust and confidence. 11

[77] During the interview, Mr Sibley was being obtuse and certainly leaving the impression that he considered being at the cricket with the phone and responding to some emails was working in the same way as if working from home. There was also a smart aleck tone to some of his responses and there was no real indication that Mr Sibley understood that he had done anything seriously wrong or that he should make amends.

[78] I do note that Mr Sibley had earlier indicated to Mr Spaltman that if there was a problem, the days (1 and 2 December 2014) could be treated as holidays. This is relevant however it was raised in an off-handed manner and would not have led Isuzu to the view that Mr Sibley genuinely recognised that there was in fact a real problem with his conduct in not making a TOIL or leave application, and in not being more up front with his employer.

[79] This conduct, particularly in the context of an employee who generally worked remotely from his manager, undermined the necessary confidence in the employment relationship.

[80] Based upon my findings generally, and the conduct of Mr Sibley associated with 1 and 2 December 2014 and the disciplinary meeting on 4 December 2014 in particular, there were valid reasons for his dismissal.

Section 387(b) – whether Mr Sibley was notified of the reasons for dismissal

[81] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken. 12

[82] The evident purpose of this consideration is that notification of the valid reason to terminate must be given to the employee before the decision to terminate the employee is made and the notification needs to be in explicit and plain and clear terms.

[83] This consideration has a particular additional element in this case because Mr Taylor had already authorised the dismissal of Mr Sibley prior to the disciplinary meeting and the letter of dismissal was signed in advance of the meeting and provided to Ms Morhall. In most cases, such a scenario would indicate that the decision had already been made. There is also no doubt that Mr Harbison was of that view and nothing said in the meeting was likely to change his mind.

[84] However, the evidence of Mr Taylor and Ms Morhall was in effect, that a default position of dismissal had been taken but that Ms Morhall had the discretion to determine a lesser form of disciplinary action if appropriate. This was done on the basis that Mr Taylor needed to have authorised such a decision and given that Mr Sibley was in a senior sales position, any dismissal would need to be given effect to at that time. I tested that evidence during the hearing, and on balance, I am satisfied that this was the genuine position. On that basis, the final decision to dismiss Mr Sibley was at least confirmed by Ms Morhall during the disciplinary meeting itself.

[85] I have earlier outlined the events leading to the disciplinary meeting conducted on 4 December 2014 including the information provided to Mr Sibley in advance of that meeting. There were no allegations made as part of that process. As a result, the only exchanges in which Mr Sibley was advised of the reasons for dismissal occurred during the disciplinary meeting itself.

[86] I have also outlined the exchanges that took place and the fact that the decision was immediately communicated as part of that meeting. Having regard to the evidence the following arises:

● The allegation that Mr Sibley was taking TOIL when he had not sought, and had not been given permission, was put indirectly at the outset of the meeting;
● The view that the email to Mr Spaltman was itself misleading was not put to Mr Sibley;
● The allegation that Mr Sibley did not attend the sales meeting as required was put to him;
● The non-maintaining of the Lotus notes was not put to Mr Sibley and no explanation was sought; and
● The loss of trust would be implied from the broader context but was not directly put to Mr Sibley at any time.

[87] Accordingly, some of the relevant matters were notified to Mr Sibley in the sense contemplated by s.387(b) of the FW Act, however, some other matters were not notified in a manner that would have genuinely permitted him to respond.

Section 387(c) – whether Mr Sibley was given an opportunity to respond to any reason related to his capacity or conduct

[88] The relevant reasons are those arising from the valid reasons found by the Commission. This consideration is therefore directly related to the above discussion. Further, the absence of an indication prior to and during the disciplinary meeting that Isuzu was considering his dismissal, must also be taken into account.

[89] This process contemplated by the Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. The question becomes whether Mr Sibley was aware of the precise nature of the employer’s concern about his conduct and had a full opportunity to respond to these concerns. 13

[90] I have already found that Mr Sibley was not notified of a number of the reasons relied upon and he was not given an opportunity to respond to such. Further, given the flow of the meeting and the default decision which was given effect to without Mr Sibley being advised that a dismissal was being considered, there was not a genuine opportunity for Mr Sibley to put mitigating factors or to put a full response.

Section 387(d) – any unreasonable refusal by the respondent to allow Mr Sibley a support person

[91] Mr Sibley did not request a support person and accordingly, this consideration does not arise. 14

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Sibley – whether he has been warned about that unsatisfactory performance before the dismissal.

[92] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work. 15

[93] Isuzu contends that Mr Sibley was not dismissed for unsatisfactory performance. I accept that proposition. Isuzu also contends that in any event Mr Sibley was warned about his conduct as a result of the exchange following the September 2014 attempt by the applicant to take TOIL.

[94] I accept that as a result of the September exchange, Mr Sibley understood the requirements for TOIL and that it was not appropriate for him to ignore those requirements. I do not however accept that the September exchange represented a warning in the sense that Mr Sibley was expressly aware that a failure to follow the correct process would be considered to be misconduct and could lead to disciplinary action, including dismissal. 16

[95] However, this consideration is not concerned with conduct related dismissals and is not relevant in that context.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Section 387(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.

[96] There were significant deficiencies in the procedure followed in effecting the dismissal of Mr Sibley as outlined above. However, Isuzu is a relatively large employer and has human resource staff members that were involved in the process.

Section 387(h) - other matters considered to be relevant

[97] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission. 17

[98] There are various competing considerations. These include that Mr Sibley was a relatively long serving employee. There were some reservations and issues raised at the time of the probationary employment “extension” and in some of the performance reviews, however these were not major issues and no warnings were ever given to Mr Sibley.

[99] Mr Sibley’s remuneration package was adjusted on a number of occasions including in July 2014. However, it is not clear whether these adjustments were across the board reviews or associated with his specific performance. In any event, leaving aside the events leading to his dismissal, Mr Sibley was far from an unsatisfactory employee.

[100] The nature of the conduct found by the Commission and the general context is also presently relevant. I have found that Mr Sibley beached the TOIL policy and was less than candid with the employer in the disciplinary interview, there was a smart aleck tone to some of his responses, and he did not give an indication that he understood the problem with his conduct. Given that Mr Sibley was a senior employee, had been reminded of the TOIL policy requirements and had undertaken to observe them only some two months earlier, and worked in a relatively autonomous manner, this conduct is more serious than may have been the case in other circumstances.

Conclusion on nature of dismissal

[101] I have found that there was a valid reason for dismissal. I have also found that there were deficiencies in the procedure to give effect to the dismissal. Further, there are competing considerations as to whether the dismissal was harsh in the overall context.

[102] As outlined earlier, the FW Act requires a global assessment having regard to the various relevant statutory considerations. In that context, procedural unfairness is an important consideration given the provisions of the Act but does not necessarily mean that the dismissal was unfair. This is reinforced by the objects of this Part the FW Act in s.381 including ss.(2) which provides as follows:

“(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.”

[103] As revealed in various decisions of the Commission (and the Court), each case must be considered in its own circumstances and it is appropriate, amongst other factors, to have regard to whether the procedural deficiencies made any difference to the outcome. 18

[104] In this case, there are also competing considerations touching upon this assessment. Mr Sibley should have known that it was a disciplinary meeting and was a serious discussion. His lack of candour, the smart aleck tone of some of his responses and the failure to address the real issue was therefore unhelpful and compounded the genuine concerns of the employer. However, Mr Sibley was not aware that dismissal was being considered and elements of the actual allegations were not put to him and this impacted upon the opportunity to advance an explanation and to raise potential mitigation factors.

[105] By the time of the disciplinary interview, Mr Sibley was already aware that Isuzu knew about his attendance at the cricket carnival in Melbourne as he had already confirmed this to Mr Spaltman. Mr Sibley had also offered, albeit in an unconvincing manner, to take the time as leave.

[106] Given that the confirmation of the default position was influenced to a large degree by the lack of remorse and the absence of proposals from Mr Sibley to address the situation, it is difficult to suggest that these procedural deficiencies did not lead to actual unfairness.

[107] On balance, I consider that Mr Sibley’s dismissal was unreasonable.

[108] As a result, the dismissal was unfair within the meaning of the FW Act.

6. Remedy

[109] Mr Sibley does not seek reinstatement but rather seeks compensation as a remedy in this matter.

[110] Division 4 of Part 3-2 of the FW Act relevantly provides as follows:

“Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).

(2) the FWC may make the order only if the person has made an application under section 394.

(3) the FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

...

392 Remedy—compensation

Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.

Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal. 19

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”

[111] The prerequisites of ss.390(1) and (2) have been met in this case.

[112] Section 390 makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. Mr Sibley does not seek reinstatement and given all of the prevailing circumstances I accept that reinstatement would not be appropriate.

[113] As a result, I need to consider whether compensation is appropriate and if so, to what extent.

[114] A recent Full Bench in McCulloch v Calvary Health Care Adelaide 20 (McCulloch) confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg21 remains appropriate in that regard.

[115] Section 392(2) of the Act requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). Without detracting from the overall assessment required by the Act, 22 it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.

The effect of the order on the viability of Isuzu

[116] Nothing has been put to the Commission on this issue.

The length of Mr Sibley’s service with Isuzu

[117] Mr Sibley has been employed with Isuzu for over seven years. This consideration is supportive of an award of compensation being made. The period of service is also to be taken into account in determining the level compensation, including when making an assessment of the remuneration that would likely have been received if not for the termination.

The remuneration Mr Sibley would have received, or would have been likely to receive, if he had not been dismissed

[118] This involves in part a consideration of the likely duration of Mr Sibley’s employment in the absence of what I have found to be an unfair dismissal.

[119] Mr Sibley contends that he would have remained in employment for a period of at least twelve months.

[120] The Full Bench in McCulloch also confirmed that when assessing likely lost remuneration, cogent evidence was required where the Commission had not found a valid reason for dismissal. 23 In this case I have found that valid reasons existed and the unfairness arose principally from the procedure adopted by the employer. This must be weighed along with the nature and length of the employment and the potential for a different outcome to have arisen should a procedurally fair process have been adopted.

[121] In all of the evident circumstances it is reasonable to assess the compensation in this matter on the basis that the applicant would, on the balance of probabilities, have remained in employment for a further period of no more than four months. This includes a period of notice that may have been given by either party.

[122] Mr Sibley’s remuneration with Isuzu at the time of dismissal was $110,053 plus a 15 percent employer superannuation contribution. For present purposes I will leave aside the company car, subsidised lease car and tools of trade as there is little or no evidence that would permit the private use remuneration benefit of those to be properly assessed.

[123] Accordingly, the projected remuneration loss for present purposes was $36,684 (plus superannuation).

The efforts of Mr Sibley to mitigate the loss suffered by him because of the dismissal

[124] Mr Sibley found employment shortly after his dismissal.

[125] It is reasonable to infer that he made efforts to mitigate his losses.

[126] No discount to the amount of compensation is warranted based upon this consideration.

The amount of any remuneration earned by Mr Sibley from employment or other work during the period between the dismissal and the making of the order for compensation

The amount of any income reasonably likely to be so earned by Mr Sibley during the period between the making of the order for compensation and the actual compensation

[127] Mr Sibley was paid five weeks pay in lieu of notice following his dismissal. This is to be taken into account and amounted to $10,628 (plus superannuation).

[128] Mr Sibley’s new employment commenced some seven weeks after his dismissal. This employment involves a salary component of $70,000 per annum, 9.5% superannuation and a guarantee (minimum) commission payment of $1,500 per month over the first six months. For reasons outlined earlier, I leave aside for present purposes the company car and other tools of trade.

[129] On that basis, the remuneration received from the new employment was $1,692 per week (plus superannuation). This has been earned up to the present time and whilst having regard to the likely remuneration up to the actual payment of compensation, a deduction should be made for actual remuneration received from the new employment remuneration during the anticipated period of employment, being four months from dismissal. 24

[130] The further deduction is therefore a period of 9 weeks at the rate of $1,692 per week, being $15,228 (plus superannuation).

Any other matter that the FWC considers relevant and the remaining statutory parameters

[131] I have taken into account the projected nature of the anticipated loss of remuneration over a relatively short period (s.392(2)(c)) and the actual remuneration from the new employment over the same relevant period (s.392(2)(e)). In that light, I do not need to make a further allowance for contingencies in this matter. 25

[132] There is demonstrated misconduct that should be taken into account as provided by s.392(3) of the Act. That is, there is misconduct that contributed to the decision and in the circumstances it is appropriate to make a deduction on the amount of compensation otherwise due.

[133] In the circumstances, a deduction of 35 percent of the amount otherwise due is appropriate.

[134] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.

[135] The amount of compensation that I have determined is less than the maximum prescribed by s.392(5) of the Act as applied in this matter. 26

[136] The figures used for the calculation are expressed in gross terms and appropriate taxation is to be deducted on the final amount of compensation.

[137] The compensation amount confirmed below is also appropriate having regard to all of the circumstances of this matter. 27

Conclusions on remedy

[138] After taking into account each of the relevant considerations, I find that compensation is appropriate in this matter. Further, I find that the compensation should be assessed having regard to the factors outlined above. I have not allowed for the differential rates of superannuation in my calculations given the very marginal difference in dollar terms however superannuation is to be included in the final compensation.

[139] Accordingly I find that compensation should comprise a payment by Isuzu to the Mr Sibley calculated as follows:

• Allow projected lost income $36,684



• Deduct five weeks pay in lieu of notice ($10,628)



• Deduct relevant income from alternative employment ($15,228)



• Provisional amount $10,828

● Deduct amount for misconduct at 35% ($3,790)

• Total compensation (plus superannuation) $7,038

7. Conclusions and orders

[140] I find the Mr Sibley’s dismissal was unfair within the meaning of the Act.

[141] I have found that compensation is appropriate and the amount determined above is also appropriate in all of the circumstances.

[142] The payment of $7,038 less any required deduction of taxation, plus relevant superannuation, is to be made to Mr Sibley by Isuzu within 14 days of this decision.

[143] An order to the above effect 28 has been issued in conjunction with this decision.

Appearances:

P Sibley on his own behalf.

S Killmorgen, of Norton Rose Fulbright Australia, with permission, for Isuzu Australia Limited.

Hearing details:

2015

Adelaide

29 April and 1 May.

 1   Document LS1 attached to the statement of Mr Spaltman - exhibit R12.

 2   Document LS2 - attached to the statement of Mr Spaltman - exhibit R12.

 3  Ibid.

 4  Witness statement of Mr Spaltman - exhibit R12.

 5  Witness statement of Mr Taylor - exhibit R13.

 6  Document AH2 - attached to statement of Mr Harbison - exhibit R11.

 7  Exhibit R6.

 8  See King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999.

 9   During cross-examination.

 10   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at par [36].

 11   Streeter v Telstra Corporation Ltd [2008] AIRCFB 15.

 12  See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.

 13   RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

 14  See Dissanayake v Busways Blacktown Pty Ltd [2011] FWAFB 6487.

 15  See Anetta v Ansett Australia Ltd (2000) 98 IR 233.

 16  See the concept of a warning in Fastidia Pty Ltd v Goodwin AIRCFB Print S9280, per Ross VP, Williams SDP, Blair C, 21 August 2000.

 17   Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

 18  See Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155 as examples.

 19   Note: the subsection 392(5) amount was indexed to $133,000 from 1 July 2014 - as was relevant given the timing of this application.

 20   [2015] FWCFB 873.

 21   Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431.

 22   Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446.

 23   McCulloch at [27].

 24   See the approach taken in Sprigg on this aspect.

 25   See the discussion of contingencies in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431, at par [52]; Ellawala v Australian Postal Corporation AIRC Print S5109, per Ross VP, Williams SDP and Gay C, 17 April 2000 and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779, per Williams SDP, Acton SDP and Gay C, 31 October 2001.

 26   The maximum compensation limit in this case would be the lesser of 26 weeks remuneration or $66,500.

 27   Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32].

 28   PR567553.

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