Peter Williams v P & J Cole Investments Pty Ltd t/a Savins Radiator Services

[2020] FWC 2174

[2020] FWC 2174

FAIR WORK COMMISSION

DECISION

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

Peter Williams
v
P & J Cole Investments Pty Ltd t/a Savins Radiator Services
(U2019/8215)

DEPUTY PRESIDENT SAMS SYDNEY, 27 APRIL 2020

Application for an unfair dismissal remedy – long serving radiator repairer – small business in regional location – whether Small Business Fair Dismissal Code (the ‘Code’) complied with – principles considered – allegations of serious misconduct – breaches of Company policies and procedures – Performance Improvement Plan (‘PIP’) – whether employer had a reasonable belief based on reasonable grounds that the applicant’s conduct warranted summary dismissal – disputed evidence of numerous verbal warnings – witness credit – post dismissal facts – CCTV footage – procedural unfairness – employer had a reasonable belief on reasonable grounds that the applicant’s conduct warranted dismissal – notice paid in lieu – Code complied with – no jurisdiction of the Commission – application dismissed.

INTRODUCTION AND BACKGROUND

[1] Mr Peter John Williams had been employed as a 1st Class Radiator Repairer at an automotive radiator repair and maintenance business in Lismore, New South Wales, for approximately 35 years. For the last 14 years, Mr Williams was employed by the current owner of the business, P & J Cole Investments Pty Ltd t/a Savins Radiator Services (the ‘Company’), a small family owned company of which Ms Jennifer Cole is a Director.

[2] Mr Williams was dismissed by Ms Cole on 25 July 2019 for serious misconduct. Mr Williams’ Employment Separation Certificate cited ‘not following Company Policies and procedures and disrespectful behaviour towards employer’ as the grounds for dismissal, although a number of other issues emerged during the course of the case which, it was said, justified Ms Cole’s decision. At the time of his dismissal, Mr Williams was paid $772.75 per week, and his terms and conditions of employment were governed by the Vehicle Manufacturing, Repair, Services and Retail Award 2010,and a contract of employment dated 29 July 2019.

[3] At this juncture, it is appropriate to mention it is common ground that the employer is a small business (as defined), having only three employees at the time of Mr Williams’ dismissal. I make such a finding. Accordingly, the dismissal falls for consideration under the Small Business Fair Dismissal Code (the ‘Code’) under the Fair Work Act 2009 (the ‘Act’) and the principles applying thereto, to which I will later return; suffice to observe that if the Company’s decision to dismiss Mr Williams was consistent with the Code, the Fair Work Commission (the ‘Commission’) has no jurisdiction to determine whether such a dismissal was unfair or, in the words of s 387 of the Act, was ‘harsh, unjust or unreasonable’. This is a jurisdictional finding which must be made, pursuant to s 385(c) of the Act; see: Krav Maga Defence Institute Pty Ltd t/a KMDI v Markovitch[2019] FWCFB 4258 and DiannaSmith t/a Escape Hair Design v Fitzgerald[2011] FWAFB 1422.

[4] On 25 July 2019, Mr Williams filed an application, pursuant to s 394 of the Act, seeking a remedy from his alleged unfair dismissal. The matter was listed for a telephone conference on 16 October 2019. However, no resolution was able to be reached, and the matter was listed for hearing in Lismore on 10 January 2020. At the hearing Mr N Luke, Solicitor, Stacks Law Ballina, appeared for Mr Williams (hereinafter the ‘applicant’), with permission being granted for him to be represented by a lawyer (previously Legal Aid Lismore), pursuant to s 596 of the Act. Ms Cole appeared unrepresented. Only the applicant and Ms Cole provided witness statements in the proceeding and both were required for cross-examination.

THE EVIDENCE

Statement evidence

Ms Jennifer Cole

[5] Ms Cole said that at the time of the family’s purchase of the business in 2004, it had five full time employees, with the applicant being the Workshop Manager. Although believing the business was overstaffed (by one to one and a half positions), the format continued until 2008 when she took on all the office duties herself.

[6] Ms Cole described a number of incidents since 2010, which began when she noticed equipment parts going missing, without sales receipts or invoices. Those incidents were said to include:

•  A $350 till shortfall in August 2010 which the applicant explained as being a customer having paid cash for radiator hoses, who did not require a receipt. Ms Cole claimed she gave the applicant a verbal warning at the time and directed him that all business transactions must be receipted.

•  In May 2014, she convened a meeting of employees (including the applicant) to discuss the ongoing issue of jobs leaving the premises, without being invoiced, and cash sales.

•  The applicant was required to sign a contract of employment and acknowledgement of the procedure for taking personal/carer’s leave on 29 July 2019. Ms Cole believed his attitude towards her changed significantly in 2017.

•  In March 2017, a significant flood event impacted Lismore. As a result, the business was ‘dead’ for three to four months. During this period, all employees were paid in full for their wages.

•  Ms Cole said that at the same time that the applicant’s attitude changed, she noticed in 2018 an escalation in off-the-book sales. This prompted her to issue the applicant with a Performance Improvement Plan (‘PIP’), which he signed on 9 March 2018.

•  Ms Cole believed the applicant made no attempt to comply with the PIP and another unexplained ‘off the book’ sale of a motorbike bracket occurred on 16 March 2018.

•  In March 2018, a Worksafe Inspector, acting on an anonymous call, made an unscheduled visit to the premises. The business met all the relevant legislation, save for one stipulation being to update face masks. New masks, gloves, overalls and goggles were issued. At the Inspector’s suggestion, toolbox meetings were introduced. Ms Cole claimed the agenda for these meetings was in Microsoft Word and available to all employees.

•  All employees receive regular blood tests in relation to lead exposure at work. The applicant’s results over four years were all satisfactory.

•  Ms Cole’s daughter was employed as Office Manager in April 2018 after the applicant expressed concerns with his workload. She is not a radiator repairer and cannot undertake any technical aspects of the business.

•  Ms Cole recalled a phone call on 8 July 2019, from a major supplier to the business, in which concern was expressed with the applicant’s attitude and coherence in a recent phone conversation.

[7] After the applicant’s dismissal, Ms Cole claimed that a customer, who had sought a small sandblasting job was told it wold cost $22.00. The customer became very upset, as he said he had been told by the applicant he would do the job for $10.00 cash, with no receipt. In another incident one month later, another customer told Ms Cole the applicant had offered to source and fit a compressor for cash, without a receipt.

[8] Ms Cole’s primary issues of concern were that in toolbox meetings on 27 August 2018, 17 December 2018, and 12 May 2019, all staff were directed not to perform any work down the side, or at the back of the workshop and no mobile phones were to be used during work hours. Ms Cole said this matter raised serious safety issues where employees are working in confined spaces. The business could lose its air conditioning licence for any safety breach. In addition, those activities appeared related to the ongoing ‘off the books’ sales practice.

[9] Ms Cole claimed she gave the applicant a warning in June 2019 about his personal mobile phone use, and his practice of providing customers with his own mobile number and not the business’ number.

[10] In addition, Ms Cole relied on CCTV footage of 28 May 2019, in which the applicant is observed performing work on an individual’s vehicle down the side of the building, where work is not permitted. Neither she, nor her daughter, were aware of this work and there was no account or record of this work being performed. Ms Cole believed the applicant was undertaking this work to avoid detection. It was in direct contravention of the business’ practices and procedures. Further, she believed that he was soliciting the custom of a client from the business in breach of clauses 7 and 8 of his Contract of Employment. Despite these issues justifying summary dismissal, the applicant was dismissed with five weeks’ pay in lieu of notice.

Applicant’s evidence

[11] The applicant recounted his period of employment in the business over 35 years and recalled that when the business was bought by Mr and Mrs Cole in 2004, it became less busy and the staff numbers were reduced. However, the workload was inconsistent; it was busy and stressful in some weeks, and very quiet in others. More recently, Ms Cole’s daughter began to come in to work as Officer Manager, until she ended up coming in most days. She would deal with some of the tasks he had performed, such as attending customers, taking phone calls, looking up suppliers etc. He understood no one has been employed since his dismissal.

[12] The applicant said that in 2016, he became concerned about toxin levels in the business, as lead toxicity testing had become less frequent. As a result of Ms Cole dismissing his concerns, it was he who made an anonymous complaint to WorkCover. He claimed a range of corrective measures were required by WorkCover to be implemented. The applicant believed that Ms Cole knew, or assumed, he was the person who had contacted Workover. As a result, she became less friendly and made nasty remarks in his presence. This caused him ‘a lot of stress’ and he became worried for the security of his job.

[13] The applicant said that another staff member complained to the Coles about inconsistencies in the pay records. He had agreed with these concerns, as he had asked Ms Cole, on numerous occasions, to cross check the pay slips with business records and diaries. Ms Cole would either refuse or claim it was too difficult to do. The applicant believed that by his raising of these concerns, Ms Cole sought legal advice and he was then presented with a contract of employment with strict post-employment restraints. He claimed he was told to sign the contract, or his employment would be terminated.

[14] The applicant said that in 2017, he began to experience symptoms of anxiety and depression, exacerbated by his workload, the effects of his new contract and the untested toxicity issues. In December 2017, his treating doctor referred him to a counsellor who recommended monthly two-hour sessions. He provided a doctor’s certificate dated 5 December 2017, that stated he required sick leave to attend these sessions. He did so throughout 2018, without the employer ever questioning the certificate or inquiring about his health. The certificate reads:

‘Our patient, Mr Peter J Williams has a medical condition and will require multiple appointments to address this condition. These will need to be during work hours. I would appreciate your consideration in alowing [sic] Peter to attend these as sick leave. Your consideration of this is appreciated.’

[15] After comments to him in 2018, the applicant believed Ms Cole disapproved of his sick leave. While not confronting him outright, she would query why he could not attend appointments in his own time. He was very stressed that if the employer knew he was suffering from a psychological illness, his job would be in jeopardy. Nevertheless, on 17 May 2018, he provided a medical report from his treating psychologist, Mr Beau Robertson to Mr Cole. At no time, did the employer request a medical certificate. Mr Robertson’s report stated:

‘Mr Peter Williams has been presenting for counselling with me since 13 November 2017, on referral from his GP for anxiety. Peter has asked me to write a letter to advise you that he is currently receiving this form of treatment. The counselling for Peter is primarily for management of stress and anxiety and related to this is communication. If Anxiety is too high in an individual, then their ability to think and communicate effectively can be temporarily compromised. Particularly [sic] stressors for Peter seem to include: competing demands and priorities, and communicating with customers, which is exacerbated If they are hostile, abusive, or impatient, among others. In addition, Peter reports that his payslips do not show current, accurate leave entitlements available; this seems to be a particular stressor for him. In my opinion, it is very reasonable expectation that employers make this information available to employees on a regular basis, and indeed Australian workplace laws may require this. I would like to take this opportunity to encourage you to provide whatever supports are practicable, to reduce the stress and anxiety Peter experiences in the workplace.’

[16] As to toolbox meetings, the applicant said Ms Cole would meet with staff infrequently. At no time were issues discussed or recorded, and Ms Cole’s documents, provided in her evidence, were fabricated. During the three toolbox meetings, Ms Cole did not direct the applicant that no work was to be performed ‘down the side’ of the building. In the 35 years he had worked at the premises, this would happen about once a month, usually for small jobs when the three auto bays at the back of the building were occupied. Further, at no time did Ms Cole advise that no customers were allowed down the side, or at the back of the premises. While he was aware that for safety reasons this should not occur, the shop floor is not secured or locked and on occasions, regular customers would sometimes wander in. Ms Cole never raised the issue with him.

[17] The applicant accepted the CCTV footage shows a customer coming out the side of the building. However, he could have only done so by going through the front office, past the Office Manager. The customer was there for a short period, got into his vehicle and left. The applicant said that Ms Cole never mentioned this footage to him, and he was not disciplined about the matter. It was not mentioned, either verbally or in the note of the meeting on 11 June 2019. Nor was it mentioned in the dismissal meeting of 24 July 2019, or in the termination letter.

[18] As to his mobile usage, the applicant explained he has lived in Lismore his whole life; has numerous family and friends, including in the auto industry. Often people known to him will call him directly at work. This issue had never been raised with him. He noted, particularly, the inadequate technology and old systems in the business. The applicant said that prior to 11 June 2019, he never received anything in writing about concerns with his work performance or work issues.

Oral evidence

The applicant

[19] In further oral evidence in chief, the applicant said that when the Coles took over the business, he was working roughly 50/50 on the floor and in the office. This changed when Ms Cole’s daughter commenced as Office Manager.

[20] The applicant was asked about the warning note he signed on 11 June 2019, which read:

‘1. Reason why Customers would have your personal phone number. Serious Breach of employment. Damaging to business and reputation

2. No valid reason given

3. Reason why you have not phoned in sick. Text message is unacceptable

4. No Doctors certificate or evidence of sickness. Thursday and Friday 6/06/2019-7/06/2019

5. Peter has been informed this is his last and final warning

5. These topics have been discussed in full’

He agreed the matters in the letter were discussed in the meeting in the morning and he was given the letter and signed it in the afternoon. The 2010 issue of $350.00 missing in the till was not discussed, although it was mentioned in the dismissal meeting of 24 July 2019. He could not recall details of the incident, as it was nine years ago.

[21] The applicant recalled a meeting with Ms Cole and two other workers on 9 March 2018 from which the PIP was generated. The PIP applied generally to all the staff, not just him directly. He took the document as a list of his duties, not a PIP. He claimed this document was not put to him in the morning meeting of 11 June 2019, or in the termination meeting on 24 July 2019. As to Mr Robertson’s report, the applicant said Ms Cole did not request it; rather, he wanted to explain to her his monthly sessions with the psychologist.

[22] The applicant claimed that no document was produced from any of the toolbox meetings in 2018. He could only recall one such meeting in June 2018. The only document produced arose from the so-called PIP meeting.

[23] The applicant said that at no time did Ms Cole raise a complaint from a supplier on 8 July 2018. He could not recall having any problem with suppliers. Nor was the customer incident of 8 July 2018 raised with him. Similarly, the compressor incident of 21 August 2019 was not raised with him at any time. He could not recall that incident. He insisted he would have not suggested the customer pay cash to avoid tax.

[24] The applicant explained the circumstances where work might be performed down the side of the premises - if the engine bays at the back, or if the air conditioning bays at the front are full, or the weather is bad, or there is a need to keep a vehicle out of the sun. He agreed it was not a regular occurrence, but probably once a week. This issue was not raised at all during his employment or in the disciplinary meetings. He had not seen the CCTV footage prior to these proceedings and could not recall working on the car. The applicant said there are cameras everywhere in the workshop. They were put in five or six years ago. He had never been directed not to perform work down the side. The applicant accepted that customers were not permitted in the workshops. In the CCTV footage, he assumed the person who came from the side was the customer and the owner of the vehicle. He said anyone could come off the street and just walk down the side, or into the workshop. He denied working on the car for his own benefit. Such an allegation had never been put to him. He insisted that he had never taken cash from a customer, rather than invoicing through the business.

[25] The applicant was asked about a photo allegedly of his desk in the office, with numerous post-it notes scattered over it. He confirmed the desk was the main office desk with a phone and computer. It was used by all employees. He had never seen the desk look like it is shown in the photo.

[26] The applicant referred to an incident in May 2019, where a customer (a friend) had sent him photos of his car heater connections to his personal phone. This had happened once or twice. His preference was to have all information, including photos, sent directly to the business’ computer.

[27] The applicant said that in the period between the 11 June 2019 warning and his dismissal, he had taken no sick days off. The applicant said he did not receive a separation certificate until these proceedings. He had found casual work, with ISS Cleaning Services, on 22 October 2019, of around three days a week. This work was irregular.

[28] In cross examination, the applicant was questioned about the CCTV footage. While he could not recall the details, he believed there would have been an obstruction at the front of the premises at the time and the work was performed down the side. This would have required the air conditioning equipment to be moved from the front bay to the side. This only required the equipment to be unplugged and wheeled around the side. The applicant agreed Ms Cole had raised with him some missing solder and degreaser. Nevertheless, he believed it had all been accounted for. The applicant claimed that the phone calls he received were just messages. He would usually make personal phone calls in his lunch break.

Ms Cole

[29] In cross examination, Ms Cole agreed that in respect of the 11 June 2019 warning letter, concerning the applicant not providing a doctor’s certificate for 6 and 7 June 2019, he had given a document to the Company which confirmed he had dental root canal treatment on 7 June 2019. As to 6 June 2019, he had never told her his absence was related to the death of a close friend.

[30] As to the applicant’s mobile phone use at work, Ms Cole said the matter had only become an issue in the last two years. Before that, it never rang. She had directed him not to take any work calls on his mobile, but to direct such calls to the office. While his phone continued to ring after 11 June 2019, she accepted she was unaware of any repeat of him dealing with a customer on his mobile. He had not given her any reason why customers would have his personal mobile number.

[31] Ms Cole agreed that after the warning, the applicant had not disobeyed her direction to phone in sick, and not text her. Ms Cole denied that she had made a decision to terminate the applicant’s employment prior to meeting him on 24 July 2019. She had asked him to address the issues she raised, and left him for 20 minutes. When she came back, he failed to address any of the issues. Therefore, she gave him the letter terminating his employment. He was still having doctor’s appointments and not supplying a certificate. There had been an understanding the appointments could be an hour, but they became two and a half to three hours, and sometimes two or three a month. She did not consider it was unreasonable to request he provide a doctor’s certificate, when all the other employees were required to do so. Nevertheless, she agreed he had accrued sick leave to cover his absences. Ms Cole said she had sought confirmation from Mr Robertson about the appointments, but this was refused.

[32] As to the other matters Ms Cole raised in her statement, she could not recall speaking to him about an incident in August 2010 concerning a Landcruiser. She did not raise with the applicant the occasion a supplier had called her on 8 July 2019 to complain about his attitude and behaviour on the phone. She said it did not form part of the reasons for terminating his employment.

[33] Ms Cole confirmed she had notes of the other two incidents which occurred after the applicant’s employment was terminated. She claimed that she had noted any issues, or incidents in an exercise book and has kept these records for the last two years.

[34] Further, Ms Cole said that in the toolbox meeting on 27 August 2018, the notes record:

‘Side or back of workshop, nobody in any circumstances should be going down the side of the workshop or out the back. All vehicles should be taken to the front for people to inspect, again the safety reasons’.

Then nine months later, on 1 May 2019, the following was recorded:

‘All customers to report to the office. There are to be no unauthorised person at the back or down the side of the workshop at any time’.

[35] Ms Cole agreed these directions related to customers not being permitted to go down the side of the building. She later claimed in her statement of 16 December 2019 that the applicant was doing a job down the side of the workshop to avoid detection of him doing the job ‘off the books’ for his own benefit. What can be seen in the CCTV footage is the customer coming out from the street, get into the car and drive off. Normally payment would be processed in the office and the car keys would be kept there. Nowhere can it be seen that the applicant went into the office. Ms Cole accepted the allegations of misappropriation was not raised with the applicant at the time. It was not until she viewed the footage after his dismissal, that she claimed to now have ‘solid proof’ for the incident shown in the CCTV footage. Ms Cole denied ‘creating’ this allegation and added that the business had no record of any job sheet, job card or customer name.

[36] Ms Cole conceded that the photo of the desk, with all the post-it notes, was taken by her three months after the applicant’s dismissal, but she denied ‘staging’ the photo. She insisted the desk was how it looked when he had left. After further probing, Ms Cole accepted it was ‘probably’ how the desk looked from her recollection of how it looked three months earlier.

[37] As to the unsigned toolbox meetings, Ms Cole explained that they were created on the day before, or day of the meeting and the date stamp in the evidence varied as it reflected the date someone printed them off – in this case, her lawyer. She claimed they were not signed because the business was too busy. In any event, the notes were just topics for discussion or guidelines for the meetings. She did not take notes of the meetings and had only produced the notes she thought were relevant. Despite a box for comments, none were recorded for any of the meetings. Although the agenda items do not record any direction for staff not to work down the side of the building, she claimed she had discussed this direction. In any event, the agenda ‘implied it’. Ms Cole denied inventing this alleged breach of safety after the applicant’s employment was terminated. The CCTV footage clearly shows the applicant working down the side of the workshop. She strongly denied this was a frequent occurrence.

[38] Ms Cole denied that the real reason for terminating the applicant’s employment was the financial downturn in the business. Further, she claimed to have always assisted him when he had requested help with the workload and had requested leave for psychologist appointments.

SUBMISSIONS

For the applicant

[39] Mr Luke referred to the disconnect between the warning letter of 11 June 2019, the termination letter of 25 July 2019, and what he described as the ‘post-constructed’ incidents/events, which Ms Cole had never put to the applicant. These later matters were in the Company’s (or the ‘respondent’s’) second submissions of 17 December 2019 and were said to include a very serious allegation that the applicant was to ensure that no work was taken away from the business or conducted ‘off the books’.

[40] Mr Luke submitted that the matters raised in the applicant’s warning letter of 11 March 2019 (use of his personal phone and a requirement for doctor’s certificates for personal leave) were not of a serious nature, had never been raised before in a disciplinary context and would not be considered reasonable grounds for the dismissal of an employee of 35 years’ standing. In any event, Mr Luke noted (and Ms Cole had agreed) that there was no repeat behaviour of the issues the applicant was warned about, yet he was dismissed on 25 July 2019 for different reasons.

[41] In any event, Mr Luke addressed these two matters in the warning letter, as follows. The applicant had given a simple and reasonable explanation why some customers would call him direct about matters related to the business. He was a long time and well-known resident of Lismore. There was no evidence of any ulterior motive as to why customers would call him directly; nor was there any evidence, let alone an explanation, as to how this issue ‘damaged the business and its reputation.’

[42] As to his sick leave absences of 6 and 7 June 2019, Mr Luke said Ms Cole was aware of his dentist appointment on 7 June 2019 and the death of a close friend around the same time. Mr Luke added that these matters were trivial and readily explained.

[43] As to the new reasons Ms Cole had raised in her submissions of 24 October 2019, Mr Luke submitted these were either fabricated and/or were never put to the applicant in the warning meeting of 11 June 2019 or the termination meeting of 24 July 2019. Mr Luke observed that Ms Cole was a witness of little credit. She was evasive about the photo allegedly of the applicant’s desk covered in post-it notes, as justifying her new claim that he would consistently refuse to follow company policies and procedures in respect of job sheets and customer quotes. Ms Cole was forced to admit the photo had been taken by her three months after the applicant had left. This was a misrepresentation deliberately created to mislead the Commission. On the other hand, the applicant had at all times been straightforward and his evidence would be preferred over Ms Cole’s evidence.

[44] Mr Luke submitted that as the case progressed, Ms Cole kept adding new matters and issues of alleged concern, which had never been put to the applicant and did not form any part of the reasons in his termination letter. These included:

•  that the applicant has seriously breached safety by working on a vehicle at the side of the respondent’s premises instead of at the front;

•  that the applicant has seriously breached safety by allowing a customer to come into the workshop and out the side of the premises;

•  that the applicant has been continually using his phone at work for personal reasons;

•  the applicant has taken cash for jobs ‘off the books’;

•  not following company policies or procedures by suppling his personal mobile phone number to customers without Ms Cole’s knowledge;

•  would not supply a doctor’s certificate for days taken off when repeatedly asked to do so;

•  the applicant sent Ms Cole a text message when taking sick leave when Ms Cole stated that this was not an acceptable form, nor company policy; and

•  when conducting meetings with the applicant he was ‘vague, he was evasive, and he would constantly dismiss [Ms Cole] without resolving issues’.

[45] As to excessive use of his mobile phone, Mr Luke said that the applicant had no opportunity to address this. It is not even mentioned in her handwritten notebook, provided to the Commission after the hearing.

[46] In respect of working down the side of the premises, Mr Luke put that Ms Cole’s reliance on the toolbox meetings and records make no reference to a prohibition on working down the side; only that no customer was permitted down the side, or the back of the premises. In any event, the applicant had stated that he and other employees had worked on vehicles down the side of the building and he had never been directed not to do so.

[47] Mr Luke submitted that the Commission would reject an allegation of the applicant’s poor customer service ten months prior to his dismissal, as vague. It had never formed part of the reasons for his termination.

[48] Mr Luke referred to the CCTV footage of the applicant down the side of the building, the vehicle and the customer shown there. This allegation had never been put to the applicant. Ms Cole claimed she had no proof, until viewing the footage, that the applicant may have been performing work out the back. The applicant could not recall this incident and he strongly denied ever having misappropriated money from the business. Mr Luke said that if the respondent genuinely believed the applicant was misappropriating funds, it makes no sense that it was not mentioned in the warning, the termination letter or the respondent’s reply in its written submissions.

[49] In reference to the handwritten exercise book notes, Mr Luke put that the Commission would not accept this document, as although it was alleged to include incidents or issues in the business, all entries (except one) over a two year period relate to the applicant and specifically in respect of the respondent’s first and second submissions and Ms Cole’s evidence. A date is wrong and there are many months in the notebook, where nothing is recorded.

[50] Mr Luke contended that the real motivations for terminating the applicant’s employment may have been:

(a) a downturn in business;

(b) the replacement of the applicant by Ms Cole’s daughter; and/or

(c) the applicant’s mental health condition, requiring his time off for medical appointments.

[51] Mr Luke submitted that the applicant was unfairly dismissed and a compensation order of 12 weeks at full pay and 12 weeks of half pay would be appropriate, recognising his 35 years of employment, his age and limited job opportunities in Lismore. He continues to suffer significant financial loss and although he is working, the work is casual and sporadic. On average, since 23 October 2019, he had earned about 50% less than when he was working for the respondent.

For the respondent

[52] Ms Cole submitted that the applicant was employed by the respondent for 14 years (by her family company), not 35 years. He was dismissed for ‘serious misconduct, being wilful and disrespectful behaviour and not following company policies and procedures’.

[53] Ms Cole described the warning meeting of 11 June 2019, as intended to address the serious breaches of policies and procedures; namely his failure to provide any reason why customers had his personal phone number and why, being aware of the procedure for taking personal leave, he had failed to inform her why he was absent on 6 and 7 June 2019. His text message simply said, ‘[j]ust letting you know I won’t be in at work today as I am unwell and I am also taking Friday off’. He provided no doctor’s certificate.

[54] As to his sick leave, Ms Cole claimed the applicant had 86 hours’ sick leave in 6 months, most of which was not supported by a doctor’s certificate. This is not a trivial matter. The Company’s policy is to protect the employee, the business and to ensure all employees are treated the same.

[55] Ms Cole submitted that the applicant had been frequently made aware of his responsibilities about taking leave, through:

•  toolbox meetings;

•  a PIP;

•  his employment contract; and

•  the Company’s policies and procedures.

[56] Ms Cole said that as to customers using his personal mobile number, the applicant’s explanation would not be accepted. At no time in 14 years, had he advised the respondent or sought approval for customers to be given his personal phone number. In respect of one customer (Grant) there were no business records of any job sheets, notes or quotes. Ms Cole held a belief the applicant had an ulterior motive for not doing so. She had raised her concerns that he was doing jobs ‘off the books’. Ms Cole said that the applicant had been warned on numerous occasions, over many years, to ensure all work was properly written up in job sheets, and no work was to leave the premises before payment.

[57] Ms Cole claimed the applicant had been sent a separation certificate, but he had wanted it changed to reflect retrenchment, rather than termination, in order to obtain Centrelink benefits.

[58] As to the CCTV footage, Ms Cole noted that the applicant could provide no explanation for what was clearly shown in the footage of him working in the side laneway. Further, he could not recall the specific job, or why so many other jobs were carried out there. Contrary to the applicant’s evidence, there is no access from the laneway from the front office. Importantly, however, the business had no invoice or job sheet for the work performed for that customer. This was also a safety issue which the applicant chose to ignore.

[59] Ms Cole said that in respect of her handwritten notes, the fact that there is very little written up about other employees demonstrated that she had few issues with them compared to the applicant. She added that after the applicant’s lawyer had adamantly sought her notes, he now sought to them have them excluded (from the evidence).

[60] Ms Cole submitted that since the applicant’s departure, there have been no issues of work being permitted in the laneway, and all job sheets and quotes have been written up and paid for.

[61] Ms Cole said that she had attempted to assist the applicant when he claimed to be overworked, by employing her daughter to perform the office duties. Ms Cole claimed the business was in serious financial difficulty due to the recent bushfires. She noted that the applicant was paid five weeks’ ‘compensation’ above his entitlements (payment in lieu of notice).

[62] Further, the respondent sought costs of $2,036.00 for legal fees incurred (although no invoices or details were provided, and it is not clear what work or advice a legal representative had done in preparing the respondent’s case).

CONSIDERATION

[63] Section 385 of the Act sets out four jurisdictional prerequisites which must be satisfied in order for the Commission to find that a person was unfairly dismissed. By the use of the conjunction ‘and’ joining subsections (a), (b), (c) and (d) it is clear that each of the four requirements must be satisfied for a person to be unfairly dismissed. The section is set out as follows:

‘385 What is an unfair dismissal

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.’

[64] For present purposes, I am satisfied that the applicant was dismissed (subsection (a)) and his dismissal was not a case of genuine redundancy (subsection (d)). The question of whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’ would need to be considered subsequent to a conclusion as to the remaining preliminary matter, that his dismissal was not consistent with the Code (subsection (c)). This question is the essential foundation of this case, although, given the respondent was unrepresented, it is understandable that this question was not sufficiently understood, such as to be properly articulated and argued by Ms Cole. Accordingly, I shall explain the significance of the Code’s application in this case.

[65] I begin with setting out the terms of the Code below:

‘Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

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

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

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

Procedural matters

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

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.’

[66] It is apparent that the Code applies to a dismissal by an employer with fewer than 15 employees (at the time of the dismissal) in two circumstances – summary dismissal (usually for serious misconduct) and dismissal for poor performance (capacity to do the job) or behaviour, which is not serious misconduct. A significant difference between the two circumstances is that summary dismissal does not require notice or warning to the employee and the latter requires warnings to the employee and opportunities for the person to respond to, and improve on any shortcomings in behaviour or conduct.

[67] There is no doubt that the applicant’s dismissal was based primarily on Ms Cole’s belief that he was guilty of serious misconduct (conducting a business in direct opposition to Ms Cole’s business) and other matters; see: [52] above. Viewed in this way, the applicant’s dismissal falls under the summary dismissal limb of the Code, notwithstanding he was paid in lieu of notice. Should the dismissal be found to be inconsistent with the Code, but the serious allegations are ultimately found to have been proven, it would seem highly likely that a positive finding of a valid reason for dismissal would follow. However, that is not the test for the purposes of establishing whether there has been compliance with the Code. I shall come back to this crucial consideration shortly.

[68] Before leaving the statutory provisions, s 12 of the Act defines ‘serious misconduct’ as having ‘the meaning prescribed by the Regulations’. That is referable to Reg 1.07 of the Fair Work Regulations 2009, which is expressed as follows:

‘1.07 Meaning of serious misconduct

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

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

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

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

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

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

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

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

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

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

Ms Cole’s belief that the applicant was operating a competitive business to her own, presumably falls within the rubric of ‘conduct that causes a serious and imminent risk to the viability or profitability of the employer’s business’.

[69] The seminal case – indeed the first Full Bench Decision which considered the Code – was John Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 (‘Pinawin’). After setting out a number of passages from two earlier single-Member decisions concerning the application of the Code, the Full Bench of Fair Work Australia (‘FWA’, as the Commission was then styled), said at [29]-[31]:

‘[29] We believe that the approach and observations in these two decisions are correct. There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.

[31] The question we need to consider in this case is whether Mr and Mrs Pinawin believed on reasonable grounds that Mr Domingo’s conduct was sufficiently serious to justify immediate dismissal.’ (my emphasis)

[70] Continuing, the Full Bench said at [38]:

‘[38] Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee. We are concerned in this case that no discussions took place about the implications of Mr Domingo’s conduct for his future employment. However this is a very unusual case. The employer was very small. The owners knew Mr Domingo well. They directly observed his behaviour. They believed that he had made lifestyle choices that involved drug-taking and this directly related to his capacity to perform his work. His work involved close personal dealings with clients. At the time they made their decision, Mr Domingo was hospitalised. They were conscientious in considering the grounds for summary dismissal in regulatory material available on the internet. In these unusual circumstances we are of the view that the employer, when considering Mr Domingo’s recent erratic and unusual behaviour, formed the belief that Mr Domingo had engaged in conduct that justified immediate dismissal on reasonable grounds. Our conclusion should not be seen as one that would necessarily be reached in all cases of out of hours misconduct or drug-taking.’ (my emphasis)

[71] Pinawin continues to be cited with approval in decisions of the Commission involving the Code. Pinawin is authority for the proposition that when the Code applies, the Commission is not required to find that serious misconduct occurred, or that the allegations of serious misconduct against the dismissed employee, had been proven. Under the Code, the tests are only that:

•  the employer held a reasonable belief that the employee’s conduct was sufficiently serious to justify immediate dismissal; and

•  that belief was based on reasonable grounds, after a reasonable investigation.

Self-evidently, both of these tests do not require findings of unfairness, in a statutory sense, within the meaning of s 387 of the Act, unless the Code has not been complied with.

[72] That said, the Full Bench of the Commission had further occasion to consider the Code and the conclusions in Pinawin. In Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services[2015] FWCFB 5264 (‘Ryman’), the Full Bench, after expressing a view that the summary dismissal section of the Code is ‘very poorly drafted’ (with which I respectfully agree), because it uses discordant expressions such as ‘without notice or warning’, ‘immediate dismissal’ and ‘summary dismissal’ synonymously, went on to say at [37]-[41]:

‘[37] Notwithstanding that the Code, and its accompanying checklist, were apparently designed to be read as “stand alone” documents by small business employers, we prefer the view that the reference to “serious misconduct” is to be read as bearing the meaning in reg.1.07. The types of conduct expressly referred to in the Code as constituting serious misconduct are all encompassed by the reg.1.07 definition, so no direct inconsistency is apparent. The fact that the checklist invites inclusion of “some other form of serious misconduct” suggests that the identified types of conduct were not meant to be exhaustive, and it is otherwise difficult to conclude that they were meant to be exhaustive given that they do not include other types of behaviour which may well constitute misconduct justifying summary dismissal, such as sexual harassment, bullying or significant non-compliance with a lawful and reasonable direction. And, as earlier discussed, the lack of any recognised meaning at law of the expression “serious misconduct” means that the definition in reg.1.07 is necessary to give the expression a clear content.

[38] We therefore consider that the “Summary dismissal” section of the Code applies to dismissals without notice on the ground of serious misconduct as defined in reg.1.07.

[39]To be clear, nothing stated above is to be taken as suggesting that in relation to such a dismissal it is necessary for the Commission to be satisfied that the serious misconduct which is the basis for the dismissal actually occurred in order for the dismissal not to be unfair. As was explained in Pinawin T/A RoseVi.Hair.Face.Body v Domingo:

“[29] … There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.”

[40] Whether the employer had “reasonable grounds” for the relevant belief is of course to be determined objectively.

[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates in the following way:

(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.

(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.’ (my emphasis, endnotes omitted)

See also: Hart v Forex 1 Pty Ltd ATF Trading Rental Trust [2018] FWC 942.

[73] In Grandbridge Limited v Wiburd[2017] FWCFB 6732, the Full Bench put it this way at [14]:

‘We consider that an arguable case of error has been established and the public interest is enlivened by the appeal. Specifically, we are persuaded that Grandbridge has made out an arguable case of appellable error in relation to grounds 2, 13 and 15 of its Notice of Appeal in so far as they concern the dishonest conduct reason for Ms Wiburd’s dismissal. It is arguable that the Deputy President fell into error by asking herself the wrong question in focussing on whether Ms Wiburd’s conduct “was serious enough” to sustain summary dismissal. The proper inquiry raised by the Code is relevantly, whether at the time of the dismissal the employer genuinely believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. The Code focusses attention on the employer’s belief which must be based on reasonable grounds, not on whether the employee’s conduct as a matter of fact and law justified immediate dismissal. It is therefore arguable that the Deputy President failed to properly apply the Code as Grandbridge contends by ground 13 of its Notice of Appeal.’ (my emphasis) (endnote omitted)

[74] I turn then to whether Ms Cole had ‘reasonable grounds’ to believe the applicant’s conduct was sufficiently serious to justify his dismissal. This leads me to discuss the meaning of ‘reasonable’ as it is generally understood. The Macquarie Dictionary defines ‘reasonable’ as:

‘1. endowed with reason. 2. Agreeable to reason or sound judgement: a reasonable choice. 3. not exceeding the limit prescribed by reason; not excessive: reasonable terms.’

[75] The Shorter Oxford Dictionary defines ‘reasonable’ as:

‘1. Endowed with reason. ... 2. Having sound judgement; sensible, sane. Also not asking too much ... b. Requiring the use of reason. ... 3. Agreeable to reason; not irrational, absurd or ridiculous ... 4. Not going beyond the limit assigned by reason; not extravagant or excessive; moderate ... b. Moderate in price; inexpensive ... 5. Of such an amount, size number, etc., as is judged to be appropriate or suitable in the circumstances or purpose ... b. Of a fair, average or considerable amount, size, etc.’

[76] In my opinion, the meaning of ‘reasonable grounds’ in the Code is that the grounds are ‘reasonable’ when viewed from the standpoint of what a reasonable person would conclude as grounds which are credible, sensible, logical or plausible; see also: Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited [2011] FWA 8288 (‘HWE Mining’).

The notion of ‘reasonable belief’

[77] In a decision of Hatcher VP in Mac v Bank of Queensland Limited and Ors[2015] FWC 774, albeit a decision in the Commission’s anti-bullying jurisdiction, his Honour said at [79]:

‘[79] An applicant under s.789FC must not only be a worker but must be one who “reasonably believes that he or she has been bullied at work”. The expression “reasonable belief” and similar expressions are utilised in a wide variety of contexts by the statutory and common law. It is clear from cases decided in those differing contexts that not only must the requisite belief be actually and genuinely be held by the relevant person, but in addition the belief must be reasonable in the sense that, objectively speaking, there must be something to support it or some other rational basis for the holding of the belief and it is not irrational or absurd. For example, in the context of the Federal Court rules concerning applications for preliminary discovery, which require the holding by the applicant of a reasonable belief that that there may be a right to obtain relief against another person not presently a party to a proceeding in the Court, it has been held that “there must be some tangible support that takes the existence of the alleged right beyond mere ‘belief’ or ‘assertion’ by the applicant” or that “there must be some evidence that inclines the mind towards the matter of fact in question”. In relation to a NSW statutory provision prohibiting legal practitioners from providing legal services on a claim or defence of a claim for damages unless the practitioner reasonably believed that the claim or defence had reasonable prospects of success, it has been held that the practitioner’s belief that there was material which justified proceeding will not be reasonable if it “unquestionably fell outside the range of views which could reasonably be entertained”. In relation to the concept of a “reasonable hypothesis”, it has been held that in order to be a reasonable one a hypothesis must be rationally based and possess some degree of acceptability or credibility, and must not be irrational, absurd or ridiculous. These examples all illuminate the way in which the Commission should approach the task of considering whether the applicant worker has the necessary reasonable belief such as to confer standing to make an application under s.789FC.’ (endnotes omitted)

[78] Applying the above principles, I turn then to the evidence in this case.

[79] Neither the applicant nor Ms Cole were particularly impressive witnesses. Ms Cole’s evidence was tainted by post event reconstruction and exaggeration, handled somewhat clumsily and implausibly. It was particularly silly and unnecessary to demonstrate Ms Cole’s belief that the applicant was performing work ‘off the books’ by tendering a photo said to recreate the front desk and computer, with numerous and randomly scattered post-it notes. Under sustained questioning, Ms Cole firstly said that this was how the applicant had left the desk when he was dismissed, but later she reluctantly acknowledged she had recreated the scene three months later and had taken the photo herself.

[80] I also do not accept that the applicant’s so-called ‘PIP’ was what Ms Cole claims it to be. In my view, the document, although headed ‘Performance Improvement Plan’, is no more than a list of the applicant’s duties and tasks. A typical PIP, as generally understood, identifies a series of specific concerns or targets which are required to be addressed over a period of time. A PIP invariably includes a number of time signposts for measuring improvement, with regular ‘one on one’ meetings for discussion and feedback. This document is not such a plan. Again, I consider, this document demonstrates Ms Cole’s naivety and inexperience in dealing with workplace issues.

[81] Further, I also have some difficulty accepting that the notes of the toolbox meetings reflected what Ms Cole claimed had been discussed with employees. Although it was accepted that meetings did occur, nowhere do the notes refer to a prohibition on working down the side of the premises and none of the notes were signed off by anyone, despite there being named spaces for the employees to do so, including by Ms Cole. Ms Cole’s explanation that they were unsigned because the business (and the employees) were too busy to do so and that the notes were merely agenda items, were not convincing.

[82] I am also troubled by the obvious disconnect between the warning letter of 11 June 2019 and the reasons later advanced as the grounds for the applicant’s dismissal. Had this been a case not involving a small business, it would be axiomatic that not putting serious and different allegations to an employee and not giving consideration to any explanation, would constitute a finding of procedural unfairness, and a likely conclusion that the dismissal was ‘unjust and unreasonable’; see: my earlier comments about the Code.

[83] Ms Cole conceded that after the warning for the use of his mobile phone and not phoning in when sick, the applicant had not reoffended, as to these specific complaints during the seven weeks before his dismissal. At best, it seems to me that Ms Cole’s reasons for the warning letter were a substitute for her more serious concerns that the applicant was performing work ‘off the books’ or, at least, was continuing to ignore her instructions to ensure all work was appropriately covered by quotes, invoices and payments.

[84] As to the applicant not phoning in sick and texting, I accept that Ms Cole was entitled to expect consistent employee compliance with what was a reasonable direction to phone in, whenever he would not be attending for work. His text message concerning the 6 and 7 June 2019 absences, was not sufficient in explaining his absences. I would also add at this point that I do not accept that the letter from the applicant’s doctor of 5 December 2017, indicating that he would be requiring multiple appointments over the coming months, without any follow up medical certificates, is an appropriate notification of the reasons for his absences. Further, Mr Robertson’s report of 17 May 2018 makes no mention of the number of sessions or duration over an 18-month period. It would be a small, but necessary inconvenience to ensure that each of his absences from work were appropriately certified by the medical practitioner. I note that the applicant did not dispute Ms Cole’s claim that these sessions became longer and more frequent. For my own part, I do not see how a counselling session, with travel to and from work, should take three hours. While Ms Cole did not expressly say so, I think she had a belief that the applicant may have been less than forthcoming about these absences, particularly when he refused his permission for her contacting the medical practitioner to confirm his appointments.

[85] It is now plainly apparent that Ms Cole was of the firm belief that the applicant had been performing work ‘off the books’ when she viewed the CCTV footage of 28 May 2019, after the applicant’s dismissal. Her explanation that, until that time, she had no concrete proof he was doing so, fits the narrative Ms Cole explained and which she backed up by the notes in her incident notebook (subsequently produced). I have some doubts that the tendered document was actually contemporaneous notes. Nonetheless, it would seem unlikely, particularly as the applicant had vague or minimalist explanations for a number of earlier (and later suspicious) incidents, that Ms Cole had deliberately and falsely created evidence to fit her narrative. Given her inexperience in employment matters and in dealing with an employee who had worked in the business for over 35 years, I accept she was naturally guarded and unsure, but then handled her suspicions very clumsily.

[86] Mr Luke, unsurprisingly, argued the allegations relating to the CCTV footage were never put to the applicant and he had no opportunity to respond. This, of course, is correct, but it is not determinative in a case such as this. It is also necessary to observe that conduct which is discovered by the employer, post an employee’s dismissal and which was not reasonably known at the time, can justify a finding that the dismissal of the employee was not unfair; see: Shepherd v Felt & Textiles [1931] HCA 21; Australia Meat Holdings Pty Ltd v McLauchlan Print Q1625 and Lane v Arrowcrest Group Pty Ltd [1990] 27 FCR 427.

[87] In any event, the applicant has now had the opportunity to view the CCTV footage and provide an explanation. Regrettably, his claim of not recalling the incident in question does not assist his case. Secondly, the applicant produced no corroborative evidence from any other employee (or local customer, of which he said he knew many) that work was often performed by employees down the side of the premises, when the front bays were occupied. Of course, Ms Cole denied any knowledge of any such work being performed down the side of the premises and she had expressly told employees, for safety reasons, it was not permitted. In my view, it would have been a simple matter, particularly given the applicant was legally represented, to seek corroborative evidence or file a Form F51 application for an order requiring a person to attend the Commission (to give evidence).

[88] Thirdly, and perhaps most significantly, Ms Cole said that there was no quote, invoice, customer name or payment recorded for the work on the vehicle. Of course, the applicant could not dispute Ms Cole’s claim, as he could not recall the incident. Tellingly, he did not seek access to the business records through a Form F52 application for an order to produce documents, which might have disproved Ms Cole’s suspicion that the work was performed by the applicant ‘off the books’ and, in fact, had been correctly invoiced and paid for.

[89] Given the foregoing, I am satisfied that Ms Cole had a reasonable belief, based on reasonable grounds, (particularly the CCTV footage) that the applicant was engaged in conduct which warranted summary dismissal. I stress that I make no finding that the conduct has been proven to the requisite standard, and I repeat that it is not the test required by the Code. Accordingly, the Code has been complied with and the applicant was not a person protected from unfair dismissal (s 388 of the Act) and therefore could not have been unfairly dismissed (s 385 of the Act).

[90] That said, the respondent should not take this outcome as vindication of some of its own conduct leading up to, and after the applicant’s dismissal. Ms Cole would have been well advised to seek the appropriate support and advice in the future when handling workplace issues about which she might have concerns.

[91] As to the application for costs, there was no appearance by a lawyer for the respondent and although it does appear from the later material filed by Ms Cole, that a lawyer’s ‘hand’ may have been involved, no details or specifics were provided by Ms Cole. Accordingly, I have a preliminary view that this case is not one for which the hurdles for a successful costs application in unfair dismissal matters can be overcome. In any event, the respondent would need to comply with the requirements of the Act and the Regulations, if it seeks to pursue such an application.

[92] For the above reasons, Mr Williams’ application (U2019/8215) for an unfair dismissal remedy must be dismissed, as the Commission has no jurisdiction to determine the merits of the application.

[93] These proceedings are otherwise concluded.

DEPUTY PRESIDENT

Appearances:

Mr N Luke, Solicitor, Stacks Law Ballina, for the applicant.

Ms J Cole, Director, P & J Cole Investments Pty Ltd t/a Savins Radiator Services, for the respondent.

Hearing details:

2020.

Lismore Court House:

10 January.

Final written submissions

For the applicant: 28 January 2020.

For the respondent: 2 February 2020.

Printed by authority of the Commonwealth Government Printer

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