Pouya Maroofee v D-Link Solutions Pty Ltd

[2019] FWC 4410

[2019] FWC 4410

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pouya Maroofee
v
D-Link Solutions Pty Ltd
(U2019/508)

COMMISSIONER MCKINNON MELBOURNE, 25 JUNE 2019

Application for unfair dismissal remedy – Small Business Fair Dismissal Code – harsh, unjust or unreasonable – remedy.

Introduction

[1] Pouya Maroofee was employed by D-Link Solutions Pty Ltd (D-Link) as a Cabler from 8 March 2017. On 9 January 2019, his employment ceased when he received notice of termination from D-Link for reasons of alleged serious misconduct and poor performance.

[2] On 15 January 2019, Maroofee applied to the Commission for an order granting a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).The matter was conciliated on 18 March 2019 and 7 May 2019 and was not settled.

[3] After seeking the views of the parties who were each self-represented, a determinative conference was held on 23 May 2019 in Melbourne.

Preliminary matters

[4] The application was filed within the standard 21 day time limit required by the Act.

[5] Under section 382 of the Act, a person is protected from unfair dismissal if, at the relevant time:

•  They have completed at least the minimum employment period; and

•  They are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the “high income threshold”.

[6] Maroofee’s period of employment was longer than the minimum employment period of 12 months. His annual income of $60,000 was less than the high income threshold. While employed by D-Link, he was covered by the Telecommunications Services Award 2010. Maroofee is protected from unfair dismissal.

[7] Under section 385, a person has been unfairly dismissed if the Commission is satisfied that they have been dismissed; that the dismissal was harsh, unjust or unreasonable; and if relevant, the dismissal was not consistent with the Small Business Fair Dismissal Code and not a case of genuine redundancy. 1

[8] There is no dispute that Maroofee was dismissed from his employment.

[9] No issue of redundancy arose in this matter and I am satisfied that the dismissal was not a case of genuine redundancy.

[10] The Small Business Fair Dismissal Code is relevant to the dismissal because at the time of dismissal, D-Link employed 3 employees, including its working Director, Piotr Kot. 2

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[11] The Code applies to small business employers with less than 15 employees. 3 A person is not unfairly dismissed if the dismissal is consistent with the Code and immediately before dismissal or at the time notice of the dismissal is given, whichever is earlier, the employer is a small business employer.4

[12] The Code provides as follows:

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.

[13] In Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services 5, the proper application of the ‘Summary Dismissal’ section of the Code was found to apply to dismissals without notice on the ground of serious misconduct as defined in regulation 1.07 of the Fair Work Regulations 2009. Regulation 1.07 provides 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.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”

[14] As is apparent from the terms of the Code, 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. It is not necessary to determine whether the misconduct in fact occurred or that the belief held by the employer was correct. 6

[15] The alleged misconduct in this matter is Maroofee’s allegation that the Director of MK Connects Pty Ltd (MK Connects), Mario Krajewski, was blackmailing him by demanding that he make $30,000 in return for consideration of support for a visa application for Maroofee’s partner. Krajewski became aware of the allegation when Maroofee sent a message to his lawyer on 4 January 2019 containing the allegation and inadvertently copied him into the message. D-Link is a subcontractor to MK Connects. Prior to the dismissal, MK Connects was the primary source of D-Link’s work.

[16] There is no dispute that Maroofee prepared and sent the message in question, including inadvertently to Krajewski.

[17] The content of the message was as follows:

“Hi Karl,

Would you call me asap plz? I need some advice regarding the nomination letter of my partner. My employer, Mario, is blackmailing me by asking me to make 30 grands first then he will consider my situation. This is a serious breach of law from him but I have got not much evidence as he told me verbally. Would you find me a bypass way for that letter?

In addition to that I am meeting another employer to discuss with him about my situation and he is willing to help me for permanent residency! So maybe we can start processing my PR again but before anything we need to check his eligibility! So I need you to advice how can you give us a prompt advice maybe over the phone during my meeting with him today arnd 2 pm, Victoria time!”

[18] It is clear that Krajewski was upset by the allegation of blackmail. He described his reaction as follows:

“I got the message and I baulked. I rang Peter and said he wouldn’t get any work for any of his people until it was sorted.” 7

[19] Krajewski responded to Maroofee’s message on 4 January 2019, accusing him of spreading lies and advising that he would not receive any more work through MK Connects. 8

[20] Also on 4 January 2019, Kot wrote a letter to Maroofee advising of the termination of his employment by D-Link due to:

1. breach of employment contract (clause 15) against MK Connects; and

2. not showing up to work or advising anyone from D-Link about not working on numerous occasions.

[21] The letter was received by Maroofee on 9 January 2019. It brought an end to Maroofee’s employment. No notice of termination or payment in lieu of notice was given. Accordingly, the summary dismissal section of the Code applies.

Did D-Link believe Maroofee’s conduct was serious misconduct?

[22] Kot’s evidence as to the reasons for Maroofee’s dismissal were that:

1. MK Connects had taken its contract away from D-Link because of Maroofee and it could not pay its workers.

2. It was likely Maroofee would “burn bridges” and do the same thing “at another place”;

3. He did not have other suitable work for Maroofee;

4. He did not trust him not to do something wrong with another company, causing D-Link to lose more workers.

[23] There is no doubt that Kot considered Maroofee’s continued employment as a significant risk to the viability or profitability of his business. He was told so directly by Krajewski, as the following extract from Krajewski’s evidence confirms:

“I told Peter on 4 January I have no work for him. His company will be suspended until case is closed. Had big financial impact on his business.” 9

[24] The dismissal will have been consistent with the Code if the evidence establishes Kot’s reasonable belief that Maroofee’s conduct was sufficiently serious to justify immediate dismissal. On the material before me, I am satisfied that Kot believed his business was facing significant risk, both because of what Maroofee had done and Krajewski’s response. However, I am not satisfied that the belief was held on reasonable grounds. Kot did not inquire into the veracity of the allegation made by Maroofee against Krajewski before acting to terminate his employment. He had adopted a practice of leaving it to Krajewski to deal with Maroofee in relation to visa issues. The result was that he was not in a position to know if the allegation made against Krajewski had any merit. Rather than seeking to investigate further to inform his response, he simply acted to appease Krajewski by terminating the employment.

[25] It follows that I am not satisfied that Kot believed on reasonable grounds that Maroofee’s conduct was sufficiently serious to justify immediate dismissal. The dismissal was not consistent with the Code as it applies to summary dismissal.

Application of the Code to dismissal for reasons other than serious misconduct

[26] Maroofee was also dismissed for reasons of poor performance. To the extent that it is necessary to do so, I now deal with the application of the Code as it applies to ‘Other dismissal’. 10

[27] In order to demonstrate compliance with the “Other dismissal” section of the Code, an employer must establish that:

1. the employee was given a reason why they were at risk of being dismissed;

2. the reason given was a valid reason based on their conduct or capacity to do the job;

3. the employee was warned at least verbally that they were at risk of being dismissed if there was no improvement; and

4. the employee was given an opportunity to respond to the warning;

5. the employee was given a reasonable chance to rectify the problem, having regard to the employee’s response; and

6. if they wished, the employee was able to have another person present to assist them in discussions where dismissal was possible.

[28] There is no evidence that Maroofee was told that he was at risk of being dismissed or that he was given any reasons for dismissal prior to it taking effect. At its highest, the evidence establishes that words were exchanged on a few occasions.

[29] On 10 May 2018, Maroofee was told by Krajewski “I need you to work a bit harder as you don’t bring enough profit to cover your wages.”

[30] There was a dispute over reimbursement of expenses in or about August 2018, when Maroofee sought reimbursement of $5000 for work expenses he was unable to claim on his tax return, and Krajewski refused to approve them. On 9 August 2018, the following exchange between Maroofee and Krajewski took place:

MAROOFEE: “Mate, my wage doesn’t let me cover all the work expense. who ever works on wage, the company takes care of all expenses even fuel. You gotta take care of the material costs and me for the fuel as since the first we agreed. I have done my best including putting my life in risk, after hour, and bringing new tech to cover up if any losses and will yet continue to do so (you know all this but sometime I think you forget). I was counting on this like a saving to pay my debts and visa fees. Don’t put me down plz.”

KRAJEWSKI: “Paul, whenever i had to pay for any of your expenses and you rang me i told you ok. In this case you tell me to pay $5k… sorry mate its not happening. I won’t be loosing more on you.”

[31] On 15 October 2018, Krajewski sent Maroofee a message as follows:

“Paul! I ve just been advised you ve been working without clearance certificate from the doctor!!! This is very serious and irresponsible! What the hell are you thinking??? Your health and possibly life could be endangered!!! Please be reasonable!!! If you want to work – that’s fine, but do it the right way! I can’t believe you ve been so reckless???”

[32] Those brief exchanges reflect the limited state of the evidence before me in relation to discussions about poor performance. Both Kot and Krajewski gave evidence that Maroofee had been warned verbally on many occasions, but did not elaborate. Maroofee denied that he had ever been warned. I am satisfied that there were discussions between the parties from time to time about Maroofee’s performance of work, but I am not satisfied on the evidence that he was ever given verbal or written warnings that his performance was putting his continued employment at risk.

[33] I find that Maroofee was not was not warned even verbally that he was at risk of being dismissed if there was no improvement in his performance and nor was he given a reason why that might be so. It follows that he was also not given any opportunity to respond to warnings about his work performance. The dismissal was not consistent with the Code as it applies to ‘other dismissal’.

Was the dismissal harsh, unjust or unreasonable?

[34] That leaves the question of whether the dismissal was harsh, unjust or unreasonable, having regard to the matters set out in section 387 of the Act.

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

[35] The reasons given for Maroofee’s dismissal were serious misconduct (breach of contract) and poor performance.

The blackmail allegation

[36] As set out above, the allegation of serious misconduct arose from Maroofee’s message accusing Krajewski of blackmail on 4 January 2019.

[37] The allegation followed attempts by Maroofee to have his partner nominated for a partner visa by D-Link or MK Connects.

[38] In April 2018, Maroofee initiated a request to Krajewski seeking support for his application for permanent residency.

[39] On 26 September 2018, Maroofee messaged Krajewski expressing concern that support for his application for permanent residency had been deferred until December 2019.

[40] There must have been a discussion between them after that message, because on 1 October 2018 Maroofee again contacted Krajewski advising as follows:

“Goodday mate, I am planning to increase my current number of daily jobs to cover the cost you mentioned for my sponsorship. I added 3 today afterward and I am hoping to add few every fortnight to kinda cope my body with back pressure as well.”

[41] On 11 October 2018, Maroofee messaged Krajewski:

“Mate, I am literally losing my hope, my back started kicking. I hope I survive, if anything happen to me, I will leave this country. I don’t know if you help me to get the document for my residency at least I have some motivation, I donno if you settle to get a better job with better working condition. I am just tearing apart right now. Tell me some solution if there is any. If its about money, bugger it, give me less salary for a while but help me my residency document asap plz.”

[42] On 16 December 2018, Maroofee sent a message to Krajewski noting that he had separately emailed him about a “supporting document of my partner” and seeking his signature on the letter. He followed up again on 17 December 2018, asking for “a simple letter” from his employer agreeing to his wife being under the employer’s nomination and Maroofee’s visa. Krajewski responded, querying the nature of the request and indicating that he would “write something up”.

[43] On 26 December 2018, Maroofee asked Krajewski to check a second draft of the letter he wanted signed. On 30 December 2018, he followed up again about a signature on the letter to support his partner’s visa nomination. Krajewski replied that he needed to pass it onto Kot, as D-Link was the employer.

[44] On 2 January 2019, Maroofee messaged Krajewski to ask if Kot had checked the letter, and for the process to be sped up as it was “just a simple letter”. In response, Krajewksi told him that Kot did not want to write the letter, because it was a big responsibility on him to support the partner if something happened. Maroofee reacted with surprise, indicating that the letter did not require any responsibility for, or support of, his partner.

[45] On 3 January 2019, Maroofee messaged Krajewski:

“What mistake have I done that I deserve this unfair treatment?”

“Abt my partner, personal matter, abt my Permanent residency (not giving any promises), abt not being credited that after all you were witness that I did my best and still doing it but my limitation to work (not civil particularly) here and there is not in my hand! Its in your hand (if I am not the first priority in your mind, I dont want to be the last). But at the end, I am the one who get the blamed for things which was out of my hand. I am absolutely bugered right now thay I cant find any convincing answer to myself.”

[46] Toward the end of the day, Maroofee spoke with Kot and Krajewski. He says Kot told him there were financial clearances he had to do, it was about $20,000, and that he needed to talk to Krajewski. Kot does not recall a conversation about $20,000. He says he spoke to Maroofee and told him that he had to find out from his lawyer about sponsorship, but his lawyer was away and he would get back to Maroofee when he heard from the lawyer (on or about 17 or 18 January 2019). Maroofee’s evidence confirms that he knew D-Link’s lawyer was away and would be back on or about 17 January 2019. I accept the evidence of both Maroofee and Kot about the content of these exchanges, including Kot’s reference to financial clearances and $20,000.

[47] Maroofee says Krajewski then told him separately at the end of the business day on 3 January 2019 that Maroofee needed to make $30,000 profit for D-Link so that Krajewski could consider the nomination letter for his partner. He says this was extortion, because his lawyers had told him that his request for a partner nomination put no responsibility on his employer. He thought he was being asked to put money into Krajewski’s account.

[48] Krajewski’s recollection of the conversation is different. He says he told Maroofee that D-Link was paying his wages, getting him going, but that it was close to $30,000 out of pocket because Maroofee was not undertaking sufficient profitable work to cover his costs as an employee. It is important to remember that Maroofee’s role required him to log into an online portal, find and accept offers of work and complete jobs for clients of MK Connects, which then formed the basis of claims by D-Link for payment from MK Connects. D-Link was paid for jobs completed.

[49] Krajewski says Maroofee told him he would be able to bring $30,000 in on a project within 2 or 3 months. Even though Krajewski did not believe that Maroofee was capable of doing so, he replied “why not”.

[50] I accept Krajewski’s evidence of the conversation. I find that Krajewski was restating the request he had made to Maroofee on 10 May 2018 (at paragraph [29] above) that he complete more jobs each day to improve his productivity and profitability so that it was at a comparable level to other employees and subcontractors to the business.

[51] Maroofee says the conversation amounted to extortion by Krajewski, presumably because there was a demand involving a sum of money tied to support for his partner’s visa nomination. However, in my view Maroofee has mischaracterized the exchange.

[52] The evidence does not support a finding that there was any demand on Maroofee to pay money to anyone, either for the benefit of Krajewski or another in connection with the exchange.

[53] I am also not satisfied that the request involved a requirement to work unreasonable hours, or without reward. Krajewski and Kot both submitted that Maroofee’s productivity was much lower than other employees, and there is evidence to support the contention that Maroofee was not yet working independently in all aspects of his role. It is also relevant that it was Maroofee who offered to bring in additional profit for the business, although he was clearly responding to the concern about the value of his employment to D-Link.

[54] The following day, Maroofee sent the message to his immigration lawyer (at paragraph [17] above) accusing Krajewski of blackmail. Krajewski responded as follows:

“Paul, please stop lying. This is very serious accusation on your side. Peter with DLink are your employer and my contractor. I arrange work through MK as I need good workers. Due to the above lies you are spreading I won’t be able to support you anymore. You will not receive any more work through MK. Please discuss with Peter if he has any other position for you. I don’t. Regards, Mario.”

[55] Krajewski subsequently sent the following message to Maroofee:

“And just reply to your previous email. Peter wanted to enquire about this letter with his lawyer but he s away till Monday. You put him in the spot asking for it without any discussion. You are very limited when it comes to any work. Doing less than 50% of work that everyone else can do is not good enough. You are not my priority. I have 10 different and more important things coming up every day. You are only blamed for being lazy. For doing minimum or even less if you can get away with it. Nothing else. Hope your meeting with others employer went well. By damaging my good name you breached a contract and it is instant dismissal here. I am really sorry you have to lie this way. I will see you on Monday.”

[56] There is no doubt that the blackmail accusation caused serious and imminent risk to the viability or profitability of D-Link’s business. Had it been deliberately sent to Krajewski in the knowledge that it was false, I would have found that it met the definition of ‘serious misconduct’. However, that was not what occurred. Maroofee misunderstood the effect of Krajewski’s comments, but I am satisfied that he mistakenly believed he was being mistreated in a way that was contrary to law. He prepared his complaint – not for wider publication, but for his immigration lawyer, and the exchange would likely have been subject to legal professional privilege had it not inadvertently been shared more widely than its intended audience. The accusation was made in the context of seeking legal advice about his partner’s visa. I am not satisfied that it was serious misconduct or that it was a valid reason for dismissal.

The breach of contract allegation

[57] Clause 15 of Maroofee’s contract of employment provides as follows:

“The employer reserves the right to terminate the employment without notice on the grounds of serious misconduct by the employee or for abandonment of work.”

[58] It is not a clause that readily lends itself to breach by an employee because it does not impose any obligation on employees. All it does is regulate the period of notice that applies to the scenarios of serious misconduct and abandonment of employment.

[59] I find no breach of clause 15 of the employment contract by Maroofee.

The poor performance allegation

[60] According to the letter of termination, the poor performance allegation related to Maroofee’s failure to show up to work on occasions and failure to advise anyone from the company about not working on those days.

[61] The only evidence of this is the exchange between Maroofee and Krajewski on 4 January 2019, when Krajewski noted that Maroofee had not come to work that day, and Maroofee responded saying that there was no work offered. Krajewski responded “It’s normal working day. Its called Friday. Do you really think that I have to ask you to work every day? Wake up Paul.”

[62] Kot gave evidence that he did not have detailed knowledge of Maroofee’s attendance patterns, as Krajewski was responsible for work scheduling. Krajewski gave evidence about the mechanism for allocating work which occurred directly between head contractors and employees. It was only if something went wrong that he would receive a call about an employee not attending for work. According to Krajewski, there was enough work for Maroofee in the system, although the volume of work was outside the control of individual employees.

[63] The allegation of regularly failing to attend for work without notice is not established.

[64] It is relevant that the text messages produced by Maroofee covering large parts of the period of employment suggest that he was still learning aspects of the role and required ongoing instruction and support. In the meantime, he appears to have had a particular interest in securing work for other associates within D-Link or MK Connects, and was preoccupied with securing permanent residency for himself and his partner. His limited capacity to work autonomously was corroborated by the evidence of Piotr Sieminas, who worked alongside Maroofee for two weeks in 2018. Sieminas gave evidence that he had to take responsibility for Maroofee, including in matters of safety and driving. According to Sieminas, “he didn’t know how to drill a hole. He said he had experience, but he didn’t know simple things.” After working together for two weeks, Sieminas says he called Krajewski and told him that Maroofee was not a good technician, that he still needed to learn more, but that he should be given a chance due to his personal (migration) situation. This evidence was not contradicted and I accept it.

[65] I am satisfied that Maroofee required regular instruction and support in the performance of his role and that he was still learning many of the technical aspects of the role. However, I am not satisfied that his performance was so poor as to warrant dismissal.

[66] I find that there was no valid reason for Maroofee’s dismissal, either related to his capacity or conduct. This weighs heavily in favour of a finding of unfair dismissal.

Was that reason notified to the employee, and was he given an opportunity to respond?

[67] For the reasons set out above, I find that Maroofee was not notified of any reason for dismissal relating to his capacity or conduct prior to his employment coming to an end. This weighs in favour of a finding of unfair dismissal.

[68] Maroofee was also not given an opportunity to respond to any reason for dismissal prior to the dismissal taking effect. This weighs in favour of a finding of unfair dismissal.

Was there any unreasonable refusal to allow a support person to be present to assist at any discussions relating to dismissal?

[69] There were no discussions relating to the dismissal and there was no refusal of a support person to assist in such discussions. This criterion is not relevant.

Was the Applicant warned about relevant unsatisfactory performance?

[70] D-Link says Maroofee was given many verbal warnings about his performance. For the reasons set out above, I am not satisfied that was the case. He was not told his employment was at risk due to poor performance until it was too late. This weighs in favour of a finding of unfair dismissal.

Degree to which the size of the employer’s business would be likely to impact on procedures followed in effecting the dismissal

[71] At the time of the dismissal, D-Link employed 3 employees. It was a small contracting business with no sophistication in the operation of its business affairs. I am satisfied that this is likely to have had a significant effect on the procedures followed in effecting the dismissal. This weighs against a finding of unfair dismissal.

Degree to which absence of dedicated human resources management specialists or expertise in the business would be likely to impact on procedures followed in effecting the dismissal

[72] I am also satisfied that the clear absence of any dedicated human resource management or expertise in D-Link’s enterprise, and its limited capacity to afford such expertise, was likely to have a significant impact on the procedures followed by the D-Link in effecting the dismissal. This weighs against a finding of unfair dismissal.

Other relevant matters

[73] Maroofee filed a substantial quantity of receipts in the proceeding, which I understand to be in support of an unresolved claim for reimbursement of expenses. The evidence does not establish the circumstances in which the bulk of those expenses were incurred, and whether or not they were authorised expenses. Those matters are outside the scope of this jurisdiction and are properly matters for the courts. No argument was made as to the relevance of those receipts to the question of unfair dismissal. It does not affect my evaluation of the circumstances either in favour of, or against the application for an unfair dismissal remedy.

Conclusion on merits

[74] Having considered each of the matters specified in section 387, I find on balance that Maroofee’s procedurally unfair dismissal without valid reason, albeit by a business with only limited resources, was unjust. It was an unfair dismissal.

Remedy

[75] It is necessary then to consider what, if any, remedy should be granted to Maroofee.

[76] Reinstatement is the primary remedy available under the Act. I am satisfied that reinstatement would be inappropriate in this case because Maroofee has found another job with another employer and visa sponsor, and because D-Link’s business continues to suffer the adverse consequences of MK Connects’ decision to cease offering it work in connection with Maroofee.

[77] In all the circumstances, I consider that compensation is appropriate.

[78] Section 392(2) of the Act deals with how compensation is to be assessed in connection with an unfair dismissal. The established methodology is as discussed in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc (Bowden). 11

Remuneration Maroofee would have received, or would have been likely to receive, if not dismissed (s.392(2)(c))

[79] Maroofee had been thinking about leaving D-Link since April 2018. He decided not to do so until 3 January 2019, when he reached the conclusion that D-Link would not support his partner’s visa nomination. On 3 January 2019 (the day before the termination of his employment was first initiated), he contacted another prospective employer. The ‘blackmail’ message indicates that the other employer was willing to support his application for permanent residency.

[80] Maroofee’s annual salary at the time of dismissal was $60,000 gross, which equates to $5000 gross per month. Given the arrangements he was putting in place with a prospective employer at the time of dismissal, his decision on 3 January 2019 that it was time to find other employment and his obligation to give D-Link notice of termination, I find that the likely amount Maroofee would have received had he not been dismissed is two weeks’ wages, or $2500.

Viability (s.392(2)(a))

[81] I have reviewed the bank statements provided by D-Link and I accept that its business is in a difficult financial position due to the reduction of work activity from MK Connects. It is appropriate that the amount of compensation be adjusted to reflect this reality. In the circumstances, a reduction of 10% is appropriate. The amount of compensation is reduced to $2250 gross.

Length of service (s.392(2)(b))

[82] Maroofee had less than two years’ service. It is neither a lengthy nor brief period of employment and no adjustment of the compensation amount is made for reasons relating to length of service.

Mitigation efforts (s.392(2)(d))

[83] Maroofee has made reasonable and successful efforts to mitigate his loss. No reduction in the amount of compensation is made on this account.

Remuneration earned in the period since dismissal (s.392(2)(e)) and remuneration reasonably likely to be earned in the period between compensation order and actual compensation (s.392(2)(f))

[84] Maroofee commenced employment in an alternative role on 14 March 2019. His income in the new role is $1045 gross per week. The total earned from 14 March 2019 to 9 June 2019 was $19,480 gross and in the period from 10 June 2019 to 24 June 2019, his additional earnings will have been $2090 (at the weekly rate above). This results in total earnings since dismissal of $21,570 gross. In addition, Maroofee is likely to earn a further amount of $1045 gross per week until payment of the compensation order. None of that relates to the two week period of employment likely to have been worked but for the dismissal. I do not consider it appropriate in the circumstances to reduce the compensation amount for remuneration earned after that time.

Other matters (s.392(2)(g))

[85] No deduction is made for contingencies having regard to the known facts in relation to the period since dismissal including Maroofee’s having obtained alternative employment.

[86] It is appropriate that superannuation be paid on the compensation amount because the order for compensation is made in part in recognition of lost ordinary time earnings.

Misconduct (s.392(3))

[87] As noted earlier, I am not satisfied that Maroofee’s conduct was serious misconduct or that his performance was sufficiently poor to warrant dismissal. While his actions contributed to the circumstances of his dismissal, I am not satisfied that it is appropriate to adjust the compensation about on this basis given that the communication at the heart of the dispute was intended to be a privileged communication with his lawyer.

Shock, Distress (s.392(4))

[88] The amount of compensation does not include a component for shock, humiliation or distress.

Compensation cap (s.392(5)&(6))

[89] The amount of $2250.00 gross plus superannuation is less than the compensation cap of 26 weeks’ pay and no further adjustment of the amount is necessary.

Instalments (s.393)

[90] Given its current financial position, it is appropriate that D-Link pay the amount of compensation in two instalments of $1125.00 gross.

Conclusion on remedy

[91] In my view, the compensation figure arrived at in this case does not yield an amount that is clearly excessive or clearly inadequate.

[92] For the reasons set out above, I am satisfied that a remedy of compensation in the sum of $2250.00 gross plus superannuation in favour of Maroofee is appropriate in the circumstances of this case. An order [PR709697] is issued to that effect.

COMMISSIONER

Appearances:

P Maroofee, Applicant

P Kot for the Respondent

Hearing details:

2019.

Melbourne:

May 23, June 6

Printed by authority of the Commonwealth Government Printer

<PR709696>

 1   Fair Work Act 2009 (Cth), s.385

 2   Exhibit 15

 3   Fair Work Act 2009 (Cth), s.23

 4   Fair Work Act 2009 (Cth), s.385; s.388

 5   [2015] FWCFB 5264

 6   Hart v Forex 1 Pty Ltd ATF Trading Rental Trust[2018] FWC 942

 7   Audio file of determinative conference, 23 May 2019

 8   Exhibit 6

 9   Audio file of determinative conference, 23 May 2019

 10   Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services[2015] FWCFB 5264

 11   [2013] FWCFB 431