Robert Ballantine v SSA (Vic) Pty Ltd
[2024] FWC 557
•1 MARCH 2024
| [2024] FWC 557 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert Ballantine
v
SSA (Vic) Pty Ltd
(U2023/10351)
| COMMISSIONER TRAN | MELBOURNE, 1 MARCH 2024 |
Application for an unfair dismissal remedy – Genuine redundancy – Small Business Fair Dismissal Code – Jurisdictional objections dismissed – Application granted – Reinstatement not appropriate – Compensation ordered – Payment by instalments ordered
Robert Ballantine (the Applicant) applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by SSA (Vic) Pty Ltd (the Employer).
SSA (Vic) Pty Ltd installs awnings and blinds, including motorised awnings. Mr Ballantine was employed from 18 October 2021 as an installer.
Mr Ballantine’s employment ended on 22 October 2023 by text message indicating that there was no work for him.
The Employer objected to the unfair dismissal application on the grounds that the dismissal was a genuine redundancy and otherwise in compliance with the Small Business Fair Dismissal Code.
I am satisfied of the following preliminary matters:
Mr Ballantine has made an application in accordance with s 394; and
He is a person protected from unfair dismissal, as he is a person who has completed at least the minimum period of employment with his employer and a modern award covers his employment.
I find that the dismissal was not a genuine redundancy, that the Small Business Fair Dismissal Code was not relevant and that the dismissal was otherwise harsh, unjust and unreasonable. My detailed reasons follow.
Materials, Evidence and Submissions
Directions were issued and material, including outlines of argument, documentary evidence and witness statements, were filed by both parties in accordance with those directions. A hearing book was prepared from the material filed and provided to both parties prior to the determinative conference. I admitted the whole of the hearing book into evidence.
I held a determinative conference on Thursday 18 January 2024. Mr Ballantine attended the determinative conference in person. Due to the risk to his health by being in public and also that he had not realised that the determinative conference would be held in person (despite receiving the notice of listing and emails from my chambers), Mr Andrew Valk, director of the Employer, attended via Microsoft Teams.
I heard oral evidence from Mr Ballantine and from Mr Valk. Both gave considered answers, which were sometimes self-serving. Mr Ballantine was generally honest and consistent. Mr Valk provided answers that were sometimes evasive, designed to exculpate himself and continually asserted that Mr Ballantine was misleading the Commission. I did not find Mr Ballantine to be misleading the Commission. I balanced what I heard from both parties by considering the plausibility of their answers and consistency with the documentary record. There were limited facts in dispute and what was in dispute was resolvable by documentary evidence.
After the determinative conference, I provided a further opportunity for the parties to adduce documentary evidence referred to during oral evidence. While requested relevant material was provided, Mr Valk also provided further material including an attempt to amend his Response Form F3. I will accept into evidence the additional material, giving it appropriate weight and relevance. I deal with the attempt to amend the Response Form F3 below relating to whether the Employer dismissed Mr Ballantine.
Applicable Law
Section 385 defines an unfair dismissal as:
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.
Minimum Employment Period
Under s 382 of the Act, a person is protected from unfair dismissal only if they have completed at least the minimum employment period, which is defined in s 383 as:
The minimum employment period is:
(a) if the employer is not a small business employer--6 months ending at the earlier of the following times:
(i)the time when the person is given notice of the dismissal;
(ii)immediately before the dismissal; or
(b) if the employer is a small business employer--one year ending at that time.
Mr Ballantine says that he began his employment with the Employer on 18 October 2021. In the Employer’s Response Form F3 dated 21 November 2023, the Employer agreed with this date.
However, in the revised Form F3 filed on 25 January 2024, the Employer stated that the date was 21 June 2022 and explains it in this manner:
“this is the date that the employer nominated by the applicant was 1st registered ref ASIC. term of employment with respondent 1 year, 1 month and 29 days excluding the 20th of October.”
For reasons set out in detail when I consider Mr Ballantine’s length of service at paragraphs [87] - [91], I found that Mr Ballantine’s start date was 18 October 2021.
Mr Ballantine was notified of his dismissal on 22 October 2023 and did not work for the Employer after this date; I take that date to be the date employment ended. If Mr Ballantine’s employment started on 18 October 2021, he has been employed for 2 years and 2 days. However, if Mr Ballantine’s employment started on 21 June 2022, he has been employed for 1 year, 4 months and 1 day.
Even accepting the later start date, Mr Ballantine has completed the minimum employment period.
Was Mr Ballantine dismissed?
Section 386(1) provides for the meaning of dismissed (relevantly) as:
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer's initiative …
There was no dispute that Mr Ballantine was dismissed, and that the dismissal was by way of a text message sent from Mr Valk to Mr Ballantine on Sunday 22 October 2023 at 6:44pm.
Mr Valk agreed that he had sent the text message ending Mr Ballantine’s employment.[1] That text message read:
“hello Robert we have no work for you at the moment sorry. If anything changes I’ll be in touch, I’ll work out any entitlements due and forward to you. All the best with whatever you end up doing. Andrew”
During the determinative conference, Mr Valk raised that, based on information he learned after Mr Ballantine’s employment ended, he was of the view that certain actions taken by Mr Ballantine amounted to a resignation. The information that Mr Valk learned was that on Friday 20 October 2023, Mr Ballantine attended an interview at a competitor. Mr Valk said that therefore Mr Ballantine was clearly intending to resign from his employment with the Employer, and he would have accepted that resignation instead of dismissing him.[2]
After the determinative conference, Mr Valk filed a revised Form F3 which attempted to raise the above matter as a jurisdictional objection to Mr Ballantine’s unfair dismissal application, asserting that he was not dismissed. In support he pointed to a text message dated Friday 20 October 2023 from Mr Ballantine that read:
“Apologies I am unable to attend work today and will send a doctors certificate as soon as possible.”
Mr Valk says that he never received a medical certificate and learned from ‘loose lips [that] sink ships’[3] that Mr Ballantine started work with the competitor on Monday 23 October 2023.
I am of the view that the Employer dismissed Mr Ballantine within the meaning of s 386 of the Act. Mr Valk, on behalf of the Employer, terminated Mr Ballantine’s employment. This was done by sending a clearly worded text message at 6:44pm on Sunday 22 October 2023.
There is nothing in Mr Ballantine’s text message of Friday 20 October 2023 that can be interpreted as a resignation. That Mr Ballantine did not provide a medical certificate to the Employer is not relevant because his employment ended 2 days later; circumstances overtook him and he did not have the opportunity to do so. I do not view favourably Mr Valk’s attempt to re-characterise the end of Mr Ballantine’s employment.
Was the dismissal a genuine redundancy?
If a dismissal is a genuine redundancy, then it is not an unfair dismissal under s 385 of the Act.
Section 389 defines genuine redundancy as:
(1) A person's dismissal was a case of genuine redundancy if:
(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer's enterprise; or
(b) the enterprise of an associated entity of the employer.
In order for a dismissal to be a genuine redundancy, 2 elements must be satisfied:
1. The Employer must no longer require the person’s job to be performed by anyone because of changes in the operational requirements; and
2. The Employer must comply with any obligation to consult about the redundancy in a modern award or enterprise agreement that applied to the employment.
Even if the above 2 elements are satisfied, it may nevertheless not be a genuine redundancy if the person could have been redeployed, in accordance with s 389(2).
Did the employer no longer require the person’s job to be performed?
The Employer submits that there was a downturn in work due to a number of factors:
Extreme difficulty in sourcing supplies;
Downturn in consumer spending; and
Mr Valk dealing with a life-threatening illness.
The Employer did not provide documentary evidence in support of the above prior to the determinative conference. Mr Valk gave oral evidence about each of the above factors. He gave evidence that the number of installations reduced from two per day to just one per week, and asserted that he had text messages that confirmed this information.[4] He did not provide the text messages, either before the determinative conference nor afterwards, despite being given the opportunity to do so.
He also gave evidence that after Mr Ballantine’s employment, further employees were dismissed, including another installer, and two telemarketing contractors’ engagements ended due to the lack of work.[5] Mr Valk also gave evidence that no employee had worked for the entire month of December.[6]
In his written statement, Mr Valk stated that the last receipt of supplies was on 9 October 2023.[7]
After the determinative conference, the Employer provided:
Medical evidence in support of Mr Valk’s illness; and
A letter signed by Mr Shane Ferrari, Contractor of the Employer, that said he had been subjected to reduced hours and numerous weeks without work.
I give limited weight to the information provided in the letter by Mr Ferrari, as he did not attend the conference to attest to it.
Mr Ballantine did not agree that there was a downturn in work. His evidence is that, just prior to his employment ending, there was a busy period as summer was approaching and a delivery of awnings had arrived the week before.[8] This last appears to accord with Mr Valk’s statement.
Weighing up the evidence provided, I am of the view it is likely that the Employer did require a reduction in its workforce, specifically employed installers, due to a downturn caused by various factors, specifically difficulty sourcing or receiving supplies and Mr Valk’s illness. Both these factors had documentary evidence to support Mr Valk’s oral evidence. The first element of genuine redundancy is therefore met.
Was there an obligation to consult?
The Manufacturing and Associated Industries and Occupations Award 2020[9] (the Award) contains a coverage clause at Clause 4. The Award covers industries and parts of industries as defined in Clause 4.8, and at sub-clause (a)(iii) includes repair and installation of products, items, structures, articles or components (among other items) referred to in clause 4.9. The list of products etc includes at sub-sub-clause (ii) upholstery, furnishing drapery, blinds, screens, awnings, mattresses and bedding.
The Employer installs awnings and retractable roofing systems; Mr Ballantine performed the work of an installer. In accordance with s 48 of the Act, the Award covered the Employer, with respect to its employment of Mr Ballantine.
Under s 47 of the Act, the Award also applied to the Employer’s employment of Mr Ballantine as it is expressed to cover the employment, is in operation and no other provision of the Act has the effect that that the Award does not apply. There is no enterprise agreement that applies to the Employer.
The Employer argues that there was no obligation to consult because the Employer had an oral contract of employment with Mr Ballantine in which he was paid an hourly rate of pay that was higher than the otherwise applicable Award. This is not sufficient, under the Act, to displace the application of the Award to the Employer’s employment of Mr Ballantine. I find that the Employer was obliged to consult under Clause 41 of the Award.
Clause 41 of the Award provides the following:
41 Consultation about major workplace change
41.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):
(i)the introduction of the changes; and
(ii)their likely effect on employees; and
(iii)measures to avoid or reduce the adverse effects of the changes on employees; and
(c) commence discussions as soon as practicable after a definite decision has been made.
41.2 For the purposes of the discussion under clause 41.1(b) , the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
41.3 Clause 41.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
41.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 41.1(b)
41.5 In clause 41 significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
41.6 Where this award makes provision for alteration of any of the matters defined at 41.5, such alteration is taken not to have significant effect.
Did the Employer consult?
Mr Valk agreed that he had never informed Mr Ballantine that his job was at risk due to the downturn in work because he was hopeful of keeping every employee on. At some point in time, the Employer came to the view that it needed to reduce its workforce for the reasons outlined above. However, in evidence, Mr Valk agreed, “I never once told him his job was at risk.”[10]
Mr Valk asserted that Mr Ballantine was sufficiently aware of the dire circumstances of the Employer, as Mr Valk offered him time off due to not having enough installations and there were discussions among employees about the lack of work.[11] Mr Valk asserted that there were text messages to this effect,[12] but did not put into evidence any text messages either before the determinative conference nor afterwards, despite being given the opportunity to do so.
Mr Ballantine did not agree that there was a downturn in work. He submitted evidence of text messages between himself and Mr Valk. The earliest date of the text messages is 6 October 2023.[13] In oral evidence, Mr Ballantine and Mr Valk confirmed that the text messages were between themselves in the period prior to the termination of Mr Ballantine’s employment. Mr Valk asked me to draw inferences from those text messages that there was clear discussion about the downturn and that the business was at risk.
It is not clear from the text messages in evidence that the Employer is giving information to employees about a major workplace change that may lead to termination of employment, major changes to the composition, operation or size of the workforce, or loss of or reduction in jobs and opportunities. Nor is there anything in the text messages that indicate discussion around measures to avoid or reduce the impact of changes on employees. The text messages inform employees about installations being cancelled and issues with processing of pay. Some reasons given for issues relating to pay are logistical and relate to Mr Valk’s medical appointments. No reasons were given that relate to any decisions about major workplace change.
I conclude that the Employer was obliged to consult and did not consult. I find that the termination of Mr Ballantine’s employment was therefore not a genuine redundancy within the meaning of s 389 of the Act.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
If a dismissal is consistent with the Small Business Fair Dismissal Code, then it is not an unfair dismissal under s 385 of the Act.
The Small Business Fair Dismissal Code is a legislative instrument made under s 388 of the Act. Section 388(2) of the Act provides:
A person's dismissal was consistent with the Small Business Fair Dismissal Code if:
(a)immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and
(b)the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
The Employer submitted that at the time that Mr Ballantine’s employment ended, there were 9 employees, including Mr Ballantine. The Employer provided an extract from its employee payroll summary for the relevant period.[14] Mr Ballantine submitted that there were 13 employees and provided a list of names and job titles. As such, there is no dispute that the Employer was a Small Business Employer within the meaning of s 23 of the Act as it employed fewer than 15 employees at the time that Mr Ballantine’s employment ended.
The Employer submitted a completed Small Business Fair Dismissal Code checklist.[15]
The Checklist is not the Code itself, but provides guidance on whether or not the Code has been complied with. The Code’s Explanatory Memorandum says:
“The Code recognises the special circumstances of small business employers by providing separate, simple rules for small business employers to follow when dismissing an employee.”
The Code itself is a one-page document that has two streams:
1. circumstances relating to summary dismissal (a dismissal without notice or warning); and
2. dismissals for under-performing employees.
The Checklist provides for circumstances relating to genuine redundancy; the Code itself does not deal with this. The Code also deals with procedural matters relating to a support person and evidence that must be provided to demonstrate compliance with the Code, which includes a completed checklist among other matters.
The Employer completed that part of the Checklist as it related to genuine redundancy and noted in all other parts of the Checklist that they were not applicable.
I find that the Code was not applicable to this matter. Even if it was applicable, I would find that the Employer has not complied with the Code in that no notice, warning or other indication was given to Mr Ballantine that his employment was at risk. I conclude that the dismissal was not consistent with the Small Business Fair Dismissal Code under s 385(c).
Was the dismissal harsh, unjust or unreasonable?
Finding that the dismissal was not a case of genuine redundancy nor consistent with the Small Business Fair Dismissal Code does not mean that the dismissal was unfair. Under s 385(b), I must consider whether a dismissal was harsh, unjust or unreasonable. The factors that must be taken into account are provided in s 387:
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
Section 387(a) valid reason
The Employer did not, initially, advance any reasons related to Mr Ballantine’s capacity or conduct for its decision to end Mr Ballantine’s employment. Rather, its reasons were that it no longer required Mr Ballantine or anyone to perform his position. This is a matter for consideration under s 387(h) – any other matters.[16]
The Employer, through Mr Valk during oral evidence and in the materials submitted following the determinative conference, asserted that a reason relating to conduct could have been that, had he known at the time of the termination that Mr Ballantine had intended to work for and attended an interview with a competitor, he would have accepted this as a resignation. I deal with this elaborate argument at paragraphs [21] - [25].
I do not consider that Mr Ballantine’s asserted intention to work for a competitor is a reason advanced by the Employer as the reason for dismissal.
For completeness, if it is the reason, I would find that it was not a valid reason. The evidence the Employer relies upon that Mr Ballantine had attended an interview and intended to work for a competitor is not probative – in short, the evidence is gossip; in Mr Valk’s words – “loose lips sink ships”.[17] The Employer learned of this information months after it had terminated Mr Ballantine’s employment and raised it during the determinative conference in answering questions about the date nominated as the date the dismissal took effect. Mr Ballantine in his sworn oral evidence said that he did not attend any interview on that date, nor that he worked for any competitor. In the materials he filed after the determinative conference, Mr Ballantine provided a statutory declaration to say that he did not work anywhere other than the Employer on Friday 20 October 2023 (the day Mr Valk says he attended an interview and also the day that Mr Ballantine had sent a text message to Mr Valk to say that he was unwell and unable to attend work).
Sections 387(b), (c) & (d) not relevant
None of the above factors are relevant to this matter where the reason related to genuine redundancy.
If the reason related to Mr Ballantine’s alleged intention to work at a competitor, then the Employer never notified Mr Ballantine of this reason and as a result, Mr Ballantine did not have an opportunity to respond to the reason, nor have a support person present at any discussion relating to the reason.
Section 387(e) not relevant
There were no reasons given by the employer that related to Mr Ballantine’s performance.
Section 387(f) size of the employer’s enterprise & s 387(g) absence of human resource management specialists or expertise
The Employer is a small business and has no human resource management specialists or expertise. I consider these factors to be neutral in my consideration of whether the dismissal was harsh, unjust or unreasonable.
Section 387(h) any other matters
My conclusion that the first element of genuine redundancy under s 389 was met – that is, that the Employer no longer required Mr Ballantine’s position to be performed by anyone – is relevant to this factor. It is a factor that may mean the dismissal was ultimately not harsh, unjust or unreasonable.
However, the manner of the termination is relevant to this factor. That the Employer did not consult with Mr Ballantine and other employees, as required by the Award, is relevant. Mr Ballantine was entitled to receive information in writing about the redundancy, its nature and effect on him, and to have an opportunity to discuss with the Employer how the effects could be mitigated. Instead, the only notification Mr Ballantine received was a text message on Sunday 22 October 2023 at 6.44pm ending his employment.
Mr Valk says that the evidence of when and how he notified Mr Ballantine of the dismissal is “irrefutable”.[18] He also says that he never once told Mr Ballantine that his job was at risk.[19] Mr Valk also says that he was working as hard as he could to “keep them going for as long as possible” because he was aware that “employees have rent to pay, mortgages to pay, families to feed” generally, but also that Mr Ballantine had particular personal circumstances. It was this awareness that meant that he did not wish to inform Mr Ballantine that his employment was at risk.
I find Mr Valk’s justifications unpersuasive. Without any notice, he sent a text message to Mr Ballantine to end Mr Ballantine’s employment. The message was sent on a Sunday evening. Mr Ballantine says that “it was a bit of a shock getting that text.”
Further, the Employer did not at that time, nor at any later time, make a payment in lieu of notice. In short, the Employer summarily dismissed Mr Ballantine by text message.
I find that the lack of notice, including failure to make a payment in lieu of notice, and the manner of the dismissal was harsh, and conclude that the Employer, SSA (Vic) Pty Ltd unfairly dismissed Mr Ballantine within the meaning of s 385 of the Act.
Remedy
Section 390 of the Act provides that the Commission may order a remedy for unfair dismissal:
(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
I am satisfied that Mr Ballantine is a person protected from unfair dismissal, that he has been unfairly dismissed and that he made an application under s 394.
Is reinstatement appropriate?
I am of the view that reinstatement would not be appropriate in this case. The Employer dismissed Mr Ballantine because it no longer required anyone to perform his job, and I have found that this is likely to be the case. Further, Mr Ballantine did not seek reinstatement, and provided evidence that he has obtained new employment. He started that new employment on 11 December 2023. In these circumstances, reinstatement would not be appropriate.
Is an order for compensation appropriate in all the circumstances?
As I have found that reinstatement is inappropriate, I must now consider whether an order for compensation is appropriate under s 390(3)(b). The Full Bench has noted that the question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one,[20] and whether an applicant has suffered financial loss may be a relevant consideration.[21]
I am of the view that in all the circumstances of this case that it is appropriate to order compensation. My reasons and assessment of the amount are set out below.
The long-established approach to assessing compensation in unfair dismissal matters was set out in Sprigg v Paul Licensed Festival Supermarket,[22] which the Full Bench of this Commission has since applied under the current Act.[23]
I summarise the Sprigg formula as follows:
1. Estimate the remuneration that employee would have received if the employer had not terminated the employment;
2. Deduct monies earned since termination;
3. Discount the remaining amount for contingencies;
4. Calculate the impact of taxation.
While Sprigg sets out the method, I must nevertheless take account of all the circumstances of the case and of the specific criteria listed in s 392.[24]
The overall consideration is that the level of compensation must nevertheless be appropriate (that is, neither clearly excessive nor clearly inadequate) having regard to all the circumstances of the case.[25]
Section 392(2) provides:
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer's enterprise; and
(b) the length of the person's service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) The total amount of remuneration:
(i)received by the person; or
(ii)to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period--the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
Section 392(2)(a) – Viability
During the determinative conference, I asked Mr Valk, “What would be the effect of an order of the Commission awarding compensation for losses of earnings to Mr Ballantine on the viability of your business?” Mr Valk replied, “Catastrophic”.[26]
However, prior to my direct question on that matter, Mr Valk said that he intended for the business to continue, and he was “trying our utmost to manage our finances, reduce our costs and continue.”[27] Consistent with my view on the manner in which Mr Valk gave his evidence, I am of the view his answer to my direct question is self-serving and intended to avoid any award of compensation.
I also asked Mr Valk about other matters that Mr Ballantine had brought to my attention, which may be relevant to the continuation of the business. The matter concerned a prosecution of Mr Valk and his businesses by Consumer Affairs Victoria. In summary, in evidence Mr Valk appeared to disregard the potential consequences of the prosecution on his continued business.
There is no evidence that the Employer’s enterprise is in liquidation.[28] Mr Valk did say that all employees had been on unpaid leave for a period for the “entire month of December” due to an industrial dispute at the ports and that he had to “let go” other employees.[29] However, Mr Valk also expected that trading would resume as the dispute would resolve imminently and he could receive delivery of stock.[30]
Mr Valk did not provide any documentary evidence in support of the business downturn or reduction in consumer spending and the effect on his business. While any order for compensation may well have an effect on the viability of Mr Valk’s business, this is only one factor that I must consider. I am not persuaded that my consideration of this factor means that I should not make an order for compensation. I do propose to mitigate the effects of any such order under s 393 - Monetary orders may be in instalments, which I discuss below.
Section 392(2)(b) – Length of service
Mr Ballantine provided a contract of employment dated 11 October 2021. This contract was with the employer, ‘Shade Solutions’. It was sent to Mr Ballantine by Mr Valk on 12 October 2021.
The Employer in its initial F3 response indicated agreement with this start date but in its revised F3 filed after the determinative conference, it indicated that Mr Ballantine’s employment start date was 21 June 2022, as this was when the legal entity named SSA (Vic) Pty Ltd was registered with ASIC. This change in the Employer’s case regarding Mr Ballantine’s length of service was not raised during submissions or the determinative conference.
Mr Ballantine’s application form and both the Employer’s response forms reference the ABN – 96 651 260 436. A search of this ABN indicates that the current holder of this ABN is the entity named as the Employer – SSA (Vic) Pty Ltd (ACN 651 260 436), and that the entity name was changed on 26 May 2023. The previous entity name was Shade Solutions Australia (Vic) Pty Ltd and this entity name held the ABN from 22 June 2021. A search of the ASIC register indicates that both Shade Solutions Australia (Vic) Pty Ltd and SSA (Vic) Pty Ltd are the same entity, and that there was a name change. The entity with ACN 651 260 436 was registered with ASIC on 22 June 2021.
I have formed the view that Mr Valk may have made a mistake when revising the F3 following the determinative conference. The entity named in all documents is the same entity with no change in ABN or ACN, and the entity was registered with ASIC from June 2021, not 2022.
I am satisfied on the evidence provided that Mr Ballantine’s employment with the Employer commenced on 18 October 2021 and that his length of service is therefore 2 years and 4 days. This is a moderately short period of time.
Section 392(2)(c) – Remuneration the person would have received
As stated by a majority of the Full Court of the Federal Court in the He v Lewin[31] (as quoted in Zeng v Conrock Australia Pty Limited[32]),
“[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive... the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”
Mr Ballantine says that he would have remained employed with the Employer for “years and years” if he had not been dismissed.[33]
This must be weighed against my finding that it is likely that the Employer no longer needed Mr Ballantine’s job to be performed by anyone but that the Employer did not consult as it was obligated to do under an Award. I must turn my mind to how much longer Mr Ballantine would have been employed if the Employer had consulted.
I am of the view that approximately 2 weeks is a reasonable period for consultation, in the usual course of events. However, around this time, Mr Valk was undergoing medical treatment and unable to speak, and this is likely to have delayed consultation.
The Employer’s evidence is that he did retain other employees, including other installers, and that only Mr Ballantine lost his employment in October 2023, although another installer and other employees were also later dismissed.[34] The Employer’s oral evidence is that all employees have been on unpaid leave since around December 2023.[35]
Mr Ballantine was emphatic that no one would have continued working where they had not been paid for six weeks (the period of time that Mr Valk indicated employees were not paid due to being on unpaid leave).[36] Mr Valk also indicated that after Mr Ballantine’s employment ended, he had conversations with remaining employees about “how it might be appropriate for them to … consider other options for work, that [he does not] expect them to wait around on unpaid leave.”[37]
Taking all the above into account, I conclude that Mr Ballantine would have remained employed with the Employer until December 2023 when all employees were placed on unpaid leave. The period from when Mr Ballantine’s employment ended on 22 October 2023 until 1 December 2023 is 6 weeks.
I propose to add an amount in respect of superannuation to the above amount.
Section 392(2)(d) – Efforts to mitigate loss
Mr Ballantine provided evidence of attempts to mitigate his loss, including that he has obtained alternative employment, which started on 11 December 2023. The alternative employment is permanent full-time employment at an equivalent rate of pay to that which he received with the Employer.
Section 392(2)(e) & (f) – Remuneration and income earned
The Employer dismissed Mr Ballantine without providing any notice or payment in lieu of notice. Mr Ballantine provided evidence that he did not earn any other remuneration or income until he commenced the alternative employment on 11 December 2023.
Section 392(2)(g) – Any other matter
I consider it relevant that the Employer did not make a payment to Mr Ballantine in lieu of notice. Nor has the Employer made payments due on termination of employment under the National Employment Standards, specifically accrued but untaken annual leave, and in respect of redundancy pay as required by Clause 46.4 of the Manufacturing and Associated Industries and Occupations Award 2020. I do not and cannot order compensation of the above amounts, but I do consider the failure to make the payments – particularly payment in lieu of notice and redundancy pay – relevant to making an order for compensation in relation to the dismissal, which I have found to be unfair.
I note that this decision does not preclude Mr Ballantine from seeking payments of the above amounts from a court.
Section 392(3) – Contribution to dismissal by misconduct not relevant
This factor is not relevant.
Section 392(4) – Shock, distress etc disregarded
I have not ordered an amount of compensation for the shock and distress that Mr Ballantine says he experienced due to the lack of notice and manner of the dismissal.
Calculations
My calculations are set out in the following table:
| Step 1 – Remuneration if employee had not been dismissed | Amount |
| · Weeks wages per week | 1,800.00 |
| · Projected further weeks of employment | 6.00 |
| Sub-total | 10,800.00 |
| · Employer superannuation - 11% from 1 July 2023 | 1,080.00 |
| Total Remuneration | 11,880.00 |
| Step 2 – Discounts | |
| s 392(2)(Mitigation of Loss (money earned since termination) | 0 |
| s 392(3) Deduction for Misconduct | 0 |
| Step 3 – Discount other contingencies | 0 |
| Total after deductions | 11,880.00 |
| Step 4 – Taxation - To be taxed according to law | |
| Step 5 – s 392(5) Apply compensation cap |
Taxation
Consistent with prior decisions,[38] I propose to order payment of a gross (that is, before tax) amount of compensation, to be taxed according to law.
Section 392(5) Compensation Cap
Mr Ballantine’s evidence is that he was paid $40 per hour, working full-time, and that he regularly worked overtime hours. He also received installation bonuses of $50 per installation. Mr Valk’s evidence is that the expectation was that an installer would carry out one or 2 installations per day, five days per week but at the time Mr Ballantine’s employment ended, this had reduced to only one installation per week.[39] Mr Ballantine supplied a payslip for the period of 7 October 2023 – 13 October 2023, which was his last complete payslip. That payslip indicates payment of 42.5 ordinary hours and 2 hours of overtime, and provides for the figure of $1,800.00 as Mr Ballantine’s weekly wage. I accept this figure.
Under s 392(5) the compensation cap is the lesser of 26 weeks of Mr Ballantine’s pay or half the amount of the high income threshold.
- $83,750 is half the amount of the high income threshold that applied immediately before Mr Ballantine dismissal, which was $167,500.
- $46,800.00 is 26 weeks of Mr Ballantine’s weekly pay.
The compensation cap that applies to Mr Ballantine is therefore $46,800.00.
The final figure that I have reached above is less than the compensation cap of $46,800.00 and so no discount needs to be applied to it.
Section 393 – payment by instalments
The Act allows me to make an order that the compensation amount be paid in instalments. As indicated above, I propose to mitigate the effects of this order for compensation on the viability of the Employer’s business by permitting payment by instalments.
I order that the above amount of $11,880.00 is made in two instalments as follows:
- A payment of $5,940.00 on or before 21 days of the date of this decision, being 22 March 2024; and
- A payment of $5,940.00 on or before 42 days of the date of this decision, being 12 April 2024.
COMMISSIONER
Appearances:
R Ballantine, for himself.
A Valk, for the Respondent.
Hearing details:
2024.
18 January.
Melbourne and via videolink.
Final written submissions:
25 January 2024.
[1] Transcript of Proceedings, PN41.
[2] Ibid, PN216.
[3] Ibid, PN204.
[4] Ibid, PN46-47.
[5] Ibid, PN179.
[6] Ibid, PN190.
[7] Exhibit 14, Digital Hearing Book (DHB) 70.
[8] Transcript of Proceedings, PN29.
[9] MA000010.
[10] Transcript of Proceedings, PN57.
[11] Ibid, PN45-46; PN106-107.
[12] Ibid, PN47.
[13] Exhibit 1, DHB 5 – 12.
[14] Exhibit 11, DHB 60.
[15] Exhibit 12, DHB 64 – 68.
[16] See Quiah v Vital Care Pty Ltd[2022] FWC 2602 at [30].
[17] Transcript of Proceedings, PN204.
[18] Ibid, PN214.
[19] Ibid, PN56.
[20] Nguyen v Vietnamese Community in Australia[2014] FWCFB 7198 at [9].
[21] Vennix v Mayfield Childcare Limited[2020] FWCFB 550 at [20].
[22] (1988) 88 IR 21.
[23] See ERGT Australia Pty Ltd v Govender[2021] FWCFB 4508 at [35].
[24] Elefantis v The Trustee for Timber Ridge Unit Trust[2022] FWCFB 43 at [67].
[25] McCulloch v Clavary Health Care Adelaide[2015] FWCFB 873 at [29].
[26] Transcript of Proceedings, PN333-334.
[27] Ibid, PN331-332.
[28] See Morgan v Heritage Motels and Restaurants[2016] FWC 4842 at [69].
[29] Transcript of Proceedings, PN190-192.
[30] Ibid, PN192.
[31] [2004] FCAFC 161 at [58].
[32] [2023] FWC 3070 at [96].
[33] Transcript of Proceedings, PN316.
[34] Ibid, PN160.
[35] Ibid, PN190.
[36] Ibid, PN355.
[37] Ibid, PN194.
[38] Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge [2013] FWCFB 431 at [55]; Vennix v Mayfield Childcare Limited [2020] FWCFB 550 at [32].
[39] Transcript of Proceedings, PN46-47.
Printed by authority of the Commonwealth Government Printer
<PR771970>
0
9
0