Robert Carfora v Alete Homes Pty Ltd

[2019] FWC 8016

[2019] FWC 8016

FAIR WORK COMMISSION

DECISION

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

Robert Carfora
v
Alete Homes Pty Ltd
(U2019/7831)

COMMISSIONER HAMPTON ADELAIDE, 18 DECEMBER 2019

Application for an unfair dismissal remedy – maintenance manager – issues about working hours availability and performance – instructed to take annual leave – annual leave day sought to be taken – whether dismissal consistent with the small business fair dismissal code – genuine concerns on some issues but applicant not warned or given opportunity to improve – code compliance not demonstrated – whether dismissal unfair – no valid reason for termination found – fair process for dismissal not followed – dismissal determined and conveyed in a cursory manner without prior warning – dismissal harsh, unjust and unreasonable and accordingly unfair – compensation awarded.

1. Background

[1] Mr Robert Carfora has made an unfair dismissal application under s.394 of the Fair Work Act 2009 (the FW Act) against Alete Homes Pty Ltd (Alete). Alete disputes the application.

[2] Alete operates in the housing construction industry and employed 7 people at the time of Mr Carfora’s dismissal. It is a small business within the meaning of the FW Act. 1 Prior to his dismissal, Mr Carfora held a position at Alete as Maintenance Manager. Following some earlier engagement between the parties where Mr Carfora was operating at one point as a sub-contractor to Alete, he commenced employment in April 2018 and remained until his dismissal in late June or early July 2019.

[3] Mr Carfora contends that he was dismissed for confirming that he would take a period of approved annual leave on Friday 28 June 2019, despite being earlier instructed to take such leave. Mr Carfora suggests that Alete had earlier instructed him to start taking annual leave on Mondays and Fridays to address his outstanding leave balance and that he made the requisite application for leave well in advance of the date concerned.

[4] Alete contends that Mr Carfora was dismissed for a variety of reasons including that the flexibility required by the Applicant regarding working hours and related arrangements was too restrictive for the business and that it had received and dealt with customer complaints regarding Mr Carfora’s work standards and quality. Alete further contended that the nature of the exchange about the annual leave day, rather than the intention to take the day itself, contributed to the context for the decision to dismiss Mr Carfora; but was not the reason. Alete also raises three “jurisdictional” objections in its formal response to the application; being that the dismissal was a case of genuine redundancy; that Alete is a small business employer and that it complied with the Small Business Fair Dismissal Code (the Code); and ‘other’ – being Mr Carfora had performance related issues. I observe that this latter aspect is not a preliminary jurisdictional issue.

[5] Having conducted a Directions Conference on 18 September 2019, I determined that the self-representing parties required some assistance to identify the statutory and factual issues arising from the application and that a Determinative Conference 2 was the appropriate forum to hear the matter. I subsequently issued comprehensive Directions which outlined various issues and provided extracts of certain FW Act provisions.

[6] Prior to the Determinative Conference, I also caused my office to put parties on notice of certain additional issues arising from the materials received from the Applicant and the Respondent. These issues included the specific meaning of “genuine redundancy” and whether Mr Carfora was covered by a modern award. Alete later abandoned the genuine redundancy proposition.

[7] Upon review of materials filed in the lead up to the Determinative Conference, I recognised that the Commission did not have before it any documents detailing a number of potentially critical issues and invited these to be provided, namely:

•  The terms and conditions of Mr Carfora’s Maintenance Manager position and the remuneration he was being paid;

•  Any written warnings or notes of counselling/disciplinary meetings or discussions;

•  Confirmation of what was paid upon termination and when; and

•  Details of Mr Carfora’s efforts, if any, to mitigate his losses following the dismissal.

[8] Regrettably, no further documents were provided by the parties prior to or at the Determinative Conference regarding these matters.

[9] A Determinative Conference was conducted on 28 November 2019. Mr Carfora appeared on his own behalf, while Alete was represented by Ms Hall, General Manager, and Mr Francis, Managing Director.

2. Positions of the parties and their evidence

[10] Both parties provided brief written summaries of their respective positions. Neither Mr Carfora’s or Alete’s written submissions particularly engaged with the relevant statutory issues identified as part of the written directions and much of their respective positions were expressed orally during the Determinative Conference.

[11] The evidence of both Mr Carfora and Alete was substantially hindered by their joint failure to provide supporting documents. I have however determined this matter based upon the evidence that is properly before the Commission having regard to which party had the responsibility and capacity to demonstrate relevant factual propositions.

[12] During the Determinative Conference I also had reason to generally caution parties and remind those individuals giving evidence of their privilege against self-incrimination. This caution was given as the parties began to contest whether Mr Carfora was being partially paid in cash without such being disclosed or included for taxation or other regulatory purposes (allegedly by both parties). This point will be subject to more detailed discussion later.

2.1 Mr Carfora

[13] Mr Carfora contends that he worked full-time in the role of Maintenance Manager at Alete. He suggests he worked an average of up to 60 hours per week including on weekends, however no time records were maintained for this position. Mr Carfora suggested that he was not provided with any pay slips but contended his weekly net income at the time of his dismissal was approximately $1,000. 3 Mr Carfora further suggested in his materials that, for a period at least, a proportion of his remuneration ($400 per week) was paid directly to him in cash. This suggestion was confirmed in his oral evidence and strongly disputed by Alete.

[14] Mr Carfora also contends that when accepting the Maintenance Manager position, he was assured his work hours would be sufficiently flexible to accommodate his responsibilities to care for his young son, including the capacity to attend to school drop off and collections. Mr Carfora also suggests that he was encouraged to sell his personal car and use an Alete supplied work vehicle, which he was also authorised to use in his personal capacity.

[15] Mr Carfora further contends that from February 2019, the $400 per week element of his total remuneration was paid in the form of a direct payment to his landlord as payment of, or contribution towards, his private rental obligations. I observe that this element is not in dispute and that the rental payment was converted into direct salary payments in the weeks leading up to his dismissal.

[16] In relation to the annual leave day, Mr Carfora’s position is that he was instructed by Alete during a team meeting to start taking periods of annual leave to reduce his outstanding leave balance. Mr Carfora suggests that he followed this direction by booking Friday 28 June 2019 as an annual leave day with one month’s notice. He contends that on Wednesday 26 June 2019 he was told by Alete that if he was absent from work on Friday 28 June he would not have a position to return to the following Monday. Having refused to cancel his planned leave, Mr Carfora considered himself dismissed at the conclusion of that conversation.

[17] Mr Carfora rejects any notion that work performance concerns existed or were the basis of his dismissal, which he contends was without warning or justification, and was unfair. He seeks the maximum compensation available under the FW Act as a remedy.

[18] Mr Carfora provided a document comprising submissions and statements written in the third person. This document was admitted, 4 however I noted that the submissions contained in that document would be treated with the appropriate weight. Mr Carfora also gave extensive sworn evidence during the Determinative Conference.

[19] I consider that Mr Carfora generally gave credible evidence. Despite difficulty recalling certain details, his evidence was consistent and generally plausible on a range of contested matters, with some exceptions. Where he was not able to fully recall details, his case was also not assisted by the lack of supporting documents and I treat these elements with a degree of caution. The other exception to my general observations is that on one issue, I consider that Mr Carfora changed the emphasis in his position (regarding alternatives to his caring arrangements) when the implication of the earlier position became clear. This abrupt change in position did not assist Mr Carfora’s credibility on this point.

[20] Mr Carfora’s submissions/statement document was supplemented by a ‘witness letter’ from a former employee of Alete. That person did not attend to give evidence and some of his apparent statement was hearsay and some not entirely consistent with the Applicant’s position. In the circumstances, and given that the evidence could not be tested, I place no weight upon that statement.

2.2 Alete

[21] Alete denies flexible full-time work was ever formally agreed with Mr Carfora, and contends that Mr Carfora was employed under a “conditional, informal flexible working agreement.” 5 Alete suggests this informal agreement, allowing Mr Carfora flexibility to attend to his caring responsibilities, was made and carried out on the condition that the flexibility required did not impact on Alete’s business requirements.

[22] Alete contends that Mr Carfora’s flexibility requirements as operating in practice exceeded that which the business could accommodate; namely his school pick-up and drop-off requirements on certain days each fortnight. Alete contends that when making the informal agreement they did not appreciate the extent to which Mr Carfora’s caring responsibilities would impact business outcomes. Alete claims to have dismissed Mr Carfora principally as they were no longer able to accommodate his working arrangements.

[23] I observe that Alete also appears to contend that Mr Carfora took advantage of the flexibility arrangement with Alete by regularly using his work vehicle during business hours to attend building sites with his child in the car. Alete suggests they instructed Mr Carfora that this was not appropriate but accept that this issue was properly dealt with prior to the dismissal.

[24] Alete also contended that Mr Carfora was dismissed following customer complaints concerning his workmanship. This suggestion was made in Alete’s Employer Response Form, however the complaints were not particularised or otherwise detailed. Alete did however provide some general oral evidence about these issues during the Determinative Conference.

[25] On the actual dismissal, Alete contends that Mr Carfora was dismissed on 3 July 2019 with 1 weeks’ notice and that it had “operated within the requirements when dismissing Mr Carfora and had just cause in doing so.” 6 This was subsequently explained as being a contention that it had complied with the Code and that the dismissal was not otherwise unfair.

[26] No witness statements were provided on behalf of Alete but a submission, containing a number of factual assertions, was subsequently confirmed by Ms Hall and adopted as her evidence. 7

[27] During the Determinative Conference evidence was given on behalf of Alete by two persons:

•  Ms Rachelle Hall, Managing Director of Alete; and

•  Mr Glenn Francis, General Manager of Alete.

[28] Ms Hall provided the majority of evidence for Alete. I considered Ms Hall’s evidence to be given openly and designed to properly inform the Commission. Ms Hall displayed good recall and made appropriate concessions. Unfortunately, and similarly to Mr Carfora’s evidence, Ms Hall did not provide documents during the Conference to support her submissions, even where some were stated to exist. Again, I have treated some of her evidence and submissions with an element of caution in this context.

[29] Mr Francis primarily gave evidence on Alete’s business operations and his perspective of the initial engagement discussions with Mr Carfora, which I found to be generally convincing. However, I gained the strong impression that Mr Francis’ evidence in respect to the alleged cash payments was influenced by the caution that I issued; although he did not rely upon the caution and subsequently rejected the proposition that any cash payments were made. That evidence was less convincing.

2.3 Supplementary material

[30] By consent, the parties were given leave to provide some limited documentation following the Determinative Conference on some specified matters. Alete provided confirmation of some pay slips issued in relation to Mr Carfora and the amount of payments due upon termination that it ultimately paid to him following the Conference. I will return to the significance of this payment later.

[31] Mr Carfora provided a summary of income earnt from work undertaken following his dismissal, although no original documentation to confirm these payments was provided.

[32] The parties chose not to make any submissions regarding this supplementary material and I have treated it on face value.

3. Consideration

3.1 Findings on the context of the employment and the dismissal

[33] Before turning to the jurisdictional and merit issues arising from this application, it is appropriate to make some factual findings based upon the evidence that is properly before the Commission.

The engagement of Mr Carfora in March 2018 including the flexibility arrangements

[34] It is clear to me that Mr Carfora’s engagement in the Maintenance Manager position was not formalised in writing and only the rudimentary arrangements were agreed at that time. I observe that when this position was offered, Mr Carfora was known to Alete and Mr Francis through previous employment and sub-contract work with the company and this may have contributed to the lack of formality. I am satisfied that Mr Francis and Mr Carfora discussed the Applicant’s desire for flexibility in working hours at these initial stages. These discussions resulted in a largely informal offer of full-time employment with a degree of flexibility as to hours. There was no written contract of employment entered into and no details of the flexibility arrangements were confirmed in writing or subject to any formal request for such arrangement including as contemplated by the FW Act. 8 I also observe that subsequent events have demonstrated that a gap may have existed between the scope of flexibility Mr Carfora thought he had agreed to and the limit on that flexibility understood by Alete.

Mr Carfora’s role and the terms and conditions

[35] At the time of the dismissal, Mr Carfora held the position of Maintenance Manager. This role required Mr Carfora to undertake maintenance functions and some limited final fix work at a range of Alete building sites and recently completed houses. I note that the ‘Manager’ aspect of this title relates to the management of the maintenance function, rather than management of maintenance staff. This role was a full-time position and it is apparent that the parties expected Mr Carfora to work in the order of 38 hours each week.

[36] Mr Carfora’s actual hours of work, and how these interacted with his flexibility requirements, merit more detailed consideration. Mr Carfora’s evidence was that on the days where he was required to care for his son he would arrive at the work-site later in the morning and/or leave the work-site earlier in the afternoon. When these shorter days were worked his evidence was that he ‘made up’ for the lost time by working later in the day and/or on the weekend, sometimes including on Sundays. Alete acknowledged in the Conference that they were aware Mr Carfora had been working on the weekends, though suggested they were not always notified when Mr Carfora would be working on weekends as this was sometimes organised directly between him and the client. Mr Carfora suggested this weekend work was more than infrequent and that he would regularly work all weekend when not caring for his son. To this end, Mr Carfora suggested that he would at times work up to 60 hours in some weeks. Mr Carfora’s evidence on his hours was generally convincing and I am satisfied that he did in fact perform some work on weekends on a reasonably regular basis as part of the ‘flexibility’ arrangements. There is no indication that additional payments were sought or made in relation to this weekend work.

[37] There is a dispute between the parties as to whether, for a period, part of Mr Carfora’s remuneration was paid in cash, in effect, off the books. Whilst I am inclined to the view that this did occur, ultimately, I do not need to make a finding about this element for the purposes of this decision. The remuneration at the point of dismissal is demonstrated by some of the supplementary evidence provided to the Commission and there appears to be a common position about the arrangements applying at the time of dismissal. These state Mr Carfora’s base hourly rate was $30.77 for a nominal 38 hour week; being $1,169 per week gross, and that superannuation at the rate of 9.5 per cent was paid into an account on Mr Carfora’s behalf.

[38] In addition to his remuneration, Alete provided Mr Carfora with a work van as a tool of trade vehicle but with personal use rights. At, or soon after the time of his engagement, Mr Carfora was encouraged to sell his then-current van to use the Alete vehicle. No monetary value was agreed for this benefit and no restrictions as to personal use were apparently discussed. The van’s fuel was initially fully paid by Alete, but approximately 5 months prior to the dismissal Mr Carfora decided he should pay $100 per week towards fuelling the van. It was accepted at the Conference that Mr Carfora instigated this change, rather than Alete. 9

[39] Prior to the Conference I put parties on notice that Mr Carfora’s employment may be covered by a modern award, such as the Building and Construction General On-site Award 2010 (On-site Award). This was potentially significant given Alete’s foreshadowed genuine redundancy objection, which was subsequently abandoned. It is clear to me that the parties did not give any consideration to this issue, prior to or during the employment relationship, and little consideration in the lead up to the Conference. I observe that it is likely that that Mr Carfora’s position and employment was covered by the On-site Award. The On-site Award clearly applies to housing construction and includes the maintenance work performed in the immediate period after construction. The On-site Award also covers trade and non-trade work in this sector, 10 including work of the nature being undertaken by Mr Carfora.

[40] Given Alete’s concession on the issue of genuine redundancy, it is ultimately not necessary for me to deal with the consequences of potential award coverage as part of this application. I have dealt with the matter on the basis that it was contended by both parties; namely, accepting the remuneration paid at the time of dismissal for any relevant purposes.

The discussions about the flexibility arrangements and the actual practice during the employment

[41] It is clear that a gulf developed between Mr Carfora’s expected flexibility and Alete’s own expectations and this became an issue prior to Mr Carfora’s dismissal. One of the few documents provided by Alete prior to the Conference was a copy of the office calendar over a two-week period. 11 This showed Mr Carfora’s fortnightly availability and suggests that he required a late start and/or an early finish on Thursdays, Fridays and alternate Wednesdays to facilitate his caring responsibilities. While this was raised as an issue in response to Mr Carfora’s unfair dismissal application, and relied upon as a reason for dismissal during the Conference, I cannot be satisfied that this particular concern was discussed with Mr Carfora as the basis of the dismissal prior to that event.

[42] The only discussions regarding the flexibility arrangements during the employment revealed in the evidence occurred some months before the dismissal and primarily concerned Mr Carfora’s son travelling with the Applicant in the work vehicle while he was at work, including attending on construction sites. Alete brought these concerns to Mr Carfora’s attention and instructed him to stop that practice. This was an appropriate and reasonable instruction on a number of grounds including safety. Having received this concern, Mr Carfora complied with the direction but it is also a reasonable inference that this meant that the ‘interruptions’ to Mr Carfora’s availability at times was also impacted.

[43] I do accept that as part of these discussions Alete also began preliminary discussions with Mr Carfora about out of school care and other options for his son in the context of concerns that it held about the impact of the flexibility arrangements upon its business. The context given for these discussions is that Ms Hall, as a parent herself, utilised out of school hours care to balance her work and caring responsibilities. The evidence is that Mr Carfora was strongly opposed to out of school hours care and this option was not explored further. These discussions do not appear to have resulted in any warnings or other instructions regarding the flexibility arrangements and the impact these may have been having on the business.

[44] I am also satisfied that during these discussions, Mr Carfora did gain a sense that Alete had concerns about the arrangements that might lead to a review of his employment. In that context Mr Carfora requested that Alete provide him with at least one months’ notice if they intended to terminate his employment at any time in the future. Alete did not agree to this request and informed Mr Carfora to the effect that his employment was not under threat at that time.

Poor work standards

[45] Alete suggested Mr Carfora had not completed some works to the appropriate standard or had exhibited otherwise poor workmanship. Certain examples were given of customer complaints however these were not substantiated by any contemporaneous records. While I accept that customer complaints may have been made about works at Alete properties and that some of this may have involved the Applicant’s work, based on the evidence before me I am not convinced that a significant number of these deficiencies can be properly attributed to Mr Carfora.

[46] There is no evidence that any disciplinary discussions about these matters were conducted by Alete with Mr Carfora prior to the dismissal.

The lead up to the dismissal

[47] In team meetings involving Mr Carfora and others, potentially between May and June 2019, the Applicant was told that he needed to start taking annual leave to address his excess annual leave entitlement. Ms Hall did not dispute the substance of this proposition in that Mr Carfora was instructed to start taking annual leave on Mondays and/or Fridays. 12 Following this instruction Mr Carfora filed paperwork a month in advance with the view of taking Friday 28 June as an annual leave day. The paperwork was filed in the normal fashion and was left in the office for consideration by Alete. Although no written policy was provided to the Commission, it was apparently understood that leave approvals had to be undertaken by Mr Francis.

[48] For a portion of this months’ notice Mr Francis was on leave and was apparently unable to consider Mr Carfora’s leave request. The evidence before me is that Mr Francis returned from leave in the week commencing 10 June, some three weeks before Mr Carfora’s proposed leave was to take place. Despite this, Mr Carfora’s leave request was not formally considered at this time or, if it had been considered, no rejection of such was communicated to Mr Carfora within a reasonable period prior to the proposed leave. The fact that Mr Francis did not attend to this leave request within any reasonable timeframe upon returning from his own leave contributed to the events which follow. It is apparent to me that at the point of lodging his leave request, Mr Carfora viewed his proposed annual leave on Friday 28 June as already being booked. This view is understandable as it was a response to an instruction that he had earlier received to start taking annual leave on Fridays and/or Mondays.

[49] On Wednesday 26 June 2019, Mr Carfora reported concerns to Alete that work was being scheduled for Friday 28 June despite his leave request. Mr Carfora spoke with Ms Hall on the morning of 26 June regarding the jobs scheduled and the fact that he had booked flights for 28 June. In the afternoon of Wednesday 26 June Mr Carfora received a call from Ms Hall who stated that “if you take that Friday off, Glenn has told me that, don’t bother coming in Monday.” 13 Having been presented with this ultimatum, Mr Carfora considered himself dismissed and told Ms Hall that he would not be able to come in the next day (Thursday 27 June) as he would need to find a new job and organise a new vehicle. This was despite Mr Carfora having not actually (yet) taken the annual leave day on Friday 28 June.

[50] Later that afternoon Mr Carfora and Ms Hall spoke again, this time concerning the return of Alete’s van. Mr Carfora expressed to Ms Hall that he could not return the van straight away due to his caring responsibilities but would return it, cleaned at his expense, on Sunday and deliver up the keys to Mr Francis. Alete rejected this concept and ultimately warned Mr Carfora that he must return the vehicle and that action would be taken unless he did so. Mr Carfora organised another vehicle on Thursday 27 June 2019 and returned the Alete vehicle that day.

[51] Although the evidence about the subsequent events is very limited, Alete accepted that as a result of these events it had dismissed Mr Carfora 14 and intended to do so on the basis of one week’s pay in lieu of notice.15

3.2 Preliminary jurisdictional issues

[52] Section 385 of the FW Act establishes when a person has been unfairly dismissed in the following terms:

“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.”

[53] Despite some contrary correspondence between the parties in the aftermath of the dismissal, 16 as outlined above Alete conceded during the Determinative Conference that it had dismissed Mr Carfora. I observe that given the strict ultimatum provided to Mr Carfora regarding his intention to take annual leave, and Alete’s response to that intention, I would in any event have concluded that Mr Carfora had been dismissed by Alete within the meaning of the FW Act. 17

[54] Before potentially considering whether Mr Carfora has been unfairly dismissed, the Commission must consider the initial matters required by s.396 of the FW Act:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[55] Mr Carfora lodged this unfair dismissal application within the period required in subsection 394(2). 18 Mr Carfora will be protected from unfair dismissal if, amongst other factors, he has completed the minimum employment period. As Alete was a small business at the time of his dismissal, Mr Carfora must have at least 12 months of continuous service with Alete at the time of his dismissal.19 Mr Carfora was employed from on or around 30 April 2018 to 27 June 2019; a period of almost one year and two months and there is no suggestion that this period did not involve continuous service. Mr Carfora has served the minimum employment period and is otherwise protected from unfair dismissal.20

[56] Alete abandoned its contention that Mr Carfora’s dismissal was a genuine redundancy and this leaves the question of compliance with the Code.

Small Business Fair Dismissal Code

[57] Alete is a Small Business within the meaning of the FW Act and as a result of s.385 the Commission must initially consider the implications of the Code.

[58] This means that if Mr Carfora’s dismissal was consistent with the Code, it cannot be considered to be unfair within the meaning of the FW Act. Section 396 of the FW Act also requires, in effect, that matters arising from s.385 are to be decided before dealing with the merits of the application.

[59] The Code as declared is set out as follows:

“The Code

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.”

[60] Alete does not rely upon the summary dismissal element of the Code.

[61] The “other dismissal” matters contemplated by the Code relate to a dismissal validly based on an employee’s poor conduct or incapacity to perform the job. The crucial considerations under this limb, as characterised by the Full Bench in Lloyd & Co Pty Ltd T/A Lloyd & Co v Kirsten Suttie,are as follows:

“…whether the employer gave the employee a valid reason why he or she was at risk of being dismissed, warned the employee of the risk of being dismissed if there is no improvement, gave the employee an opportunity to respond to the warning, and gave the employee a reasonable chance to rectify the problem.” 21

[62] Alete effectively conceded that whilst the Applicant was on some general notice about the security of his employment for a number of reasons it did not actually warn him it was under threat. These reasons included Alete’s concern regarding the impact of Mr Carfora’s flexibility requirements, concerns following customer complaints and the issues surrounding the annual leave day. I observe that this concession is consistent with the evidence.

[63] I am not satisfied that Alete has complied with the Code in dismissing Mr Carfora. In relation to the flexibility arrangements, I accept that these must be reasonable for the business concerned and that the extent of unavailability of Mr Carfora at times due to those other commitments was an issue for Alete. However, Alete did not properly consider the degree to which Mr Carfora undertook work outside of the normal hours of work to meet the work requirements. In that regard, I observe that whilst it may not have been alert to the issue at the time, the performance of work outside of normal hours should have raised significant concerns about the adequacy of the remuneration paid to Mr Carfora given the likely impact of penalty and other additional payments. Importantly, when it raised its concerns, these were primarily about Mr Carfora’s son accompanying him to work in the vehicle and this was addressed. There is no evidence to support the notion that Mr Carfora was advised that he risked being dismissed if alternative flexibility arrangements (outside of his son’s attendance) were not put in place. As a result, he was not afforded a reasonable opportunity to rectify the problems as contemplated by the Code.

[64] In connection with the work standard concerns, I have found that there were some incidents of poor work; however the evidence is not sufficient for me to find that Mr Carfora was responsible for all of the examples cited. There is no evidence that Mr Carfora was notified that he risked being dismissed as a result of these concerns or that he was given a reasonable opportunity to rectify the problems (his work standards) as contemplated by the Code.

[65] Alete does not rely directly upon the dispute about the annual leave day; rather it contends that the discussion around that issue contributed indirectly to the decision to dismiss Mr Carfora. It is clear that Mr Carfora was actively encouraged to take some leave days and that he made some arrangements for 28 June 2019 and put in a leave application as a result.

[66] There is some evidence to support the notion that Mr Carfora should have been alert to the fact that the leave had not been formally approved by Mr Francis as he was away. However, Mr Carfora was not advised that the leave had not been approved until a few days prior to that time, despite regularly advising that he had made arrangements and that work should not be scheduled for that day; and the fact that he was following instructions to take such leave. This was also some days after Mr Francis had returned to the business and the lack of prompt attention to the leave request contributed to the outcome. Ultimately, although Mr Carfora indicated that he intended to take the annual leave day, he was advised that he was going be dismissed and that he was to return the company vehicle. The short delay in doing so was understandable given that it was his sole vehicle carrying his work tools. If the vehicle had not been returned when it was, I would have been inclined to the view that the summary dismissal element of the Code may be relevant; however this is speculative.

[67] Given that Mr Carfora’s intention to take the annual leave day is not directly relied upon in support of the dismissal, I also do not consider that these circumstances, or any associated conduct, demonstrate that the dismissal was consistent with that Code.

[68] As a result of all of the above findings, I am satisfied that the dismissal was not consistent with the Small Business Fair Dismissal Code

3.3 Was the dismissal unfair?

[69] Given the above findings, I need to consider whether the dismissal of Mr Carfora was unfair.

[70] Section 387 of the FW Act provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

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

(b) whether the person was notified of that reason; and

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[71] It is clear that s.387 of the FW Act contemplates that an overall assessment as to the nature of the dismissal must be made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be weighed up in totality.

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

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

[73] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.²²

[74] It is also clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.²³ Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.²⁴

[75] I have therefore considered the various factors relied upon by Alete during the hearing, where they are supported by the evidence and pertain to facts in existence at the time of the dismissal, as potentially constituting the valid reason for dismissal.

[76] Alete relied upon the alleged customer complaints regarding Mr Carfora’s workmanship and some apparently related unavailability for work as reasons underpinning the dismissal. As outlined earlier, Alete suggested that the annual leave issue was not determinative, but formed part of the context going to the poor relationship between the business and the Applicant.

[77] I accept that Alete had legitimate issues to discuss with Mr Carfora relating to his availability, and to a limited extent, elements of his work performance. In particular, the availability of Mr Carfora during normal business hours was a genuine issue associated with his capacity to undertake the work. The fact that Mr Carfora made up some, and potentially most, of these hours at other times is a factor; however, Alete had a reasonable expectation that it could schedule repair and maintenance work with the home owners and other workers during normal business hours and have that undertaken. In that regard I would distinguish the basis of Alete’s concerns about the working hours and the impact on availability, from the fact that Mr Carfora had obligations to care for his son at various times. The latter, which was not contended by Mr Carfora, could of course not form a valid reason for dismissal. 25 However, even based upon the evidence that is properly before the Commission, I cannot be satisfied that the legitimate concerns represented a valid reason for dismissal. That is, there was no proper discussion of the working hours issues so that Alete could form a view about what hours Mr Carfora was in fact working at the time, the real impact upon the business and/or what workable alternatives might exist.

[78] Having objectively considered all of the relevant circumstances related to Mr Carfora’s capacity and conduct based upon the findings of the Commission, I am on balance not persuaded that there was a valid reason for dismissal.

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

[79] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken.²⁶

[80] Alete did not notify Mr Carfora of the reasons for dismissal in advance of that occurring. It did notify him of its position with respect to the annual leave day; however this is not relied upon as the reason for dismissal.

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

[81] The process contemplated by the FW Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. This question becomes whether Mr Carfora was aware of the precise nature of the employer’s concern about his capacity and had a reasonable opportunity to respond to these concerns.²⁷

[82] Given that Mr Carfora was not notified of the reasons for dismissal as contemplated by s.387(b), and given all of the circumstances evident here, I am not satisfied that Mr Carfora was given an opportunity to respond to any reason related to his capacity or conduct as contemplated by s.387(c) of the FW Act.

Section 387(d) – any unreasonable refusal by Alete to allow Mr Carfora to have a support person present to assist at any discussions relating to dismissal

[83] There was no meeting in the lead up to the dismissal to discuss any concerns held by the employer and no request for a support person arose. Accordingly, this consideration is not relevant.

Section 387(e) – if the dismissal related to unsatisfactory performance by Mr Carfora—whether Mr Carfora had been warned about that unsatisfactory performance before the dismissal

[84] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work.²⁸

[85] There were some performance issues; however Mr Carfora was not warned about these as contemplated by s.387(e) of the FW Act.

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

Section 387(g) – the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[86] I deal with these two considerations together.

[87] Alete is a small business with no dedicated human resource management specialists. This has impacted upon how the issues leading to the dismissal, including the direction to take annual leave, were handled in a number of ways including the procedure that it adopted and the lack of proper records.

[88] As a result, I have made a meaningful allowance for the circumstances of the employer when considering the manner and procedures adopted as part of the assessment of the overall fairness of the dismissal.

Section 387(h) - any other matters that the FWC considers relevant

[89] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This dismissal meant that Mr Carfora lost his employment with the normal consequences of that event.

[90] The fact that these consequences were brought about without a valid reason or due process also renders the dismissal harsh.

[91] Despite indicating that it had dismissed Mr Carfora on notice or pay in lieu, Alete did not ultimately make any payment 29 to him in that regard until after the Determinative Conference conducted in this matter. That failure is a relevant consideration also supporting the notion that the dismissal was unfair.

[92] The absence of any real notice, given the reliance on the work vehicle, is also a factor. This is so despite the notion that Mr Carfora was at least alert to the fact the arrangements he had with Alete were under general review and he had requested a months’ notice if this was being contemplated. At the time, this was not being actively contemplated by Alete and the Applicant was advised to that effect.

Conclusions on merit

[93] As outlined earlier, the FW Act requires a global assessment having regard to the various relevant statutory considerations. In that context, procedural unfairness is an important consideration given the provisions of the FW Act but does not necessarily mean that the dismissal was unfair. This is reinforced by the objects relating to Part 3-2 Unfair Dismissal of the FW Act in s.381 which relevantly provides as follows:

“381 Object of the Part

… …

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

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[94] As revealed in various decisions of the Commission (and the Court), each case must be considered in its own circumstances and it is appropriate, amongst other factors, to have regard to whether the procedural deficiencies made any difference to the fairness of the outcome.³⁰ Further, for reasons outlined earlier, it is appropriate to take into account the nature of this relatively small business in assessing this matter.

[95] In this case, there was very little by way of procedural fairness. Although there were some legitimate concerns held by Alete there was not a valid reason for dismissal. Further, Mr Carfora did not have any opportunity to respond to some of the assumptions inherent in the decision to dismiss him. There was in fact no meaningful discussion about some of those factors and in all of the circumstances including the consequences for Mr Carfora, that omission in procedure was unfair. The cursory manner in which the decision to dismiss was made and communicated was also unreasonable.

[96] On balance, and given all of the statutory considerations, I am satisfied that the dismissal of Mr Carfora was harsh, unjust and unreasonable. It was therefore unfair within the meaning of the FW Act.

4. Remedy

[97] Mr Carfora does not seek reinstatement to his former position; instead he is seeking compensation.

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

“Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

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

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

(b) the person has been unfairly dismissed (see Division 3).

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

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

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

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

… …

392 Remedy—compensation

Compensation

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

Criteria for deciding amounts

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

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

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

Shock, distress etc. Disregarded

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

Compensation cap

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

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

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

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

393 Monetary orders may be in instalments

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

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

[100] Section 390 of the FW Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. Given that it is not sought by either party, I find that reinstatement would be inappropriate.

[101] As set out above, under the FW Act, it is then necessary to consider whether compensation in lieu of reinstatement is appropriate.

[102] A Full Bench in McCulloch v Calvary Health Care Adelaide³¹ (McCulloch) confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg³² remains appropriate in that regard.

[103] Section 392(2) of the FW Act requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). Without detracting from the overall assessment required by the FW Act,³³ it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.

Section 392(2)(a) – The effect of the order on the viability of Alete

[104] Alete faintly contended that any order for compensation would impact upon its viability. It provided no evidence to support that notion other than to point out the publicly known number of housing and construction companies that have gone out of business in South Australia in recent times.

[105] The concept of “viability” as used in this context requires, in effect, that the Commission take into account whether an order of compensation would alter the capacity for the respondent employer to continue trading in a viable manner. This is a reasonably high hurdle and something more than financial inconvenience or increased operating costs would be required for this consideration to lead to an adjustment of a compensation order otherwise arising from the other relevant statutory considerations. Evidence to support such a proposition is also required.³⁴

[106] The extent of the compensation order that arises from the other statutory considerations is set out below. Based upon the limited material that is before the Commission, I am not satisfied that the proposed compensation order otherwise arising from these considerations will alter the viability of Alete.

Section 392(2)(b) – The length of Mr Carfora’s service with Alete

[107] Mr Carfora had just over twelve months service and this is not significant. I have taken this factor into account.

Section 392(2)(c) – The remuneration Mr Carfora would have received, or would have been likely to receive, if he had not been dismissed

[108] This involves in part a consideration of the likely duration of Mr Carfora’s employment in the absence of what I have found to be an unfair dismissal. That is, the establishment of the anticipated period of employment.³⁵

[109] Given my findings, it is evident that the proper course of action here would have been for Alete to have put Mr Carfora on notice that it was contemplating terminating his services in connection with the working hours restrictions, and potentially its work performance concerns, and given him an opportunity to respond, explore alternatives and improve, before making an informed decision.

[110] Although Mr Carfora contended that he would make significantly different alternative arrangements had he been confronted with this choice, this does not sit well with his evidence overall. It is evident to me that he prioritises his direct caring arrangements and had already ruled out “out of school care” or similar arrangements as a reasonable alternative. This is understandable as a personal choice, but there was little indication that he would himself be flexible.

[111] In all of the evident circumstances it is reasonable to assess the compensation in this matter on the basis that the applicant would, on the balance of probabilities, have remained in employment for a further period of no more than ten weeks, including a period of paid notice. This projection is appropriate given the impact of the decline in the working relationship, the nature of the employment relationship as found by the Commission, and the context of what is a relatively small business. It is likely that the relationship would have ended with Mr Carfora either being dismissed due to the legitimate concerns about his availability and potentially about performance matters, or due to his unwillingness to continue as a result of the breakdown in the working relationships with Alete and its requirements. This projection is supported by Mr Carfora’s attitude toward other (post dismissal) employment and the need for significant working hours flexibility in future positions. If this could not have been provided by Alete it is unlikely the employment relationship would have continued in the longer term.

[112] On the basis of the material provided to the Commission, at the time of his dismissal Mr Carfora was paid a rate of $1,169.26 per week plus superannuation of $111.08. Using that rate produces a lost remuneration figure of $11,693.00, plus superannuation.

Section 392(2)(d) – The efforts of Mr Carfora to mitigate the loss suffered by him because of the dismissal

[113] I accept that Mr Carfora has made some efforts to mitigate his losses. This has involved leasing a new work vehicle and seeking work consistent with his skills and experience.

[114] An offer of part-time work was made by Alete shortly after the dismissal; however there were little details provided to Mr Carfora about what would have involved and he rejected the notion. Given the manner of his dismissal, Mr Carfora’s reluctance to explore that option was not unreasonable.

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

Section 392(2)(e) – The amount of any remuneration earned by Mr Carfora from employment or other work during the period between the dismissal and the making of the order for compensation

Section 392(2)(f) – The amount of any income reasonably likely to be so earned by Mr Carfora during the period between the making of the order for compensation and the actual compensation

[116] Mr Carfora has indicated that he has received $6,700 between 10 October and 27 November 2019 from a series of construction and/or labouring jobs. None of this income fell during the period of projected employment and as a result I do not consider that in this case it is appropriate to deduct this amount from the lost remuneration figure.

[117] Mr Carfora has, very belatedly, received a week’s pay in lieu of notice. That amount ($1,153.85) 36 is directly related to his dismissal and the projected period of employment, and I consider that it is appropriate to deduct that amount.

Section 392(2)(g) – Any other matter that the FWC considers relevant and the remaining statutory parameters

[118] There is no demonstrated misconduct that is appropriate to take into account as provided by s.392(3) of the FW Act.

[119] In effect, Mr Carfora sought compensation for the shock, distress or humiliation caused by the dismissal. Section 392(4) of the FW Act prevents that Commission from making an allowance of this kind as part of any compensation order.

[120] As all of the projected period of employment, and the compensation contemplating losses in that context, has already occurred, I have made no specific allowance for future contingencies.

[121] The maximum compensation limit in this case is the lesser of 26 weeks remuneration ($30,401) or the statutory cap of $74,350.00. The amount of compensation that arises from my findings is less than that limit.

[122] The figures used for the calculation are expressed in gross terms and appropriate taxation is to be deducted from the final amount of compensation. I consider that superannuation of 9.5 per cent should be taken into account in relation to the compensation figure in this matter.

[123] The compensation amount confirmed below is also appropriate having regard to all of the particular circumstances of this matter and the Commission’s statutory charter to ensure that a “fair go all round” is accorded to both the employer and employee concerned. ³⁷

Conclusions on remedy

[124] After taking into account each of the relevant considerations, I find that compensation in lieu of reinstatement is appropriate in this matter. Further, I find that the compensation should be assessed and paid having regard to the factors outlined above.

[125] Accordingly, I find that compensation in lieu of reinstatement should comprise a payment to Mr Carfora by Alete of $10,539 plus superannuation contributions.

5. Conclusions and orders

[126] I find that Mr Carfora’s dismissal was unfair within the meaning of the FW Act.

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

[128] No application was made or foreshadowed by Alete to pay any compensation by instalments, however this is perhaps understandable given they were not aware what level of compensation, if any, may have been ordered. In any event, given all of the circumstances of this matter, including the timing of the decision, I have decided that a slightly longer than usual period to pay the compensation is appropriate. In the absence of a contrary Order being made by the Commission, the compensation payments are to be made within 28 days of this decision.

[129] An Order 38 consistent with the above is being issued in conjunction with this Decision.

COMMISSIONER

Appearances:

R Carfora, the Applicant, on his own behalf.

R Hall and G Francis, for Alete Homes Pty Ltd.

Hearing details:

2019

Adelaide

28 November.

Final written submissions:

Mr Carfora and Alete Homes Pty Ltd, 29 November 2019.

Printed by authority of the Commonwealth Government Printer

<PR714581>

 1 Section 23 of the FW Act. Alete also engages a number of construction sub-contractors and it was not suggested by either party that these should be included for the purposes of this provision.

 2 Sections 397 to 399 of the FW Act. The nature of the determinative process was confirmed at the outset of the Determinative Conference.

 3   Determinative Conference at 10:37.

 4   Exhibit A1.

 5   Respondent’s Outline of Submissions.

 6   Respondent’s Outline of Submissions.

 7   Exhibit R1.

 8 Section 65 of the FW Act.

 9   Conference at 10:45 am.

 10   Clauses 4.1 and 4.10 of the On-site Award. See also Schedule B – Classification Definitions.

 11   Attached to Exhibit R1.

 12   Conference at 10:59 am.

 13   Conference at 11:23 am.

 14   Conference at 10:50-10:53,

 15   Exhibit R1. I note that this pay in lieu of notice was not paid until a much later date.

 16   Email correspondence between Mr Francis and Mr Carfora suggested that the Applicant may have abandoned his employment.

 17   Section 386(1)(a). See also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (PR973462) and Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli[2017] FWCFB 3491.

 18 Section 394(2) requires an unfair dismissal application to be made within 21 days after the dismissal took effect, or within such further period as the FWC allows having taken into account the criteria set out in s.394(3).

 19 Section 383 of the FW Act.

 20 The high income threshold, another potential jurisdictional barrier for an unfair dismissal application, has not been exceeded in this matter. See s.382(b)(iii) of the FW Act regarding the high income threshold.

 21   [2016] FWCFB 144 at [19]. See also Puri v Sydney Strata Pty Limited[2012] FWA 7317 (Watson VP) and Shaw v Pat Thomas Memorial Community House Inc[2012] FWA 8303 (Williams C).

22 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].

23 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999.

24 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 8 October 2002, per Ross VP, Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.

 25 Such conduct could also be a breach of the General Protections provisions of the FW Act.

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

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

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

 29 The payment was one week’s wages, rather than the two weeks required by s.117 of the FW Act.

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

31 [2015] FWCFB 873.

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

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

34 See D.A. Moore v Highpace Pty Ltd, Print Q0871 (AIRCFB, Boulton J, Watson SDP, Whelan C, 18 May 1998).

35 McCulloch v Calvary Health Care Adelaide[2015] FWCFB 873.

 36   For reasons not disclosed, a slightly different base rate was used for this purpose.

37 Section 381(2) of the FW Act. See also Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32].

 38   PR715076.