Robert Priest v Security Fencing Pty Ltd

[2015] FWC 6803

[2015] FWC 6803

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Priest
v
Security Fencing Pty Ltd
(U2015/3713)

COMMISSIONER LEE MELBOURNE, 9 NOVEMBER 2015

Application for relief from unfair dismissal - whether applicant was dismissed or resigned - whether application was made within time - whether applicant served minimum employment period - Small Business Fair Dismissal Code applies - dismissal consistent with Small Business Fair Dismissal Code.

[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Mr Robert Priest (the Applicant) claims that he was unfairly dismissed from his employment with Security Fencing Pty Ltd (the Respondent). 

[2] The application was lodged on 6 March 2015. A conciliation conference was conducted by a staff conciliator on 9 April 2015. The matter was not resolved between the parties. Directions for the filing of submissions and evidence were made and the matter was listed for hearing on 6 and 7 July in Hobart. When submissions and evidence had been received from the Applicant, the hearing was reduced to one day, being 6 July 2015.

[3] The matter was allocated to me on 25 June 2015. Shortly after allocation, I advised the parties that I had determined to list the matter for telephone conference/hearing on 2 July 2015.

[4] The Respondent contact Mr Ketley attended the telephone conference/hearing, as did the Applicant’s representative, Mr I Gunadasa. The Applicant did not attend the conference/hearing and could not be contacted. Mr Gunadasa advised me that he had had trouble contacting the Applicant.

[5] At the telephone conference/hearing, Mr Ketley on behalf of the Respondent sought an adjournment of the hearing listed for 6 July 2015. I requested the Respondent put such a request in writing.

[6] An adjournment request was received from the Respondent supported by a medical certificate. An adjournment was granted and the hearing listed for 6 July 2015 was cancelled.

[7] On 3 July 2015, my chambers were contacted directly by the Applicant. The Applicant advised that he was not contactable earlier in the week due to losing a SIM card for his mobile phone. The Applicant was advised that the hearing for 6 July had been cancelled and he was asked by my associate whether he was open to further conciliation discussions. The Applicant advised that he was open to further conciliation.

[8] A telephone conference was listed for 10 July 2015. The matter was not resolved in conference.

[9] I then issued further Directions for the filing of material by both parties and the matter was listed for jurisdiction and arbitration hearing before me on 13 August 2015 in Hobart.

Law to be applied

[10] Section 394 of the Act provides that a person who has been dismissed may apply to the Commission for an order under the Act granting a remedy. The Act provides that an application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. The Applicant asserts that his employment was terminated on 16 February 2015. The Respondent asserts that the Applicant abandoned his employment on 30 January 2015. The application was made on 6 March 2015. If the Applicant was dismissed on 16 February 2015 as asserted by the Applicant the application is made within time. If the Applicant’s employment ended on 30 January as asserted by the Respondent, the application has not been made within the statutory time period.

[11] A person is protected from unfair dismissal if:

“Division 2—Protection from unfair dismissal

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: High income threshold indexed to $133,000 from 1 July 2014

383 Meaning of minimum employment period

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”.

[12] With regard to s.382(a) of the Act, the Respondent in their Form F3 – Employer Response to Unfair Dismissal Application asserts that the Applicant commenced employment with the Respondent on 19 February 2014. The Applicant, in his Form F2 – Unfair Dismissal Application asserts that he commenced employment with the Respondent on or about 17 August 2013. This will be discussed in more detail below.

[13] With regard to s.382(b) of the Act, it is not in dispute that the Applicant is covered by the Building and Construction General On-Site Award 2010.

[14] Section 385 of the Act sets out what constitutes an unfair dismissal;

“Division 3—What is an unfair dismissal

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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.


386 Meaning of dismissed

(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; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[15] With regard to section 385(a), section 386 sets out the meaning of dismissed. As discussed above, there is a contest as to whether the Applicant was dismissed.

[16] With regard to section 385(c), the Respondent asserts that it is a small business in accordance with section 23 of the Act, asserting that at the time of dismissal the business employed three persons. The Applicant does not dispute that the Respondent was a small business at the relevant time. 1 Therefore the application of the Small Business Fair Dismissal Code is relevant in this decision.

[17] With regard to section 385(d), there is no suggestion that the Applicant’s dismissal is a case of genuine redundancy.

[18] If it is found that the Small Business Fair Dismissal Code has not been complied with, I must consider whether the dismissal was harsh, unjust or unreasonable. Section 387 of the Act states;

“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”.

Summary of matters to be determined

[19] As outlined above, the Applicant claims he was dismissed on 16 February 2015 after he returned from two weeks leave. The Respondent claims that the Applicant resigned on 30 January 2015. Consequently, the Respondent raises two objections, first that the application was not made in time, secondly that there was no dismissal. Both matters are jurisdictional in nature and need to be determined.

[20] The Respondent asserts it is a small business in accordance with section 23 of the Act, asserting that at the time of dismissal the business employed three persons. This raises two jurisdictional matters, whether the Applicant has satisfied the minimum employment period and whether the Small Business Fair Dismissal Code applied to the dismissal.

[21] If the Applicant overcomes the jurisdictional objections and I find that dismissal has occurred I must then consider if the termination was consistent with the Small Business Fair Dismissal Code. If I find that it was not, I must then consider whether the dismissal was harsh, unjust and unreasonable.

The evidence

[22] Aside from the key question as to whether or not the Applicant did in fact resign, many of the facts that occurred at the time of the cessation of employment are not in dispute.

[23] Leading up to the alleged resignation, the Applicant was on sick leave from 20 to 25 January 2015. He attended work the next four days and attended work on 30 January 2015.

[24] On 30 January 2015, Mr Ketley for the Respondent asserts that having arrived for work himself at 7:00am (at which time the Applicant was already at work), Mr Ketley asked the Applicant why he had not completed some tasks he had been given.

[25] The Applicant in his second witness statement denied that Mr. Ketley asked him why he had not completed tasks he was given. 2 On the day of the hearing the Applicant changed his evidence to one of accepting that Mr. Ketley did ask this question of him.3

[26] The Applicant alleges that during the conversation he was being sworn at. Mr Ketley for the Respondent agreed there was swearing involved and that they were swearing at each other but that this was how they commonly spoke. 4 However Mr Ketley denied being aggressive towards the Applicant.5 Mr. Ketley at one point in his evidence said that he couldn’t recall the words in the conversation.6 What is not in dispute between the two men is that what resulted was a “heated discussion”.

[27] At the end of this discussion, the Applicant’s evidence was that he said “I’ve had enough”. 7 The Applicant denies uttering any words of resignation.

[28] Mr Ketley’s evidence is that the Applicant resigned his position at this time, in particular that he said “I’ve had enough of this shit, I quit”. 8 Mr Ketley gave evidence that he himself said ‘“If you want to quit, that's fine, but I suggest you take two weeks holiday and think about what’ – ‘You've got two weeks holiday, I suggest you take that time and think about what you want to do and get back to me.”’ 9

[29] The Applicant agrees that Mr Ketley made reference to his holiday, but contests Mr Ketley having said “that is fine” in the statement extracted above.

[30] It is not disputed that the Applicant was then driven home by a co-worker. The Respondent claims this was approximately 7:30am. The Applicant claims this was at 10:30am.

[31] The next day, Saturday 31 January 2015, there was an SMS exchange between the two men;

Applicant: I have been thinking will take 2 weeks holiday as you suggested to get myself sorted with my kids car and everything I enjoy doing my work always have

Mr Ketley: Ok. Looking for navara keys?

Applicant: In middle plastic draws on shelf”

[32] The Applicant returned to work on Monday 16 February 2015. As the Applicant was a Monday to Friday worker, and he had informed Mr Ketley by SMS on Saturday 31 January 2015 that he was taking leave for two weeks, in his mind, Monday 16 February was the day he was to return to work. Mr Ketley asserts that the Applicant should have returned to work on Friday 13 February as the Applicant’s two weeks leave included Friday 30 January 2015, the day he left early. However this was inconsistent with his evidence at the hearing where Mr. Ketley said that he told the Applicant, “…he can take the holidays on the following day”. 10

[33] It is not in dispute that when the Applicant returned to the workplace on 16 February 2015, Mr Ketley asked the Applicant what he was doing there and the Applicant replied that he had returned to work after his two weeks leave.

[34] The Applicant alleges that Mr Ketley did not respond to his statement, so the Applicant asked him repeatedly if he had been sacked and that Mr. Ketley did not respond to him at all. Mr Ketley’s evidence as to what occurred is as follows:

“I asked him what he was doing there, he said he'd returned to work.  I said, "You haven't contacted me.  Do you think you can just turn up, just come and go as you please?"  He said, "I can leave again if you want."  I said, "That's fine."  In that two weeks that he'd had off, I'd went to his property and saw some of the stolen goods, thought about other stuff that had been going on.  He said, "I can leave again if you want."  I said, "That's fine."  He packed up his gear, handed his keys over and left.” 11

[35] It is not in dispute that Mr Ketley then asked the Applicant for the keys to the premises and remote to the site and the Applicant left the workplace and did not return. 12

[36] As mentioned above, Mr. Ketley gave evidence that he believed that the Applicant had stolen various items from the workplace. These items included four black powder coated fence posts, some gate motors and an arcade game. The Respondent claims that he became aware of the theft of “some of the stolen goods” while the Applicant was on two weeks leave. 13 However, it is apparent from the evidence that, of the three items, Mr. Ketley was only aware of the fence posts being in the possession of the Applicant prior to 16 February 2015 as he didn’t notice them missing until he stopped by the Applicant’s house .14 Mr. Ketley tendered evidence by way of a photo of the fence posts on a property that he stated was the residence of the Applicant in Pontville. Mr Ketley gave evidence that the posts come in pallets of 400 or so and that he would not notice 4 missing from his stock.15 Mr. Ketley gave the evidence that the value of the posts was roughly $70.00 each.16 The Applicant did not know the value of the posts.17

[37] Mr. Ketley was clear that he was not aware the arcade game was missing until after the Applicant had completed his two weeks leave. 18 The alleged theft of the arcade game was reported to the police.19 It is not at all clear when Mr. Ketley formed the view that the Applicant had stolen the gate motors. In fact the Respondent’s submissions appear to suggest that this is a case of an alleged failure of the Applicant to pay an agreed price for the items rather than theft.20 Accordingly, it is only the fence posts that are relevant to a consideration as to whether the Respondent summarily dismissed the Applicant for serious misconduct consistent with the Small Business Fair Dismissal Code.

[38] The Applicant in his second witness statement denied stealing the powder coated posts. His statement attested:

“I deny that I stole 4 black powdercoated posts.

The house and all property situated at [address withheld] are owned by Mr. John Pyke. I no longer live at this address.

The picture attached has no marking or indications that it is a true copy of the address [address withheld].

There is no evidence to indicate that the 4 black powder coated posts in the picture are the stolen property of the Respondent.” 21

[39] There was no suggestion in the version of the statement filed by the Applicant that he had possession of the posts or that he was given them. However on the day of the hearing, the Applicant added to the second statement filed, to say that Mr. Ketley had given him the posts about 12 months ago. 22 The Applicant also altered his evidence during questioning from me to no longer dispute that the picture of the fence posts tendered by the Respondent was of [address withheld].23 This was where a friend of the Applicant lives and also where the Applicant was residing for a time. This was a significant change to the statement originally filed. The Applicants claim that he changed his evidence because his lawyer wrote the statement and he was unable to change it because his phone was out of range was unconvincing.24

[40] The evidence of the Applicant around the circumstances of Mr. Ketley giving him the posts was vague and unconvincing. 25 In particular when asked by me to give an account of the conversation with Mr. Ketley where he said Mr. Ketley gave him the posts, his response was, “…I just asked-you know-about the posts if I could get some posts. It wasn’t-you know- “I want a number of posts” but then yes he said no worries” and nothing else was said from that”.26 This suggests that Mr. Ketley had agreed that Mr. Priest could have an indeterminate number of posts for free. I think it unlikely that Mr. Ketley would have agreed to such an open ended arrangement.

[41] Mr Ketley agreed that he did not raise the claim that the posts were stolen with the Applicant despite observing and photographing the posts while the Applicant was on two weeks of leave. Mr. Ketley was of the view that he didn’t need to raise the allegations with him as he had already resigned and agreed to leave the workplace.

Consideration as to whether there was a resignation

[42] To be effective, a resignation must be clear and unambiguous. Account needs to be taken of the context in which the statements are made and the ensuing circumstances.

[43] In Gupta v Koukourou Pty Limited 27, Commissioner Hampton made the following comments;

“[58]…In Kwik-Fit (GB) Ltd v Lineham Wood J expressed this view in the following terms:

“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (`being jostled into a decision') and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as `special circumstances'. Where 'special circumstances' arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the `special circumstances' the intention to resign was not the correct interpretation when the facts are judged objectively.”” [Footnotes omitted]

[44] In Middleton v Valvoline (Australia) Pty Limited 28, Walker JR summarised as follows;

“The requirements in the case of a resignation by an employee are very similar to those for a dismissal. It is important for employers to know whether an employee has resigned, since if they treat the employee as having resigned when that is not in fact the case, they may be held to have dismissed the employee.”

[45] I think on the balance of probabilities that the Applicant did say that he had “had enough”. I do not believe the Applicant said he quit. “I quit” is unambiguous, “I’ve had enough” is ambiguous. The ambiguity is reinforced by the agreement that he proceed at the Respondent’s invitation on annual leave. The following day’s SMS from the Applicant stating: “will take 2 weeks holiday as you suggested to get myself sorted with my kids car and everything I enjoy doing my work always have” is not consistent with a finding that the Applicant had resigned the previous day.

[46] I agree with the submissions of the Applicant that he did not resign from his employment on 30 January 2015. While saying “I’ve had enough” may in certain circumstances lead to a finding that there was a resignation, in this case it was not clear and unambiguous. The Applicant did not state or infer any words that would indicate or evidence he was resigning effective immediately. The evidence suggests that as the Applicants SMS on the following day shows, he was then taking holidays to sort himself out. The Respondent should have made further inquiry of the Applicant’s intentions given the ambiguity. The Applicant presented to work after his two weeks leave, clearly of the view that he had not resigned on the 30 January 2015. Against this background the Respondent was not entitled to assume resignation.

Was the Applicant dismissed on 16 February 2015?

[47] It is not in dispute that when the Applicant attended work on 16 February 2015, Mr Ketley asked why he was there. I accept that the Applicant replied that he had returned from holidays.

[48] Whether or not the Applicant asked if he was sacked, the actions of Mr Ketley (in asking what the Applicant was doing there, (clearly implying he didn’t want him there)) and asking for his keys and remote are evidence that Mr Ketley wished the employment relationship to end. He was clearly annoyed as he did not think the Applicant was coming back to work.

[49] I have had regard to the fact that Mr Ketley asserts that the Applicant should have returned on 13 February, but given the manner in which the leave was arranged with the Applicant, in his mind agreeing to commencing leave on the Saturday, consistent with being told to go home on 30 January and the apparent uncertainty about when the leave commenced and ended, it is, in my view, unreasonable to consider the Applicant’s non-attendance on 13 February 2015 as some form of indication of no longer wishing to be employed.

[50] Having considered the evidence, I am satisfied that the Applicant was dismissed on 16 February 2015. I am satisfied that the Respondent’s actions directly and consequentially resulted in the termination of employment and had the Respondent not taken this action, the employee would have remained employed. 29

Conclusion regarding dismissal

[51] Having determined that the Applicant was dismissed on 16 February 2015, I dismiss the jurisdictional objection of the Respondent that the Applicant was not dismissed.

[52] Further, as I have found dismissal occurred on 16 February 2015, and the application was made on 6 March 2015, I find that the application was made within the statutory time period.

[53] I also find that the Applicant has served the minimum employment period. Whilst the Respondent asserts that the Applicant commenced employment on 19 February 2014, the Applicant provided pay slips for the period commencing 10 February 2014 ending 16 February 2014 (attachment A to statement dated 11 May). There is a query as to whether the Applicant was an employee or a contractor prior to that time. Having found that he satisfies the minimum employment period in any case there is no need to determine that issue. I find the Applicant has served a period of service greater than twelve months and has thus served the minimum employment period as required by s.382(a) of the Act.

Small Business Fair Dismissal Code

[54] Having determined that the Applicant was dismissed at the initiative of the employer, I must now turn to whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c) of the Act).

[55] The Small Business Fair Dismissal Code is 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.”

[56] The summary dismissal aspect of the Small Business Fair Dismissal Code was considered by a Full Bench of the Commission in Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo. 30The Full Bench stated:

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

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

…

[38] Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee. We are concerned in this case that no discussions took place about the implications of Mr Domingo's conduct for his future employment…” 31

[57] However, the Full Bench went on to say that for various reasons that was an unusual case and despite there being no discussions about the applicants conduct, it was nevertheless determined on the facts in that case the employer held the belief on reasonable grounds and that the dismissal was consistent with the Small Business Fair Dismissal Code.

[58] The question to be considered in this case is whether Mr. Ketley believed on reasonable grounds that the Applicant’s conduct was sufficiently serious to justify immediate dismissal. It is clear from the consideration of the evidence above that the only conduct that is relevant to this consideration is the allegation that the Applicant stole four powder coated fence posts. The stealing of the fence posts meets the definition of serious misconduct in the Small Business Fair Dismissal Code. It is clear that Mr. Ketley had formed the belief prior to the cessation of employment on 16 February that the Applicant had stolen the posts and that this was sufficiently serious to warrant summary dismissal.

[59] The next matter to be considered is whether there were reasonable grounds for this belief. The evidence discloses that Mr. Ketley had undertaken an investigation by way of visiting the residence of the Applicant and taking a photo of the fence posts. In a business of only a handful of employees this does not seem an unreasonable approach. While up until that time he did not know that the posts were missing, it is not unreasonable that he formed the view that they had come from his workplace. He was clear in his evidence that he had not given the posts to the Applicant and therefore assumed the Applicant had stolen them. I consider that the Respondent carried out a reasonable investigation and reached a reasonable conclusion in all the circumstances.

[60] Normally in order to hold a belief on reasonable grounds, it will be necessary to have a discussion with the employee about the perceived serious misconduct. The Respondent was clear in his evidence that he did not do so. Mr. Ketley was clear as to the reason why he did not put the allegation to the Applicant. It was because he did not expect that he was returning to the workplace as Mr. Ketley had, for the reasons discussed above, formed the view that the Applicant had resigned. I am concerned that the allegation was not put to the Applicant. However, this is an unusual case, as I accept that the Respondent held the view, albeit erroneously given my reasoning above, that the employment relationship had already ended. As that was the case, there is a plausible explanation as to why the theft allegation was not put to the Applicant. In the circumstances of this case, I am satisfied that that the Respondent held the belief on reasonable grounds despite the failure to discuss the conduct with the employee.

[61] Overall I am satisfied that it was fair for the Respondent to dismiss the Applicant without notice or warning as the Respondent believed on reasonable grounds that the Applicant’s conduct was sufficiently serious to justify immediate dismissal.

[62] It follows that the termination of the Applicant’s employment was consistent with the Small Business Fair Dismissal Code. The termination was therefore not an unfair dismissal. As such, it is unnecessary to consider the elements in section 387 of the Act. The application is dismissed. An order will be issued concurrently with this decision. 32

COMMISSIONER

Appearances:

R Priest appeared on his own behalf

D Ketley appeared for the Respondent

Hearing details:

2015

Hobart:

August 13

 1   PN42-43

 2   Second witness statement of Applicant, filed 7 August 2015, [4]

 3   PN171-176

 4   PN488-497

 5   PN496 - 497

 6   PN479

 7   PN187

 8   PN483

 9   PN501

 10   PN337

 11   PN507

 12   PN524

 13   PN507

 14   PN561

 15   PN569

 16   PN454

 17   PN263

 18   PN576

 19   Outline of submissions of the Respondent, filed 24 July 2015, [2]

 20   Outline of submissions of the Respondent, filed 24 July 2015, [3]

 21   Second witness statement of the Applicant, filed 7 August 2015, [17]

 22   PN89

 23   PN444

 24   PN376

 25   PN128-132

 26   PN259

 27   [2012] FWA 8755

 28 Case 950118 [1995] IRCA 155, (31 March 1995)

 29   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 205.

 30   [2012] FWAFB 1359

 31   Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo[2012] FWAFB 1359, [29]-[38]

 32   PR573606

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