Russell Jones v Reliance (Aus) Pty Ltd T/A I'm in the Right

[2020] FWC 4892

[2020] FWC 4892

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Russell Jones
v
Reliance (Aus) Pty Ltd T/A I’m in the Right
(U2020/2739)

DEPUTY PRESIDENT BOYCE SYDNEY, 30 NOVEMBER 2020

Application for an unfair dismissal remedy — applicant dismissed 11 hours after expiry of minimum employment period for reasons of underperformance — valid reason for dismissal — denial of procedural fairness — fair go all round — application for unfair dismissal remedy dismissed.

Introduction

[1] On 9 March 2020, Mr Russel Jones (Applicant) filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). By way of his Application, the Applicant claims that he was dismissed from his employment with Reliance (Aus) Pty Ltd t/a I’m in the Right (Respondent) on 2 March 2020, and that his dismissal was unfair within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).

[2] On 6 April 2020, the Respondent filed a Form F3 with the Commission (Response). By way of that Response, the Respondent asserts that the dismissal of the Applicant was because of performance related issues, which were raised with the Applicant during the initial six months of his employment.

[3] The procedural background to this matter is as follows:

(a) On 9 April 2020, the matter was conciliated before a Fair Work Commission staff conciliator. However, the conciliation process did not resolve the dispute.

(b) On 20 April 2020, I issued directions in this matter, requiring parties to file submissions, evidence, and other documentary materials.

(c) On 20 May 2020, I issued directions to the parties to file written submissions regarding permission to be represented by a lawyer or paid agent.

(d) On 25 May 2020, the Applicant filed a Form F52 (application for an order for production of documents) and Form 51 (application for an order to attend before the Commission).

(e) On 28 May 2020, I held an interlocutory hearing to determine:

i. the grant of permission to be represented by a lawyer; and

ii. the Applicant’s applications for orders to produce and appear.

(f) On 29 May 2020, I issued further directions in this matter, noting that the parties consented to the matter being “determined on the papers”, and requiring the parties to file and serve written closing submissions.

(g) On 1 August 2020, a further short hearing occurred to hear and determine the Respondent’s concerns regarding the scope of the Applicant’s reply submissions, which the Respondent contended went beyond the remit of closing reply submissions, and sought to introduce new issues.

[4] Having had regard to the evidence and submissions before me, I have determined that the Applicant’s dismissal was not unfair within the meaning of Part 3-2 of the Act. Accordingly, the Application is to be dismissed. My reasons for making this determination follow.

Permission to appear

[5] The Applicant sought to be represented by Ms Karen Mullally, who is admitted as a lawyer in the Supreme Court of Western Australia. Having regard to the matters set out in s.596 of the Act, I granted the Applicant permission to be represented by a lawyer. I note that the Respondent was being consulted by Mr Max Kimber of Senior Counsel, and Mr Anton Duc of Counsel. Whilst neither of those individuals were representing the Respondent, they were nonetheless assisting the Respondent. In short, I determined that these circumstances potentially gave rise to an imbalance between the parties that could be ameliorated by allowing the Applicant to be legally represented in the proceedings.

Factual background

[6] The Applicant filed two witness statements in the proceedings, being witness statements in his own name, and dated 4 May 2020 and 25 May 2020 respectively.

[7] The Respondent filed four witness statements in the proceedings, being:

(a) Witness statement of Mr Joe Azzi (General Manager of the Respondent) dated 14 May 2020.

(b) Witness statement of Mr Shaun Wickenden (Chief Executive Officer of the Respondent) dated 14 May 2020.

(c) Witness statement Mr Anton Duc (Director of the Respondent) dated 14 May 2020.

(d) Witness statement Mr Max Kimber SC (Consultant to the Respondent) dated 18 May 2020.

[8] Neither party sought to test or challenge the witness evidence relied upon by way of cross-examination in open hearing. Having reviewed the witness evidence and documentary materials filed by the parties, the relevant factual background can be summarised as follows:

(a) On 2 September 2019, the Applicant commenced employment with the Respondent. The Applicant was employed under a contract of employment as a “National Sales Manager”. The role required the Applicant to, inter alia, manage the Respondent’s team of “Business Development Managers” (BDM Team), as well as bring in new clientele.

(b) The Applicant reported to Mr Azzi. Between the commencement of his employment, and his dismissal, Mr Azzi expressed various concerns to the Applicant regarding his performance. This occurred on several occasions, via face-to-face meetings with the Applicant, and via email correspondence. One of Mr Azzi’s specific concerns was the performance of the BDM Team (who the Applicant was responsible for managing). Another was the apparent lack of “traction” that the Applicant was producing from his own sales efforts.

(c) On 2 March 2020, a meeting was held between the Applicant, Mr Shaun Wickenden, Mr Blake Wickenden (Director of the Respondent), Mr Azzi, and Mr Kimber. During that meeting:

i. Mr Kimber informed the Applicant that purpose of the meeting was to inform the Applicant that he had not “passed” his probationary (or trial) period of employment to the Respondent’s satisfaction, meaning that his employment was to be terminated; and

ii. Mr Shaun Wickenden informed the Applicant that the termination decision was not personal, but was made due to the fact that the Applicant had not met performance expectations.

(d) The Applicant was provided a termination letter dated 3 March 2020 (Termination Letter). The Termination Letter confirms, inter alia, that the Applicant was being dismissed due to performance issues, and that this dismissal took effect from 2 March 2020 (i.e. as per the discussion at the meeting on 2 March 2020).

(e) There is no dispute that the Applicant was terminated 11 full hours (or three business hours) outside of the minimum employment period. The minimum employment period ended at midnight on Sunday 1 March 2020, and the Applicant’s employment was terminated at around 11.00am on Monday, 2 March 2020. 1

Relevant law

[9] Section 385 of the Act qualifies a claim for 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”.

[10] Section 387 of the Act provides what matters must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable:

“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”.

Issues to be determined

[11] Having regard to the submissions and evidence before me, I am satisfied as to the following:

(a) The Applicant was dismissed with the meaning and operation of ss.385 and 286 of the Act (outside of the minimum employment period).

(b) The Small Business Code provided for under ss.388 of the Act was of no application, and s.385(c) of the Act has not been enlivened.

(d) The Applicant’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act (meaning s.385(d) of the Act has no application).

[12] The only outstanding issue before me is whether the Applicant’s dismissal was harsh, unjust or unreasonable within the meaning of s.387 of the Act, which I now turn to consider.

Was the dismissal harsh, etc

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

[13] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”. 2 Further, the Commission will not stand in the shoes of an employer and determine what the Commission would do if it was in the position of the employer.3

[14] Where a dismissal relates to an employee’s conduct, the reason for dismissal might be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur, or it did occur, but did not justify termination. 4 The question of whether alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it.5

[15] Where a dismissal relates to an employee’s capacity (i.e. where the reason is associated or connected with the ability of an employee to do their job), 6 and there is a dispute as to whether the employee possessed the requisite capacity to perform their job, it is for the Commission to resolve that disputed issue as a matter of fact.7

[16] The Applicant submits there is no valid reason for his dismissal. Further, the Applicant submits the Respondent has “subsequently” and “disingenuously” relied upon alleged performance reasons to retrospectively validate his dismissal, or otherwise manufacture a valid reason(s) for his dismissal. The Applicant appears to suggest that the reason for his dismissal was because of his personal relationship with Ms Mullally, and the legal assistance she appears to have been providing to one of the Applicant’s direct reports (who shall herein be referred to as “Ms F”) (Referral Incident). It is noted that Ms Mullally was formerly the Applicant’s girlfriend.

[17] In summary (and I do not make any findings as to the Applicant’s submissions or evidence in this regard), in relation to the Referral Incident, the Applicant says that Ms F was an employee of the Respondent and directly reported to the Applicant. In mid-December, Ms F disclosed to the Applicant an incident of alleged misconduct that she purportedly suffered at the behest of one of the Respondent’s directors. The Applicant referred Ms F to Ms Mullally for assistance. In turn, Ms Mullally appears to have then assisted Ms F in lodging a legal claim, or claims, against the Respondent. As best as I can understand the Applicant’s case as to the real reason for his dismissal, the Applicant submits that the Respondent took umbrage with the Applicant involving himself in matters concerning Ms F, including referring her to Ms Mullally for assistance, and/or for creating a protentional conflict between his personal relationship with Ms Mullally and/or Ms F, and his duties of confidence to the Respondent.

[18] The Respondent submits that its decision to terminate the Applicant was solely because the Applicant’s performance was not up to a standard acceptable to the Respondent, especially during his probationary (i.e “trial”) period of employment. The Respondent submits that the Applicant was given a full six months to qualify for permanency, but failed. In other words, the Applicant simply could not convince the Respondent that he could perform the role, let alone perform the role in a capable manner. To that end, the Respondent highlights that:

(a) the Applicant did not made any sales in the six months he was employed;

(b) the Applicant was “indulged” and supported by the Respondent, despite his on-going “lack of progress” over the six months;

(c) the Applicant failed to establish relationships with new clients, or otherwise maintain good relations with existing clients;

(d) significantly, the Applicant failed to develop sound relationships with the sales employees who reported to him;

(d) the Applicant was responsible for managing BDM Team and bringing in clientele. However, the Applicant did not develop a client base, did not bring on any business to business customers independently, and did not bring on referrers. In short, the Applicant displayed net “zero traction” in his business development function; and

(e) the “Sales and Product Development Plan” belatedly produced by the Applicant to the Respondent’s directors (on the Friday before his dismissal on the Monday) was a “rush job” (done in one day). This was despite the Applicant being tasked with developing such a plan many weeks prior. The Applicant’s approach in this regard demonstrates that he either had no motivation to perform his role, or lacked the capacity to succeed in his role. Further, the Respondent considers that it was for the Applicant to have taken the initiative to draft such a plan (absent being asked by the Respondent), and that such a plan should have been drafted very early in his tenure (not a day or two before the end of his probationary employment).

[19] Having considered the evidence in this matter, I reject the Applicant’s submission that there is no valid reason relied upon by the Respondent in respect of its decision to dismiss him. The Applicant’s underperformance is clearly demonstrated in contemporaneous file notes and emails throughout his very short tenure with the Respondent. 8 In making this finding, I reject the Applicant’s submissions that the emails between Mr Azzi and himself merely reflect “day to day emails between a manager [Mr Azzi] and his direct report [the Applicant]”.9 Whilst the emails are not formal warnings, they are replete with performance concerns in respect of the Applicant.

[20] In relation to the Referral Incident, the evidence does not satisfy me (on the balance of probabilities) that it was the reason (or part of the reason) for the dismissal of the Applicant. In rejecting the Referral Incident as being, or otherwise infecting, the Respondent’s reasons for dismissing the Applicant, I also rely upon the following matters:

(a) The Applicant makes a positive assertion in his submissions that the Referral Incident was the reason, or part of the reason, for his dismissal. He therefore carries the onus to prove that the Referral Incident was a reason or part of the reason for his dismissal. On the evidence, he has failed to do so. These are not general protections proceedings involving dismissal. The Applicant does not have the benefit of a reverse onus. Further, even if he did have the benefit of a reverse onus, the Respondent has resolutely rejected the Referral Incident as a reason for the Applicant’s dismissal, and the Applicant has not cross-examined the Respondent’s witnesses as to this rejection.

(b) The Referral Incident was only raised by the Applicant as an issue in his submissions in-reply. Whilst his evidence in-chief canvasses his version of the facts on the Referral Incident (as they involve himself), the issue is not otherwise raised in the Applicant’s opening submissions.

(c) The Applicant’s own evidence concerning the Referral Incident identifies that any discussions or actions involving himself ended on or about 10 February 2020. If the Referral Incident was the reason or part of the reason for the Applicant’s dismissal, it is not clear why the Respondent would wait a further three weeks to dismiss him (especially given the Applicant, at that time, was within the minimum employment period).

(d) The weight of evidence concerning the Applicant’s poor performance, including contemporaneous documentation concerning same, in my view, displaces any assertion on the evidence, directly or by way of implication, that the Referral Incident was the reason or part of the reason for the Applicant’s dismissal.

[21] In view of my findings in paragraphs [18] to [20] above, I find that there was a valid reason for the Applicant’s dismissal, and that this reason was underperformance. My findings in this regard weigh against an ultimate finding that the Applicant’s dismissal was harsh, unjust and/or unreasonable.

Was the Applicant notified of the valid reason?

[22] An employee must be given notification of a valid reason for termination before a decision is made to terminate their employment. 10 Such notice must be explicit, and communicated in clear, plain language.11

[23] The Applicant submits that he was not made aware of any performance concerns prior to the termination meeting on 2 March 2020.

[24] The Respondent submits that the Applicant was repeatedly notified of poor performance concerns by Mr Azzi. The Respondent submits that the Applicant had received many emails regarding the need to carry out certain activities, and that Mr Azzi had to remind him on several occasions how to conduct himself in the role.

[25] Again, having regard to the contents of Mr Azzi’s file note and emails, I accept that the Applicant was on notice that the Respondent had formed a view he was underperforming. On an objective analysis as to the contents of those emails, the Applicant must have been equally aware of same.

[26] In my view, the Applicant was notified of the valid reason, being underperformance. I treat this criterion as being a neutral consideration.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[27] The Act requires an employee protected from unfair dismissal to be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. There is no particular form required for this ‘opportunity to respond’, and an employee may be given such an opportunity in person, in discussion, or in writing. 12 An opportunity to respond is to be provided before a decision is taken to terminate an employee’s employment.13 The opportunity to respond does not require formality or technicality, and is to be considered in a common sense manner.¹⁴ Where the employee is aware of the particular nature of an employer’s concern about his or her conduct or performance, and has an opportunity to respond to that concern, this will ordinarily be enough to satisfy legislative requirements.¹⁵

[28] The Respondent submits that the Applicant was provided an opportunity to respond. More specifically, the Respondent asserts that:

(a) the Applicant had many earlier opportunities (prior to the termination meeting) to respond to the complaints about his underperformance, and his shortcomings;

(b) it was also open for the Applicant to mount a ‘defence’ of his performance at the meeting on 2 March 2020, but he made no attempt to do so; and

(c) in the circumstances of this case, the Respondent treated the Applicant fairly by conducting a meeting, by getting senior managers to attend to provide their reasons for lacking confidence in him, and by providing the Applicant with an opportunity to respond. In summary, the Respondent submits that the Applicant was provided with an opportunity to respond to the matters of performance raised against him in the meeting with senior staff on 2 March 2020.

[29] Having regard to the evidence, as contained in the witnesses’ account of the meeting on 2 March 2020, I find that there was no genuine opportunity for the Applicant to respond to the reasons for his dismissal. The Respondent concedes that the meeting on 2 March 2020 was a “termination meeting”, and that the decision to dismiss the Applicant had been made before the meeting began. There was neither an invitation, nor a real opportunity, for the Applicant to properly respond to the issues of underperformance that were raised with him at the termination meeting.

[30] In my view, the Applicant accurately identified the Respondent’s shortcomings in respect of procedural fairness, as follows:

“The Applicant submits that the Respondent acted on the basis that the Applicant has not completed the minimum period of employment and as such was not entitled to the protections of the unfair dismissal provisions of the Act”.

[31] The Applicant had satisfied the minimum employment period by approximately 11 hours. Despite this short period, the Applicant became nonetheless entitled to an opportunity to properly respond to any performance allegations that were made against him. Indeed, as I have already found, the Applicant had been repeatedly made aware that he was underperforming by Mr Azzi. However, the first occasion that the Applicant became expresslyaware that his underperformance had put his employment in jeopardy was at the meeting on 2 March 2020. The Applicant ought to have at least been given an opportunity to “show cause” that his employment should not be terminated at this point. However, he was not provided that opportunity. The Applicant was denied the right to respond because the Respondent wrongly took the view that the Applicant should be treated as though he were still “on probation” (and that the minimum employment period still applied).

[32] In the facts and circumstances, I find that the Applicant was not given an opportunity to respond to his underperformance. As such, I consider that this criterion leans towards a finding that the Applicant’s dismissal was unjust.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[33] To constitute a valid warning about unsatisfactory performance, a warning must:

(a) identify the relevant aspect of the employee’s performance which is of concern to the employer; and

(b) make it clear that the employee’s employment is at risk unless the performance issue identified is addressed. 16

[34] The Applicant submits that the Respondent did not warn the Applicant that his employment was in jeopardy. The Applicant notes that no evidence was led by the Respondent to support a verbal or a written warning. Given that the Respondent relies upon unsatisfactory performance as to the reason for the dismissal, the Applicant submits that the Respondent was required to provide a warning to the Applicant in this regard.

[35] The Respondent concedes that the Applicant was not “formally” warned about the consequences of his unsatisfactory performance. However, the Respondent says that the Applicant readily acknowledged that “there had been discussions”, was clearly on notice that he was on probation, and that he “needed to lift his game”. In these circumstances, so submits the Respondent, a formal warning was not required.

[36] Ultimately, though, the real issue is that the Respondent has not provided any evidence to show that the Applicant had been expressly put on notice that his underperformance was placing his employment at risk of termination. Instead, it appears that the Applicant was left to infer that his underperformance had reached a degree of severity in the Respondent’s mind that would be dismissed. My read of the Respondent’s correspondence regarding the Applicant’s performance does not sufficiently make clear that the Applicant was going to lose his job unless he picked up his game. The lack of such notice likely explains the Applicant’s “shock” at learning he was going to lose his job at the meeting on 2 March 2020.

[37] The Respondent seeks to diminish the “degree” of procedural fairness required (including express notice that the Applicant would lose his job), having regard to the proximity between the end of the minimum employment period and the Respondent communicating its decision to dismiss the Applicant. As a matter of basic common sense, in the facts and circumstances of this case, this submission has some force. The minimum employment period under Part 3-2 of the Act recognises that there needs to be a period of time in which an employer and employee can get to know each other. During this ‘trial’ period, the parties to the employment relationship have time to determine whether they are the right ‘fit’ for each other. In my view, where a dismissal has occurred in very close proximity to the end of a minimum employment period, as is the case here, any deficiencies in procedural fairness must be considered in this context. This approach is consistent with the case law identified by the Respondent in Kioa v West 17 (West):

“As Mason J said in West, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. In that case, Gibbs CJ said that “The rules of natural justice are flexible, requiring fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise.” 18

[38] The Applicant was not adequately warned that his employment was at risk for termination due to underperformance. However, having regard to what I set out in the foregoing paragraph, I have determined to weigh this criterion as a neutral consideration in this matter.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[39] Neither party pressed this criterion as having any relevance in this matter. As such, I give it neutral weight in my determination as to whether the Applicant’s dismissal was harsh, unjust and/or unreasonable.

To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[40] The Respondent identifies that it had around 47 employees at the time of the Applicant’s dismissal. Despite the Respondent’s assertions to the contrary, I take the Respondent to be a medium sized business. Further, I note that the Respondent had at its disposal two highly experienced employment law experts, one of which was directly involved in the process undertaken to dismiss the Applicant. In the facts and circumstances of this case, however, I do not consider there to be any issue that this criterion impacts, and thus treat it as a neutral consideration in this matter.

What other matters are relevant?

[41] Notwithstanding any finding on the issue of valid reason, the Applicant also submits that the Commission should take into consideration the context in which the Applicant was working — that is, having to “put up with” the Respondent continually calling into question his integrity and professionalism by reminding him of his duties of confidentiality, and the “inappropriateness” of him referring Ms F to Ms Mullally. The Applicant submits that “the overwhelming and the most prominent issue” in these proceedings concerns the Referral Incident. Further, the Applicant submits that “on a reasonable assessment of the evidence before the Commission” the Applicant feared for his employment, as he was in his probationary period, and was constantly being chastised for matters concerning the Referral Incident.

[42] I have already dealt with the Referral Incident as part of my findings on the issue of valid reason. I do not consider it appropriate, let alone necessary, for me to further consider the Referral Incident as part of my determination as to whether the Applicant’s dismissal was harsh, unjust or unreasonable.

[43] I equally reject that I am entitled to make any finding or inference from the fact that the Respondent’s worker’s compensation insurer accepted a worker’s compensation claim by the Applicant in respect of his mental health. I must make my determination in this matter on the evidence before me, not on the basis of what a worker’s compensation insurer has determined (pursuant to thresholds under worker’s compensation legislation).

[44] The Respondent submits that the other matters that the Commission should take into account in this matter are:

(a) The Applicant’s short length of service (being six months and 11 hours). Had the Applicant been dismissed only 11 hours prior to the time he was dismissed, the Applicant would not have been protected by Part 3-2 of the Act.

(b) The Applicant was clearly on notice for some time that what he was underperforming. This underperformance was reflected in the Applicant’s clear inability to manage his team, and his inability to make any sales whatsoever. These concerns were raised with the Applicant on multiple occasions, however, the Applicant failed to improve.

(c) The Applicant held a senior managerial role in the business. Issues of underperformance do not need to be raised in the same manner as they would be raised for a non-managerial employee.

[45] I consider that it is appropriate to give weight to (a) and (b) above in reaching my determination in this matter as to whether the Applicant’s dismissal was harsh unjust or unreasonable. In short, the Applicant’s short length of service, and his termination being only 11 hours outside of his probation or trial period (and the minimum period of employment), coupled with the clear concerns of the Respondent as to the Applicant’s underperformance, weigh against any finding that the dismissal of the Applicant was unfair.

The Applicant’s dismissal was not unfair

[46] In making my discretionary determination as to whether or not the dismissal of the Applicant was unfair in this matter, I am required to “take into account” the matters set out under s.387 of the Act. It is well settled that a statutory requirement to ‘have regard to’ or ‘take into account’ requires the relevant decision-maker to give the matters weight as a fundamental element in the decision-making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable. 19 As Kitto J noted in Rathborne v Abel:20

“In the third place, plainly the provision that the listed matters are to be regarded does not imply that nothing else may be regarded. So this Court said in Owen v. Woolworths Properties Ltd (1956) 96 CLR 154, at 160; and indeed to hold otherwise would be to alter and not to construe the words of parliament.

Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v. Ward [1961] YR 632, at 634”. 21

(my emphasis)

[47] I have found that the Respondent had a valid reason for the dismissal of the Applicant. I have found that the performance related issues underpinning this valid reason have been substantiated on the evidence, and that the Respondent’s concerns as to the Applicant’s underperformance were raised with him on multiple occasions throughout his employment. All of these factors weigh in favour of a finding that the Applicant’s dismissal was not unfair.

[48] The Applicant was denied procedural fairness in the manner in which his dismissal was effected. However, this is to be considered in light of the fact that such a denial of procedural fairness would have been of no moment had the Applicant been dismissed only 11 hours earlier (during the minimum employment period). The Respondent had determined to dismiss the Applicant prior to the end of the probation period, but did not communicate this decision to the Applicant until 11 hours after the probation period had expired. Given the minimum employment period expired prior to the Applicant being dismissed, he has now exercised his right to pursue a claim for unfair dismissal against the Respondent. In the circumstances, whilst it is appropriate to directly have regard to the denial of procedural fairness that has been visited upon the Applicant in this matter, in my view, such a denial is only a neutral consideration does not outweigh those matters that I have also given weight to in concluding that the Applicant’s dismissal was not unfair.

[49] Having had regard to my findings and conclusions, and giving due weight to each of the factors set out under s.387 of the Act, both individually and collectively, I ultimately find that the Applicant’s dismissal was not harsh, unjust or unreasonable within the meaning of the Act.

[50] Section 381(2) of the Act is a significant overarching object of Part 3-2 of the Act. It is expressed as follows:

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(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 Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95”.

[51] In my judgment, my determination and the outcome in this case is consistent with the object of Part 3-2 of the Act of providing a “fair go all round” to both the Applicant and the Respondent. I have not found the Applicant’s dismissal to be unfair, and in doing so I consider that I have appropriately balanced the matters set out under s.381 of the Act in reaching this determination.

[52] Given the Application is to be dismissed, I have not had occasion to determine a remedy in this matter. However, I note that:

(a) there is no evidence to support the conclusion that it would be appropriate to reinstate the Applicant; and

(b) the Applicant has been in receipt of worker’s compensation payments since he was dismissed, meaning that any award of compensation, if such an award was to be made, would be very nominal.

Conclusion

[53] An order dismissing the Application in this matter will be issued separately to this decision.

DEPUTY PRESIDENT

Final written submissions:

The Applicant filed closing submissions on 5 June 2020.

The Respondent filed closing submissions on 15 June 2020.

The Applicant filed closing reply submissions on 22 June 2020.

By leave, the Respondent filed further closing submissions on 7 July 2020.

Printed by authority of the Commonwealth Government Printer

<PR722718>

 1 Respondent’s Submissions, 15 June 2020, at [36].

 2   Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (2000) IR 371 at 373.

 3   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.

 4   Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836 at [7].

 5   King v Freshmore (Vic) Pty Ltd Print S4213 [2000] AIRC 1019 at [23] to [24].

 6   Crozier v AIRC (2000) 50 AILR 4-488; [2001] FCA 1031 at [14].

 7   See more broadly: Jetstar Airways Ltd v Neeteson-Lemkes[2013] FWCFB 9075; CSL Limited v Chris Papaioannou[2018] FWCFB 1005.

 8   Mr Azzi Statement, 14 May 2020, Annexure 1, at A1, A2, A4, A6 to A10; Azzi email, 10.01am, October 2019.

 9 Applicant’s Reply Submissions, 19 June 2020, at [5].

 10   See: Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151; Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

 11   Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

 12   Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50; Slann v Western Power (Print T1965, O’Connor C, 13 October 2000; Hiromi Tango v The Southern Cross Times (Print S7983, Hodder C, 13 July 2000)).

 13   Crozier v Palazzo Corporation Pty Ltd Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000).

14 RMIT v Asher (2010) 194 IR 1, 14-15.

15 Gibson v Bosmac Pty Ltd (1995) 60 IR 1.

 16   Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000) at[43]-[44].

 17 (1985) 159 CLR 550.

 18   Ibid, at [34] per Mason J, and at [11] per Gibbs CJ.

 19   Murdoch University v Mainsbridge (1998) 84 IR 111.

 20   Rathborne v Abel (1964) 38 ALJR 293.

 21   Ibid, at 301.