[2020] FWC 6644

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sathiasothilingeswaran Rajan
v
Prosegur Australia Pty Ltd
(U2020/7943)

COMMISSIONER JOHNS

SYDNEY, 14 DECEMBER 2020

Application for an unfair dismissal remedy.

Introduction

[1] This decision concerns an application by Sathiasothilingeswaran Rajan (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (FW Act).

[2] The Applicant made his application on 10 June 2020 alleging that he had been unfairly dismissed from his employment with Prosegur Australia Pty Ltd (Respondent/Employer/ Prosegur) on 19 May 2020. The Applicant seeks compensation.

[3] Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 9 June 2020. The Application was therefore filed 1 day outside the 21-day period.

[4] The Applicant asks the Commission to grant a further period for the Application to be made under s 394(3). The Respondent originally opposed this request. As such, the matter was listed for a mention/directions hearing before me on 31 July 2020 to determine the timetable for the extension of time hearing.

[5] At the mention/directions hearing on 31 July 2020:

a) both the Applicant and the Respondent sought to be represented before the Commission by a lawyer.

b) I gave both parties permission to be represented under s.596 of the FW Act because I was satisfied that the jurisdictional objection invested the matter with complexity and that I would be assisted in the efficient conduct of the matter if I granted the Applicant permission to be represented.

c) the Applicant’s Representative admitted that the Application was lodged one day out of time because of his error.

[6] Having regard to the matters I was required to take into account under s 394(3), I was satisfied that the error by the Applicant’s representative constituted an exceptional circumstance. Consequently, I allowed an extension of time of 1 day under 394(3).

[7] The merits hearing was held on 23 September 2020 via video link. At the hearing,

a) the Applicant was represented by Mr Daniel Garran, Lawyer at Berrigan Doube Lawyers.

b) the Applicant gave evidence on his own behalf and was cross-examined.

c) the Respondent was represented by Ms Simone Caylock, Partner at Rigby Cooke Lawyers.

Ms Caylock called the following persons to give evidence and be cros-examined:

i. Stuart Grant, National Operations Manager Device Maintenance,

ii. Charmaine Blair, National Field Service Delivery Manager, and

iii. Phillips Stevens, Operations Supervisor.

[8] In relation to the matter the parties filed the following materials. In coming to this decision the Commission, as presently constituted, has had regard to the filed material, the oral evidence and other documents tendered during the determinative conference:

Exhibit	Document title
1	Forms: F2 application dated 10 June 2020
2	Applicant: Outline of Submissions filed 27 August 2020
3	Applicant: witness statement of Mr S T Rajan dated 27 August 2020
4	Applicant: witness statement of Mr Rajan in reply to Mr Grant’s WS dated 17 September 2020
5	Forms: F3 employer response dated 13 July 2020
6	Respondent: Outline of Submissions dated 10 September 2020
7	Respondent: witness statement of Charmaine Blair dated 10 September 2020
A.	Attachment CB1 - NSC Communication dated 29 October 2019
B.	Attachment CB2 - NSC Communication dated 4 December 2018
C.	Attachment CB3 - Email to Applicant 6 August 2019
D.	Attachment CB4 - Performance Management Review: Sathi Rajan Report 5 August 2019
E.	Attachment CB5 - Email from Phillip Stevens to Bruce Stevens dated 7 February 2020 subject: Re: Shift start
F.	Attachment CB6 - Email from Device.Monitoring.AU to Phillip Stevens dated 10 February 2020 subject: Re: Unable to access Remote Desktop INC2390781
G.	Attachment CB7 - Screenshot of SMS
H.	Attachment CB8 - Email from Bruce Stevens to Phillip Stevens dated 24 February 2020 subject FW: Central gates out of service
I.	Attachment CB9 - Email from Phillip Stevens to Bruce Stevens dated 19 March 2020 subject RE: DGC monitoring
J.	Attachment CB10 - Email from Phillip Stevens to Bruce Stevens dated 25 March 2020 subject: RE: Shift
K.	Attachments CB11 and CB12 - Screenshots of SMS
L.	Attachment CB13 - Email from Phillip Stevens to Bruce Stevens dated 7 April 2020 subject: RE: Sathi
M.	Attachment CB13A - Letter to Applicant dated 13 May 2020 “Letter of Allegation - strictly confidential”
N.	Attachment CB14 - Letter of termination to Applicant dated 19 May 2020
8	Respondent: witness statement of Stuart Grant dated “10/10/20” (date should be 10 September 2020) Note: Attachment to Stuart Grant witness statement - P1 Call Recording is a .WAVE file
A.	Attachment 1 - 10 May 2018 offer of employment letter
9	Respondent: witness statement of Phillip Stevens dated 18 September 2020
10	Additional bundle of text messages between Mr Stevens and the Applicant dated 20 March, 17 April, 1 May and 14 May 2020.
11	Performance management letter dated 30 July 2019
12	Second warning letter dated 30 July 2019
13	Screenshot of calendar invitation for 30 July 2019 from Ms Blair to the Applicant, titled ‘Performance issues’
14	Minutes of performance management meeting with the Applicant dated 30 July 2019

Facts

[9] I make the following findings of fact:

a) Prior to his employment with Prosegur the Applicant was employed by Cubic Corporation (Cubic). In that role he performed similar duties to those he performed for the Respondent. One of Cubic’s clients was Transport for NSW (TfNSW).

b) At some point the Respondent won the TfNSW contract. The The National Monitoring Team (NMT) has one external customer in TfNSW. The NMT is also responsible for two internal customer groups who have purchased their ATMs or SmartSafes. The NMT has two shifts and each shift has two device monitoring specialists (one of whom monitors the TfNSW devices) plus a supervisor.

c) On 21 May 2018 the Applicant commenced employment with the Respondent. He was employed as a Device Monitoring Specialist. Having regard to the Applicant’s previous work with Cubic, the Respondent was entitled to assume that the Applicant had some skills and experience in performing the work.

d) The Applicant’s role included monitoring cash management equipment devices (ATM, cash to bank machines and OPAL card machines), notifying incidents with the cash management machines and logging incidents so that they could be addressed by Prosegur technicians.

e) After being a co-worker with the Applicant:

i. in November 2019 Ms Blair became a Team Leader (supervising the Applicant); and

ii. in August 2019 Ms Blair became National Field Service Delivery Manager (responsible for the supervision of the NMT of which the Applicant was a member. From August 2019 Mr Phillip Stevens became the Applicant’s supervisor. Mr Phillip Stevens reported to Ms Blair.

f) On or about 15 April 2019 the Applicant received a letter outlining complaints about his performance (First Letter of Allegation).

“Between the period of 2nd April to 13th April you were monitored by your Supervisor who has confirmed the below incidents.

1. 4th April –Colleagues having to constantly complete or correct your work

2. 4th April – P1 – Gate Array email documentation not followed

3. 5th April – You were in lunch room on a private phone call but on Desktop you were not on a break.

4. 9th April –Emails not being actioned correctly and a foundation level of knowledge not displayed.

5. 10th April – Tickets being created and constantly lacking information.

6. 2 April – 14 April – At least 30 tickets captured as example of not completing work correctly. There are tickets where you do complete them correctly, showing that you are aware of what is expected.

7. 2 April – 14 April – 4 Burglary events where you either did not log ticket, logged it over an hour late or you cancelled burglary in Transfolio without investigating with Station.

8. 2 April – 14th April – 3 recorded instances where you sent Technician to site where alarm had cleared.

If substantiated, these allegations may be in breach of NSC Operating Procedures which could result in disciplinary action.

You are required to provide me with a written response to the allegations outlined above by 9am Tuesday 23rd April 2019. You may do that by either e-mailing your written response to me at; [email protected] or be delivering it to Prosegur’s Lane Cove Branch in a sealed envelope addressed to me and marked ‘confidential’. Once I have reviewed your written response, I may require you to attend a further meeting with me or someone else. If you are required to attend a further meeting, you are encouraged to bring a support person with you to that meeting.

You are also advised that this investigation is confidential and you are directed not to discuss it with anyone in the workplace, except if they are acting as your support person through this investigation process. You are also advised that confidential counselling and employee assistance is available to you by contacting our Employee Assistance Provider; Life Works on 1300 361 008.”

g) On 24 April 2019 the Applicant responded to the First Letter of Allegation. He made some admissions about errors he had made.

h) On 24 April 2019 at 12.42 pm the Applicant attended a meeting with Mr Grant and Ms Blair. The minutes of the meeting record the following,

Items discussed.

• Discussed background, Stuart advised leeway was given during Sathi’s court case however when requested Sathi provide a time and date the case would finish, this was provided as the 2nd of April.

• Since we have not seen an improvement in performance although Sathi was addressed informally.

We then completed a review on a 1 week period around the teams performance where Sathi was identified as an under performer. Sathi was happy with these comments.

Addressed issue where Sathi is walking away from the desk to take and make phone calls outside break periods. Sathi advised he was taking shorter breaks so he could be on the phone at other times, Stuart advised this is unacceptable and he is required to be at his station unless on a designated break or toilet stop

Sathi went through examples where he identified some errors were made from his end, this also highlights his underperformance. He had a few cases where there was confusion around error codes however majority of his mistakes were due to not focusing on the job.

Overall multiple mistakes have been made over the review period. There was not significant evidence provided from Sathi as to why a warning shouldn’t be issues therefore we have provided Sathi a written warning due to underperforming.

Stuart suggested for Sathi to sit with Charmaine for 1 day to go through re training this was accepted by all parties.

Sathi agreed that a warning was fair

Sathi left happy and positive that he can improve going forward; we acknowledged that Sathi is well liked with in the team and he has full support to get to the expected level.

i) I conclude from this that on 24 April 2019 the Applicant advised he would be given a warning.

j) On 29 April 2019 the Applicant was provided with a letter (First Written Warning) in the following terms,

This document is a formal warning regarding your performance. A recent meeting with Stuart Grant and yourself uncovered an ongoing personal matter that you were dealing with and your performance was overlooked during the period of January 2019 to March 2019.

During a discussion with Charmaine Blair you requested urgent leave to finalise the personal matter and this was granted. It was informally agreed at this time that upon returning from leave, expectations regarding your work performance would return to normal.

Upon returning on the 2nd April, it was noticed that constant errors were still occurring. An audit of all employee’s performance was conducted on ad-hoc days between 8th and 13th April, to audit staff across all roles and shift times.

This audit showed that you have failed to meet the requirements of employment with Prosegur.

• The number of basic errors was up to ten times the amount of your peers.

• These errors cause constant complaints from customers and colleagues. During the audit period four documented complaints were received from the customer, TfNSW, peers, other work units and the National Service Manager.

During the performance management meeting conducted this week on the 24th April, all the documented errors were discussed, and you agreed that the majority of errors did occur. You were unable to provide a reasonable excuse to explain this as short term behavior.

This situation puts significant pressure on the NSC Team and affects the customer service levels, which in turn, puts Prosegur’s business at risk.

As a result of this situation, you are receiving this written warning. A document explaining the minimum performance expectations of each role has been given to you. Over the next month further training will be provided to ensure you are confident and fully competent in the role.

Now that the concerns have been brought to your attention, please treat this with absolute seriousness to warrant no further incidences of a similar nature will reoccur.

Failure to comply with this will result in further disciplinary action which may result with the termination of employment. Should you require any further information about this process please contact me.

(my emphasis)

k) There was a performance discussion in August 2019. The notes of the meeting record the following,

Performance Management Review:

Sathi Rajan Report: 05 August 2019

Summary: During January to March 2019 it was noted that there were constant errors by Sathi. This was verbally brought to his attention and it was understood he was dealing with a significant personal issue and assured us that performance would improve.

Upon returning to work after urgent leave was granted, it was noted that although the personal issue had been resolved the work performance did not improve. I think conducted a full review of job performance for all staff members, to ensure no bias. The review took place between the 8th and 13th April. During the review it was discovered that four of the staff had less than five errors during this time, one staff member had twenty errors and Sathi had over thirty errors. Both low performing staff members were counselled for ticket quality, Sathi was one of them.

As well as ticket quality not adhered to, more importantly Priority 1 procedures were not followed and our customer complained.

Progress :

P1 Gate Array Issues:

4th April – P1 Gate Array documentation not followed. Documentation provided to all staff in December 2019. The mistake was documented to Sathi during formal allegation meeting in April. The process was verbally repeated to all staff. In response to the allegation meeting Sathi emailed “8. P1 Gate Array I shall do it correctly”.

After allegation meeting, all staff advised that P1 documentation was printed and sitting on team desk. The team notice board was updated with bold and clear instructions of process. An Intranet site included all documented procedures for P1 with a link from main database (DM5) to make finding information easy. All staff given informal verbal quiz of how to manage P1 scenarios.

21 June – P1 Gate Array process not followed. Sathi was emailed to review process documents and advise errors. In email response he advised he ‘did not understand mistake’. Fault was explained in an email and his response was that his colleagues make the same mistake too.

5 July – P1 Gate Array event @ 08:05. Process is to send email within ten minutes and call TfNSW within 30 mins. Email was sent at 08:55 and call made at 08:47.

12 July – Gate Array Down – sent technician for job that is to be resolved by Cubic, waste of resource.

P1 Burglary Issues:

During April allegation meeting Sathi was provided with documented evidence showing he was not following the P1 Burglary process. Incidents were being missed and alarms were being cleared without investigating source. On Wednesday 17th April, Sathi and I had a training session to go through all allegations and where the fault was made.

Again, all documentation for P1 Burglary process was hard copy provided to all staff, on Intranet and in folder on top of shared desk.”

l) It was contended by the Respondent’s witnesses that the Applicant was provided with a second warning letter dated 19 August 2019. The Applicant denied receiving the letter. The Respondent’s witnesses were unable to establish that the warning letter dated 19 August 2019 was provided to the Applicant. I find that it was not.

m) On 30 July 2019 the Applicant was provided with a letter (Second Written Warning) in the following terms,

Dear Sathi,

This letter is in regards to numerous complaints from our customers and other departments due to your failure to follow basic procedures. These failures have led to frustrations from our customers and internal staff members and have severely impacted resolution times for business critical issues, particularly around raising Priority 1 incidents with Transport NSW. It is expected that members of staff are able to follow basic instructions that are outlined in our numerous procedure documents and that failure to do so constitutes a breach of employment.

We would like to refer you to a Priority 1 incident that was raised by yourself on the 9th of July. During this incident you did the following:

• Waited until the end of your shift to raise an issue that had been occurring from approx.

10:00A M.

• In the email sent to Cubic you acknowledged that the issue had been occurring "since before 11am"

• In the document that you have sent to Cubic and the senior levels of Transport NSW you failed to remove a previous explanation of a previous issue from the Priority 1 document. This then lead to further confusion from both Cubic and Transport NSW as to what the actual Priority 1 issue was. This then required further follow up from your colleagues as you had left for the day. This shows a severe lack of attention to detail on your behalf.

In addition to the above specific example, there have been numerous cases of failing to communicate with our customers or internal staff members correctly. We have had reports of the following:

• Failure to notify Transport NSW of a Priority 1 incident

• Failure to raise a Transport NSW DGC Priority 1 incident

• Failure to contact a station to investigate a burglary report.

• Failure to let the Device Deployment Team know of a new install, send a "go live" email, and that the initial tests had been completed. Advised never knew of process which was implemented November 2018 with appropriate learning documents.

As a member of the NSC it is expected that you follow all guidelines and procedures that have been documented for your day to day job. Continued failure in this area will result in further disciplinary actions and may result in the termination of your employment.

As a result of this situation, you are receiving this written warning and are being placed on a Performance Improvement Plan.

Now that the concerns have been brought to your attention, please treat this with absolute seriousness to warrant no further incidences of similar nature will reoccur.

Should you require any further information about this process please contact me.

Yours sincerely,

Phillip Stevens
National Service Center Supervisor

n) A meeting occurred to discuss the contents of the Second Written Warning. The minutes of the meeting record the following,

Hi Phil,

Meeting: 30 July @ 12:30 - 12:52

Attendees:

Sathi Rajan

Charmaine Blair

Phillip Stevens

- Emailed meeting request @ 10:07 on 30 July. Invited to bring Support person to meeting. Did not respond to email

- Advised complaints have been received from both internal and external customers and Sathi was receiving a Warning Letter and will be placed on a Performance Management Plan.

- Advised main issue is customer escalation due to incorrect application of P1 process

- Advised that internal customers have complained that lack of completing his role results in more work for colleagues

- Advised that if performance issues continue that it may result in termination of employment

- Sathi responded that this was his second warning. Phil then advised that the system of three warnings before termination does not apply. Phil explained the process for the Performance Management Plan and advised that if Sathi's performance continued to cause customer escalations then this would result in a termination of his employment.

- The Performance Management Plan was explained and advised a meeting with Charmaine and Sathi will take place every Friday for a minimum of 1 hour. A training matrix would be provided and he would need to sign off on the training to confirm he is 'confident' with the process and expectations.

- Sathi responded that he is not purposely trying to make mistakes, which Phil and Charmaine confirmed we did not believe he was intentionally making mistakes. He was advised that the Friday training sessions would outline very clearly any errors and what improvements were expected.

- Sathi was provided with the Letter of Warning, which he read, signed and was given a copy

Regards,

Charmaine

o) I find that between, 30 July 2019 (the date of the Second Written Warning) and 15 May 2020 (a period of 10 months), the Respondent did not formally raise any performance issues with the Applicant.

p) On 15 December 2019 the Applicant had a heart attack.

q) Between 15 December 2019 - 31 December 2019 the Applicant was absent from work on sick leave.

r) Between 1 January 2020 - 13 January 2020 the Applicant was on annual leave (albeit still convalescing from his heart attack).

s) In or around February 2020 the Applicant was moved to the Respondent’s Central depot. He was the only Device Monitoring Specialist at Central.

t) Because the Applicant was the only Device Monitoring Specialist at Central, when he needed to take a break he would notify his supervisor. The Supervisor would let TfNSW know. TfNSW would take over the monitoring during the Applicant’s breaks.

u) On 1 February 2020 Mr Phillip Stevens began monitoring the Applicant’s performance. He collected evidence that he later provided to Ms Blair.

v) The Applicant says that on 5 February 2020 he emailed Mr Stevens (Mr Stevens denies this) about starting his shift late on 11 February 2020 so that he could attend a rehabilitation session. He further says that on 7 February 2020, as Mr Stevens did not respond to him, he called him on (Mr Stevens denies this). The Applicant says that Mr Stevens agreed that he could start late on 11 February 2020. Below I detail what happened on 11 February 2020. The text message sent by the Applicant on 11 February 2020 is highly suggestive that the phone call on 7 February 2020 did not occur. I am not satisfied that the Applicant received any permission from Mr Stevens to be late on 11 February 2020.

w) On 7 February 2020 the Applicant:

i. was meant to start work at 9.00 am.

ii. arrived at work at early at 8.40 am.

iii. logged into the DGC (the Respondent’s monitoring program) around 8.45 am.

iv. noticed some missed monitoring events that occurred before the start of his shift.

v. called Mr Steve Giouris (Device Monitoring Specialist) around 9.00 am and advised him that he had noticed the faults, but that his computer had now gone into restart mode.

vi. logged the faults when his computer came back online.

vii. did not notify his supervisor, Phillip Stevens, about not being online at 9.00am. Before me , the applicant conceded that he was required to notify his supervisor, he did not notify his supervisor and, consequently, he breached policy.

x) Also on 7 February 2020 Mr Bruce Stevens from TfNSW (i.e. the Respondent’s client) emailed at 9.12 am asking if anyone was monitoring the system. At 9.23 am Mr Bruce Stevens sent a follow up email noting that the faults had not been acknowledged and no tickets had been issued.

y) On 10 February 2020 the Applicant worked and noticed that some faults had not been logged the previous day. The Applicant logged them with a Cubic reference number (known as an IMC number) and not a “Prosegur” reference number (known as a DCG Code). Before me, Ms Caylock contended that this was another example of the Applicant failing to follow procedure. I reject the contention. The Respondent failed to prove the allegation. There is nothing in the procedure document that established that the Applicant did anything wrong on 10 February 2020.

z) On 11 February 2020 at 8.18 am the Applicant sent a text message to Mr Stevens in the following terms,

“I shall start work at 10 and finish at 6 as I am at hospital.”

I accept that this this was the first time that Mr Stevens became aware that the Applicant would be late on 11 February 2020. Had the Applicant informed Mr Stevens earlier (as the Applicant claimed he did on 5 and 7 February 2020), Mr Stevens would have ensured that the client (TfNSW) was advised. The Applicant only left Mr Stevens less than 40 minutes to make alternative arrangements. None could be made. TfNSW had to monitor its own devices during this time. The Applicant’s short notice was unacceptable.

aa) On 18 March 2020 the Applicant:

i. worked from 9.00 am to 5.00 pm.

ii. despite denying the having missed any monitoring events in his Witness Statement (Exhibit 3), before me the Applicant conceded that he did not follow the correct procedure and missed monitoring events.

bb) On 25 March2020 the Applicant:

i. was concerned about travelling on public transport to work due to his personal health and COIVD-19. He advised Mr stevens of this via text message at 7:54am

ii. at 7.57 am Mr Stevens replied to the Applicant seeking clarification as to if he was attending work. At 8:04am the Applicant asked if he was required to attend work.

iii. was advised by Mr Stevens at 8:06am, that the Respondent is an essential part of the work force.

iv. at 8:06am the Applicant advised Mr Stevens he would ‘go to work now’.

v. arrived at work late.

cc) On 7 April 2020 the Applicant contends he:

i. woke at 6.00 am and felt unwell.

ii. decided to not attend works so he could go to the Doctors.

iii. rang the general office number for the Respondent at around 6.30 am and spoke with Mr Giourgis.

iv. claims that:

A. Mr Giourgis put the call through to Mr Stevens (Mr Stevens denies this).

B. he told Mr Stevens he was feeling unwell (Mr Stevens denies this).

C. Mr Stevens told him “that’s fine” (Mr Stevens denies this).

v. attended the Doctor and received a medical certificate that he provided to the Respondent at 10.29 am.

dd) Also, on 7 April 2020 Mr Bruce Stevens from TfNSW sent an email to Mr Stevens asking if the Applicant was coming into work. At 9.40 am Mr Phillip Stevens sent a text to the Applicant asking “are you coming in to work?” At 9.42 am the Applicant responded “I am at the doctors waiting to see my turn has not come yet I will check with the doctor and let you know asap.”

ee) In relation to the allegation that the Applicant did not advise his supervisor of the planned illness in advance, I am unable to accept the Applicant’s account. He usually dealt with Mr Stevens via text or a call to his mobile. On this occasion the Applicant called the general work line. It makes no sense that he did so. I accept that the Applicant may have made the call. I do not accept that he was put through to Mr Stevens. Had he been put through to Mr Stevens it would make no sense that Mr Stevens would send a text at 9.40 am asking if the Applicant was coming in. I reject the evidence of the Applicant.

ff) On 8 April 2020, because of concerns about his health and COVID-19 the Applicant commenced a period of authorised leave.

gg) On 14 May 2020 in, an act of subterfuge, the Applicant was asked by Mr Grant to “come in for a shift” on 15 May 2020. There was never any intention that Mr Rajan work a shift on 15 May 2020. It was all a rouse to get him to come to work so that he could be given a second letter of allegations.

hh) On 15 May 2020

i. the Applicant attended work.

ii. he attended a meeting with Ms Blair.

iii. Ms Blair handed the Applicant a letter (dated 13 May 2020).

The letter read,

“Between the period of 1st February - 1st May you were monitored by your Supervisor who has confirmed the below incidents.

1. 07/02 - Could not login, no monitoring done but did not advise colleagues, customer or supervisors.

2. 11/02 - Late advice to change start time - resulted in customer having to continue monitoring as too late to arrange other options.

3. 18/03 - Customer escalated as multiple monitoring events missed.

4. 25/3 - Late to shift

5. 07/04 - Did not advise Supervisor that had not started work and would be late. Customer reported multiple monitoring events missed, called Supervisor who had to chase you up over an hour later to discover you were late to work.

The issue of constantly not following agreed and documented process has been an ongoing issue. It was deemed the position at Central Station was a role that reverted back to simple tasks that were part of your fundamental skill set when you joined Prosegur. Constantly throughout the last few months the processes for these simple tasks were not followed. This resulted in intervention by your Supervisor and very often complaints made by our largest customer, TfNSW.

The more serious issue of abandoning your position and not informing anyone also happened regularly during this monitoring period.

Before we finalise this matter, we consider it important to give you the opportunity to raise any factors that you consider should be considered prior to the Company terminating your position.

We propose to meet with you at 10:30am on Tuesday 19th May 2020. If you believe that the Company has overlooked any relevant factors, you should let us know at this meeting. You are entitled to have a witness/support person of your choosing (other than a legal representative) present at the meeting should you so wish.

Should your position be terminated on Tuesday 19th May, the Company does not require you to work any of your notice period, so Tuesday 19th May 2020 will be your last working day.

We confirm that, pending any discussions on Tuesday 19th May 2020, your entitlements will be directly deposited into your nominated bank account.

In the meantime, please do not hesitate to contact Charmaine Blair or myself if you have any questions.”

ii) The letter was signed by Gavin Lynch, Prosegur’s National Workplace Relations Manager. Mr Lynch played no active role in the proceedings. He was not a witness. The only time we heard from him was when he took himself off mute during the evidence of Ms Blair and demanded to be heard. I denied him the opportunity. It was a quite extraordinary and inappropriate interjection. Unbecoming conduct before the Commission by a National Workplace Relations Manager.

jj) The meeting on 15 May 2020 was a short meeting. However, the Applicant did tell Ms Blair that he disagreed with the 5 points in the letter (without further explanation).

kk) On 19 May 2020 Ms Blair met again with the Applicant. There is a factual contest about what occurred at the meeting.

Mr Rajan’s account was as follows:

Ms Blair: “This meeting is in relation to terminating your employment at Prosegur. Do you have anything you wish to say?”

Mr Rajan: “I informed you on 15 May, that the five points stated in the letter are not true.”

Ms Blair: “As I said previously, we have verified the five points stated in the letter.”

Mr Rajan: “Can you please provide the records of the missed monitoring events? I do not feel I can properly respond without knowing which monitoring events you are referring to.”

Ms Blair: “I have all the evidence. and if you decide to contact Fair Work it will be provided”

Mr Rajan: “The five points in the letter are not true.”

Ms Blair: “We have reached the decision that we are letting you go and your termination will be effective from today ... we will finalise your entitlements.”

Ms Blair’s account was as follows:

“82. As arranged, I met with Sathi on Tuesday 19 May 2020 at 10.30am.

83. When he walked into the room, he immediately started handing over his badges. He said that he had a question about his pay while he had been on leave recently. I was taken aback. I said ‘don’t you want to discuss the letter and go through the points?’ He replied ‘no’ firmly.

84. I had brought my manila folder of documentation with me to the meeting and had been expecting to go through this with him. I referred to the folder and said that if he chose to go to Fair Work I had this. Sathi did not respond other than to ask when he would be paid his final pay. I said today would be his final day and he would be paid in the next pay cycle

I have read Sathi’s witness statement and his version of this meeting in paragraph 13 is completely untrue in the following respects:

(a) I did not say “this meeting is in relation to terminating your employment”. I did not mention termination until the end of the meeting as stated above;

(b) He did not say “the 5 points in the letter are not true”. As stated above, he refused to discuss the letter at all;

(d) He did not say that he did not feel that he could properly respond without knowing which monitoring events I was referring to.

85. The meeting did not even last for 10 minutes.

86. It is incorrect to say that Sathi could not respond. He did not ask for any further information in either meeting. Had he done so I would have provided it and in fact this is what I had expected which is why I had brought the manila folder with documentation with me. Also, the emails are a web browser that he has access to. Also, if had wanted to discuss or get any information he could have called me prior to the meeting on 19 May 2019 and he could have gone through his emails if he had wanted to. Also, the issues had been raised with him at the time they occurred so he was aware of them.

ll) It is not uncommon for people attending the same meeting to come away from it with different versions of events. It does not mean that either person is not telling the truth. Most witnesses remember what was important to them. Most witnesses have a bias towards an account that puts them in the best light.

However, in the present matter, I am inclined to more readily accept the account put forward by Ms Blair. The following exchange, before me, lends me to this conclusion.

Ms Caylock: Mr Rajan, in this meeting on the 19th your job is on the line, it's clear from the letter of the 15th that termination of your employment is the likely outcome. Why would you not have spent those four days either asking for more information, putting together your information and saying to Ms Blair these points are not right for all the reasons that you included a short time later in your unfair dismissal application?

Mr Rajan: I did say I didn't have the information, but the reason is I felt that whatever I said is not being heard and there's no - there's always one side, and I think my side of the story is never heard, and I feel that the termination was already - already done as per the meeting. That's the message I got.

I find that Mr Rajan attended the meeting on the 19th fully expecting that his employment would be terminated. He thought it was a fait accompli. It likely was. Noting Ms Blair’s instance that she had all the evidence to take to “Fair Work”, I cannot imagine there is anything Mr Rajan could have said to change her mind and the inevitable course of events that was always going to lead to the termination of his employment at the end of the meeting on 19 May 2020.

mm) At the end of the meeting Ms Blair provided a (pre-prepared) letter of termination to the Applicant.

nn) The Applicant was paid 3 weeks in lieu of notice.

oo) On 20 May 2020 the Applicant returned his uniform to the Respondent. He confirmed the same by text to Ms Blair at 9.05 am.

pp) The Applicant is 48 years old. He is married and has two children under the age of 18 years. His wife does not work.

qq) The Applicant has a mortgage and personal debts.

rr) While the Applicant has looked for work since his dismissal from Prosegur, he has not applied for any positions.

ss) When he was dismissed the Applicant was earning $65,000 per annum.

Preliminary matters

[10] In the present matter it was common ground (and I am satisfied that):

a) The Applicant was protected from unfair dismissal. 1

b) The Respondent dismissed the Applicant. 2

c) The Respondent is not a small business with the consequence that the Small Business Fair Dismissal Code is not relevant. 3

d) The Applicant’s dismissal was not a case of genuine redundancy. 4

[11] Although the Application wasn’t made within the period required in subsection 394(2) of the FW Act, as discussed above I am satisfied that exceptional circumstances exist that warrant granting the Applicant an additional period of 1 day to lodge his Application.

[12] Having considered each of the initial matters, I am now required to consider the merits of the Applicant’s application.

Was the dismissal harsh, unjust or unreasonable?

[13] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

[14] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 5

[15] I set out my consideration of each below.

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

[16] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 6 and should not be “capricious, fanciful, spiteful or prejudiced.”7 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.8

[17] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.⁹ “The question of whether the 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. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 10

[18] I have set out my findings of fact above. Coming then to whether there was a valid reason for the dismissal.

a) Allegation 1 - 07/02 - Could not login, no monitoring done but did not advise colleagues, customer or supervisors.

The Applicant conceded in the hearing that he did not advise his supervisor that he was unable to login. 11

I find Allegation 1 proved.

b) Allegation 2 - 11/02 - Late advice to change start time - resulted in customer having to continue monitoring as too late to arrange other options.

This allegation was recast by Ms Caylock as an example of a lack of communication.

My findings of fact above establish that allegation 2 is proved.

c) Allegation 3 - 18/03 - Customer escalated as multiple monitoring events missed.

The Applicant conceded during the hearing that he missed monitoring events. 12

I find Allegation 3 proved.

d) Allegation 4 - 25/3 - Late to shift

This allegation was recast by Ms Caylock as an example of a lack of communication.

The findings of fact above establish that at 8.06 am Mr Stevens knew that the Applicant was at home (an address that Mr Stevens had written to in correspondence). He summised that the Applicant lived about 1 hour away by public transport. Accordingly, by 8.06 am the Applicant was already going to be late for work. Mr Stevens either knew this or ought to have been above to work it out. Mr Stevens was no notice that the Applicant would be late. Mr Stevens could have notified the client.

I find allegation 4 not proved.

e) Allegation 5 - 07/04 - Did not advise Supervisor that he had not started work and would be late. Customer reported multiple monitoring events missed, called Supervisor who had to chase you up over an hour later to discover you were late to work.

My findings of fact above establish that allegation 5 is proved.

f) The issue of constantly not following agreed and documented process has been an ongoing issue.

Noting that there was no performance management of the Applicant after 30 July 2019 I am unable to accept that the Applicant “constantly” did not follow agreed and documented processes. The generalised nature of the allegation was not supported by the evidence.

g) The more serious issue of abandoning your position and not informing anyone also happened regularly during this monitoring period

On what date it is said the Applicant abandoned his position was never put to the Applicant. No evidence of abandonment was lead before me.

[19] I have found that out of the 5 particularised allegations 4 of them are supported by the evidence. The generalised allegations are not supported by the evidence. The lack of particularisation made it impossible to find that they constituted valid reasons for termination.

[20] Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to the Applicant’s performance concerning his compliance with polices of the Respondent.

Was the Applicant notified of the valid reason?

[21] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 13 and in explicit14 and plain and clear terms.15

[22] I find that, in relation to Allegations 1, 3 and 5 notice was given to the Applicant. In relation to Allegations 2 and 4 they were recast as communication issues. They were not put that way to the Applicant. He did not have notice that the Respondent had recast them that way. In relation to the generalised allegations, no proper notice was given.

[23] Having regard to the matters referred to above, I find that the Applicant was only partially notified of some of the reasons for his dismissal prior to the decision to dismiss being made.

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

[24] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 16

[25] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 17 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.18

[26] First, noting the recasting of Allegations 2 and 4, which were not communicated to the Applicant, it necessarily follows that he was not provided with an opportunity to respond to the recast allegations.

[27] Secondly, there is a factual dispute about what occurred during the meeting on 19 May 2020. Above I have indicated that I prefer Ms Blair’s account. However, that does not mean that the Applicant was given an opportunity to respond to the valid reasons. Mr Rajan approached the meeting on 19 May 2020 in a defeated fashion. He assumed that his employment was about to be terminated. There was good reason for him to feel that way.

[28] I am not satisfied that Ms Blair approached the meeting with an open mind. She was belligerent in her view that the Applicant had been performance managed, trained and warned. Nothing that the Applicant could have said to her on 19 May 2020 would have changed her mind. She had the letter of termination pre-prepared. It was inevitable that Ms Blair would sack Mr Rajan on 19 May 2020.

[29] If Ms Blair genuinely wanted to provide the Applicant with an opportunity to respond she would have approached the meeting in an entirely different fashion. First, she would have given him her folder of evidence when she gave him the letter on 15 May 2020. She would have insisted that they went through all the issues. She did not. She would have taken a considered time to assess Mr Rajan’s answers. Her finding in relation Allegation 4 (which I haver found not proved) evidences her closed mind.

[30] Having regard to the matters referred to above, I find that the Applicant was not given a genuine opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.

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

[31] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[32] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”19

[33] In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[34] A mere exhortation for an employee to improve their performance would not be a sufficient warning. 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. 20

[35] In this matter it is clear there was much exhortation for the Applicant to approve. Ms Blair’s evidence is replete with generalised and editorialised assertions about informal performance discussions. Very little of it is supported by evidence.

[36] Prior to 30 July 2019 the Applicant received 2 warnings. Thereafter, for 10 months, he was not performance managed. He was entitled to believe that his performance had improved in the eyes of his employer.

[37] In all the circumstances, I find that the Respondent did not adequately warn the Applicant of his unsatisfactory performance before dismissal. He was not put on notice that his employment was at risk (except in one piece of correspodence10 months earlier).

Impact of the size of the Respondent on procedures followed and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(f); (g)

[38] The size of a Respondent’s enterprise may impact on the procedures followed by it in effecting a dismissal. Further, the presence of dedicated human resource management or expertise in a Respondent’s enterprise should ensure a higher standard of management of human resources. That did not occur in this matter. The procedural flaws I have identified above should not have occurred. The Respondent’s National Workplace Relations Manager, Mr Lynch, would be well advised to play a more active role in performance management and dismissal decisions. He would also be well advised to check letters that are sent out under his hand. The letter of 13 May 2020 was an appalling example of a letter of allegations.

[39] In this matter the Respondent has an in-house human resource function. In all the circumstances of this case I regard this element of s.387 as a neutral consideration in respect of whether the dismissal of the Applicant was harsh, unjust or unreasonable.

What other matters are relevant? - s.387(h)

[40] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. I consider the following matters to be relevant:

Matters that support a finding of unfairness

a) the Applicant’s age and family responsibilities;

b) the Applicant’s financial situation;

c) termination of employment during a pandemic that has seen unemployment rise.

Matters that go against a finding of unfairness

d) the need to service his client’s in a professional manner;

e) the lack of effort by the Applicant to mitigate his loss.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[41] I have made findings in relation to each matter specified in section 387 as relevant.

[42] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 21

[43] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was:

a) unjust, because the Applicant was not guilty of all of the conduct alleged against him;

b) unreasonable, because the evidence or material before the employer did not support all of the conclusions it reached (for example, there was simply no evidence to support a conclusion that the Applicant abandoned his position); and

c) harsh on the Applicant due to the economic and personal consequences resulting from being dismissed (especially during a period of increasing unemployment).

Conclusion

[44] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.

Remedy

[45] Being satisfied that the Applicant:

a) made an application for an order granting a remedy under section 394;

b) was a person protected from unfair dismissal; and

c) was unfairly dismissed within the meaning of section 385 of the FW Act,

I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.

[46] Under section 390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:

(a) I am satisfied that reinstatement of the Applicant is inappropriate; and

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

Is reinstatement of the Applicant inappropriate?

[47] The Applicant seeks compensation as the primary remedy. Regardless of the remedy sought by the Applicant, s.390 of the FW Act requires I first determine whether reinstatement is appropriate before I may consider an order for compensation.

[48] The Applicant contends that reinstatement is not appropriate because of the deterioration in the working relationship. The Respondent contends that reinstatement is also not appropriate because it has lost trust and confidence in the Applicant.

[49] Having considered the submissions I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.

Is an order for payment of compensation appropriate in all the circumstances of the case?

[50] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…” 22

[51] However, in all the circumstances of this matter, I consider that an order for payment of compensation is appropriate because of the significant procedural defects in the Respondents performance management, disciplinary and dismissal processes. Those defects have visited a great unfairness on Mr Rajan.

Compensation – what must be taken into account in determining an amount?

[52] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:

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

(b) the length of the Applicant’s service;

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

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

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

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

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

[53] I consider all the circumstances of the case below.

Effect of the order on the viability of the Respondent’s enterprise

[54] There is no dispute and I am satisfied that an order for compensation would not have an effect on the viability of the employer’s enterprise.

Length of the Applicant’s service

[55] The Applicant’s length of service was just short of two years.

[56] I consider that the Applicant’s length of service does not support reducing or increasing the amount of compensation ordered.

Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed

[57] As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the FW Actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the FW Actual termination.” 23

Submissions

[58] In his written submissions the Applicant submitted that his employment would have been likely to continue for a further period of at least 26 weeks and the amount of remuneration that the Applicant would have received or would have been likely to receive during that period is $32,500. However, in closing submissions before me Mr Garan indicated that “due to the cross-examination on my client, what happened today, I am of the view that three months would be a fair amount, especially … taking into consideration that the process was harsh.” 24

[59] The Respondent submitted that the Applicant’s employment would likely only have continued for a further period of one week “because of the range of factors, including the length of time over which these issues have been occurring and the consistency. The fact that there was no longer a role at Central.” 25

[60] I find that had the Respondent adopted a fairer process in May 2020, properly particularised the range of allegations against the Applicant, provided him with evidence of his deficiencies, provided him with adequate time to prepare a defence; met with him, given him a final warning and then reviewed the process, he would likely have remained in employment for a further 8 weeks after 19 May 2020. During that time the Applicant would have earned 8 x $1,250 = $10,000.

[61] I make this finding, because its seems to me that the Applicant would likely not have improved his performance after a final (third) warning. Even before me, he lacked insight into his wrong-doing. Whilst he finally made some concessions, they were not easily obtained. He genuinely thought there was no valid reason for his dismissal. For the reasons above I disagree. The Applicant demonstrated a lack of awareness of the situation he found himself. I am not confident that would have changed.

Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal

[62] The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal. 26 What is reasonable depends on the circumstances of the case.27

[63] Looking for work (which the Applicant did) is not the same as actively applying for work (which the Applicant did not). Even during a pandemic, when there is rising unemployment, the Applicant should have made a greater effort to mitigate his loss. I am not satisfied that the Applicant took reasonable steps to mitigate his loss, which warrants a reduction of 10%.

Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation

[64] The Applicant was paid 3 weeks’ notice. He has not earned any other remuneration.

[65] I am satisfied that the amount of remuneration earned by the Applicant from employment or other work during the period since the dismissal is $3,750.

Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the FW Actual compensation

[66] This is not a relevant consideration.

Other relevant matters

[67] I do not consider there to be relevant matters.

Compensation – how is the amount to be calculated?

[68] As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg). 28 This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages29.”30

[69] The approach in Sprigg is as follows:

Step 1: Estimate the remuneration the Applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the FW Actual amount he or she would have received if they had continued in their employment.

Step 1

[70] I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated the employment to be $10,000 on the basis of my finding that the Applicant would likely have remained in employment for a further period of 8 weeks. This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”. 31

Step 2

[71] I have found that the amount of remuneration earned by the Applicant from the date of dismissal was $3,750, and that the amount of income reasonably likely to be earned by the Applicant between the making of the order for compensation and the payment of compensation is not relevant.

[72] Only monies earned since termination for the anticipated period of employment are to be deducted. 32 I therefore deduct the sum of $3,750 from $10,000. This leaves a balance of $6,250.

Step 3

[73] I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment. 33 Noting the short period of 8 weeks, I do not apply any contingencies.

Step 4

[74] I have considered the impact of taxation but have elected to settle a gross amount of $6,250 and leave taxation for determination.

[75] Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case,” 34 including my findings that there should be 10% reduction because of the Applicants lack of effort to mitigate his loss. This leaves a compensation balance of $5,625.

[76] I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the FW Act.

Compensation – is the amount to be reduced on account of misconduct?

[77] This was not a misconduct case. This consideration is not relevant.

Compensation – how does the compensation cap apply?

[78] Section 392(5) of the FW Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:

(a) the amount worked out under section 392(6); and

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

[79] The amount worked out under section 392(6) is the total of the following amounts:

(a) the total amount of the remuneration:

(a) received by the Applicant; or

(ii) to which the Applicant 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 Applicant 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 Applicant for the period of leave in accordance with the regulations.

[80] The Applicant was not on leave without pay or without full pay during the 26 weeks immediately before the dismissal.

[81] There was no dispute and I find that the total amount of the remuneration received by the Applicant during the 26 weeks immediately before the dismissal was $32,500.

[82] The high income threshold immediately before the dismissal was $ $148,700. Half of that amount is $74,350.

[83] The amount of compensation ordered by the Commission must therefore not exceed $32,500.

[84] In light of the above, I will make an order [PR725418] that the Respondent pay $5,625 gross less taxation as required by law to the Applicant in lieu of reinstatement within 21 days of the date of this decision.

COMMISSIONER

Appearances:

D Garran of Berrigan Doube Lawyers for the applicant
S Caylock of Rigby Cooke Lawyers for the respondent.

Hearing details:

2020.
Sydney (by video).
September 23.

Printed by authority of the Commonwealth Government Printer

1 s.382 of the FW Act.

2 s.385(a), s.386 of the FW Act.

3 s.385(c) of the FW Act.

4 s.389 of the FW Act.

5 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

6 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

7 Ibid.

8 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

9 Edwards v Justice Giudice [1999] FCA 1836, [7].

10 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

11 Transcript PN284.

12 Transcript PN434.

13 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

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

15 Ibid.

16 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

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

18 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

19 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

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

21 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

22 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].

23 He v Lewin [2004] FCAFC 161, [58].

24 Transcript PN1138.

25 Transcript PN1148.

26 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].

27 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.

28 (1998) 88 IR 21.

29 [2013] FWCFB 431.

30 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].

31 Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].

32 Ibid.

33 Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].

34 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].

Sathiasothilingeswaran Rajan v Prosegur Australia Pty Ltd