Somchai Chimlum v Phoenix Combat Sports Pty Ltd T/A Phoenix Gym

[2016] FWC 5282

[2016] FWC 5282

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Somchai Chimlum
v
Phoenix Combat Sports Pty Ltd T/A Phoenix Gym
(U2015/17061)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 3 AUGUST 2016

Application for relief from unfair dismissal - jurisdictional objection - small business employer, dismissal was consistent with the Small Business Fair Dismissal Code - application dismissed.

[1] On 23 December 2015 Mr Somchai Chimlum (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by Phoenix Combat Sports Club Pty Ltd T/A Phoenix Gym (the Respondent) on 14 December 2015 was unfair.

[2] In its Form F3 – Employer Response to Unfair Dismissal Application the Respondent raised a jurisdictional objection, objecting to the application on the basis that it was a small business and that Mr Chimlum’s dismissal was consistent with the Small Business Fair Dismissal Code (the Code).

[3] The Fair Work Commission (the Commission) issued Directions on 4 May 2016 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the matter.

[4] The application was heard on 7 and 8 June 2016. At the hearing, Ms Melanie Soliveres, the Applicant’s wife, appeared for Mr Chimlum, while Mr William Ward appeared with permission for the Respondent. Mr Chimlum gave evidence on his own behalf, together with Ms Soliveres; Mr Gareth Rees, the owner of a kickboxing school called Chopper Muay Thai; Ms Lisa Styles, a former student of the Respondent; and Mr Lucas Brischetto, Manager of the Stockade Training Centre (a gym to which Mr Chimlum provides services on a contractual basis). Messrs Rees and Brischetto and Ms Styles were not required for cross examination. Mr Anthony Manning, the Respondent’s Managing Director; Ms Amanda Nolan-Smith, a coach and administrator with the Respondent; and Mr Lee Fook, a coach and trainer with the Respondent, all gave evidence for the Respondent.

[5] For the reasons set out below, I have found that Mr Chimlum’s dismissal was consistent with the Code and that, as such, his dismissal was fair. Mr Chimlum’s application is therefore dismissed.

Background

[6] Mr Chimlum commenced employment with the Respondent in February 2012 as a full time Muay Thai kickboxing coach and trainer. In July 2014 Mr Chimlum became a permanent part-time employee and from 19 January 2015 he was employed as a casual. Across the period of his employment with the Respondent, Mr Chimlum received a number of written warnings regarding his performance.

[7] On 12 December 2015 the Respondent was scheduled to hold its annual awards presentation night and Christmas party, where among other things coaches present awards to their students. Earlier that day as he was leaving work Mr Chimlum confirmed that he would be attending the event as he was scheduled to present a boxing award. At around 4.40pm that afternoon, Mr Chimlum sent Mr Manning the following text message:

“Hi Anthony I am sorry I can’t come because we need to pic [sic] up baby stuff at Fyshwick and Melanie friend come to visit her and me Enjoy Xmas and see you Monday kap” 1

[8] By way of background, Ms Soliveres was in the late stages of pregnancy in December 2015.

[9] Mr Manning responded to Mr Chimlum’s text message as follows:

“Thats is aweful. I am very disappointed. That is a big let down and you are not doing well to be a part of Phoenix. This will effoect your employment and i am sorry you can not understand how important these things are for the gym.
You could pick up baby stuff any Other time.” 2 (Text as per original)

[10] Mr Chimlum responded:

“I just come late. I understand I come alone Melanie is very tired. I late don’t worry but come?” 3

[11] Mr Manning replied at 5.10pm:

“Dont bother somchai, you obviously dont care. So just stay at home.”

[12] Despite Mr Manning’s second text message, Mr Chimlum nevertheless attended the function. Mr Chimlum remained at the function for a short period and when he left advised Mr Manning and others that he had to leave as he had to go home and look after Ms Soliveres as she was sick.

[13] Later that evening Mr Manning received a text message from Ms Nolan-Smith advising him that she had seen Mr Chimlum and Ms Soliveres at the George Harcourt Inn attending the Christmas party of one of the Respondent’s competitors, Chopper Muay Thai. This prompted Mr Manning to send Mr Chimlum the following text at 8.09pm that evening:

“So you left to go to Chopper muay thai xmas party? Yes? We will talk about your job on MONDAY when I calm down but if you are there. Don’t bother trying to explain it to me.” 4 (Formatting as per original)

[14] On 14 December 2015 Mr Manning first met with Ms Nolan-Smith to discuss what she saw at the George Harcourt Inn on 12 December 2015 and subsequently met with Mr Chimlum when he presented for work. Following this discussion, which Mr Fook attended as an observer, Mr Chimlum was summarily dismissed. The termination letter stated, inter alia, that:

“14 December 2015

Employee: Somchai Chimlum

NOTICE OF EMPLOYEE TERMINATION

This letter is to advise you that your employment with Phoenix Combat Sports Pty Ltd is terminated.

This is effective immediately. … As your employment category was permanent casual you are not entitled to any payment after the termination date and no notice is required to terminate your employment.

…

As the owner of Phoenix Combat Sports I expect my staff to have integrity, honesty and to be loyal to Phoenix. The reason for your employment termination is that you have lied to me and acted in a manner that wouldn’t bring disrepute to Phoenix. You have been dishonest to myself and the other by telling lies and being disloyal. Loyalty to your club, your employer and your fellow coaches is critical to a positive working relationship and you have proven that you cannot be trusted or relied on.” 5

The statutory framework

[15] The Commission exercises its powers in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. The relevant provisions from Part 3-2 of the Act are set out below.

“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.

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.

388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[16] The Code declared by the Minister pursuant to s.388(1) of the Act is as follows:

“Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

Was the Applicant’s dismissal consistent with the Code?

[17] It was not disputed that the Respondent was a small business employer as per s.23 of the Act, with the Respondent stating in its Form F3 and Mr Manning deposing in his witness statement 6 that the Respondent employed nine employees at the time Mr Chimlum was dismissed7. Accordingly, the threshold issue to be determined in this case is whether Mr Chimlum’s dismissal was consistent with the Code. If it was, by virtue of s.385(c) of the Act the dismissal was not unfair and Mr Chimlum’s application will be dismissed. If, however, I find that Mr Chimlum’s dismissal was not consistent with the Code, then I will need to consider whether his dismissal was harsh, unjust or unreasonable. I will deal with the threshold issue first.

The Applicant’s case

[18] In his written submissions 8 Mr Chimlum provided a comprehensive overview of his work history with the Respondent and the events leading up to his dismissal on 14 December 2015. At the hearing, Mr Chimlum submitted, inter alia, that:

• Mr Manning had no right to ask him what he was doing in his own time, adding that from the time he left the Respondent’s function on 12 December 2015 he was in his own time;



• he did not lie as he was caring for Ms Soliveres on 12 December 2015 given that he was with her nor did he lie about going baby shopping because that was the original plan;



• he did not lie on 14 December 2015 about being at the Chopper Muay Thai Christmas party, particularly as Ms Nolan-Smith had seen him there;



• Mr Manning had already made up his mind to dismiss him and had the termination letter ready prior to their meeting on 14 December 2015; and



• he did not believe that he had been dismissed for lying but because he had developed a relationship with Ms Soliveres which meant that he could not spend as much time as before working for free for the Respondent.

[19] In his witness statement 9 Mr Chimlum set out key aspects of his employment history with the Respondent. With regard to the events of 12 December 2015, Mr Chimlum deposed that Ms Soliveres did not want to go to the function at Mr Manning’s house because it was too far from the nearest hospital and that as a result both of them did not want to be at Mr Manning’s house should the baby decide to be born. Mr Chimlum further deposed that he and Ms Soliveres had intended to go to the Chopper Muay Thai Christmas party after they had gone shopping for the baby. Mr Chimlum also set out the exchange of text messages between himself and Mr Manning on 12 December 2015. Beyond this, Mr Chimlum deposed that on 14 December 2015:

• Mr Manning was waiting for him when he arrived at work;



• when asked by Mr Manning he confirmed that he had gone to the Chopper Muay Thai Christmas party;



• he denied lying to Mr Manning; and



• Mr Manning gave him his training bag and another piece of paper which he took to mean that he was no longer working for the Respondent so he left and went home.

[20] Key aspects of Mr Chimlum’s oral evidence were that:

• on 12 December 2015 he had told various people that he was going to the Respondent’s function;



• he did not want to attend the Respondent’s function but did not know what to do as he wanted to care for his wife;



• he did not plan to go to any shop but thought that he could go anywhere he liked as it was his own time, adding that he considered his text message stating that he planned to go shopping for the baby to be true;



• in the light of Mr Manning’s first text message of 12 December 2015 he decided not to go to the baby shop but go instead to the Respondent’s function;



• before he went to the Respondent’s function he felt that his wife needed him and that she might be sick;



• he decided on the day that in his opinion his wife was sick;



• he left the Respondent’s function after receiving a call from his wife that she was ill and that her friend was not there;



• when he arrived home his wife was not there;



• he then called his wife who advised that her illness was not that bad and that she would see him at the Chopper Muay Thai Christmas party;



• he was not aware of the Chopper Muay Thai Christmas party until he called his wife, adding that he was just focused on his wife’s wellbeing;



• he had attended the Chopper Muay Thai Christmas party not because he planned to attend but because his wife was there and he needed to be there to look after her;



• he had not intended to go to the Chopper Muay Thai Christmas party but only did so because his wife was there;



• he knew earlier that the Chopper Muay Thai Christmas party would be held that night;



• it was always his intention to go to the Chopper Muay Thai Christmas party, adding that he could go anywhere he liked in his own free time;



• despite it always being his intention to go to the Chopper Muay Thai Christmas party, his text message to Mr Manning about going shopping for the baby was not a lie and that he had not lied when he told Mr Manning that he had to leave the Respondent’s function to care for his wife as it was his intention to be where ever she was;



• on 14 December 2015 Mr Manning asked to have a discussion with him when he arrived at work;



• when asked by Mr Manning where he went on Saturday evening he responded that he went to the Chopper Muay Thai Christmas party, though he subsequently attested that his first response was that he went home;



• he was given an opportunity to respond to the issues raised by Mr Manning but he chose not to explain;



• he understood that his job was at risk;



• Mr Manning did not take any steps to deny him having a support person attend the discussion on 14 December 2015;



• Mr Manning only went and got the termination letter after he had provided him (Mr Chimlum) with an opportunity to respond;



• Mr Manning explained that he had been terminated for lying; and



• he understood what Mr Manning had said.

[21] Ms Soliveres’ viva voce evidence included that:

• she had planned to do some baby shopping with a friend on 12 December 2015 and that when Mr Chimlum decided to stay with her that became his plan as well; and



• she knew that in not attending the Respondent’s function Mr Chimlum could get into trouble.

[22] In his witness statement 10 Mr Rees deposed among other things that he had invited Mr Chimlum to the Chopper Muay Thai Christmas party as his personal friend and not because he was working for or employed by Chopper Muay Thai. Ms Styles and Mr Brischetto in their respective witness statements11 in effect provided references for Mr Chimlum. Their witness statements did not provide any evidence regarding Mr Chimlum’s dismissal.

The Respondent’s case

[23] The Respondent submitted 12 that the evidence in this case showed that Mr Manning genuinely held a belief that Mr Chimlum had engaged in serious misconduct by deliberately lying to him and that he had more than reasonable grounds for this belief based on both Ms Nolan-Smith’s evidence and the meeting he held with Mr Chimlum on 14 December 2015. The Respondent, based on Ms Nolan-Smith’s witness statement, also contended that Mr Chimlum admitted that he had deliberately lied to the Respondent. Against that background, the Respondent submitted that the dismissal was in accordance with the Code. In support of its submissions regarding the Code, the Respondent relied on the Full Bench decision in Pinawin v Domingo13. The Respondent further submitted, among other things, that even if the Commission determined that the dismissal was not in accordance with the Code that it was not unfair as it had a valid reason to dismiss Mr Chimlum given the importance placed on honesty in the employment relationship. In support of that contention, the Respondent relied on the decision of the majority of the Full Bench in Streeter v Telstra Corporation Ltd14.

[24] In his witness statement 15 Mr Manning provided a brief overview of the events of 12 December 2015. Beyond this, Mr Manning deposed, among other things, that:

• as with many martial arts they are not just sports but also entail various cultural attributes such as loyalty and respect, with these attributes set out in the Respondent’s Code of Conduct 16 and applying not only to the Respondent’s training staff but also to its members;

on 14 December 2015 he met with Ms Nolan-Smith in order to obtain further details about what she had witnessed in relation to Mr Chimlum attending the Chopper Muay Thai Christmas party, with Ms Nolan-Smith confirming that she saw Mr Chimlum and Ms Soliveres at the function and that the latter looked “fine”;

he subsequently met with Mr Chimlum, with Mr Fook also in attendance;

when he asked Mr Chimlum where he went after he left the Respondent’s function on 12 December 2015, Mr Chimlum initially responded that he went home to see his wife but later confirmed that he did go to the Chopper Muay Thai Christmas party;

he regarded the deliberate lying by Mr Chimlum to be a serious breach of his duties as an employee and to constitute misconduct, adding that Mr Chimlum’s dishonesty had destroyed all trust in him such that his employment could not reasonably continue any longer; and

after the discussion on 14 December 2015 he asked Mr Chimlum to wait where he was while he went to his desk and printed the termination letter which he subsequently handed to Mr Chimlum.

[25] Key aspects of Mr Manning’s oral evidence were that:

• Mr Chimlum had received five written warnings for different issues;



• it was not mandatory for employees to attend the Respondent’s presentation night and Christmas party, though staff were strongly encouraged to attend;



• he did not threaten Mr Chimlum’s employment when he said in his text message of 12 December 2015 “This will effoect your employment”, adding that he meant it would have an effect on his employment but that he had not determined what effect it would have;

• Mr Chimlum had never once mentioned that he could not attend the Respondent’s function as he had something else on or could not come or had double arrangements or a conflicting issue;



• Mr Chimlum’s employment was terminated for lying, adding that he believed on reasonable grounds that Mr Chimlum had lied to him and that he could not have someone who had lied to him represent both him and the Respondent in front of the Respondent’s members;



• Mr Chimlum had lied when he said to him that he had to leave the Respondent’s function because Ms Soliveres was sick, yet he did not go home to look after Ms Soliveres but went out to dinner with her at the Chopper Muay Thai Christmas party;



• he was angry about Mr Chimlum attending the Chopper Muay Thai Christmas party not because he attended the party but because he lied to him about the reason why he left the Respondent’s function when he said “Mel’s sick. I have to leave”;



• other staff of the Respondent knew that Mr Chimlum had lied to him;



• Ms Nolan-Smith had advised him weeks in advance that she had a clash on 12 December 2015; and



• while he had drafted the termination letter prior to his meeting with Mr Chimlum on 14 December 2015 he had not decided to dismiss Mr Chimlum prior to that meeting, adding that the reason for the meeting was to give Mr Chimlum a chance to explain himself and explain something that he may not have known or something about the situation of which he was not aware.

[26] Ms Nolan-Smith deposed in her witness statement 17 that Mr Chimlum had lied to her and her partner when he said he was leaving the Respondent’s function to go home because his partner was sick. Ms Nolan-Smith further deposed that on 14 December 2015 she:

• confirmed to Mr Manning that she had seen Mr Chimlum at the Chopper Muay Thai Christmas party on the previous Saturday evening;



• overheard the discussion between Mr Manning and Mr Chimlum, adding that she recalled Mr Manning asking Mr Chimlum to explain himself regarding the previous Saturday night with Mr Chimlum responding that he had to leave because his partner was sick; and



• when pressed, Mr Chimlum said that he had gone the Chopper Muay Thai Christmas party to look after his partner.

[27] In her oral evidence, Ms Nolan-Smith attested among other things that when she arrived at the George Harcourt Inn on the evening of 12 December 2015 she was surprised to see Mr Chimlum and his partner there as Mr Chimlum had said his partner was sick. Ms Nolan-Smith further attested that Ms Soliveres did not look sick at all when she saw her.

[28] In his witness statement 18 Mr Fook described the meeting of 14 December 2015 between Mr Manning and Mr Chimlum which he attended as an observer. In short, the description of the meeting in Mr Fook’s witness statement was consistent with both Mr Manning’s and Ms Nolan-Smith’s evidence regarding the meeting. Mr Fook further deposed that he was certain that Mr Chimlum had lied to him on 12 December 2015 about his wife being sick. In response to a question from the Commission, Mr Fook stated that he considered that at the meeting of 14 December 2015 with Mr Manning, Mr Chimlum had been given a fair opportunity to explain his version of events, adding that after Mr Manning asked a question Mr Chimlum was given an opportunity to respond and explain himself.

Consideration of the issues

[29] Prior to considering the issues, I wish to highlight that there were a number of significant inconsistencies in key aspects of Mr Chimlum’s evidence. For example, Mr Chimlum initially attested that he was not aware of the Chopper Muay Thai Christmas party despite deposing in his witness statement that he and his wife had always intended to attend that function. When this inconsistency was pointed out to Mr Chimlum he initially attested that he only attended the Chopper Muay Thai Christmas party because his wife was there and he wished to care for her though he eventually conceded that he had in fact always intended to attend that function. I note that there were also other inconsistencies which arose during the course of Mr Chimlum’s oral evidence. Against that background, I have significant reservations about the reliability of Mr Chimlum’s evidence.

[30] The summary dismissal aspect of the Code was considered by the Full Bench in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services 19(Ryman) which determined that it operated in the following way:

“[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates in the following way:

(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.

(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.”

[31] As it was not disputed that Mr Chimlum had been summarily dismissed, the initial issue identified in Ryman is satisfied. As such, the “Summary dismissal” section of the Code applies.

[32] As stated in Ryman, “In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.” I turn now to consider those issues.

[33] In this case, Mr Manning’s evidence was that Mr Chimlum had been dismissed for lying to him and that:

• he considered this to be a serious breach of Mr Chimlum’s duties as an employee and to constitute misconduct;



• Mr Chimlum’s dishonesty had destroyed all trust in him such that his employment could not reasonably continue any longer; and



• he could not have someone who had lied to him represent both him and the Respondent in front of the Respondent’s members.

[34] Based on the material before the Commission, I consider that Mr Manning genuinely held the belief that Mr Chimlum’s conduct warranted immediate dismissal based on the Respondent’s Code of Conduct which emphasises loyalty and respect. The genuineness of that belief is further demonstrated by the fact that Mr Manning had drafted the termination letter in advance of his meeting with Mr Chimlum on 14 December 2015, though he had not at that stage determined to dismiss Mr Chimlum.

[35] The following considerations are relevant in determining whether or not Mr Manning’s view was based on reasonable grounds when objectively assessed. First, when Mr Chimlum advised Mr Manning as he left work on 12 December 2015 that he would attend the Respondent’s function he made no mention of having to go to Fyshwick to pick up items for the baby. Second, when Mr Chimlum left the Respondent’s function he advised Mr Manning and others that he had to leave because his wife was sick, yet when he arrived home she was not there and said that she would meet him at the Chopper Muay Thai Christmas party. Finally, there is Ms Nolan-Smith’s advice that Ms Soliveres looked fine when she saw her on the evening of 12 December 2015. Taken together, these considerations support a finding that Mr Manning’s view was based on reasonable grounds. As an aside, I note that as a casual employee Mr Chimlum was not entitled to any period of notice under either the Act or the Fitness Industry Award 2010 20.

As to whether the Respondent in this case carried out a reasonable investigation into the matter, the material before the Commission indicates that:

• Mr Manning first spoke to Ms Nolan-Smith on 14 December 2015 to obtain further details of what she saw at the George Harcourt Inn on the night of 12 December 2015;



• Mr Manning subsequently spoke to Mr Chimlum to provide him with an opportunity to explain himself; and



• only after speaking to both of the above persons did he decide to dismiss Mr Chimlum.

[36] Against that background, I am satisfied that the Respondent did carry out a reasonable investigation into the matter.

[37] The above analysis supports a finding that Mr Chimlum’s dismissal was consistent with the Code, i.e. that his dismissal was fair.

[38] In view of that finding, I do not need to consider whether Mr Chimlum’s dismissal was harsh, unjust or unreasonable.

Conclusion

[39] For all the above reasons, I find that Mr Chimlum’s dismissal was consistent with the Code and that, as such, his dismissal was fair.

[40] An order dismissing Mr Chimlum’s application will be issued in conjunction with this decision.

Appearances:

M. Soliveres for the Applicant.

W. Ward for the Respondent.

Hearing details:

2016.

Canberra:

June 7 and 8.

 1   Exhibit 9 at Attachment N

 2   Ibid

 3   Ibid

 4   Ibid

 5   Ibid at Attachment O

 6   Exhibit 1 at paragraph 9

 7   Form F3 – Employer Response to Unfair Dismissal Application at Item 1.7

 8   Exhibit 9

 9   Exhibit 4

 10   Exhibit 5

 11   Exhibits 6 and 7

 12   Exhibit 8

 13 (2012) 219 IR 128

 14 (2008) 170 IR 1

 15   Exhibit 1

 16   Ibid at Annexure A

 17   Exhibit 3

 18   Exhibit 2

 19   [2015] FWCFB 5264

 20   MA000094

Printed by authority of the Commonwealth Government Printer

<Price code C, PR583634>