Thidart Wongkhosawan v Majestic Mushrooms Pty Ltd

[2017] FWC 3974

[2017] FWC 3974

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thidart Wongkhosawan
v
Majestic Mushrooms Pty Ltd
(U2017/1216)

Thridsadi Rose
v
Majestic Mushrooms Pty Ltd

(U2017/1224)

DEPUTY PRESIDENT KOVACIC CANBERRA, 28 JULY 2017

Applications for relief from unfair dismissal - harsh, unjust or unreasonable – dismissals found to be fair, applications dismissed.

[1] Ms Thidart Wongkhosawan and Mr Thridsadi Rose (the Applicants) lodged applications under s.394 of the Fair Work Act 2009 (the Act) which were received by the Fair Work Commission (the Commission) on 6 February 2017 alleging that the termination of their employment by Majestic Mushrooms Pty Ltd (the Respondent) on 19 January 2017 was unfair.

[2] On 25 May 2017 the Respondent submitted an amended Form F3 – Employer Response to Unfair Dismissal Application in respect of each application in which it raised a jurisdictional objection to the applications. Specifically, the Respondent contended in its revised responses that it was a small business employer and the dismissals were consistent with the Small Business Fair Dismissal Code (the Code), adding that it had reasonable grounds to believe that the Applicants’ conduct was sufficiently serious to justify immediate dismissal.

[3] The jurisdictional objections and merits of the applications were heard on 8 and 9 June 2017. At the hearing, Mr Gary Pinchen appeared with permission for the Applicants and Ms Prue Bindon of Counsel appeared with permission for the Respondent.

[4] The Applicants gave evidence on their own behalf, while the following gave evidence for the Respondent:

• Mr Ian Chu, a Director of the Respondent;



• Mrs Helen Chu, also a Director of the Respondent;



• Ms Sedarumony Peang, an employee of the Respondent;



• Mr Wilson Khou, Mr and Mrs Chu’s nephew and occasional helper at the Respondent’s mushroom farm; and



• Mr Winai Wirotrat, the Respondent’s Picking Supervisor.

[5] Ms Wongkhosawan, Ms Peang and Mr Wirotrat all gave evidence via interpreters.

[6] The Respondent’s witnesses provided separate witness statements in respect of each application, with those witness statements being in similar if not identical terms.

[7] For the reasons outlined below, I have found that the Applicants’ dismissals were not harsh, unjust or unreasonable. Accordingly, their applications are dismissed. An order to that effect will be issued in conjunction with this decision.

Background

[8] The Applicants, who are married to each other, commenced employment with the Respondent as casual piece rate mushroom pickers on 30 November 2015.

[9] In January 2016 the Respondent had an outbreak of dry bubble disease, a serious disease which affects mushrooms and makes them unusable. This resulted in changes to the Respondent’s hygiene and control processes and necessitated a heightened emphasis on those factors. A further outbreak of dry bubble disease occurred in late June 2016. Also in 2016, there were several customer complaints and returns related to the quality of mushrooms delivered to them, with many of the boxes involved picked by the Applicants.

[10] Beyond this, based on the material before the Commission, it appears as though there were tensions between the Applicants and Mr Wirotrat and his wife. Those tensions came to a head in December 2016 when Mr Wirotrat made a complaint against the Applicants and Mr Rose made a complaint of bullying and harassment by Mr Wirotrat. Mr and Mrs Chu separately met with the Applicants and Mr Wirotrat on 20 December 2016 to discuss their respective complaints and on 23 December 2016 prior to going overseas advised both the Applicants and Mr Wirotrat that their investigation of the complaints would continue upon their return from overseas.

[11] While overseas, the Respondent received a letter from Go Troppo, one of its largest customers in Canberra, complaining that B-grade and diseased mushrooms had been put in their A-grade boxes. That letter which was signed by Go Troppo’s Managing Director on 11 January 2017 read as follows:

“This letter is to confirm my recent complaint to Ross, your driver, regarding the extremely poor quality of your mushrooms, especially in the last few weeks. In September last year, we have returned many boxes to you due to poor quality, and you have managed to show improvement. However, every time a complaint is raised, you request to have the pickers numbers identified. It is becoming obvious that the same pickers (#11 & #12) are always identified. Please note that my staff would pack your loose mushrooms into 250g pre-packed containers for restaurants, and they generally find the top layers acceptable. But as they work through the top layer, the remaining mushrooms in the box are absolutely appalling! You cannot pass second grade mushrooms or mushrooms with diseases as A-grade quality. Furthermore, some of the flat mushrooms are wet and slimy, and we cannot use the full box. However, we always get charged the full price.

Please note that we have been in business with you since you first started your farm, and we order on average 300 boxes per week. If this unprofessional practice continues, we do not have a choice but to cease our business relationship. This would be unfortunate considering our long-term business, but I have to uphold my business reputation, even if it means seeking an alternative mushroom supplier. Please make corrective actions as necessary.” 1

[12] It was not disputed that pickers #11 and #12 were the Applicants.

[13] Mr Chu met with the Applicants in the cool room on 18 January 2017 to discuss the boxes of mushrooms returned by Go Troppo as a result of the concerns set out in the above letter.

[14] Mr and Mrs Chu convened a meeting with the Applicants on 19 January 2017 to discuss the above complaint. The Applicants were summarily dismissed at that meeting.

The Applicant’s case

[15] The Applicants submitted that their dismissals were obviously harsh, unjust and above all unreasonable, contending that they were denied a ‘fair go’ and that a remedy should therefore be applied by the Commission. As to remedy, the Applicants contended that reinstatement would not be appropriate in this case as there had been a fundamental breakdown in the relationship of trust between the parties. As such, the Applicants submitted that it would be most appropriate in the circumstances for the Commission to award compensation for loss of income.

[16] At the hearing the Applicants did not dispute that there had been group meetings convened and group warnings issued but submitted that the number of warnings given had been exaggerated and that there was no evidence of individual warnings being issued to the Applicants. The Applicants also submitted that it was illogical for the Respondent to have kept employing them in circumstances where their actions would have put the business at risk. The Applicants also questioned why issues had only arisen in respect of Go Troppo and contended that the Respondent had made up its mind to dismiss them prior to the meeting of 19 January 2017.

[17] The Applicants did not address the Respondent’s jurisdictional objections in their written or oral submissions. When this was noted by the Commission at the hearing, the Applicants disputed that there was a reasonable basis for the Respondent to believe that the Applicants’ conduct was sufficiently serious to justify immediate dismissal. In support of that contention, the Applicants alluded to Mrs Chu’s evidence when asked when the decision to terminate the Applicants had been made and her response that on returning from overseas she was mentally exhausted from the quarrelling between Mr Wirotrat and the Applicants. As to the number of employees employed by the Respondent as at the termination date, the Applicants did not hazard a guess but referred to the Respondent’s initial Form F3’s which stated that the Respondent employed 16 casual employees as at the date of the Applicants’ dismissals.
[18] Mr Rose in his witness statement 2 set out the chronology of events across the course of 2016 and leading up to his dismissal on 19 January 2017. Among other things, Mr Rose deposed that while employed by the Respondent he had never received any warnings, written or verbal, for performance or conduct. Mr Rose also deposed that:

• in January 2016 after an outbreak of dry bubble disease he received training from Dr Warwick Gill from the University of Tasmania and Ms Judy Allan from the Australian Mushroom Growers Association about the proper procedures to prevent the spread and outbreak of the disease;



• he attended a number of all staff meetings, contending that none of those meetings were directed at himself and Ms Wongkhosawan;



• he did not recall attending a meeting on 21 September 2016 at which a complaint made by Go Troppo about “putting rubbish mushrooms in their boxes” was discussed;



• he disputed that he and Ms Wongkhosawan refused to follow instructions given by Mr Wirotrat;



• on 17 December 2016 he emailed a complaint to Mr Chu regarding the treatment he was receiving from Mr Wirotrat, adding that he met with Mr and Mrs Chu on 20 December 2016 to discuss that complaint;



• over the period 23 December 2016 to 18 January 2017 while Mr and Mrs Chu were absent overseas no mention was made to either him or Ms Wongkhosawan about mushrooms having been rejected by customers or about customer complaints;



• on 18 January 2017 Mr Chu called both he and Ms Wongkhosawan to inspect some mushrooms that had been rejected by customers and which Mr Chu said they had packed;



• both he and Ms Wongkhosawan were called into a surprise meeting on 19 January 2017 at which Mrs Chu indicated that the Respondent had received calls from customers regarding the poor quality of mushrooms that had been delivered to them, contending that this was the first he had heard about the complaints; and



• he and Ms Wongkhosawan walked out of the meeting after about 15 minutes as it was clear that the Respondent had made up its mind to dismiss them.

[19] In his oral evidence Mr Rose disputed a number of elements of Mr Chu’s, Mrs Chu’s, Mr Wirotrat’s and Ms Peang’s witness statements, particularly as they related to warnings which they deposed had been given to him and Ms Wongkhosawan. Key aspects of Mr Rose’s oral evidence were that:

• he had not received any warnings, either individually or in a group context, during his employment with the Respondent, though he later attested he probably did receive warnings as part of the group of employees;



• he did not dispute that he and Ms Wongkhosawan had been trained;



• he did have issues with Mr Wirotrat relating to his character and bullying type behaviour, adding that Mr Wirotrat rarely spoke to him and did not give him orders;



• he had never heard of the Go Troppo issue until he received the Respondent’s response to his unfair dismissal application, later responding that he was speechless when questioned about the above Go Troppo letter;



• he had concerns about the comprehensiveness of the transcript of his 20 December 2016 meeting with Mr and Mrs Chu;



• he disputed Mr Chu’s description of their conversation in the cool room on 18 January 2017, contending that Mr Chu had not raised the quality of mushrooms that had been packed but only issues relating to how the mushrooms had been packed which prompted his response that he thought he could do it that way;



• the boxes of mushrooms shown to him by Mr Chu on 18 January 2017 had been returned because of browning as they may have been left in the heat for too long, acknowledging that this was not reflected in his witness statement and that he did not offer that explanation at the meeting of 19 January 2017;



• at the meeting of 19 January 2017 he knew that the Respondents had made up their minds to dismiss he and Ms Wongkhosawan as Mrs Chu had two white pay envelopes in her hand at the meeting, adding that while he did talk over Mrs Chu he had been “shut down” every time he tried to speak;



• the transcript of that meeting was a “sham”; and



• he and Ms Wongkhosawan followed Mr Wirotrat’s instructions, describing Mr Wirotrat’s claim that in August 2016 he and Ms Wongkhosawan would either do the opposite or ignore his instructions as “heavily exaggerated”.

[20] Ms Wongkhosawan’s witness statement 3 was in similar terms to Mr Rose’s. In her oral evidence Ms Wongkhosawan attested, inter alia, that:

• in preparing her witness statement she spoke to Mr Rose and he translated her words into her witness statement, later attesting that she understood her witness statement but not the transcript of the meeting of 19 January 2017;



• Mr and Mrs Chu had never spoken to her about her work or indicated to her that she would lose her job unless she improved;



• Mr and Mrs Chu had never spoken to her about Go Troppo returning mushrooms;



• on 18 January 2017 both she and Mr Rose were shown boxes of mushrooms in the cool room which they had picked, with Mr Chu alleging that they were including bad mushrooms in the box as well as not taking care of the mushrooms as well as they should have;



• also with regard to that meeting, Mr Chu did not specify that it had been her and Mr Rose that had done wrong, adding that this was the first occasion the issue of the quality of mushrooms had been raised with them, that when Mr Chu opened the boxes the mushrooms looked old, that they had not packed the boxes that way and that she did not know why the boxes had been returned;



• she disputed that she and Mr Rose had mixed A-grade and B-grade mushrooms together;



• boxes marked pickers #11 and #12 had been filled by both her and Mr Rose;



• at the meeting of 19 January 2017 Mrs Chu had two envelopes with their final pays in her hands;



• she followed instructions;



• she had seen the various signs displayed around the workplace 4 but they had never been explained to her;



• she had not made up the claim in her witness statement that a number of other employees’ sections were also affected by the reoccurrence of dry bubble disease in late June 2016;



• throughout the year a number of boxes would be returned and they would be shown to employees, adding with regard to September 2016 that while she could not recall the date the boxes were returned and that the picker numbers were not shown;



• regarding paragraphs 27 and 28 of her witness statement which concerned Mr Rose’s meeting of 20 December 2016 with Mr and Mrs Chu regarding his complaint, given that she did not attend the meeting her evidence was based on what Mr Rose told her had been discussed.

[21] When asked by the Commission how she confirmed the accuracy of her witness statement, Ms Wongkhosawan attested that she can read/understand English to a certain extent.

The Respondent’s case

[22] The Respondent submitted that as at 19 January 2017 it employed 16 casual employees comprising 14 casuals who may be classified as regular and systematic because they generally had an expectation of working every week and were expected to be available seven days a week and 2 casuals who would be classified as irregular because they were sporadically offered some hours with no ongoing expectation of work every week. The Respondent therefore contended that it was a small business employer.

[23] As to compliance with the Code, the Respondent submitted that the Commission should find that it had complied with the Code on the basis that it had reasonable grounds for believing that the Applicants’ conduct was sufficiently serious to justify immediate dismissal, adding that the evidence demonstrated that was in fact the case. More specifically, the Respondent submitted that the evidence demonstrated that:

• the Applicants were prepared to act wilfully or deliberately in contravention of the Respondent’s direction to follow practices and procedures essential for its operations; and



• such breaches placed the Respondent’s product and customer relationships at serious and imminent risk.

[24] The Respondent further submitted that if for any reason the Commission was not satisfied that the Code either applied or had been complied with it should nevertheless reject the Applicants’ claims that their dismissals were unfair. Among other things, the Respondent contended that it had a valid reason for the dismissals relating to the conduct of the Applicants in persistently failing to comply with directions to follow essential practices and procedures. As to remedy, the Respondent agreed that reinstatement would be unworkable for all parties.

[25] At the hearing, the Respondent submitted inter alia that:

• its evidence regarding the September 2016 all staff meeting following the initial Go Troppo return should be preferred over the Applicants’ evidence concerning that meeting, particularly in respect of the identity of the pickers involved being revealed at the end of the meeting;



• inconsistencies between the Applicants’ evidence cast serious doubts regarding the reliability of that evidence, adding that the Respondent’s evidence was consistent with their witness statements and corroborated by a number of people;



• Ms Wongkhosawan’s witness statement should be disregarded because it was prepared with the assistance of Mr Rose;



• it was undisputed that both Applicants had received training and guidance and were therefore fully aware of how to pack mushrooms, the Respondent’s hygiene procedures, the implications for the business of not complying with those procedures and that failure to follow those procedures would warrant summary dismissal;



• in the all staff meetings, all procedures were explained and demonstrated in English, then translated by Mr Wirotrat in Thai and Mrs Chu in Khmer;



• when Mr Chu spoke to the Applicants in the cool room on 18 January 2017, neither Applicant disputed that the boxes had their picker numbers on them or contained mixed quality mushrooms;



• there was no evidence to question the legitimacy of the Go Troppo letter of 11 January 2017;



• the Applicants’ claim at the meeting of 19 January 2017 that they did not know they could not do that was implausible given that they had been employed for 14 months, had agreed they had been trained in the correct processes and agreed that there were multiple meetings reiterating proper procedures; and



• each of the warnings given to staff were the same, with the Applicants warned following the initial return by Go Troppo and dismissed after the most recent return from Go Troppo.

[26] Mr Chu in his witness statements 5 provided a chronology of events over 2016 and leading up to the Applicants’ dismissals on 19 January 2017. Among other things, Mr Chu deposed that on 18 January 2017 he checked the boxes of mushrooms in the cool room and noticed that mushrooms picked by the Applicants contained yet again poor quality mushrooms, adding that only the top layer were A-grade mushrooms. Mr Chu further attested that he called the Applicants into the cool room to explain the poor quality and how they were packed, with Mr Rose saying “everyone does it”. Also in his witness statements Mr Chu summarised the considerations which he and his wife took into account in deciding to dismiss the Applicants. Those considerations included the following:

• the Applicants had engaged in consistent and repetitive breaches of policy and not following their supervisor’s (Mr Wirotrat) instructions;



• the Applicants had received warnings from Mr Wirotrat on 30 April, 25 May, 29 June and 15 August 2016 and from he and his wife on 29 June, 2 July, 25 August, 30 August, 21 September, 1 October, 15 December, 20 December and 23 December 2016 regarding their performance;



• the Applicants had been given sufficient time to take corrective action but failed to show adequate improvement and at times seemed to have a disregard for the Respondent’s procedures to safeguard hygiene and quality;



• Mr Rose’s complaint against Mr Wirotrat was lodged shortly after Mr Wirotrat had put a formal note to Mr and Mrs Chu about the Applicants’ underperformance and consistent and repetitive breaches of hygiene policies and procedures, adding that based on the Respondent’s preliminary investigation of Mr Rose’s complaint the allegations lacked factual evidence to support them;

• following the meeting of 23 December 2016 the Applicants had been given a verbal final warning that dismissal would be the consequence of continued disregard of instructions and proper procedures; and



• the customer complaints received about the Respondent’s mushrooms most frequently identified the Applicants’ picker numbers.

[27] Finally, Mr Chu deposed that he and his wife met with the Applicants on 19 January 2017 to discuss their conduct and the Respondent’s decision that their actions warranted summary dismissal. Mr Chu’s evidence was that there was nothing said by the Applicants at that meeting which mitigated their conduct or convinced the Respondent that it should reconsider the decision to terminate their employment with immediate effect.
[28] Key aspects of Mr Chu’s oral evidence were that:

• no warnings were issued in writing and that he generally gave verbal warnings, adding that the majority of warnings were given in group sessions though some were given specifically to the Applicants in the shed;



• the Respondent did not normally receive returns until the Go Troppo incident in September 2016;



• he was not sure if a warning had been given following the all staff meeting of 28 May 2016;



• despite the numerous warnings given to the Applicants they were not dismissed as it was sometimes better to keep staff rather than having to hire and train new employees, particularly given the difficulties in sourcing staff in regional Australia;



• he could not recall whether he mentioned Go Troppo at the meeting of 21 September 2016; and



• with regard to the meeting of 19 January 2017, the Respondent wanted to hear what they had to say but had the Applicants’ pays made up just in case.

[29] In her witness statements 6 Mrs Chu deposed among other things that:

• the Respondent employed farmhands and pickers under the Horticulture Award 2010 7;



• as at 19 January 2017, the Respondent employed 14 regular and systematic casual employees and 2 irregular casual employees;



• neither she nor Mr Chu were employees of the Respondent, adding that they did not draw any wages;



• the Applicants were present during the outbreak of dry bubble disease in January 2016 and participated in the subsequent period of rigorous training;



• she was aware of issues relating to the Applicants from about April or May 2016 as Mr Wirotrat had raised concerns with her and Mr Chu regarding their failure to follow instructions, adding that there was also a recurrence of dry bubble disease in the Applicant’s picking sections at about that time;



• on 30 August 2016 she held an all staff meeting at which she gave everyone a warning to either work together or leave as it was important that the workplace was harmonious given the trust which the Respondent placed in employees;



• around 20 September 2016 Go Troppo Fruit Market rejected some of the Respondent’s mushrooms which had been poorly graded, adding that in essence A-grade button mushroom boxes contained some B-grade or spotted diseased mushrooms mixed underneath at the bottom of the box;



• she noted that many of the returned boxes were picked by the Applicants and two other pickers;



• around that time a consignment of mushrooms had been downgraded from A-grade to B-grade by the Respondent’s agent in Sydney due to a similar issue;



• the following day she held a meeting with all staff to explain why the mushrooms had been rejected, adding that at that meeting she and Mr Chu warned all staff again that if they found anyone “putting rubbish mushrooms in their boxes” that they would “sack them immediately”;



• a week later Go Troppo again rejected boxes due to quality issues, with approximately 11 of the 16 returned boxes having been picked by the Applicants;



• a meeting of all staff was held on 1 October 2016 to discuss Go Troppo’s latest rejection at which she gave specific warnings to the Applicants and three other pickers about the quality of their mushrooms;



• she was aware of tensions between the Applicants and Mr Wirotrat;



• on 17 December 2016 Mr Chu received a complaint from Mr Rose alleging workplace bullying and harassment by Mr Wirotrat;



• she and Mr Chu met with Mr Rose on 20 December 2016 to discuss his complaint;



• at the all staff meeting on 23 December 2016 both Mr Wirotrat and his wife and the Applicants were warned that if one more unreasonable problem arose, whether bickering or performance-based, that it would result in immediate dismissal;



• upon their return from overseas in mid-January 2017 there was a letter from Go Troppo which complained of B-grade and diseased mushrooms having been put in their A-grade boxes and pointing to the fact that the rejected boxes were packed by the Applicants;



• on 18 January 2017 Mr Chu examined the boxes in the cool room and discovered some very bad quality packing in the Applicants’ boxes, adding that the mushrooms had not been packed properly and beneath the top layer of A-grade mushrooms were B-grade mushrooms;



• as part of his final check of the farm that night Mr Chu discovered diseased mushrooms included in the Applicants’ boxes;



• she and Mr Chu met with the Applicants the following morning to discuss their conduct; and



• at that meeting the Applicants were advised that due to the seriousness of their actions in “putting rubbish and whatever they want” into the boxes and their inadequate response as to why they did this that the Respondent could no longer trust them to do the right thing by the business and that their actions warranted summary dismissal.

[30] In her oral evidence, Mrs Chu explained the material provided in her witness statement regarding the number of employees employed by the Respondent 8. Beyond that, Mrs Chu attested among other things that:

• she processes the payroll for employees;



• at the all staff meeting of 1 October 2016 which occurred after the second return from Go Troppo, she went through each returned box and explained what was wrong with the box and at the end turned the boxes around to identify who the pickers were;



• also at that meeting she said explicitly to the Applicants, albeit in a group setting, that if they continued to put rubbish like that in their boxes they would be given fewer sections to pick or be dismissed;



• she considered immediate dismissal appropriate given all the warnings the Applicants had received, adding that everyone has a limit and the discovery on 18 January 2017 of diseased mushrooms in the boxes that the Applicants had picked was it and that she was exhausted from dealing with all the tensions between the Applicants and Mr Wirotrat and his wife;



• while Mr Wirotrat as a supervisor was paid on a piece rate basis the same as everyone else he had the most sections to pick of all employees;



• returns were rare other than in 2016;



• the pay envelopes given to the Applicants at the meeting of 19 January 2017 were their normal pays and not their termination pays;



• Mr Wirotrat was not as bad as Mr Rose in respect of quarrelling;



• warnings had been given to Mr Wirotrat on 30 August and 23 December 2016;



• she noticed from August 2016 that the Applicants were ignoring Mr Wirotrat’s instructions;



• at the all staff meeting in late September 2016 after the first return from Go Troppo she did mention Go Troppo, acknowledging that Mr Chu did not do so;



• Go Troppo purchased about 300 boxes of mushrooms per week from the Respondent;



• she was not aware of the warnings given to the Applicants by Mr Wirotrat until 20 December 2016 when she and Mr Chu met with Mr Wirotrat to discuss his complaint;



• in retrospect the Respondent should have dismissed the Applicants before it did, adding that the reason it did not do so because it wanted to give them a chance to take corrective action and because in the past the Applicants’ performance had improved when issues were raised with them; and



• the tipping point occurred on the evening of 18 January 2017 when Mr Chu discovered diseased mushrooms in boxes packed by the Applicants and returning from overseas to find the Go Troppo complaint pointing to the Applicants packing B-grade mushrooms below A-grade mushrooms.

[31] In his witness statements 9 Mr Khou described an argument between Mr Rose and Mr Wirotrat in early December 2016 during which Mr Rose said something like “You are not my f..king supervisor.” Mr Khou also deposed that he was asked by Mr and Mrs Chu to take notes at their separate meetings on 20 December 2016 with Mr Rose and Mr Wirotrat regarding their respective complaints. With regard to the all staff meeting of 23 December 2016, Mr Khou deposed that at that meeting Mrs Chu handed both Mr Rose and Mr Wirotrat a letter each and told workers that the Applicants and Mr Wirotrat and his wife were receiving a formal warning and that he recalled Mr Chu saying directly to Mr Rose and Mr Wirotrat that “if there are any more issues, either bullying or work performance related when we are overseas, then I will fire you over the phone if I have too.”

[32] In his oral evidence, Mr Khou reiterated key aspects of his witness statement and confirmed that in the argument Mr Wirotrat had with Mr Rose in early December 2016 he threatened to sack Mr Rose if he did not listen to him.

[33] Ms Peang deposed in her witness statements 10 that:

• around June 2016 she noticed a lot of arguing between the Applicants and Mr Wirotrat because the Applicants were not following instructions and the new rules regarding hygiene and cleaning procedures set out by Mr Chu;



• at a meeting in late June 2016 which discussed the return of dry bubble disease to the Applicants’ picking sections, Mr Chu warned the Applicants to follow all proper cleaning and hygiene rules and to listen to Mr Wirotrat’s instructions;



• around mid-September 2016 Mr and Mrs Chu convened an all staff meeting to discuss mushrooms that had been returned by a local customer, with the customer complaining that diseased mushrooms were hidden in the A-grade boxes;



• at that meeting Mrs Chu showed the boxes returned and read out the names of the pickers whose mushrooms had been returned, with approximately 10 out of 14 boxes having been picked by the Applicants;



• Mr and Mrs Chu warned all staff at that meeting that if anyone were caught doing this again they would be fired immediately;



• at the all staff meeting of 23 December 2016 she noticed that Mrs Chu gave both Mr Rose and Mr Wirotrat a letter, adding that Mrs Chu explained the letter and made it clear that she would not keep all four workers as she had “had enough”;



• Mr Chu said at that meeting that this was a formal warning and if necessary he would fire people on the phone from overseas;



• on 29 December 2016 while she was acting supervisor she was not happy with 3 boxes picked by the Applicants, adding that she asked them to fix them up which they did;



• on 30 December 2016 she again spoke to Mr Rose about one of his boxes having mixed sized mushrooms;



• on 19 January 2017 she was asked by Mr and Mrs Chu to attend a meeting with the Applicants and Mr Wirotrat;



• at that meeting Mr and Mrs Chu explained about customer complaints they had received while overseas regarding mushrooms picked by the Applicants, adding that Mr and Mrs Chu asked the Applicants why they kept putting rubbish mushrooms at the bottom of the box and cheating the customers by only putting nice mushrooms on the top layers;



• during that meeting Mr and Mrs Chu were very angry because Mr Rose responded that did not know he could not do that; and



• at that meeting things became somewhat heated with Mr Rose at one stage standing up, taking off his apron and throwing it on the ground which caused her concern because he had his picking knife in his hand.

[34] Under cross examination Ms Peang attested that:

• Mr Wirotrat is a good supervisor and has good relations with all pickers;



• she saw arguments between Mr Wirotrat and Mr Rose;



• her witness statement had been written by Mrs Chu, adding that she understood everything in her statement as Mrs Chu read every paragraph to her before she signed it as she cannot read English;



• there were many meetings of pickers at which warnings were issued, with those warnings including statements that “you will lose your jobs” ;



• those warnings did not concern her as she had not done anything wrong;



• in those meetings there were always some people who had done something wrong, with the warnings being for people like Mr Rose;



• Ms Wongkhosawan did not say anything at the meeting of 19 January 2017, adding that at that meeting the “boss’ described things, there was then a bit of an argument and then Mr Rose did not want to listen anymore; and



• warnings were issued at the all staff meeting of 23 December 2016 to both Mr Wirotrat and his wife and the Applicants regarding the arguments between them.

[35] Mr Wirotrat deposed in his witness statements 11 that:

• as a picking supervisor, in addition to picking his own sections, he also oversaw the general tasks of all pickers such as ensuring that their sections had been picked according to Mr Chu’s instructions, ensuring pickers were following hygiene procedures, recording the number of boxes for pickers on the box count sheets and directly reporting to Mr and Mrs Chu when any issues arose;



• in April 2016 he caught the Applicants not following instructions with regard to hygiene when their sections were not cleaned at the end of the day, adding that he called the Applicants back from home to complete this task and that they were not happy about doing it;



• from this point the Applicants’ behaviour became resistant to everything he said which made his job very difficult;



• on 25 May 2016 he gave the Applicants a warning about picking the wrong order of rooms;



• at around the end of May 2016 he gave the Applicants another warning about cleaning their buckets and picking platform, adding that after he informed Mr Chu of this, Mr Chu then convened an all staff meeting at which he discussed the rules of hygiene and warned everyone that the rules must be followed to avoid a recurrence of dry bubble disease;



• in mid-June 2016 he recalled seeing some mushrooms in the cool room which had spots from disease and/or bacteria, adding that those boxes had been picked by the Applicants and that the spotted mushrooms should have been discarded consistent with training;



• he spoke to the Applicants about this and warned them not to do this again and also reported the issue to Mr Chu;



• in late June 2016 dry bubble disease had returned but the infection only occurred in the Applicants’ sections;



• after the reoccurrence of dry bubble disease Mr Chu called an all staff meeting at which he warned all staff that “anyone caught cutting corners and not doing their job properly will not have a job anymore”;



• around mid-September 2016 Mr and Mrs Chu convened a meeting to discuss complaints from customers about the quality of mushrooms that had been placed in some boxes and spotted diseased/bacteria mushrooms found in A-grade mushroom boxes, with the majority of boxes (about 10 out of 14 boxes) having been picked by the Applicants;



• at that meeting Mr and Mrs Chu warned all staff and especially the Applicants that if anyone was “caught cheating” the customer like that and giving the company a bad reputation that person would be fired immediately;



• on 2 December 2016 he was angry with the Applicants because they went to pick in the wrong order of rooms, adding that at the end of the day he confronted Mr Rose about this and they got into an argument during which Mr Rose said “you are not my f..king supervisor, why should I listen to you?”;



• on 14 December 2016 the Applicants were again not following hygiene rules regarding the foot dip chemicals, adding that he mentioned this to Mr Chu who requested that he put his complaint on paper which he did later that day;



• he attended a meeting with Mr and Mrs Chu on 20 December 2016 to discuss his complaint;



• at the all staff meeting of 23 December 2016 Mr and Mrs Chu informed every one of the dispute between himself and the Applicants, with Mrs Chu handing both him and Mr Rose an envelope each;



• also at that meeting Mrs Chu told him and the Applicants to “keep the peace” because if they were to hear of any problems from anyone while they were overseas Mr Chu would sack us over the phone if he had to;



• on 17 January 2017 Mr Chu discussed with him that a lot of complaints were received while he was overseas, adding that Mr Chu indicated that the local delivery driver had advised him that the boxes he brought back mainly belonged to the Applicants and a new picker;



• at the meeting of 19 January 2017 Mr and Mrs Chu explained that the meeting was to discuss complaints from customers of rubbish mushrooms hidden in the Applicants’ boxes, adding that when Mrs Chu asked the Applicants why they did this that Mr Rose responded that he “didn’t know he couldn’t do that”; and



• Mrs Chu and Mr Rose got into a heated argument at that meeting with Mr Rose showing physical aggression by standing up, taking his picking knife out of his apron pocket, throwing his apron on the ground and walking towards Mrs Chu.

[36] Under cross examination Mr Wirotrat attested that:

• he saw the Applicants breach the Respondent’s policy of returning to rooms to pick mushrooms, adding that he saw Ms Wongkhosawan go up the ladder and pick mushrooms after returning to picking rooms from another picking room;



• when dry bubble disease reappeared in late June 2016 it was confined to the Applicants’ sections only;



• he recalled receiving a warning about problems between him and the Applicants before Mr and Mrs Chu went overseas;



• he had never had any boxes of mushrooms picked by him returned;



• he did not have the right to dismiss anyone, accepting that he had exceeded his authority when he threatened to dismiss Mr Rose in early December 2016;



• he gave the Applicants four warnings, adding that he mentioned that if they continued to produce this kind of work they would lose their jobs;



• he did not pass on to Mr and Mrs Chu the photos that he took related to the Applicants at the time they were taken, explaining that he took the photos because the Applicants were not listening to him and he could not carry the mushrooms around as that carried the risk of spreading disease;



• while he did not check the dates that the photos were taken, the photos were taken with his mobile phone which would record the date;



• he did not give the Applicants any further warnings after August 2016 as he was trying to reduce the problems between him and them, adding that after that time he discussed any issues concerning the Applicants with Mr Chu;



• on 15 December 2016 he directed Ting (another picker) to empty a soiled foot dip container, adding that he did not do so to cause trouble and that he replaced the foot dip container;



• he did not ask Mr Rose to replace the foot dip container as he was at lunch at the time;



• he did not know what day Go Troppo returned the boxes of mushrooms in January 2017;



• there were other occasions when mushrooms were returned, with 50 boxes returned from the Flemington Markets on one occasion though he could not remember when;



• individuals were named when group warnings were issued; and



• Mr and Mrs Chu would issue personal warnings on occasions when they spoke to an individual, adding that he was present at times when this occurred.

The statutory framework

[37] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that the Applicants were protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385, 387 and 388 which provide as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if 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, 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 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.

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

“Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

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.”

[39] Beyond the above provisions, s.23 of the Act provides a definition of a “small business employer” for the purpose of the Act. Relevantly, s.23(1) provides that “A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time”.

[40] In this case there is no dispute that the Applicants were dismissed, so s.385(a) of the Act is satisfied. The Applicants contend that their terminations were harsh, unjust or unreasonable, so s.385(b) is relevant. The Respondent contends that it is a small business employer, therefore s.385(c) is relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether the Applicants were unfairly dismissed, I must first determine whether the Respondent is a small business employer and, if so, whether the dismissals were consistent with the Code. If I find that the dismissals were consistent with the Code, the applications will be dismissed. If however I find that the dismissals were not consistent with the Code or that the Code does not apply I must then consider whether they were harsh, unjust or unreasonable as per s.385(b) of the Act.

Was the Respondent a small business employer at the time of the dismissals?

[41] As noted above, Mrs Chu in her witness statements deposed that as at 19 January 2017, the Respondent employed 14 regular and systematic casual employees and 2 irregular casual employees. Mrs Chu relied on a number of documents which were tendered as part of her evidence 12. Among those documents were a series of tables listing both regular and systematic casual employees and irregular casual employees employed by the Respondent for each month over the period July 2016 through to February 201713. For the week beginning 16 January 2017, the document lists 6 irregular casual employees, 2 of which were pickers who resigned with effect from 17 January 2016 (i.e. prior to the Applicants dismissals)14 and are therefore not included in the number of employees employed as at the Applicants’ date of dismissal. The other four irregular casual employees (Chivin, Sam, Raty and Jae) were all farmhands. An examination of the monthly records provided by the Respondent for these employees indicates as follows:

• Chivin worked each week from week 27 in 2016 (i.e. the week commencing 4 July 2016) until week 47 (i.e. the week commencing 21 November 2016) and worked again in week 3 of 2017 with his/her first day of work that week being 19 January 2016. Of the 21 weeks worked by Chivin in 2016, he/she worked 2 days a week for 14 weeks and 1 day a week for the remaining 7 weeks, with the days and the hours worked varying from week to week.



• Sam worked each week from week 27 in 2016 to week 52 (a total of 27 weeks), working anywhere between one day and four days a week over that period with the days and hours worked varying from week to week. Sam resumed work in week 8 of 2017 (i.e. the week commencing 20 February 2017).



• Raty worked each week from week 37 in 2016 (i.e. the week commencing 12 September 2016) to week 3 in 2017 (a total of 19 weeks), working predominantly one day a week but on occasions working two or three days a week over that period with the days and hours worked varying from week to week.



• Jae worked each week from week 50 in 2016 (i.e. the week commencing 12 December 2016) to week 3 in 2017 (a total of 6 weeks), working three days a week for all but one of those weeks with the days and hours worked varying from week to week.

[42] In her oral evidence, Mrs Chu attested that Sam was on holiday in January 2017 and that a lot of employees took leave over this period.

[43] The issue of regular and systematic casual employment was considered by Commissioner Roe in Cori Ponce v DJT Staff Management Services Pty Ltd T/A Daly’s Traffic 15 (Ponce) in which he observed as follows:

“[66] It is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic. Although the previous legislation referred to the period or periods of casual engagement rather than the period of casual employment I do not think that this change is of much practical significance. The previous authorities have also established that employment or engagement can be regular and systematic even if it is seasonal, or where the times and dates of work are quite irregular or are not rostered, or where there are breaks due to school holidays or other needs of the employee. In Summerton v Jabiru Golf, the hours worked varied from 3 to 39 in a week but it did not stop SDP Duncan finding that the employment was regular and systematic. It is clear that to establish “regular and systematic” there must be sufficient evidence to establish that a continuing relationship between the employer and the employee has been established. This is clearly a reason why there is a legislative requirement for a reasonable expectation of continuing employment.

…

[75] I conclude from this that the set of facts in each case must be examined and that, if the number of hours worked is small and the gaps between days and times worked is long and irregular this means that there needs to be other evidence that the employment of a casual is regular and systematic. Conversely, if there is a clear pattern or a roster for the hours and days worked then this would be strong evidence of regular and systematic employment.

[76] In situations where there is not a clear pattern or roster of hours and days worked or a clear agreed arrangement between the employer and employee, then evidence of regular and systematic employment can be established where:

• The employer regularly offers work when suitable work is available at times when the employer knows that the employee has generally made themselves available; and



• Work is offered and accepted sufficiently often that it could no longer be regarded as simply occasional or irregular.

[77] Positive evidence of these two situations establishes regularity and a system to the employment. It is also positive evidence of a reasonable expectation of continuing employment on a regular and systematic basis. That is an expectation that this pattern of when work will continue to be offered and be accepted will continue.” (Footnotes not included)

Drawing on the above analysis of the working patterns of the 4 employees categorised by Mrs Chu as irregular casuals, Mrs Chu’s evidence and the decision in Ponce supports a finding that at least Sam, if not all four employees, were regular and systematic casual employees. If only Sam is considered a regular and systematic casual employee as at the date of termination, the Respondent employed a total of 15 employees at that time. This does not support a finding that the Respondent was a small business employer at the time the Applicants were dismissed. Accordingly, the Code does not apply.

Were the dismissals harsh, unjust or unreasonable?

[44] Against that background, as previously noted, the Commission must now determine whether the dismissals were harsh, unjust or unreasonable. In considering that issue, the Act requires the Commission to have regard to the criteria set out in s.387. I will now address each of those criteria.

(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)

[45] In Rode v Burwood Mitsubishi 16 (Rode) a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd17. The following is an extract from the Full Bench’s decision in Rode.

“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” (Underlining added)

[46] The Applicants submitted that the reasons relied upon by the Respondent for their dismissals were not valid on the basis that they were not “sound, well founded or defensible” and were “capricious, fanciful, spiteful or prejudiced” as per Selvachandran. The Applicants further contended that their dismissals were not valid for the following reasons:

• they diligently followed procedures and the example set by their supervisor;



• their work was at all times consistent if not exceeding in quality of other employees;



• any problems were not raised with them so as to allow them to address those issues, adding that this was aside from normal directions from their supervisor and general staff meetings addressed to all employees;



• the Respondent had not proved that their alleged conduct had occurred or that it was sufficiently serious to warrant summary dismissal; and



• they were undertaking conduct and techniques which were engaged in by other employees, including supervisors, yet they were the only ones dismissed for this behaviour.

[47] The Respondent submitted that it had a valid reason for dismissing the Applicants relating to their conduct in persistently failing to comply with its directions to follow essential practices and procedures, adding that their conduct was both a performance and a conduct issue given the seriousness and persistent nature of the breaches.

[48] Before turning to analyse the material before the Commission, I want to highlight that I have attached little weight to the witness statements of Mr Wongkhosawan and Ms Peang because those witness statements were prepared by Mr Rose and Mrs Chu respectively. As a result, I have reservations as to whether their respective witness statements genuinely reflect their evidence. My reservations in that regard do not extend to their oral evidence.

[49] I would further highlight that I have generally preferred the Respondent’s evidence over the Applicants’ evidence. Primarily because it has frequently been corroborated by others such as Ms Peang and Mr Khou, but also because I considered Mr Rose’s evidence at times to be somewhat self-serving. For instance, there were inconsistencies between Mr Rose’s evidence and Ms Wongkhosawan’s evidence as to what Mr Chu discussed with them in the cool room on 18 January 2017, with Mr Rose’s evidence being that Mr Chu did not raise any issues regarding the quality of mushrooms contradicted by Ms Wongkhosawan who attested that Mr Chu alleged that they were including bad mushrooms in their boxes as well as not taking care of the mushrooms as well as they should. Further, Mr Rose initially attested that he had never received any warnings while working for the Respondent, though he later attested that he probably did receive warnings in a group setting.

[50] Turning now to the merits of the matter, it is clear from the material before the Commission that there were tensions between Mr Wirotrat and Mr Rose which culminated in both employees lodging complaints against each other in late 2016. For instance, Ms Peang’s evidence was that she saw arguments between Mr Wirotrat and Mr Rose, while Mr Khou’s undisputed evidence was that Mr Rose had said to Mr Wirotrat in early December 2016 something like “You are not my f..king supervisor.” Further, Mr and Mrs Chu’s evidence was that both parties were warned at the meeting of 23 December 2016 that if there were any issues relating to conduct or performance while they were overseas that they would be dismissed. That evidence is corroborated by Mr Khou, Ms Peang and Mr Wirotrat.

[51] Perhaps the most significant piece of evidence before the Commission regarding the Applicants’ performance is the letter of 11 January 2017 from Go Troppo. As can be seen from above, that letter explicitly referred to the Applicants’ picker numbers and effectively described them as repeat offenders. The letter also clearly set out the risk of Go Troppo taking its business elsewhere should the Respondent continue to provide poor quality mushrooms. In the absence of any evidence to support the Applicants’ contention that the letter was contrived, it points to serious and recurring performance issues involving the Applicants from an external source. It appears that the letter and associated returns by Go Troppo was the straw that broke the camel’s back and ultimately proved to be the catalyst for the Applicants’ dismissals.

[52] Beyond this, I consider both Mr and Mrs Chu’s evidence regarding their response to Go Troppo’s complaints/returns reliable given the importance of Go Troppo as a customer (both Mr and Mrs Chu deposed that the supply contract with Go Troppo was worth about $500,000 per annum to the Respondent). Their evidence that the majority of boxes returned at that time by Go Troppo had been packed by the Applicants is consistent with Go Troppo’s letter which specifically referred to the Applicants’ picker numbers. I also accept Mr and Mrs Chu’s evidence that they convened staff meetings on 21 September and 1 October 2016 to explain why the mushrooms returned by Go Troppo had been returned in an effort to avoid any reoccurrence and that staff were warned that any repeat regarding poor quality would result in instant dismissal, with this latter aspect of their evidence corroborated by Mr Wirotrat’s evidence. Mr and Mrs Chu’s evidence was also corroborated to some extent by Ms Wongkhosawan who attested that throughout the year a number of boxes would be returned and they would be shown to employees.

[53] Finally, I note that there is no probative evidence to support the Applicants’ contention that their work was consistent with if not exceeding in quality of other employees or that they were undertaking conduct and techniques which were engaged in by other employees.

[54] In this case it was not disputed that the Applicants had received training. The material before that Commission also supports a finding that that training was reiterated and/or reinforced at the regular staff meetings convened by the Respondent to discuss issues such as customer returns, appropriate hygiene, picking and packing practices and procedures. Further, it was not disputed that the Applicants picked and packed as a team and that boxes marked with their picker numbers would have been picked and packed by both of them.

[88] Taking into account all of these considerations, I am satisfied that the Applicant’s immediate dismissals were justified in this case.

[89] Against that background, I find that there are no other relevant considerations.

Conclusion

[90] Drawing on the above analysis, I find that there was a valid reason for the Applicants’ dismissals, that the Applicants were notified of that reason and were given an opportunity to respond to that reason, that they had been warned on a number of occasions about their performance before their dismissals and that there are no other relevant matters. Beyond that, I find that both the size of the business and the absence of dedicated human resource specialists or expertise significantly impacted on the procedures followed in effecting the Applicants’ dismissals and that those factors weigh against the Applicants’ dismissals being harsh, unjust or unreasonable.

[91] Having considered all of the criteria in s.387 of the Act, I therefore find that the Applicants’ dismissals were not harsh, unjust or unreasonable. Accordingly, their applications are dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

G. Pinchen for the Applicant.

P. Bindon of Counsel for the Respondent.

Hearing details:

2017.

Canberra:

June 8 and 9.

Printed by authority of the Commonwealth Government Printer

<Price code G, PR594934>

 1   Exhibit 8 at Tab 16 (described as exhibits in the Witness statements)

 2   Exhibit 1

 3   Exhibit 2

 4   Exhibit 5 at Tab 18

 5   Exhibits 3 and 4

 6   Exhibits 6 and 7

 7   MA000028

 8   See Exhibit 8 at Tabs 3 and 4

 9   Exhibits 9 and 10

 10   Exhibits 11 and 12

 11   Exhibits 13 and 14

 12   Exhibit 8 at Tabs 3 and 4

 13   Ibid at Tab 3

 14   Ibid at Tab 5

 15   [2010] FWA 2078

 16   Print R4471

 17 (1995) 62 IR 371

 18   Exhibit 8 at Tab 17 at page 6

 19   Ibid at pages 2 and 3

 20   Print S9280

 21   [2010] FWA 4027

 22 (2001) 107 IR 117

 23   Ibid at 141

 24   Exhibit 8 at Tab 17 at page 6