Yoo v EOS Australia Pty Ltd
[2016] FWC 165
•17 March 2016
[2016] FWC 165
DECISION
| Fair Work Act 2009 | |
| s.394—Unfair dismissal | |
| Pascal (Jungil) Yoo | |
| v | |
| EOS Australia Pty Ltd | |
| (U2015/10118) | |
| COMMISSIONER ROBERTS | SYDNEY, 17 MARCH 2016 |
| Application for relief from unfair dismissal. |
[1] This decision concerns an application lodged on 18 August 2015 by Mr Yoo pursuant
to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of
his employment by EOS Australia Pty Ltd (EOS or the Company). The matter was the subject
of unsuccessful conciliation by a Fair Work Commission Conciliator on 14 September 2015.
The matter was then set down for arbitration before me in Sydney on 3 December 2015.
Directions were issued on 30 September 2015 for the filing of written submissions, witness
statements and any supporting documents. That process was completed on or about
26 October 2015.
[2] At the hearing Mr Yoo represented himself and the Company was represented by Mr P
Cha. Both parties were assisted by a Korean interpreter, Ms Thomas. The Applicant gave
sworn evidence. Mr P Cha, Ms A Oh, Mr K Park and Mr S Cha gave sworn evidence for
EOS.
Background
[3] Mr Yoo commenced employment with EOS in July 2007, initially part-time. Mr Yoo
was then employed pursuant to a company-sponsored class 457 Work Visa and was
subsequently successfully sponsored for Australian permanent residency by the Company. He
was employed as a Purchasing Manager when his employment was terminated on 29 July
2015. According to the Company, Mr Yoo was dismissed due to behaviour issues and
conflicts with other staff members. Mr Yoo denies any wrongdoing and seeks reinstatement
and compensation for lost wages.
Evidence
The Applicant
1
| [4] | The Applicant gave sworn evidence and adopted a witness statement | . The witness |
statement consisted of a document issued by the Fair Work Commission (the Commission)
[2016] FWC 165
entitled Unfair Dismissal – Preparing for a conference. That document was partly completed
by Mr Yoo and stated in answer to the question ‘Why do you think the dismissal was unfair:
“1. In spite of Shane [Cha]’s incorrect information providing, employer gave to me verbal warning. As a result, I was notified of the dismissal. 2. I do not think that this makes sense because I do not have serious issues with
colleagues and I have daily conversations and we sometimes have lunch
together.
3. I haven’t received information that how many staffs, they don’t want to work
with me and why?”
[5] The document goes on to say that the Applicant has not been seeking work since the
dismissal as he has been seeking reinstatement to his former position with EOS.
[6] Mr Yoo also gave oral evidence. In that oral evidence, he relevantly said:
That the Company alleged that his attitude in interpersonal dealings was an
ongoing problem.
That he was unfairly blamed for supply issues which were not his fault.
That allegations against him over his alleged bad behaviour in interactions with
other staff were very vague.
[7] Nothing which could have an impact on my decision making arose in cross-
examination.
Mr P Cha
2
| [8] | Mr P Cha gave sworn evidence and adopted a witness statement | . He is the Managing |
Director of EOS.
[9] In summary, Mr P Cha’s witness statement said:
“Since mid-2014, there have been numerous issues, arguments and conflicts
between Pascal Yoo and other warehouse staff, managers of other departments and
branch office managers. The issues were diversely related to products procurement,
stock delivery and especially warehouse staff management. I heard complaints
from all warehouse staff that Pascal often would humiliate them and unfairly
criticize them … and some warehouse staff resigned the company as a result.”
That, in an attempt to improve the situation, he moved Mr Yoo’s desk to a floor
above the warehouse. However, complaints against Mr Yoo from other staff
continued.
On 3 July 2015, he called Mr Yoo to his office and told him that “you must not
argue and quarrel with other staff. If I hear such noise again, your employment will
be terminated immediately. He replied shortly ‘Tell me who they are. Who are
those people that told you that they don’t want work with me’ I said ‘You name it.
Almost everyone in our company. This is the core of your issue. It would be a
major issue if you knew who they are but didn’t improve yourself. However, if you
really don’t know who they are, this is the worst and critical problem of you. You
do NOT sympathise with others at all.’”
[2016] FWC 165
Since the 3 July 2015 warning, there were a further four significant incidents of
conflict between Mr Yoo and other staff members. Each of these was discussed
with Mr Yoo.
On 24 July 2015, he reminded Mr Yoo of the warning given to him on 3 July.
After an incident with Mr Park on 28 July 2015, “I felt that I had given him enough
opportunities and did not want him to cause any harm to the company team
building efforts and the effective operation of the business. The applicant seemed
to have issues with nearly half of our employees. I decided to dismissal Pascal
Yoo.”
On 29 July 2015 he called Mr Yoo to his office and told him: “Despite your efforts,
you were unable to improve yourself. With your personality, character and skill,
you may be a star player in other organisations such as ATO or Royal Commission
or an audit team in a big company but not our company any more. You should find
another job soon. Because those issues are not new and have been with you for a
long period of time, it has become necessary for me to make this decision. I can
wait until you are ready. It could be 1 or 2 or even 4 months if necessary but you
must leave our company. I will keep it confidential and won't tell anyone about
your constructive dismissal to protect your reputation and self-pride. Let me know
when you are ready. We will discuss it again once I return from my business trip in
a week.”
On 12 August 2015 he was surprised to note on the Company’s intranet that Mr
Yoo had announced his departure.
“After every argument between co-workers, Pascal and I would have a meeting to
resolve the problem and strangely enough he never responded in an angry,
frustrated manner. Each time he shared his side of the heated arguments, he always
seemed to have been ignorant of psychological and emotional damages he had
caused on other employees and wanted to believe that ‘everything is fine / under
control’. I, however, could not continue to acquiesce it any longer on the 29 July
2015 and realised that my further intervention with Pascal would not really work
and would not improve his relationship with other staff members which had come a
long way to be mended.”
“I believe that it is my duty and responsibility to provide all employees with the
best possible working environment and maximise their morale. I am also aware that
I have to be fair to employees as their employer and have to provide sufficient
opportunities to the employees when they do not meet his/her position's
requirements. However, to a person like Pascal who would not want to understand
and follow company's directions but undermines our effort and ignores company's
requests, advice and my warnings repetitively, I have no choice but to make a
touch decision to protect other employees' well-being and the interest of our
company and business. Otherwise, the productivity and competitiveness will
continue to suffer, which will lead to the downturn of the business. I could not let
this happen to the company just to keep one employee who had been counter-
productive for several years merely because he had been employed by us for
7 years.”
[10] In cross-examination, Mr Cha:
Agreed that EOS had sponsored Mr Yoo for permanent residence in Australia after
first sponsoring him under a class 457 Work Visa.
[2016] FWC 165
Said that he had investigated complaints made by other staff members against Mr
Yoo.
Said that the final warning issued to Mr Yoo was the result of an accumulation of
behaviour issues.
[11] The remainder of the cross-examination was largely concerned with interpersonal
relations within the Company workforce. I have paid regard to that material.
Ms Oh
3
| [12] | Ms Oh gave sworn evidence and adopted a witness statement | . Ms Oh has been |
employed by EOS since July 2009 and has held the role of Finance and
Administration/Payroll Manager since August 2012.
[13] Ms Oh’s witness statement broadly says that Mr Yoo, in her experience, had problems
with other employees under his control. On 22 June 2015 she “called up a meeting with Mr
[P] Cha and advised him that staff do not feel comfortable to ask simple things to Pascal
[Yoo]. I said ‘we need to be one who can solve problems for others, not making one. But it
seems that Pascal is not a type of person who can support others at their requests. I don't mind
doing his job, but it will take away all of his duties and ultimately will make his position
obsolete if I or someone else start doing it. But Pascal doesn't want to listen to anyone, so you
need to tell him what he needs to be changed. If he cannot be changed, he has to leave the
organization so we can move forward.’ Mr [P] Cha agreed and said he will give an ultimate
warning to improve his general attitudes at work.”
[14] Mr P Cha informed her on 3 July 2015 that a final warning had been issued to Mr
Yoo. On 24 July 2015 she was aware of a heated argument between Mr S Cha and Mr Yoo at
the conclusion of which Mr S Cha “was heard to be saying ‘I cannot work with him anymore!
I have had enough!’ After the incident, Mr [P] Cha called up a meeting with Shane and Pascal
in a meeting room.”
[15] On 29 July 2015, Mr Park complained to her about Mr Yoo’s attitude and she reported
the complaint to Mr P Cha.
[16] “After having a meeting with Pascal, Mr P Cha called me and informed me about his
final notice to Pascal. He said ‘I will give him enough time to find new job. It might take up
to 4 months, but I let him decide when he is going to leave us. But do not tell anyone yet!
Pascal needs to work with them till he leaves and he may not feel comfortable dealing with
them.’ I followed his instructions.”
[17] In cross-examination, Ms Oh:
Agreed that the Company’s warehouse had a high staff turnover rate.
Agreed that she spoke with Mr P Cha concerning complaints against Mr Yoo by
other staff, including herself.
4
Said that staff “don’t feel comfortable asking simple things to you.”
[18] Nothing of significance arose in re-examination.
Mr Park
[2016] FWC 165
5
| [19] | Mr Park gave sworn evidence and adopted a witness statement | Mr Park has been |
employed by EOS as a Sales Representative since 1 July 2002.
[20] Mr Park said:
“When customers enquired about some out of stock items or slow stock, I would rather
refer customers to other wholesalers rather than going through our warehouse
department when Pascal [Yoo] was the purchasing officer. This was because it was
very hard to communicate with Pascal and also difficult to discuss any issues with him
in order to provide the best service to my customers.
As an account manager, I needed Purchasing officer who could help and assist each
other. Sometimes when dealing with clients, flexibility is required to meet different
circumstances and requests from very diverse clients with different needs. I could not
find any flexibility in Pascal. He has always been very stubborn and hard to discuss,
which made it difficult to respond to my customer's needs more effectively.
Pascal has been my work colleague for the past 7 years. I do not think I have had a
particularly bad relationship with him over the years and feel bad at the way he had to
leave after having worked together for the 7 years, but it became very hard to
communicate with him in relation to work related issues before the cessation of his
employment.”
[21] In cross-examination, Mr Park was questioned extensively concerning warehouse
procedures.
Mr S Cha
6
| [22] | Mr S Cha gave sworn evidence and adopted a witness statement | . Mr Cha had worked |
at EOS since 2000 performing picking duties in the warehouse. He is the brother of Mr P Cha,
the Managing Director.
[23] Mr S Cha said:
He sat next to Mr Yoo for some six years until Mr Yoo was moved upstairs in the
warehouse in January 2015.
“I witnessed frequent unnecessary arguments Pascal [Yoo] caused and advised him
to stop being stubborn and authoritative in dealing with other staff members, and
sometimes I discussed with Mr [P] Cha how to improve Pascal’s relationship with
other employees of the company. I noted that his authoritative and coercive attitude
was in fact getting worse from early 2015.”
On 3 July 2015, Mr P Cha told him that “he conveyed the clear message to Pascal
that he might need to leave the company if he makes more troubles in the future.”
On 24 July 2015, he spoke to Mr Yoo on behalf of another employee and “was
humiliated by his attitude and walked out from his office without finishing up the
conversation.”
Later on 24 July 2015 “Mr [P] Cha convened a meeting half an hour later in which
Pascal [Yoo] insisted that he had done nothing wrong and was defensive about his
action as usual rather than being focused on the real issues at stake. When the
[2016] FWC 165
discussions were going nowhere and it was clear that we could not find any
common ground, Mr [P] Cha on the spot raised Pascal's inability and his refusal to
discuss openly about his issues and reminded him of the warning he gave Pascal on
3 July 2015.”
“The most serious problem with Pascal’s personality is that he does not admit at all
that he has a problem and also does not make any effort to improve his relationship
with other staff members.”
[24] In cross-examination, Mr S Cha:
Said he was aware in early June of conflict between Mr Yoo and another employee
and Mr P Cha subsequently told him several times that Mr Yoo had been warned
7
that “if there is any further incidences that he would have serious consequences.”
Was questioned extensively about warehouse procedures and particular events.
Submissions
Mr Yoo
[25] Mr Yoo made oral submissions at the hearing. In summary, he argued that the
allegations made against him by Mr P Cha and the Company’s witnesses were false or
exaggerated and he was not “given a chance to rectify my behaviour of if he's given me an
information as to who or what was involved, I would have changed or rectified my behaviour
8
and tried to fix the matters.”
[26] Mr Yoo went on to say that after he was warned on 3 July 2015, further issues were
9
| raised with him that made his behaviour “look worse than it really is.” | Mr Yoo said that, in |
reality, he got along well with other staff members on a whole and this was evidenced by the
fact that he and they often had lunch together. Mr Yoo also relied on his witness statement
and oral evidence.
EOS
10
| [27] | The Company handed up a written outline of submissions at the hearing | . The |
submissions said:
[28] “Since mid-2014, there had been ongoing issues, arguments and conflicts … between
Pascal Yoo and other employees including other managers from various departments. The
issues were not limited to but including, products procurement, stock delivery and especially
warehouse staff management, all of which were key responsibilities as expected of a
purchasing officer. Those issues involving the applicant appeared to have caused unnecessary
and unproductive conflicts between the applicant and other managers, requiring my
interventions. Please refer to the attached statements for more details.”
[29] “Between mid-2014 and mid-2015, it came to my attention on a number of occasions
through warehouse staff members including those who had already resigned that the applicant
would often humiliate them and unfairly criticize them. During the same period, there was
some turnover of staff in the warehouse section, which led me to have interviews with those
[2016] FWC 165
who had tendered their resignations. On at least more than 2 occasions, I was advised that
they including [another employee] (who previously expressed his intention to resign but was
persuaded to withdraw his resignation by me following a meeting with him) were resigning
simply because they could not handle working with the applicant.”
[30] “On the 3rd of July, I called him to my room and clearly said in words to the effect:
‘As I announced in January this year during my annual meeting speech, our company's prime
goal for this year is “to build a harmonious work environment”. But you Pascal are still part
of almost every argument in our company. It may be due to your role but nonetheless we as a
company cannot have this anymore. You may have tried to improve your work behaviour,
communication and interpersonal skills for the past few months but failed to show us any
improvement. As a result, numerous members expressed their reluctance to work with you.
This is the first time ever I will be giving such an ultimate warning to any of my staffs in
company history but take this as a final warning. You must not argue and quarrel with other
staff without any good reasons and first trying to solve issues amicably. If I hear such fuss and
complaints again, your employment will be terminated immediately.’ He replied shortly ‘Tell
me who they are. Who are those staff telling you that they don’t want work with me’ I said
‘You name it. Almost everyone in our company. This is the core of your issue. It is the major
problem. If you know who they are but didn’t improve yourself. However, if you really don’t
know who they are, this is the worst and critical problem of you. You do NOT sympathise
with others at all.’ But similar to his previous replies on any issues, he kept asking me who
they are. Then he said, ‘Mr Cha, I am not the person to make troubles but they are
inexperienced, lazy and do not know anything.’ I said ‘You must focus on solutions together
with other staff rather than finding whose fault it is. We cannot work with you any more if it
happens again. You must not argue and quarrel with other staff unnecessarily. This is an
ultimate order. Please show us signs of improvement. Do you understand what I am saying,
Pascal?’ He replied ‘Yes.’ and then left my room. Pascal and I were standing in my room
during this short but clear conversation because I was standing in front of him rather than
asking him to sit down in a chair.”
[31] “When I gave him an opportunity to respond during my meeting on 3 July 2015, he
blamed on others for being inexperienced, lazy and incompetent rather than focusing on ways
to improve and reflecting on the real issues raised during the meeting. On 3 July 2015, he
heatedly demanded the names of those staff members who made complaints so he could
directly take up the issues with them presumably in his own ways, which was declined for the
fear of any potential disruptions to our business. This was repeated when my verbal
notification for dismissal was given on 29 July 2015. The applicant asked me ‘Tell me who
they are. Who told you that they don’t want work with me’ I replied him ‘You name it.
Almost everyone in our company.’ Because this was not a new issue and we had had similar
conversations many times previously, I felt that we didn’t have to go through the same thing
again.”
[32] “On the 29th of July I called Pascal to my room and said to him ‘Despite your efforts
since my last warning, you were unable to improve yourself and your relationship with other
staff. With your personality, character and skill, you may be a star player in other
organisations such as ATO or Royal Commission or an audit team in a big company but I do
not believe you are suitable to our company any longer. You should find another job soon.
Because those issues are not new and have been with you for a long period of time, I think it
has come to the point and may be inevitable to part our ways. Considering the period of your
employment to date, I can wait until you are ready. It could be 1 or 2 or even 4 months if
[2016] FWC 165
necessary but you must leave our company. I will not tell anybody about this constructive
dismissal to protect your reputation. Let me know when you are ready. We will discuss it
again once I return from my business trip in a week.’”
[33] In relation to possible reinstatement, the submissions said: “No. It is not practical and
unrealistic for the applicant to be reinstated. The relationship between the applicant and other
employees including myself is beyond any repair. Given the size of the company that has only
one office in the State of NSW although there are several interstate branch offices, the
reinstatement of his employment is not clearly possible as this would be a continuous source
of conflicts within the company that will cause disruptions to the smooth operation of the
company. Also, providing him with alternative position in other offices is not practical either
due to the locations of those branch offices.”
[34] Mr P Cha supplemented his Company’s written submissions with oral submissions at
the hearing and I have paid regard to that further material.
Conclusions and Findings
[35] Section 385 of the Act provides:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA 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.”
[36] In the case before me, there is no claim that EOS is a Small Business nor that the
dismissal of Mr Yoo was a case of genuine redundancy.
[37] Mr Yoo’s employment was terminated on 29 July 2015 at the initiative of EOS. For
the termination, EOS relied upon Mr Yoo’s alleged inability to interact reasonably with other
staff and that he consistently exhibited poor behaviour in the workplace. It did so in the light
of previous alleged transgressions by Mr Yoo and, in particular, the final warning issued to
him on 3 July 2015. The proximate reason for the termination of Mr Yoo’s employment was
an incident with Mr Park on 28 July 2015.
[38] As Mr Yoo’s conduct in the workplace was the reason given by the Company for the
termination of his employment, I have to determine for myself whether the impugned conduct
occurred, and if so, its nature and then, depending on the outcome of my determination of the
earlier matters, whether any such conduct amounted to a valid reason for termination of
employment. In this regard I respectfully agree with the following observations of the Full
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| Bench in King v Freshmore (Vic) Pty Ltd | : |
“When a reason for a termination is based on the conduct of the employee, the
Commission must, if it is an issue in the proceedings challenging the termination,
determine whether the conduct occurred. The obligation to make such a determination
[2016] FWC 165flows from s.170CG(3)(a). The Commission must determine whether the alleged
conduct took place and what it involved.
The question of whether the alleged conduct took place and what it involved is to be
determined by the Commission on the basis of the evidence in the proceedings before
it. The test is not whether the employer believed, on reasonable grounds after
sufficient enquiry, that the employee was guilty of the conduct which resulted in
termination.”
12
| [39] | Northrop J in Selvachandran v Peteron Plastics Pty Ltd | said: |
“In its context in s 170DE(1), the adjective "valid" should be given the meaning of
sound, defensible or well founded. 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, ….”
13
| [40] | In Qantas Airways Ltd v Cornwall | , the Full Court of the Federal Court said: |
“The question is whether there was a valid reason. In general, conduct of that kind
would plainly provide a valid reason. However, conduct is not committed in a vacuum,
but in the course of the interaction of persons and circumstances, and the events which
lead up to an action and those which accompany it may qualify or characterize the
nature of the conduct involved.”
14
| [41] | In Edwards v Justice Giudice | , Moore J said: |
“The reason would be valid because the conduct occurred and justified termination. The
reason might not be valid because the conduct did not occur or it did occur but did not
justify termination.”
[42] As noted above, I must determine for myself whether the impugned conduct by Mr
Yoo occurred or not, and if it did, its level of seriousness. In deciding Mr Yoo’s application
for relief I have been assisted by the evidence of the Company’s witnesses.
[43] Overall, and on balance, after a thorough review of the information available to me, I
find that the evidence of the Company’s witnesses is to be strongly preferred over that of Mr
Yoo as that evidence relates to their experience and knowledge of his history of poor
behaviour in the workplace. Mr Yoo’s demeanour and behaviour during proceedings further
convinced me that he is a person unable to believe that he could ever be wrong or that his
actions could ever be held up for justifiable criticism. Mr P Cha did his level best to fairly
deal with a difficult, argumentative employee who behaved quite inappropriately and
confrontationally towards fellow staff.
[2016] FWC 165
[44] Mr Yoo was a competent employee and this was acknowledged, at least implicitly, in
the evidence of the Company’s witnesses. It was also quite striking to me that none of those
witnesses evidenced hostility or any form of malice towards Mr Yoo. Even Mr Park, the
confrontation with whom was the proximate reason for the termination of Mr Yoo’s
employment, wished him well and expressed sorrow at the manner of Mr Yoo’s departure
from EOS. For his part, during proceedings Mr Yoo demonstrated a continuing hostility
towards his former colleagues and Mr P Cha.
[45] Mr P Cha issued Mr Yoo with a justified final warning on 3 July 2015 and emphasised
that final warning again on or about 24 July 2015. The events of 28 July 2015 between Mr
Yoo and Mr Park were the final straw that convinced Mr P Cha that Mr Yoo had to go.
[46] My examination of the history of Mr Yoo’s employment with EOS shows a person
whose behaviour appears to have greatly deteriorated during 2015. The reasons for that are
unknown to me. However, I accept that Mr Yoo had a significant history of poor behaviour in
the workplace and that Mr P Cha in particular did his best to remedy the situation without
resorting to a dismissal. Finally he failed in that endeavour. I therefore find that EOS had a
valid reason to terminate Mr Yoo and carried it out in a proper, if not absolutely perfect,
manner which was fair in all the circumstances.
[47] In reaching my decision as to valid reason, I have been conscious of the decision by
15
| the Full Bench in Spillard v Patrick Stevedores Holdings | . In that decision, the Bench said: |
“… a finder of fact needs to have regard to all of the evidence to ascertain whether inferences
16
can be drawn to lead to a conclusion of probability.”
Harsh, unjust or unreasonable?
[48] I now turn to the question of whether the dismissal of the Applicant was harsh, unjust
or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It
provides:
“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
[2016] FWC 165
(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.” 17
| [49] | In Byrne v Australian Airlines | , McHugh and Gummow JJ of the High Court said: |
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust
because the employee was not guilty of the misconduct on which the employer acted,
may be unreasonable because it was decided upon inferences which could not
reasonably have been drawn from the material before the employer, and may be harsh
in its consequences for the personal and economic situation of the employee or because
it is disproportionate to the gravity of the misconduct in respect of which the employer
acted.”
18
| [50] | In Parmalat Food Products Pty Ltd v Wililo | , the Full Bench held: |
“The existence of a valid reason is a very important consideration in any unfair
dismissal case. The absence of a valid reason will almost invariably render the
termination unfair. The finding of a valid reason is a very important consideration in
establishing the fairness of a termination. Having found a valid reason for termination
amounting to serious misconduct and compliance with the statutory requirements for
procedural fairness it would only be if significant mitigating factors are present that a
19
conclusion of harshness is open.”
20
| [51] | In Miller v University of New South Wales | , the Full Bench held: |
“The entire relevant factual matrix must be considered in determining whether an
employee’s termination is for a valid reason: Allied Express Transport Pty Ltd v
Anderson (1998) 81 IR 410 at 413. In Izdes Beazley J said:
‘In determining whether a refusal to carry out the lawful and reasonable directions of
an employer constitutes a valid reason for termination, it is necessary to have regard to
all the circumstances, including the nature and degree of the employee's conduct.’
(61 IR 439 at 451)
In considering the validity of the reason, “it is not the court's function to stand in the
shoes of the employer and determine whether or not the decision made by the
employer was a decision that would be made by the court but rather it is for the court
to assess whether the employer had a valid reason connected with the employee's
capacity or conduct”: see Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR
21
681 at 685.”
[52] The question of valid reason is dealt with above.
[53] I am satisfied from the evidence and materials before me that Mr Yoo was notified
orally of the reason(s) for the termination of his employment by Mr P Cha on 29 July 2015
and I so find. I further find that Mr Yoo was given a fair opportunity to respond to the
[2016] FWC 165
allegations against him before a decision was made to terminate his employment. There was
no refusal by the employer to allow Mr Yoo the presence of a support person to assist at any
discussion relating to the dismissal. Mr Yoo was warned about his unsatisfactory conduct on
prior occasions before he was dismissed.
[54] The employer’s enterprise appears to be of medium size and does not employ
dedicated human resource management specialists nor possess such expertise within the
enterprise. Those factors would have impacted on procedural issues relating to the termination
of employment. However, I am satisfied and find that the termination was fair.
[55] I have also taken into consideration the length of Mr Yoo’s service, his age and the
economic and personal effects of the termination of employment on him.
[56] All in all, it is my finding that the termination of Mr Yoo was not harsh, or unjust or
unreasonable. The Company conducted a basically procedurally fair process and gave Mr Yoo
opportunities to remedy his poor behaviour. Mr Yoo’s application for relief is therefore
dismissed.
[57] In accordance with s.381(2) of the Act, I am further satisfied that each party has been
accorded a ‘fair go all round’ in these proceedings.
[58] An order reflecting this decision is in PR575968.
COMMISSIONER
Appearances:
P Yoo, the Applicant.
P Cha for EOS Australia Pty Ltd.
Hearing details:
2015.
Sydney:
December 3.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR575967>
3
Exhibit EOS 3.
4
Transcript PN609.
5
Exhibit EOS 4.
6
Exhibit EOS 5.
7
Transcript PN847.
8
Transcript PN937.
9
Transcript PN939.
10
Exhibit EOS 1.
11
Print S4213, 17 March 2000.
12
(1995) 62 IR 371 at 373.
13
[1998] FCA 865.
14
[1999] FCA 1836.
15
(2010) 193 IR 184.
16
Ibid at para 13. See also Nesterczuk v Mortimore, (1965) 115 CLR 140.
17
(1995) 185 CLR 410.
18 [2011] FWAFB 1166
19
Ibid at para 24.
20
PR910187, 11 October 2011, per Boulton J, Drake SDP and Larkin C.
21
Ibid at para 75.
1
Exhibit Yoo 1.
2
Exhibit EOS 2.
0
9
0