[2021] FWC 6693

The attached document replaces the document previously issued with the above code on 24 December 2021.

A typographical error in paragraph [48] has been corrected.

Associate to Deputy President Colman

Dated 12 January 2022

Fair Work Act 2009
s.394—Unfair dismissal

Omar Chebbo
v
Major Crane Logistics Pty Ltd
(U2021/9000)

Application for an unfair dismissal remedy – applicant summarily dismissed after attending unlawful rally outside CFMMEU office in Melbourne – breach of stay-at-home orders – connection to work – risk to reputation of employer – dismissal warranted, but on notice

[1] This decision concerns an application by Mr Omar Chebbo for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Mr Chebbo’s employment as a mobile crane operator with Major Crane Logistics Pty Ltd (company) was terminated with immediate effect on 21 September 2021, after he attended a protest the previous day outside the office of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) in Melbourne. The company considered that Mr Chebbo had engaged in serious misconduct by attending the rally, which occurred in contravention of government stay-at-home orders, because his attendance brought the company into disrepute. It also considered that Mr Chebbo had failed to comply with a lawful and reasonable direction following the closure of his worksite on the morning of the protest that he go home. Mr Chebbo submits that he did not commit misconduct, because he was within his rights to attend the protest and did not participate in the violence that occurred that day, and because he had in fact been encouraged to attend the protest by the company’s general manager. He denies that the company directed him to go home and submits that any contravention of the stay-at-home orders was not work-related but a matter between him and the authorities. Mr Chebbo contends that his dismissal was unfair and seeks reinstatement or compensation.

[2] Section 396 of the Act requires that I decide four matters before considering the merits of the application. I am satisfied of the following. First, Mr Chebbo’s application was made within the 21-day period required by s 394(2) of the Act. Secondly, Mr Chebbo was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy. Fourthly, the company is not a small business, and the Small Business Fair Dismissal Code is not relevant.

The evidence

[3] Mr Chebbo gave evidence that on the morning of Monday 20 September 2021 at approximately 6.00am he attended the company’s facility in Epping to pick up a Franna crane and then drove it to the Metro Tunnel construction site in Parkville where the company was engaged as a contractor. When Mr Chebbo arrived, he was told by a CFMMEU delegate that the site was closed because of a state government directive that all tea rooms on construction sites were to be shut. The delegate told him that the union was in discussions about the possibility of construction employees working six hour shifts without breaks but that nothing had yet been agreed. Mr Chebbo gave evidence that he had been a member of the CFMMEU for some twenty years, and that he was unhappy about the tea rooms being closed and the prospect of working six hour days without a break and wanted answers about what was going to happen. While he was still at the Parkville site, Mr Chebbo received a call from the company operations manager about some work on a non-union site. He said that shortly afterwards, he received a call from Mr Norm D’Ambra, the company’s managing director, who told him to drive the Franna crane back to the Epping yard.

[4] Mr Chebbo’s evidence was that, after he arrived at Epping, he discussed the events of the morning with Mr D’Ambra. Mr Chebbo said that Mr D’Ambra actively encouraged him to protest about the government restrictions on tea rooms and to ‘fight for his rights’, and that Mr D’Ambra asked him why he was not out protesting. Mr Chebbo’s evidence was that Ms Julie Burton was involved in the conversation and supported what Mr D’Ambra was saying about protesting. Mr Chebbo said that after his discussion with Mr D’Ambra, he went home, as there was no work to do.

[5] In his witness statement, Mr Chebbo said that around 3.00pm, he wanted to find out what the CFMMEU was doing about the tearoom situation, and to support his fellow construction workers, so he went to the protest and met up with some other employees of the company. In his oral evidence, Mr Chebbo said that it was in fact earlier in the afternoon that he decided to attend the protest, and that he got to the protest around or shortly before 3.00pm. Mr Chebbo said that, when he arrived, he learned that there had been violence earlier in the day and that some of the people who had been violent worked for the company. Mr Chebbo said that after around one hour at the protest, he decided that it was not for him, as people were getting violent again, so he went home. He said that while he was at the protest, he was wearing his usual work clothes, which had no company logo, or anything to identify him as an employee of the company.

[6] Mr Chebbo said that on 21 September 2021, he received a call from Mr D’Ambra, who told him that he had no choice but to dismiss him, because the CFMMEU had threatened that the company would lose work if he did not do so, and that he could not risk keeping Mr Chebbo employed, given the pressure from the union. Mr Chebbo said that he was given no chance to explain what had occurred and that he had not been involved in any violence. He said that the telephone call was brief, much shorter than ten minutes.

[7] Mr Chebbo said that he then went to the Epping yard to speak with Mr D’Ambra in person, and that Mr D’Ambra told him that a CFMMEU delegate had seen Mr Chebbo at the protest outside the offices of the CFMMEU, and that he could not keep him employed because the CFMMEU was very angry about the damage caused to the union office in the city. Mr Chebbo said that he later read in the press statements made by Mr John Setka, the Victorian state secretary of the CFMMEU, to the effect that those involved in the protest would not work in the industry again. Mr Chebbo attached to his witness statement a copy of a printout of the ABC news website on 21 September 2021, which reported Mr Setka as saying that ‘people that were involved in the violent protest… they might as well go and pick fruit in Mildura somewhere… they will not be working in our industry’; and a copy of an article in the Age the following day, in which Mr Setka was reported as saying that ‘we don’t need morons, drunken morons, that think … throwing bottles at people is a good way to protest. They can go somewhere else’.

[8] Mr Chebbo said that contrary to Mr D’Ambra’s evidence, he was not directed to go straight home on the morning of 20 September 2021, and that he did not disobey a company direction to that effect because it was never made. Instead, Mr D’Ambra had said words to the effect that he may as well go home because there was no work to do. Mr Chebbo said that it was the CFMMEU delegate at the Metro Tunnel site who had told him and the other employees that the site was closed, not a company representative.

[9] Mr Chebbo said that he believed that his dismissal was unfair because he had done nothing wrong, much less committed serious misconduct, and that it had been Mr D’Ambra who had encouraged him to go to the protest in the first place. Mr Chebbo contended that the company had dismissed him because of the pressure that had been placed on it by the CFMMEU, and that this could not be a valid reason for dismissal. He said that he had not engaged in any violence at the protest, and that, unlike some people who had attended the protest, he was not anti-vaccination, and had attended the protest simply to find out what the CFMMEU was doing about the situation with the tea rooms and to support his fellow construction workers. He was not dressed in company clothing, and was at the protest in his private capacity, outside of working hours.

[10] Mr Norm D’Ambra gave evidence that he has been the company’s managing director for over ten years, and a CFMMEU member for over forty years. He said that the company has two union enterprise agreements, and that the company’s relationship with unions, and particularly the CFMMEU, was very important to the company. Mr D’Ambra said that in general terms, Mr Chebbo had been a fair employee who was responsible for an expensive company asset, and that the company had trusted him, and had needed to trust him, because of the level of autonomy of his work. He said that this trust was destroyed by Mr Chebbo’s conduct on 20 September 2021.

[11] Mr D’Ambra’s evidence conflicts with that of Mr Chebbo in a number of respects. First, Mr D’Ambra said that he did not tell Mr Chebbo to return the crane to Epping, and that another person made this call, acting on his instruction. As to the discussion that took place between Mr Chebbo and Mr D’Ambra on the morning of 20 September 2021, Mr D’Ambra strongly denied that he had encouraged Mr Chebbo to attend the protest and ‘fight for his rights’. Mr D’Ambra described Mr Chebbo’s evidence about these matters as absolutely false. Mr D’Ambra also said that it was a fabrication for Mr Chebbo to say that he had asked Mr Chebbo why he was not out protesting. Mr D’Ambra said that Ms Julie Burton had been present during the conversation but that she had not said anything that could have been taken as supporting the protest, and there had been no discussion of Mr Chebbo going to the protest. Mr D’Ambra described the conversation as more of a ‘rant’ from Mr Chebbo about the union, COVID, and the tea-shed issue, rather than a discussion, and that nothing was said about the protest or the possibility of Mr Chebbo going to the protest. Mr D’Ambra said that he vigorously denied Mr Chebbo’s allegations that he had supported or encouraged him to attend the protest, and that this was not something that would have been in the interests of the company.

[12] Mr D’Ambra said that the company had been doing everything within its power to keep its business going during COVID and that by 20 September 2021 the construction industry was at something of a crossroads, with negotiations stalled between the union and the state government on working conditions that would take account of the COVID risks. Mr D’Ambra also said that the CFMMEU had been giving the company a hard time about a few issues.

[13] Mr D’Ambra said that on the afternoon of 20 September 2021, the operations manager saw a video of the protest and identified a company employee, Jacob Psaila. Mr D’Ambra said that he called Mr Psaila, who said that he was with Mr Chebbo. Mr D’Ambra told Mr Psaila that the two of them should ‘get out of there’ or words to that effect. In his witness statement, Mr D’Ambra said that this occurred around 4.00pm but in his oral evidence he said that it was in fact earlier in the afternoon.

[14] Mr D’Ambra said that on the morning of 21 September 2021, he called Mr Chebbo and asked him what had happened the previous day. Mr Chebbo said that it was his right to go to the protest. Mr D’Ambra said to Mr Chebbo that he had been having a difficult time with the union and that Mr Chebbo had now made things worse, as he had been identified at the protest. He told Mr Chebbo that he had breached the government COVID restrictions and that he should not have gone to the protest, and that he had been told to go home and was still being paid, even though he was not at work. According to Mr D’Ambra, this discussion lasted some ten minutes. Mr D’Ambra said that he ultimately discovered there had been four company employees who had attended the protest, including Mr Chebbo, and that all of them were dismissed.

[15] Mr D’Ambra said that the conduct of Mr Chebbo on 20 September 2021 made it untenable for him to remain employed with the company, because he had broken the company’s trust by attending an illegal protest which he had no right to be at, given the COVID restrictions that were in place, under which there were only five reasons to leave the home. Mr Chebbo had attended the protest during working hours for which he was being paid by the company, when he was supposed to be at home because the Metro Tunnel site was closed. He said that Mr Chebbo had been told to go home but had instead gone to the protest and compromised the company’s reputation. Mr D’Ambra also said that the company’s complete loss of trust in Mr Chebbo was only underscored by the fact that he had made false statements in his evidence to the Commission about being encouraged to attend the protest. Mr D’Ambra said that, in an effort to support Mr Chebbo’s prospects of finding new work, the separation certificate issued to him by the company cited the reason for dismissal as ‘shortage of work’.

[16] Ms Julie Burton gave evidence that on the morning of 20 September 2021 Mr Chebbo came into the office where she and Mr D’Ambra were sitting and spoke for some ten to fifteen minutes about his views on COVID, the current industry restrictions, and his thoughts on the site closures that had occurred that morning. She described Mr Chebbo as ‘having a bit of a rant’ and that he had said that he did not believe the union was doing enough. Ms Burton said that neither she nor Mr D’Ambra said very much during this period. Ms Burton said that she had read Mr Chebbo’s witness statement and that it was categorically untrue that either she or Mr D’Ambra had told Mr Chebbo that they supported the protest or the idea that Mr Chebbo should go to the protest. Ms Burton said that she did not recall Mr Chebbo making any statement that suggested that he was thinking of going to the protest.

[17] Mr Psaila gave evidence that he had been dismissed from his employment with the company because of his attendance at the protest. He said that on 20 September 2021, Mr Chebbo had joined him at the protest and that they had spent more than an hour together at the protest that afternoon. They left around 4.00pm and Mr Chebbo drove Mr Psaila home.

Submissions of the parties

[18] Mr Chebbo submitted that the company did not have a valid reason to terminate his employment because he was within his rights to attend the rally outside the CFMMEU office on 20 September 2021, given that work on the Metro Tunnel project had been suspended and he was therefore not required to be at work. Mr Chebbo said that there was no evidence that he had engaged in any activity at the rally that would bring the company into disrepute or attract adverse publicity.

[19] Mr Chebbo contended that the company had a ‘knee-jerk’ reaction to the pressure that was obviously applied to it by the CFMMEU in connection with his attendance at the protest. He said that, although his attendance was in breach of the Victorian government’s stay-at-home orders, this was a matter between him and the Victorian authorities and did not have any bearing on his employment with the company. Mr Chebbo said that he had done nothing wrong and had not committed misconduct, and that his attendance at the protest lacked any connection to his employment and could not properly be relied on as a reason to dismiss him. Mr Chebbo said that his conduct could not be regarded as serious enough to warrant dismissal, and certainly not summary dismissal.

[20] Mr Chebbo said that he was not notified of the reasons for his dismissal, and whereas the company now said that these reasons were its loss of trust in him and his breach of the stay-at-home rules, the separation certificate given to him by the company had identified ‘shortage of work’ as the relevant reason for dismissal. Mr Chebbo said that he had no opportunity to respond to the reasons for dismissal. Although Mr Chebbo later attended the Epping site and had further discussions with Mr D’Ambra, in which he explained his actions on 20 September 2021, this was after the dismissal had taken place. Mr Chebbo said that he was not given an opportunity to have a support person present at discussions relating to this dismissal. Mr Chebbo further contended that he had been a loyal and well regarded employee over his three years of service, and that his actions on 20 September 2021 could not be considered misconduct, let alone serious misconduct. He said that the appropriate remedy was reinstatement, because he had a good work record and relationship with management, and there was no reason why the primary remedy would not be ordered. Alternatively, Mr Chebbo said that he should be awarded substantial compensation.

[21] The company contended that Mr Chebbo’s attendance at the unlawful protest constituted serious misconduct because it contravened the Victorian government’s stay-at-home orders, as well as the terms of Mr Chebbo’s work permit, and that Mr Chebbo had exposed both himself and the company to the risk of significant fines, and that he had put the reputation of the company at risk. Moreover, Mr Chebbo was being paid for the day in question: he had not only broken the law by attending the protest but had done so on the company’s time. The company contended that it was irrelevant that Mr Chebbo was not wearing clothing identifying him as an employee of the company, as he remained identifiable because many people in the industry knew him. The company contended that it had sustained reputational damage and that its important relationship with the CFMMEU had been compromised. It also said that Mr Chebbo had also defied a lawful direction given to him by Mr D’Ambra on the morning of 20 September 2021 that he go home.

[22] The company recognised that Mr Chebbo’s employment was terminated quickly and with little procedure but contended that the essential facts were not in dispute and that they constituted serious misconduct, such that any additional processes directed at gathering information or hearing further from Mr Chebbo would not have affected the outcome, and that in all the circumstances Mr Chebbo’s dismissal was not harsh, unjust or unreasonable.

Findings

[23] I make the following factual findings.

[24] First, I reject Mr Chebbo’s evidence that Mr D’Ambra encouraged him to attend the protest and told him to fight for his rights, and that Mr D’Ambra asked him why he was not out protesting. I accept Mr D’Ambra’s evidence that he did not say the things attributed to him by Mr Chebbo. I also accept Ms Burton’s evidence that neither she nor Mr D’Ambra encouraged Mr Chebbo to go to the protest. I found their evidence on these matters entirely convincing.

[25] Secondly, I find that Mr Chebbo attended the protest for well over an hour. Mr Psaila put Mr Chebbo’s arrival time at around 12.30 to 13.00, however Mr Chebbo produced a CityLink invoice stating that he had travelled at 1.40 on the afternoon of 20 September. This would still have him arriving at the protest in the city well before 3.00, even accounting for the need to find a park. The invoice shows a return journey underway at 4.38pm.

[26] Thirdly, I find that Mr Chebbo went to the protest because on some level he supported it. I do not accept Mr Chebbo’s evidence that he went in order to find out what was going on. In his witness statement, Mr Chebbo said that he wanted answers about what was going to happen. But any answers would be communicated through the media. I find it implausible that it was out of sheer curiosity that Mr Chebbo decided to break the law by leaving his home for an impermissible reason and to travel from Glenroy to the city to attend the protest outside of the CFMMEU office. Mr Chebbo said in his statement that one reason he went to the protest was to ‘support (his) fellow construction workers’. In my view, he was supporting their protest. In this regard, I note that Mr Chebbo imputed to Mr D’Ambra use of the expression ‘fight for your rights’. Mr D’Ambra did not say this. But in my view, Mr Chebbo’s use of these words suggests that this is what he believed his fellow construction workers were doing at the protest.

[27] Fourthly, I find that Mr Chebbo understood that the stay-at-home orders prohibited him from leaving his home on the afternoon of 20 September 2021 to attend the protest, because none of the five permitted exceptions applied.

[28] Fifthly, I accept Mr D’Ambra’s evidence that he was not in fact subjected to pressure from the CFMMEU to terminate Mr Chebbo’s employment and that he did not decide to dismiss Mr Chebbo because of any such pressure having actually been exerted. I note that in its written submissions, the company stated, in response to a pro forma question in the Commission’s ‘Respondent’s outline of argument’ document, that ‘Norm spoke with the unions about the 4 employees who attended at the illegal protest’. This may simply have been a reference to Mr D’Ambra’s discussions with the company’s CFMMEU delegate about the attendance of employees at the protest. I do not consider that the union applied pressure to Mr D’Ambra through the delegate. However, in my opinion, it would have been obvious to all concerned that the CFMMEU would take a very dim view of employees who had attended the protest outside their office, and that Mr D’Ambra, with his extensive industry experience, would have understood this to be the case, and would have expected to come under pressure if he had not dismissed Mr Chebbo.

[29] Sixthly, I accept Mr D’Ambra’s evidence that he considered Mr Chebbo’s actions ‘compromised the reputations of the company.’ Mr D’Ambra’s peculiar use of the plural in this context conveys the obvious fact that the company has a reputation in the eyes of many persons and entities. It has a reputation with the union, which Mr D’Ambra acknowledged was very important to him. It has a reputation with other construction industry companies, many of whom are plainly sources of work for the company, given the nature of its business as a supplier of labour and equipment. Among the company’s clients is the Victorian government, whose stay-at-home orders Mr Chebbo and his colleagues contravened by their presence at the protest. I find that Mr D’Ambra had a reasonable concern that Mr Chebbo’s actions had compromised the company’s reputation, because there was a risk that his presence at the protest might have suggested to an observer (including the actors mentioned above) that the company endorsed or acquiesced in his attendance at the protest, which after all occurred on a workday, even if most sites had closed because of the tearoom issue.

[30] Seventhly, I find that, although Mr Chebbo was not wearing clothing that bore the name of the company, he was nevertheless identifiable by some people as an employee of the company for the simple reason that they knew who he was. Mr Chebbo’s evidence was that he had been in the industry for twenty years, he drives a crane, and a lot of people know him.

[31] Eighthly, I find that Mr D’Ambra told Mr Chebbo that he could go home, because there was no work to do for the day, but that this was not in the nature of a direction. At the same time, once Mr D’Ambra made clear to Mr Chebbo that he was not needed for work, he was required by the stay-at-home orders to return to his home. The exception relating to the performance of essential work no longer justified his remaining outside.

[32] Finally, I accept Mr Chebbo’s evidence that the telephone conversation between him and Mr D’Ambra on 21 September 2021 was much shorter than ten minutes. I otherwise prefer Mr D’Ambra’s account of what was said. I find his evidence more reliable, particularly given my rejection of Mr Chebbo’s evidence that Mr D’Ambra encouraged him to attend the protest. It may be that Mr Chebbo had a propensity to draw unavailable inferences from what Mr D’Ambra said to him. For example, Mr D’Ambra’s statement to Mr Chebbo that the union had been giving him a hard time recently and that Mr Chebbo had made it worse may have translated to a statement, in Mr Chebbo’s mind, that Mr D’Ambra had been told by the union to dismiss him. But that is not what occurred.

Consideration

[33] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387. The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). Such a reason is one that is valid in the sense both that there was a good or sufficient reason, and a substantiated reason.

[34] The protest was unlawful because the persons attending it did so in contravention of the stay-at-home directions made by the chief health officer under the Public Health and Wellbeing Act 2008, pursuant to which there were only five permitted reasons for a person to leave home. Attending a protest was not one of them. Mr Chebbo is wrong to say that he was within his rights to attend the protest. He had no such right. In my view, what Mr Chebbo meant by this submission was that it was his business whether to attend the protest, and that it had no connection with his employment. But this too is wrong. Mr Chebbo’s attendance at the unlawful protest had several connections to his work.

[35] First, the protest concerned arrangements for tearooms and vaccination requirements for construction workers, including Mr Chebbo. It was a protest relating to working conditions for the industry. In this regard, it may be distinguished from some of the other protests that have occurred in contravention of the stay-at-home laws.

[36] Secondly, Mr Chebbo attended the protest on the company’s time. Although Mr Chebbo was not required to undertake work because of the closure of the Parkville site, he was still being paid. Mr D’Ambra told Mr Chebbo that he could go home. He did not tell Mr Chebbo he could go to a protest, nor could he have lawfully done so. Mr Chebbo was not taking a day off. He was not on annual leave. He was receiving wages for a day when he was required to be available for work.

[37] Thirdly, because the protest related to conditions of work in the industry, and because it occurred during working hours (the construction industry had remained open when most others were closed), Mr Chebbo’s presence at the protest could suggest to an observer that his employer endorsed or tolerated his presence at the protest. This created a reputational risk for the company. Mr D’Ambra had a reasonable concern about the reputational risk caused by his employees’ presence at the protest. Those whose view of the company could have been adversely affected included current or potential clients, including the state government, as well as the CFMMEU, with which the company has an important relationship. The fact that Mr Chebbo was not wearing clothing bearing the company’s logo simply points to the absence of an aggravating circumstance. It was still possible for him to be identified as an employee of the company, because Mr Chebbo had worked in the industry for a long time and was well known. In what way might the company’s reputation with any of these actors have been tarnished by a perceived support for or acquiescence in its employees’ attendance at the protest? Through the opprobrium of being associated with, a contravention of public health measures that were directed at curtailing the spread of the virus, particularly in a context where the construction sector had been subject to special arrangements and had been allowed to stay open when much of the economy was shut. The protest also put those special arrangements at risk. I also note that Mr Chebbo attended the protest with another employee of the company, potentially increasing their visibility as company employees. Further, Mr Chebbo unreasonably believed, or least was prepared to say, as he did in his evidence, that his employer had actually encouraged him to attend the protest, when this was not the case.

[38] Mr Chebbo did not simply attend a protest in contravention of the stay-at-home orders. He attended a protest that was related to his work and did so on the company’s time. It put his employer’s reputation at risk. It is true, as Mr Chebbo said, that there is no evidence of specific loss or damage arising from his presence at the protest. There is no evidence that a contract has been lost, or that a particular business or industrial relationship has been irreparably damaged. But for an employee to create a risk to the reputation of the employer is a serious matter. This is what Mr Chebbo did by deciding to attend the protest. It gave the company a valid reason to dismiss him. I would also note, without placing reliance on the matter, that all of those who attended the protest likely bear some responsibility for the subsequent shutdown of the sector, and that Mr Chebbo must carry his share of the burden for this, which also, of course, affected the company.

[39] Mr Chebbo contended that the company dismissed him because it was told to do so by the CFMMEU. But this is not what occurred. Although I consider that Mr D’Ambra likely expected that the CFMMEU would be hostile to Mr Chebbo because of his attendance at the protest, he did not dismiss Mr Chebbo for this reason. He had another reason to dismiss him, namely that Mr Chebbo had created a reputational risk to the business. This being the case, it would not actually matter if Mr D’Ambra had had an additional motivation to dismiss Mr Chebbo which was not a valid a reason. That is, even if Mr D’Ambra had dismissed Mr Chebbo partly because he feared the CFMMEU’s reaction to Mr Chebbo’s conduct, he nevertheless had a further and valid reason to dismiss Mr Chebbo. I would add that Mr Chebbo’s attendance at the protest could not be regarded as a ‘lawful industrial activity’ within the meaning of s 347 of the Act and subject to the protection provided by s 346.

[40] Mr Chebbo said that the protest he attended was no different from many other unauthorised industrial protests that have occurred over the years. I disagree. Simply protesting is not unlawful. Unprotected industrial action may or may not be unlawful depending on the circumstances. The protest on 20 September 2021 on the other hand was categorically unlawful. Importantly, unlike a regular industrial protest, it was liable to attract opprobrium and public outrage at the flouting of public health measures imposed in the public interest, by persons who had been granted the special privilege of being allowed to continue to work when most sectors remained wholly or partly closed. In my view, the company clearly had a valid reason to dismiss Mr Chebbo.

[41] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their conduct or performance (s 387(b) and (c)).

[42] In my assessment, Mr D’Ambra told Mr Chebbo of the essential reasons for dismissal during their telephone conversation on 21 September 2021. He told Mr Chebbo that he should not have gone to the protest and that the union had been giving him a hard time recently and that Mr Chebbo had now made it worse. However, this was not a complete explanation of the reasons for dismissal. I accept Mr D’Ambra’s evidence that he asked Mr Chebbo what had happened the previous day, but because the reasons for dismissal were not explained in detail, Mr Chebbo could not respond fully to them. On the other hand, I do not consider that this was a case where a more detailed investigation, including a more fulsome opportunity for Mr Chebbo to respond to the reasons for dismissal, would have led to a different outcome, because the actions that constituted or gave rise to the valid reason for dismissal have been substantiated. Mr Chebbo said that he did not have a chance to explain that, unlike some of the other company employees, he had not been involved in any violence or inappropriate behaviour. But the company did not believe that he had been involved in such conduct. That was not why his employment was terminated.

[43] The company did not refuse, unreasonably or otherwise, to allow Mr Chebbo to have a support person present to assist in discussions relating to the dismissal (s 387(d)). There was neither a meeting nor any request for representation.

[44] If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. The reason that I have found to be a valid reason for dismissal did not relate to performance. It related to conduct.

[45] The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f), (g)). The company is not a small employer. However, these factors do not in my view ‘raise the bar’ for a larger employer. It is rather smaller employers of whom less might be expected in relation to procedural elements of a dismissal. These considerations carry little weight in the analysis of whether the dismissal of Mr Chebbo was unfair.

[46] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s 387(h)). I take into account Mr Chebbo’s evidence that the sudden loss of his job caused severe emotional and financial distress, and that prior to the incident on 20 September 2021 he had rendered three years of good service with the company. An important consideration is whether the decision to dismiss the employee was proportionate. I reject Mr Chebbo’s contention that, because he behaved better than the other employees who attended the protest, he should necessarily have received a lesser disciplinary sanction. All four employees who attended the protest were dismissed. All of them put the company’s reputation at risk. I note the company’s contention that Mr Chebbo’s attendance at the protest might have exposed it to penalties in connection with the issuance of his permitted worker permit, however this was not developed, and I place little weight on it.

[47] It is important to consider whether the company’s decision to dismiss Mr Chebbo, and to do so summarily, was proportionate to the reasons for dismissal. It is relevant to consider the contractual position. Serious misconduct justifying immediate termination of the contract of employment may include conduct involving a breach of an essential term, a serious breach of a non-essential term, or conduct manifesting an intention not to be bound by the contract in the future (see Ryman v Thrash Pty Ltd [2015] FWCFB 5264 at [27]).

[48] The incident that occurred on 26 September 2021 was a serious matter, however in my view Mr Chebbo’s conduct did not constitute serious misconduct. While Mr Chebbo’s conduct was deliberate, in the sense that he chose to break the stay-at-home orders and by doing so put his employer’s reputation at risk, I consider that Mr Chebbo did not think through the consequences of his actions. It was not the case that he directly defied a clear company policy prohibiting certain conduct. Rather, he failed to have regard to his duty of fidelity to his employer and act in its best interests; he did not think about the reputational risk to his employer that could be caused by his attendance at the protest. He should have done so. His failure to do so was a valid reason for dismissal. Dismissal was a proportionate response. But Mr Chebbo should have been dismissed on notice. The decision to dismiss him summarily was harsh.

Remedy

[49] As to remedy, I am satisfied that reinstatement is inappropriate, because the extent of the unfairness in this case is confined to the decision not to terminate on notice. In my opinion, payment of compensation is appropriate in all the circumstance (s 390(3)). Applying the considerations in s 392, I consider that an appropriate amount of compensation would reflect the period for which Mr Chebbo would have remained employed if he had been terminated on notice. In the present case, this will be a payment equivalent to 4 weeks’ pay less taxation as required by law. If the precise amount to be paid proves to be controversial, the parties may request a further listing. Otherwise, an amount reflecting four weeks’ notice is to be paid within four weeks of this decision.

[50] I note that Mr Chebbo presented minimal evidence of efforts to mitigate his loss, which were essentially confined to telephoning contacts in the industry. He seemed to assume that there was no point in applying for work on union sites because he had been or would be blacklisted by the union. However, this is not a safe assumption, and the limited efforts Mr Chebbo made to mitigate his loss would have resulted in a substantial reduction in any other compensation that might have been ordered, had the extent of the unfairness gone beyond the failure of the company to afford or pay notice.

DEPUTY PRESIDENT

Appearances:

G. McKeown of counsel for Mr Chebbo
R. O’Neill of counsel for Major Crane Logistics Pty Ltd

Hearing details:

2021
Melbourne
16 December

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