Fair Work Act 2009
s.394—Unfair dismissal

Andrew Brett
v
HB Engineering (Tas) Pty. Ltd.
(U2022/1979)

Application for an unfair dismissal remedy – dismissal harsh, unjust and unreasonable, compensation ordered.

[1] On 15 February 2022, Andrew Brett (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging he had been unfairly dismissed from his employment with HB Engineering (Tas) Pty. Ltd. (the Respondent) on 31 January 2022. The Applicant seeks an order for compensation.

[2] Conciliation of the matter before the Commission failed to achieve a resolution and consequently the matter was listed for hearing/conference before me on 28 June 2022. I determined to conduct a conference pursuant to s.398 of the Act.

[3] At the hearing, the Applicant was self-represented and gave evidence himself. The Respondent, which was represented by Stuart Boyd (Director), called the following witnesses to give evidence:

•  Dale Green – Tradesperson

•  Lyndall Healey – Business Manager

•  Justin Starick – Workshop Supervisor

Background and evidence

[4] The Applicant commenced employment with the Respondent at its Rocherlea, Tasmania engineering workshop on 27 January 2021 as a casual labourer. It was uncontroversial that as a casual employee, the Applicant worked on a regular and systematic basis. He was then engaged by the Respondent on a full-time permanent basis from 2 September 2021. At the date of the Applicant’s dismissal, his role was that of the CNC plasma cutter and he was in receipt of an hourly rate of pay of $25.09 1, excluding superannuation. The Applicant confirmed that his ordinary hours of work prior to his dismissal were 7.00am to 3.30pm Monday to Thursday and 7.00am to 1.30pm on Friday with a 15 minute morning ‘smoko’ break taken at 10.00am each day.

[5] The Respondent contends that the Applicant spent much of the morning of 28 January 2022 undertaking personal work on his motor vehicle without approval, that conduct constituting theft it says. That allegation is based on evidence of its witnesses which is set out below along with the evidence of the Applicant.

[6] Mr Green, who was the senior employee in the workshop that morning, states that he approached the Applicant at approximately 9.30am and observed the Applicant at the ‘wire wheel’ polishing what was an exhaust manifold from the Applicant’s car. He says he asked the Applicant why the CNC plasma cutter was not operating in circumstances where the tradespersons were waiting on the Applicant to cut plates for them 2. He says that he further told the Applicant that he did not care what personal jobs he was doing but he (the Applicant) needed to start the CNC plasma cutter and get the plates cut. According to Mr Green, the Applicant ignored the instruction and continued to work on his car parts.3 Mr Green states that he was also aware that the Applicant had asked an apprentice (Mr Cody Room) to do some welding on the exhaust manifold of the Applicant’s motor vehicle that morning.4

[7] The Applicant disagreed with Mr Green’s evidence and states that he was cleaning tips from the CNC plasma cutter at the time he spoke with Green, although Mr Green stated during cross examination that he could not recall seeing any parts other than the exhaust manifold at the time of their conversation at the ‘wire wheel.’ Mr Green says he also formed the view that the Applicant had spent most of that morning doing personal work on his vehicle parts as the CNC plasma cutter had not been operated that morning. He conceded however that he could not be certain that the Applicant had not undertaken other duties as he was not observing him the whole morning. No explanation was offered by the Applicant as to why the CNC plasma cutter was not operating on the morning of 28 January 2022 beyond the Applicant stating he was cleaning plasma tips.

[8] Mr Green also states that later in the morning he saw the Applicant entering the workshop office, and shortly after, leaving the site. Mr Green says he then spoke with Ms Healey in the office who confirmed to Mr Green that the Applicant had gone home due to a migraine headache. Mr Green says he laughed at this explanation and stated to Ms Healey that the Applicant had been working on his car all morning because of a vehicle inspection he had that day 5. The timing of the Applicant’s departure from the site was said by Ms Healey to be at approximately 10.50am6, although she conceded it could have been a little later.

[9] Mr Green further stated that he was aware of the Applicant’s motor vehicle inspection appointment on 28 January 202 due to a conversation held prior to the start of work that day at which the Applicant told fellow employees of his vehicle inspection booking. The Applicant did not contradict that evidence but claimed that he subsequently cancelled the vehicle inspection booking after he went home feeling unwell later that morning. The Applicant stated that he subsequently arranged for a vehicle inspection in the following week, evidence of which he subsequently provided, as directed by the Commission, by way of a Vehicle Registration Application with inspection certification dated 1 February 2022 7.

[10] Ms Healey gave evidence that after the Applicant left the site on 28 January 2022, she reviewed the video footage of that morning from the surveillance cameras in the workshop with Mr Simon Bretzke (Estimator). She states that the footage showed the Applicant very busy in the workshop running around with ‘bits and pieces of car parts’ 8. When questioned during cross-examination as to how she knew they were car parts, Ms Healey conceded that she could not be certain on viewing the footage that the parts were in fact car parts but ‘presumed’ they were because of the information provided to her by Mr Green in their conversation held prior to her viewing the video footage.

[11] The video footage referred to in Ms Healey’s evidence was not available for the proceedings as it was automatically ‘wiped’ seven days following its recording. At that stage, the Respondent was unaware that it was facing an unfair dismissal claim and did not take steps to preserve a recording of the footage from 28 January 2022.

[12] Mr Starick, who is the workshop supervisor, states that he gave the Applicant a verbal warning during the week prior to his dismissal, the warning being for the Applicant undertaking personal work (on motor vehicle parts) during working hours. 9 He agreed under cross-examination that the warning was not formal, was not in writing nor diarised. The Applicant denied that he was given a warning by Mr Starick, either verbally or in writing.

[13] Mr Starick states that he was on leave on the 28 January 2022 when the incident involving the Applicant occurred, but he received phone calls from Ms Healey on that day alerting him to what had occurred and that some of the other employees were not happy with the Applicant’s conduct 10. On his return to work on 31 January 2022, Mr Starick says he reviewed the workshop video footage from the 28 January 2022.11 He stated during cross-examination that he spent approximately 15 minutes reviewing 3 hours of footage, and in reviewing the footage, observed the Applicant and Mr Room working on the Applicant’s car parts for most of the morning. Mr Starick conceded however during cross examination that there were periods where the Applicant may have been doing his normal duties but was adamant that he was working on the exhaust manifold at least 15 minutes prior to and after smoko. He states that he subsequently spoke with both Mr Room, Mr Green and the Applicant to establish the facts. He says that;

•  Mr Green confirmed that the Applicant was working on the head of his motor vehicle engine most of the morning;

•  Mr Room explained that he did some personal work for the Applicant during the morning smoko break and 10 minutes either side of that break; and

•  the Applicant advised that he and Mr Room only worked on the vehicle part during the morning smoko break, which Mr Starick says he did not accept based on his review of the video footage.

[14] The Applicant rejected that Mr Starick spoke to him on the morning of 31 January 2022 as claimed by Mr Starick. 12 When pressed on the alleged conversation Mr Starick was more equivocal and stated that he was ‘pretty sure’ he had spoken to the Applicant on the morning of the 31 January 2022.

[15] The Applicant rejected that he was working on his motor vehicle during working hours 13. He conceded that he brought an exhaust manifold to work to have a 10mm tig weld applied to it, which Mr Room agreed to do during his smoko break.14 The Applicant further states that he felt unwell around 9.30 am, felt progressively worse during the morning, left the site around 11.20am and on arrival home took 4 Advil tablets and went to sleep. He claims that he did not work on his car until the immediately following Sunday afternoon.15

[16] Following his conversations with Mr Green, Mr Room, and the Applicant on the morning of 31 January 2022, Mr Starick states that he then spoke with the Respondent’s Directors, Stuart and Martin Boyd. After he outlined to them what had occurred on 28 January 2022, he was asked to leave the meeting so that they could discuss the matter between themselves. After a period of time Mr Starick says he was recalled to the office and further discussed the matter with Stuart and Martin Boyd during which discussion he says he advised them of the previous instance where he had caught the Applicant performing personal work during company time 16. Mr Starick agreed during cross-examination that the decision to terminate the Applicant was agreed in the meeting between himself, Stuart and Martin Boyd.

[17] Mr Starick states that at approximately 3.15pm on 31 January 2022 the Applicant was called to the office for a meeting with himself, Stuart Boyd and Martin Boyd. 17 A support person was neither offered by the Respondent nor requested by the Applicant. According to Mr Starick, the Applicant was advised during the meeting that working on personal jobs and using the Respondent’s engineering material without permission constituted theft. Mr Starick further states that he told the Applicant that he had watched him on the video footage clearly working on his car parts on the morning of 28 January 2022,18 although Mr Starick could not explain why the video footage was not shown to the Applicant despite its obvious importance to the Respondent’s decision making. Mr Starick states that Stuart Boyd then confirmed to the Applicant that he would be finishing up that day following which the Applicant left the office and the site.19 When pressed during cross-examination on whether the Applicant was given an opportunity to respond to the reasons for his dismissal, Mr Starick stated that the Applicant was not invited to respond until after he was told of the decision to dismiss him.

[18] The Applicant gave a different version of the meeting events and states that he was called by Mr Starick to a meeting in the office late on 31 January 2022, the subject of which meeting was not explained to him prior to his arrival at the office where Stuart Boyd, Mr Starick and Martin Boyd met him. He says he was immediately advised that as of that day he would no longer be working for the Respondent. 20 He claims that the reasons communicated to him were; he went home the previous Friday to work on his car, his poor work performance and his bad attitude. He further states that nothing was said to him about the exhaust manifold he allegedly performed work on during working hours on 28 January 2022.21 Nor was he shown the video footage from the 28 January 2022 on which the Respondent says it relied. He further stated that the Respondent was not interested in hearing his side of the story.22 No letter of termination was issued to the Applicant although he subsequently received a Separation Certificate23 which set out the following reasons for his dismissal;

•  Conducting personal work in business hours;

•  Inefficient work practices;

•  Taking sick leave to perform personal duties; and

•  Falsifying time sheets.

[19] The Applicant claimed during cross-examination that it was normal practice for employees to undertake personal jobs at work and referred to plates he had cut for Mr Starick’s personal use, a claim not denied by Mr Starick. However, Mr Starick confirmed that such personal work was allowed subject to approval by a Director, which he had obtained. Mr Starick also stated that employees had in the past been permitted to use the workshop outside working hours for personal jobs, even to the point of allowing employees to take the workshop keys home so that they could attend the workshop on the weekend as Mr Starick had himself done on many occasions. 24 The use however of the workshop and consumables for personal jobs, whether undertaken during or outside working hours, was subject to approval being obtained according to Mr Starick.

[20] Following the meeting with the Applicant, a meeting was then conducted with Mr Room at which meeting he was given a first and final warning. In only issuing a final warning the Respondent took into account that Mr Room was not aware that no permission had been given to the Applicant to work on his car and that Mr Room had not previously engaged in such conduct. 25

Has the Applicant been dismissed?

[21] A threshold issue to determine is whether the Applicant has been dismissed from his employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

[22] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.

Initial matters

[23] Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and

(d) whether the dismissal was a case of genuine redundancy.

[24] Relevant to the determination of the preliminary matters I am satisfied that; 

•  the Applicant was dismissed on 31 January 2022 and filed his unfair dismissal application on 15 February 2022, that latter date being within 21 days of the date of his dismissal; 

•  at the time of the Applicant’s dismissal the Respondent employed 25 employees and is therefore not a small business employer within the meaning of s.23 of the Act; 

•  the Applicant commenced employment with the Respondent on 27 January 2021 and at the time of his dismissal had been employed for a period of over 12 months, that period being in excess of the minimum employment period of 6 months; 

•  the Applicant was covered in his employment by the Manufacturing and Associated Industries and Occupations Award 2020 26 (the Award) and was on an hourly rate of pay of $25.09 at the time of his dismissal; and 

•  the Applicant was not dismissed due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise. 

[25] Having considered each of the initial matters, I am satisfied that the application was made within the required period in subsection 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application.

Was the dismissal harsh, unjust, or unreasonable?

[26] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s.387(a)?

[27] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”²⁷ and should not be “capricious, fanciful, spiteful or prejudiced²⁸.” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer²⁹.

[28] According to the closing submissions of the Respondent, the reason for the dismissal of the Applicant may be simply described as being for theft due to the Applicant’s use of paid company time and materials to perform personal work. The reasons are more fulsomely described in the Separation Certificate issued to the Applicant following his dismissal, those being as follows;

•  Conducting personal work in business hours;

•  Inefficient work practices;

•  Taking sick leave to perform personal duties; and

•  Falsifying time sheets.

[29] Before turning to the core allegation against the Applicant, that of his undertaking personal work in business hours, I will deal with the other matters raised in the Separation Certificate.

[30] The allegation of ‘inefficient work practices’ was not expanded on in the proceedings before me. The nature of the concern may relate to the Respondent’s view of the Applicant’s work performance. There was however no evidence before me, beyond Mr Green’s evidence as to Applicant’s alleged failure to operate the CNC plasma cutter on the morning of the 28 January 2022. That evidence was challenged by the Applicant and while I make findings below regarding the Applicant performing personal work during business hours on 28 January 2022, there is no other probative evidence before me to support the Respondent’s allegation that the Applicant engaged in inefficient work practices. It is also significant that there was no record of performance management or of any formal warnings, be that written or verbal, issued to the Applicant. In these circumstances I am not persuaded that the alleged ‘inefficient work practices’ engaged in by the Applicant founds a valid reason for his dismissal.

[31] Turning to the allegation that the Applicant took sick leave to perform personal duties. This allegation is based on the Respondent’s belief that the Applicant left work early on 28 January 2022, not for the reason of illness, but to take a motor vehicle for a vehicle inspection that was a pre-requisite for the vehicle’s registration. This belief was supported by unchallenged evidence of Mr Green that the Applicant told colleagues at the start of work on 28 January 2022 that he had a vehicle inspection booking that day. The Respondent’s belief was also fuelled by the Applicant’s conduct on the morning of the 28 January 2022 in which he was seen to be performing personal work on an exhaust manifold from his car.

[32] The Applicant readily confirmed in his evidence that he did originally have a vehicle inspection booking on 28 January 2022 but was forced to cancel and rebook the appointment in the following week after he fell ill on 28 January 2022. The Applicant’s explanation is corroborated by the vehicle registration application 30 which indicates that the authorised vehicle inspection was undertaken on Tuesday 1 February 2022. In these circumstances, I accept the evidence of the Applicant that he fell ill on the 28 January 2022 and did not take his vehicle for an inspection on that day. Rather, I accept that he rescheduled the inspection to the following Tuesday.

[33] The above leads me to find that the Applicant’s absence from work from approximately 11.00am on 28 January 2022 was not because he was performing personal work as contended by the Respondent. No other probative evidence was advanced by the Respondent to support the allegation that the Applicant took sick leave to perform personal duties. The Respondent’s allegation is not made out and does not found a valid reason for the Applicant’s dismissal.

[34] The allegation of falsifying time sheets was not supported by any evidence, submissions or other material in the proceedings, although the allegation in the Separation Certificate may relate to the Applicant’s claim for sick leave in circumstances where the Respondent believed the Applicant was attending to personal duties. Absent any evidence or submissions going to the allegation I am unable to find that the Applicant falsified time sheets and thus the allegation does not found a valid reason for his dismissal.

[35] I now return to the core allegation that the Applicant undertook personal work during business hours, that of working on an exhaust manifold from his car. The Respondent characterised this as theft of company time and materials. Evidence of the alleged conduct was adduced from Mr Green, Mr Starick and Ms Healy.

[36] Mr Green, who was the senior tradesperson at work on the 28 January 2022, claimed in his witness statement that the Applicant spent all morning of that day working on an exhaust manifold rather than operating the CNC plasma cutter, which meant that tradespersons in the workshop did not have sufficient cut plates to work on. Mr Green’s belief that the Applicant had spent all morning working on his car part was based on two things. Firstly, his conversation with the Applicant at 9.30am at the ‘wire wheel’ when he says he observed the Applicant polishing an exhaust manifold rather than operating the CNC plasma cutter. Secondly, he says the CNC plasma cutter had not been operated that morning which supported his view that the Applicant had been doing personal work instead of the job for which he was employed.

[37] The Applicant resisted Mr Green’s assertion that he was polishing his exhaust manifold when they spoke at approximately 9.30 am on 28 January 2022. He put to Mr Green that he had other parts, including ‘plasma tips’ that he was cleaning at the ‘wire wheel’ when they spoke. Mr Green was adamant that he saw no other parts and only saw the Applicant working on the exhaust manifold. Mr Green did however concede that he could not be certain that the Applicant had not performed some of his normal duties in the period prior to their discussion as Mr Green was not observing the Applicant all morning.

[38] I found Mr Green to be a witness of credit having regard to his candour and the concessions he readily made. Specifically, that the Applicant may have undertaken some of his normal duties in the period prior to their discussion at 9.30am and that his statement that the Applicant had spent all morning working on his car parts was not informed by direct observation but that the plasma cutter had not been operated during that morning. Significantly, the Applicant did not challenge or rebut Mr Green’s evidence that he (the Applicant) declined to accede to Mr Green’s request in their discussion on the morning of 28 January 2022 that he commence operating the CNC plasma cutter to provide plates for the tradespersons.

[39] While I largely accept Mr Green’s evidence, it does not rise to the level of establishing that the Applicant spent ‘all morning’ working on the exhaust manifold. I am however satisfied that it establishes that at least at 9.30am when they spoke, the Applicant was undertaking personal work in circumstances where the CNC plasma cutter was not running, had not been operated between 7.00am and 9.30am and where tradespersons were waiting on cut plates. This supports a finding that the Applicant undertook personal work during business hours on the morning of 28 January 2022.

[40] Turning to Ms Healey’s evidence, she says she watched the video footage from the workshop surveillance cameras following her conversation with Mr Green. She stated in her evidence that she observed the Applicant in the footage as ‘very busy in the workshop running around with bits and pieces of car parts.’ When pressed in cross-examination on how she knew the parts the Applicant was working on were his car parts, she responded that she ‘presumed’ they were because of what Mr Green had told her in their earlier conversation. Ms Healey was unable to state with certainty that the parts she observed the Applicant working on were his car parts or parts associated with his normal work duties. While Ms Healey’s evidence establishes that the Applicant was busy on the morning of 28 January 2022 it does not assist establish whether the activities he was undertaking was personal work, CNC plasma cutter related work or a mixture of both. I consequently accord her evidence little weight.

[41] Mr Starick, who is the workshop supervisor, was on leave on 28 January 2022 and as such did not directly observe what occurred in the workshop that morning. He relied entirely on the video footage from the surveillance cameras in the workshop which he reviewed on the morning of 31 January 2022. Mr Starick initially claimed that his review of the footage revealed that the Applicant and Mr Cody were working on the car part ‘throughout the morning.’ He did however concede that he only spent 15 mins reviewing three hours of footage taken from several different cameras in the workshop.

[42] The video footage, as previously stated, was not available for these proceedings due to having been automatically wiped after 7 days. Nevertheless, Mr Starick, while convincing in his evidence that he observed the Applicant working on the exhaust manifold in the footage, was less convincing in his initial claim that the personal work was observed to having been undertaken by the Applicant throughout the morning. That is because of his concession that he only spent some 15 mins reviewing the footage and had to fast forward through some of the footage in reviewing it. As earlier stated, Mr Starick conceded during cross-examination that the Applicant may have performed some of his normal duties on the morning of the 28 January 2022 but was adamant that in the period prior to and following smoko, the Applicant and Mr Room were working on the exhaust manifold.

[43] While the video footage was not available for the Commission’s review, Mr Green and Mr Starick’s evidence taken together support a conclusion that the Applicant did undertake personal work during business hours on the morning of 28 January 2022. The Applicant also co-opted Mr Room to assist him. While the Applicant claims he did no personal work during business hours and that Mr Room only performed work during the smoko break in applying the weld to the exhaust manifold, I found that evidence unconvincing for the following reason. Mr Green’s evidence directly rebutted that of the Applicant and no reason was advanced by the Applicant to explain why Mr Green would have given misleading evidence. There was no suggestion of any malice or agenda on the part of Mr Green. Simply put, Mr Green wanted the Applicant to get the plasma cutter running to provide cut plates for he and his colleagues to work on. That objective was frustrated by the Applicant doing personal work.

[44] Having regard to the above, I am satisfied that on the morning of 28 January 2022 the Applicant brought an exhaust manifold to the workplace with the intent of working on it. He did so at least during the period between 7.00am and 10.00am. It is not possible to state with any certainty how much time he spent working on the exhaust manifold, as opposed to performing his normal duties. It seems likely however that the time spent was not inconsequential, particularly in circumstances where tradespersons were waiting on plate to be cut by the Applicant.

[45] My conclusion that the time spent on personal work by the Applicant was not inconsequential is primarily based on Mr Green’s evidence that at least 30 minutes before the morning smoko break the Applicant was working on the exhaust manifold at the ‘wire wheel’ and gave no indication to Mr Green of starting up the CNC plasma cutter which had not been operated that morning, further supporting a conclusion that the Applicant had been engaged on personal work.

[46] The personal work undertaken by the Applicant on the 28 January 2022 was done without approval and was clearly contrary to his obligations to his employer. I am satisfied that the conduct founds a valid reason for his dismissal which weighs in favour of a finding that the dismissal was not unfair.

Notification of the valid reason – s.387(b)

[57] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,³¹ and in explicit³², plain and clear terms³³.

[47] The Applicant claims that he was told of his dismissal on arriving at the meeting on 31 January 2022 with the reasons advanced being that; he went home early on the 28 January 2022, his poor work, and bad attitude. For its part, the Respondent claims that the Applicant was notified that the reason was that of undertaking personal work during business hours. I found Mr Starick’s evidence of the reason for dismissal notified to the Applicant as unconvincing in circumstances where the evidence relied on by the Applicant, that of the video footage, was not made available to the Applicant prior to the dismissal decision.

[48] Even were I to accept the Respondent’s submission, it is plainly apparent on the evidence of Mr Starick that the decision to dismiss the Applicant was taken by the Respondent prior to the meeting with the Applicant. According to Mr Starick, the decision to dismiss the Applicant was agreed in an earlier meeting involving Stuart Boyd, Martin Boyd and himself.

[49] In the above circumstances I am not satisfied that the Applicant was notified of the valid reason for his dismissal prior to the decision being made. This weighs in favour of a finding that the dismissal was unfair.

Opportunity to respond to any reason related to capacity or conduct – s.387(c)

[50] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.³⁴

[51] The opportunity to respond does not require formality and the factor is to be applied in a common-sense way to ensure the employee is treated fairly.³⁵ Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to the concern, this is enough to satisfy the requirements.³⁶

[52] The Applicant states that he was advised on arrival at the disciplinary meeting on 31 January 2022 that he would be finishing up that day. He says he was then advised of the reasons for his dismissal but that his attempt to provide his side of the story was rebuffed by the Respondent. Significantly, the Applicant was not notified of the purpose of the meeting when requested by Mr Starick to come up to the office. Nor was he given an opportunity to review the video footage which the Respondent now says it relied on in concluding the Applicant had undertaken personal work during business hours.

[53] Mr Starick gave evidence that during the disciplinary meeting on 31 January 2022 he referred to the video footage which he told the Applicant revealed the personal work undertaken by the Applicant during business hours on 28 January 2022. The Applicant rejects that the exhaust manifold work was referred to in the meeting. While claiming to have raised the video footage during the meeting, Mr Starick could not explain why the video footage was not shown to the Applicant in circumstances where the Respondent now says it specifically relied on that footage in dismissing the Applicant.

[54] The unexplained withholding of that footage leads me to prefer the Applicant’s evidence that the video footage was not referred to and that the reasons advanced for his dismissal were that of taking sick leave to undertake personal work, poor work and a bad attitude. In any case it is apparent on the evidence of Mr Starick that any response invited from the Applicant was after he was told by Mr Stuart Boyd that he was dismissed. This was conceded by Mr Starick during cross-examination.

[55] Having regard to the above, I am satisfied that the Applicant was not given an opportunity to respond to a valid reason for his dismissal. To the extent that any response was invited from the Applicant, that was only after he was told he was dismissed. There was no meaningful opportunity to respond provided to the Applicant. This weighs in favour of a finding that the dismissal was unfair.

Support person – s.387(d)

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

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

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”37

[58] The Applicant was not offered, nor did he request to be accompanied by a support person in the disciplinary meeting held on 31 January 2022. This criteria is a neutral consideration in the circumstances.

Warnings regarding unsatisfactory performance – s.387(e)

[59] The Respondent refers to a previous warning said to have been given by Mr Starick to the Applicant in the week prior to the Applicant’s dismissal, which the Applicant steadfastly rejects. Mr Starick conceded during cross-examination that there was no formal warning issued, either written or verbal and no record was made of such warning. In these circumstances, I am not satisfied on the evidence before me that the Applicant was formally warned regarding the performance of personal work during business hours.

[60] The Applicant’s dismissal by the Respondent was claimed to be for ‘serious misconduct,’ that of theft, and in these circumstances the absence of a prior formal warning does not weigh in favour of a finding that the dismissal was unfair. Rather, it is to be treated as a neutral consideration in the circumstances.

Impact of the size of the Respondent on procedures followed – s.387(f)

[61] The Respondent’s Form F3 - Employer Response indicates that at the time of the Applicant’s dismissal it employed 25 employees. There is no evidence before me, and nor did either party contend, that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.

Impact of absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)

[62] The evidence in this matter indicates that the Respondent did not have access to the services of an in-house human resources specialist. This factor weighs neutrally in my consideration.

Other relevant matters – s.387(h)

[63] The Applicant claimed in his evidence that other employees undertook personal work during business hours and pointed to the example of personal work he had himself performed for Mr Starick. While Mr Starick conceded that personal work was sometimes undertaken during business hours, he stated that this was subject to management approval which he had obtained when he had asked the Applicant to cut some plates for him. He distinguished those circumstances from those of the Applicant who had performed personal work during business hours without approval. Mr Starick also confirmed that employees had at times been allowed to use the workshop facilities after normal business hours and on weekends, such use again being subject to management approval. There was insufficient evidence before me to conclude that there was an established practice of employees doing personal work during business hours without management approval.

[64] No evidence was led by the Respondent that revealed a formal policy existed in the workplace that covered the use of workshop facilities for personal work. Nor was there any evidence that such policy was communicated to employees. The absence of a formal policy or its communication does not however excuse the Applicant’s conduct. The Applicant was engaged to perform duties as a CNC plasma cutter in the workshop, such work being critical to the flow of plate to the tradespersons in the workshop. The requirement to perform those duties that he was paid to perform, in the absence of approval to the contrary from the Respondent, should have been plainly apparent to the Applicant.

[65] The absence of evidence as to a formal policy or its communication to employees of the Respondent does not in the circumstances weigh in favour of a finding that the dismissal was unfair.

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

[66] I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable.²⁹   

[67] I have found that the Applicant engaged in misconduct by performing personal work during business hours in circumstances where other employees were waiting on him to perform his normal duties. As I have earlier stated, this finding weighs in favour of a finding that the dismissal was not unfair. Balanced against that finding are the significant procedural failures of the Respondent in effecting the dismissal.

[68] The unauthorised performance of personal work by the Applicant during business hours on 28 January 2022 is a serious matter. I note however that there was no evidence of formal warnings issued to the Applicant for similar conduct prior to the dismissal. In these circumstances, the absence of procedural fairness denied the Applicant an opportunity to provide a proper response to the allegations or put forward arguments for a different or lesser penalty. The procedural failures in the circumstances of this case are sufficiently serious as to outweigh the valid reason for the dismissal. All other factors are neutral considerations.

[69] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal was unjust and thereby unfair.

Remedy

[70] Being satisfied that the Applicant:

(i) made an application for an order granting a remedy under s.394;

(ii) was a person protected from unfair dismissal; and

(iii) was unfairly dismissed within the meaning of s.385 of the Act,

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

[71] Under s.390(3) of the Act, I must not order the payment of compensation to the Applicant unless:

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

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

Is reinstatement of the Applicant inappropriate?

[72] The Applicant submitted that reinstatement was not appropriate in the circumstances as he felt that were he returned to the Respondent’s employ he would be a target. While the Respondent did not agree that the Applicant had or would be targeted, agreed that reinstatement would be inappropriate. I also note that the business employs a small number of employees.

[73] In the above circumstances, “the Applicant’s disposition is a sure guide to the Commission as to whether or not it would be appropriate to reinstate or re-employ the Applicant. To act contrary to the Applicant’s desired position in this respect would be to give effect to an order that may not yield a productive or cooperative workplace.”³⁸

[74] Having regard to the matters referred to above, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.

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

[75] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”³⁹

[76] The Applicant submits that payment of compensation is appropriate because he had been unfairly dismissed and was unable to secure alternate employment for several weeks following his dismissal whereas the Respondent argued that in the circumstances of ‘theft’ no compensation was appropriate.

[77] Having found that the Applicant was unfairly dismissed and noting that the Applicant took several weeks to secure employment following his dismissal, in these circumstances, I consider that an order for payment of compensation is appropriate. There is nothing in the material filed by the Respondent in the substantive proceedings, which was not tested in an evidentiary sense in any case, that persuades me that a payment of compensation would be inappropriate.

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

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

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

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

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

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

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

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

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

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

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

[80] While the Respondent submits that it is not a large employer, there was no material filed or evidence adduced by it that would support a finding that an order for compensation would have an effect on the viability of the employer’s enterprise. I consequently find that an order for compensation is unlikely to have an effect on the viability of the employer’s enterprise.

Length of the Applicant’s service

[81] The Applicant commenced employment with the Respondent on 27 January 2021 and was terminated on 31 January 2022. That length of service was short, being only 12 months, of which period four months was served on a full-time permanent basis. I consider that the Applicant’s brief period of service warrants some reduction in the amount of compensation ordered.

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

[82] As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”⁴⁰

[83] The Applicant was pessimistic about how long he would have continued to work for the Respondent had he not been dismissed on 31 January 2022. He noted that the Respondent was unhappy with his performance and also referred to recent staff turnover. For its part, the Respondent confirmed that it was indeed unhappy with the Applicant’s performance and that it was unlikely the Applicant’s employment would have continued for much longer.

[84] It was not contested that the Applicant commenced employment on 27 January 2021 on a casual basis, was appointed on a permanent full-time basis on 2 September 2021 and at the date of his dismissal was receiving an hourly rate of pay of $25.09. Despite the less than sanguine views held by both parties as to the likely tenure of the Applicant with the Respondent, there was no evidence that the Applicant had been or was the subject of formal performance management at the time of his dismissal.

[85] I am satisfied that, but for his dismissal, the Applicant would have remained employed by the Respondent for a period of eight weeks. In reaching this finding I have taken into account the following three matters. Firstly, the Applicant’s short length of service to which I referred to above at [81]. Secondly, I have given weight to the inherent uncertainty of predicting the likelihood of long-term employment based on such short service. Finally, I have taken into account the pessimistic views held by both parties as to how much longer the Applicant would have remained employed by the Respondent but for his dismissal.

[86] Had the Applicant not been dismissed he would have continued to receive weekly remuneration calculated by reference to his hourly rate of pay of $25.09, that being $953.42 per week. On the basis of what is referred to as the “anticipated period of employment”⁴¹ of 8 weeks, this equates to an amount of $7,627.36.

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

[87] The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal.⁴² What is reasonable depends on the circumstances of the case.⁴³

[88] The Applicant submits that he taken reasonable steps to minimise the impact of the dismissal by making a considerable number of job applications since his dismissal. The Respondent did not challenge the Applicant’s contention that he had taken reasonable steps to mitigate the impact of his dismissal.

[89] I am satisfied that the Applicant has taken reasonable steps to mitigate his loss. Accordingly, no deduction will be made.

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

[90] The Applicant confirmed that he has secured regular casual employment which he commenced on 1 March 2022 44. In the eight week anticipated period of employment commencing from the date of his dismissal on 31 January 2022, the Applicant earned $3,895.2745.

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

[91] The Applicant agreed that he was likely to earn income in the period between the making of the order for compensation and the payment of compensation comparable to his weekly earnings prior to his dismissal. That submission was not challenged by the Respondent.

[92] I accept that the Applicant is likely to earn income in the period between the making of the order for compensation and the payment of compensation. Having regard however to the anticipated period of employment no deduction is to be made.

Other relevant matters

[93] No other relevant matters were raised by the parties going to an order for compensation.

Compensation – how is the amount to be calculated?

[94] As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).⁴⁶ This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages⁴⁷.”⁴⁸

[95] The approach in Sprigg is as follows:

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

•  Step 2: Deduct monies earned since termination.

•  Step 3: Discount the remaining amount for contingencies.

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

Step 1

[96] I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated the Applicant’s employment to be $7,627.36 on the basis of my finding that the Applicant would have remained in employment for a further period of 8 weeks. This estimate of how long the Applicant would have remained in employment is the anticipated period of employment.

Step 2

[97] I have found that the Applicant earned $3,895.27 during the anticipated period of employment and that it is likely that income will continue to be earned by the Applicant between the making of the order for compensation and the payment of compensation.

[98] As a consequence of the above, a deduction of $3,895.27, is to be made at Step 2 of the calculation. This reduces the amount of compensation to $3,732.09.

Step 3

[99] I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment.⁴⁹

[100] I do not consider it appropriate to deduct an amount for contingencies from the sum of $3,732.09.

Step 4

[101] I have considered the impact of taxation but have elected to settle a gross amount of $3,732.09 and leave taxation for determination.

[102] Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case,”⁵⁰ including my findings that:

•  the Applicant had a brief period of service;

•  there were no formal performance issues at the time of the Applicant’s dismissal;

•  the applicant has secured alternate employment since his dismissal.

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

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

[104] I am satisfied that misconduct of the Applicant, of which I have made findings above, contributed to the employer’s decision to dismiss. Therefore, the amount of the order for compensation of $3,732.09 is to be reduced on account of misconduct by 50%. This reduces the compensation to $1,866.05.

Compensation – how does the compensation cap apply?

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

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

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

[106] The amount worked out under s.392(6) is the total of the following amounts:

(a) the total amount of the remuneration:

(i) received by the Applicant; or

(ii) to which the Applicant was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the Applicant was on leave without pay or without full pay while so employed during any part of that period – the amount of remuneration taken to have been received by the Applicant for the period of leave in accordance with the regulations.

[107] I find that the total amount of the remuneration to which the Applicant was entitled during the 26 weeks immediately before the dismissal was $24,788.92 based on his weekly rate of pay of $953.42.

[108] The high income threshold immediately before the dismissal was $158,500. Half of that amount is $74,350. The amount of compensation ordered by the Commission must therefore not exceed $79,250. The compensation I have determined to award does not exceed that amount.

[109] In light of the above, I will make an order that the Respondent pay $1,866.05 gross less taxation as required by law to the Applicant in lieu of reinstatement within 14 days of the date of this decision.

Conclusion

[110] I am satisfied that the Applicant was protected from unfair dismissal and that his dismissal was unfair. 

[111] I have further found that reinstatement is inappropriate, but that compensation of the amount determined above is appropriate in all of the circumstances. 

[112] The payment of the required compensation, that of $1,866.05 with the appropriate deduction for taxation, is to be made to the Applicant by the Respondent within 14 days of this decision. 

[113] An order giving effect to that decision will be separately issued with this Decision.

DEPUTY PRESIDENT

Appearances:

A Brett, Applicant.
S Boyd for the Respondent.

Hearing details:

2022.
Melbourne (by Microsoft Teams):
June 28.

Printed by authority of the Commonwealth Government Printer

<PR743277>

 1   Exhibit R4, Final payslip for pay period ending 2 February 2022.

 2   Exhibit R3, Witness Statement of Mr Dale Green, dated 7 June 2022 at [2].

 3   Ibid at [2]-[4].

 4   Ibid at [7].

 5   Ibid.

 6   Exhibit R1, Witness Statement of Ms Lyndall Healey at [1].

 7   Exhibit A8, Vehicle Registration Application.

 8   Exhibit R1 at [7].

 9   Exhibit R2, Witness Statement of Mr Justin Starick, dated 7 June 2022 at [1].

 10   Ibid at [2].

 11   Ibid at [3].

 12   Exhibit A2, Second Witness Statement of Applicant.

 13   Ibid.

 14   Ibid.

 15   Exhibit A1, First Witness Statement of Applicant at [1].

 16   Exhibit R2 at [4].

 17   Ibid at [5].

 18   Ibid.

 19   Ibid.

 20   Exhibit A1 at [2].

 21   Ibid.

 22   Ibid.

 23   Exhibit R5, Employment Separation Certificate.

 24   Exhibit R2 at [7].

 25   Ibid at [6].

 26   MA000010.

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

28 Ibid.

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

 30   Exhibit A8.

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

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

33 Ibid.

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

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

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

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

38 Taylor v C-Tech Laser Pty Ltd [2013] FWC 8732, [58].

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

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

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

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

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

 44   Exhibit A3, Payslip for pay period 1-7 March 2022.

 45   Exhibit A4, Pay summary for period 1 March 2022 – 23 June 2022.

46 (1998) 88 IR 21.

47 [2013] FWCFB 431.

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

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

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