| [2022] FWC 664 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ajith Jayasinghe
v
Pegasus Print Group Pty Ltd a wholly owned subsidiary of AAB Holdings Pty Limited
(U2021/8987)
COMMISSIONER CAMBRIDGE |
SYDNEY, 29 MARCH 2022 |
Unfair dismissal - no valid reason for dismissal - significant procedural deficiencies - harsh, unjust and unreasonable dismissal - compensation Ordered.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 7 October 2021. The application was made by Ajith Jayasinghe (the applicant a.k.a. AJ), and the respondent employer has been identified to be Pegasus Print Group Pty Ltd ABN: 32 131 427 695 a wholly owned subsidiary of AAB Holdings Pty Limited ABN: 11 092 750 064 (the employer).
[2] The application indicated that the date that the applicant’s dismissal took effect was 7 October 2021. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act. On 3 November 2021, the employer filed a Form F3 employer response document which indicated that a jurisdictional objection was taken against the application on the basis that it had been taken against “AAB Holdings” rather than “Pegasus Print Group Pty Ltd”. This issue was subsequently resolved by agreement to identify the employer as Pegasus Print Group Pty Ltd a wholly owned subsidiary of AAB Holdings Pty Limited.
[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 7 February 2022.
[4] At the Hearing the applicant was granted permission pursuant to s.596 of the Act, to be represented by Ms J Hickleton, barrister. Ms Hickleton called the applicant as the only witness to provide evidence in support of the unfair dismissal claim. The employer was represented by its General Manager, Mr S Carter. Mr Carter called the employer’s Bindery Manager, Mr S Finkelde as a witness who provided evidence on behalf of the employer, and Mr Carter also provided evidence as the second witness for the employer.
[5] The applicant had been employed for about 2 ½ years. The applicant was employed on a full-time basis and at the time of his dismissal he worked afternoon shifts rostered between 2:00 pm and 10:00 pm Mondays to Fridays. The applicant performed work as a bookbinding operator and his work was governed by the Pegasus Print Group Enterprise Agreement 2017 (the EA).
[6] The employer operates inter alia, a business providing integrated options in direct manufacturing for print, warehousing/logistics and multichannel marketing. Relevantly, the applicant was engaged in the digital printing aspect of the employer’s business operations. The applicant worked at the employer’s business premises located in the Sydney suburb of Blacktown. The employer is not a small business, it has more than 240 employees engaged at or in connection with the Blacktown operation.
[7] The applicant’s work conduct and attendance were not the subject of any formal complaint or issue prior to events that commenced in the early evening of Tuesday, 7 September 2021, and which led directly to his dismissal. At about 6 pm on 7 September 2021, the applicant was at work when he received a telephone call from his wife who informed him that she had just been advised that she was a close contact of a person who was a confirmed COVID-19 case. Shortly after receiving this advice, the applicant informed his supervisor that as his wife was a confirmed COVID-19 close contact, and that he also had a sore throat himself, he would immediately leave work and proceed to a COVID-19 testing facility.
[8] The applicant then left work and he drove to the Liverpool drive through COVID-19 testing centre. The applicant encountered a long queue at the testing centre and when he was eventually consulted by one of the testing centre staff, he was informed that he could not be tested because he did not have his Medicare card with him. The applicant was advised that the testing centre was about to close, and that he should return on the following day with his Medicare card.
[9] On the morning of Wednesday, 8 September 2021, the applicant returned to the COVID-19 testing centre with his Medicare card, and he received a PCR test. At 10:12 am that day the applicant sent a text message to his manager (Mr Finkelde) which advised that he could not attend work that day as he was awaiting the results of his PCR test.
[10] On the following day, Thursday, 9 September 2021, the applicant sent another text message to his manager advising that he had still not received the results of his PCR test and therefore he could not attend for work that day.
[11] At about 3:15 pm on the next day, Friday, 10 September 2021, the applicant received the results of his PCR test which were negative. At 3:18 pm, the applicant sent a text message to his manager advising that his test results were negative and that he would attend for work on the following Monday. Mr Finkelde sent a text message response to the applicant which requested that the applicant immediately come in to work. The applicant responded by indicating that because he had just come out of “house arrest” and he was still not feeling well, he would not be able to attend work later that afternoon.
[12] On Monday, 13 September 2021, the applicant commenced work at 2 pm and a short time later he was called into a meeting with his manager Mr Finkelde, and the Operations Manager Mr McDermid, and his supervisor. There were a number of significant factual conflicts regarding the meeting that the applicant attended with management representatives on 13 September 2021. The applicant said that he was not given advice that the meeting was disciplinary in nature, nor was he given the opportunity to have a support person present. The employer representatives rejected that the applicant was not given an opportunity to have a support person. Further, Mr Finkelde said that the applicant was given a first warning letter after it had been read to him during the meeting. The applicant said that the first time that he saw the first warning letter was when it was produced as part of the employer’s response to his unfair dismissal claim.
[13] Despite the factual conflicts regarding aspects of the meeting held on 13 September, the first warning letter reprimanded the applicant in respect to firstly, his departure from the work site on 7 September to get a COVID-19 test, and his subsequent communications to his manager on 8, 9 and 10 September regarding his absence from work whilst awaiting the results of his COVID-19 test. Although the applicant maintained that he never received the first warning letter, he confirmed that during the meeting held on 13 September his managers reprimanded him for leaving work on 7 September to get a COVID-19 test, and for allegedly, not providing 8 hours notification of his subsequent absences whilst awaiting the test results.
[14] On the following day, 14 September 2021, the applicant received his first COVID-19 vaccination in compliance with directives issued by the employer and as required by New South Wales Public Health Orders. On 17 September 2021, Mr Finkelde sent a text message to the applicant requiring him to provide proof of his COVID-19 vaccination.
[15] On or about Sunday, 19 September 2021, the applicant made an electronic application to take personal leave on Tuesday, 21 September 2021, for a regular medical specialist appointment. This electronic application which was made on the employer’s “work portal” was undertaken by the applicant in accordance with the practice that he had taken on several previous occasions involving his regular medical specialist appointments. The applicant was subsequently absent from work on personal leave on Tuesday, 21 September 2021.
[16] On Friday, 1 October 2021, the applicant advised his supervisor that he would not be at work on the following Tuesday, 5 October 2021, as he was to receive his second COVID-19 vaccination on that day. Previously, when the applicant had provided Mr Finkelde with proof of his first COVID-19 vaccination, he had mentioned that his second vaccination was scheduled for 5 October 2021, 3 weeks after the first vaccination.
[17] The applicant experienced a severe adverse reaction to his second COVID-19 vaccination. The applicant consulted his general practitioner who provided him with a medical certificate indicating that he was unfit for work on 5 and 6 October 2021. At about 9:40 am on 6 October 2021, the applicant telephoned his manager, Mr Finkelde and informed him about his severe reaction to the second vaccination and that he was not well enough to attend for his 2 pm shift that day. Mr Finkelde responded by telling the applicant that there was plenty of work for him to perform and that he would see him tomorrow.
[18] At 10:47 am on 7 October 2021, the applicant sent a text message to Mr Finkelde which stated, “Good morning Shaun I am OK to come to work today. AJ”. Mr Finkelde sent a text message response of, “All good”.
[19] Upon arrival at work at around 2 pm on 7 October, the applicant was called into a meeting with the General Manager, Mr Carter, the Operations Manager, Mr McDermid and the Bindery Manager, Mr Finkelde. In similar fashion to the contested evidence regarding the earlier meeting of 13 September 2021, there were factual conflicts about aspects of the meeting held on 7 October 2021. Once again, the applicant asserted that he was not provided with advice that the meeting was disciplinary in nature, nor was he given an opportunity to have a support person present, and the management representatives rejected this proposition.
[20] Notwithstanding the factual conflicts regarding aspects of the meeting held on 7 October 2021, meeting minutes that were subsequently produced by Mr Carter (attached to Exhibit 6) confirmed that the meeting was held to discuss what was described as the applicant’s “unapproved absence on Tuesday” and as “a follow on to a final written warning given to AJ on September 13…”. After some discussion with the applicant about these matters, the management representatives left the meeting, and after a period of between 5 and 10 minutes deliberation, they returned to advise the applicant of his dismissal whereupon he was provided with a letter entitled “Termination of your employment”.
[21] The letter of dismissal that was provided to the applicant at the meeting held on 7 October 2021, referred to the meeting of 13 September 2021, and the obligation on the applicant to notify his manager in an appropriate timeframe of any absences. Further, the letter of dismissal focused upon the verbal advice provided by the applicant to his supervisor as opposed to his manager, regarding his absence from work on Tuesday, 5 October 2021 for the purposes of receiving a COVID-19 vaccination. The letter of dismissal also stated that the applicant had been given “a verbal and first and final written warning” regarding what was described as the applicant’s “inability to follow established company procedures” regarding any absences from work. The reason for the dismissal of the applicant was stated to be because of his “inability to follow established company procedures” regarding any absence from work. The dismissal letter also advised that the applicant was to be paid accrued entitlements and any outstanding pay up to and including his last day of employment.
[22] Since the termination of his employment the applicant has unsuccessfully attempted to find other employment. The applicant has not sought reinstatement as a remedy for his alleged unfair dismissal but has instead sought Orders for the payment of monetary compensation.
[23] Ms Hickleton, who appeared for the applicant, made only brief oral submissions during the Hearing. Ms Hickleton primarily relied upon documentary submissions filed on behalf of the applicant and which were respectively dated 11 January and 3 February 2022.
[24] The submissions made on behalf of the applicant included a summary of the relevant events involving the applicant’s absence from work between 7 and 10 September 2021, the absence of the applicant on 21 September 2021, and the subsequent absences of the applicant on 5 and 6 October 2021, followed by his dismissal on 7 October 2021.
[25] Ms Hickleton submitted that the dismissal of the applicant was harsh, unjust and unreasonable. Ms Hickleton submitted that the applicant was not warned, prior to his dismissal, that his conduct involving absence from work because of illness to attend medical appointments was, in the view of the employer, unsatisfactory conduct. It was submitted that the dismissal of the applicant because he was absent from work to attend medical appointments, was contrary to the General Protections provisions of the Act.
[26] The submissions made on behalf of the applicant also asserted that the applicant was not warned, prior to his dismissal, that taking time off work to be vaccinated against COVID-19 was unsatisfactory conduct despite this being a mandated requirement in order for him to work and having been granted leave from work to attend vaccinations. It was further submitted that the applicant was denied procedural fairness by not being given any notice of any of the disciplinary meetings and not being afforded the opportunity to have a support person present during the meetings. According to the submissions made on behalf of the applicant, this meant that he had not been given sufficient opportunity to prepare and present his case to the employer at the disciplinary meetings held on 13 September and 7 October 2021.
[27] Ms Hickleton further submitted that the dismissal of the applicant was an entirely disproportionate response to the nature of his alleged misconduct. Further, it was submitted that the applicant would suffer severe economic consequences as a result of his dismissal. In this regard, submissions were made outlining the personal circumstances of the applicant including that he was 56 years of age, had an underlying health condition, and prior to immigrating to Australia from “Shi[sic] Lanka” he was a middle ranking police officer. Further, it was submitted that the applicant was the main breadwinner for his family which included providing support for two daughters.
[28] Ms Hickleton also made submissions which referred to evidence of the attempts that the applicant had made to find alternative employment. However, it was submitted that because of the applicant’s age, his underlying health condition, and his particular skill set, he had encountered significant difficulty in finding other employment.
[29] In summary, Ms Hickleton submitted that the dismissal of the applicant was harsh, unjust and unreasonable. Ms Hickleton noted that the applicant had lost trust and confidence in the employer and therefore he did not seek a remedy of reinstatement, but alternatively sought monetary compensation as remedy for his unfair dismissal.
[30] Mr Carter, who is the employer’s General Manager, submitted that the dismissal of the applicant was not unfair. Mr Carter made some brief oral submissions at the Hearing, and he also referred to documentary material dated 23/01/2022 which had been filed on behalf of the employer.
[31] Mr Carter stated that there had been no benefit for the employer in the termination of the applicant’s employment. Mr Carter said that the employer had had some difficulty in finding a replacement employee for the applicant. Mr Carter also stated that the decision to dismiss the applicant was not made lightly and that ultimately it was a matter of reliability whereby the employer couldn’t rely upon the applicant to come into work and provide due notification to allow management to reorganise production around his absences.
[32] The written submissions provided by the employer rejected the applicant’s assertions that he had not been provided with the first warning letter of 13 September 2021. In this regard, it was submitted that the applicant had been asked to sign the letter during the meeting held on 13 September, but he had refused to do so. However, it was further asserted that he left the meeting with a copy of the first warning letter contrary to the applicant’s assertions that the first occasion that he saw the letter was when it was included with the employer’s material provided in response to the unfair dismissal application.
[33] In summary, the written submissions made by the employer stated that it was critical that for it to be able to manage absences in its business effectively it expected absences to be reported at least 8 hours before the shift, and that annual leave was to be applied for and approved before it was taken. Further, it was submitted that the reason for the applicant’s absences from work were not disputed but, in the end, it was the case that the applicant was missing work without any notice or very short notice on repeated occasions and this “caused his employment to be termination.” 1
[34] The unfair dismissal provisions of the Act relevantly include s. 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. Section 385 is in the following terms:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[35] In this case, there was no dispute that the applicant had been dismissed from his employment, the employer was not a small business, and there was no suggestion that the dismissal of the applicant involved redundancy. Consequently the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.
[36] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. Section 387 of the Act is in the following terms:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
S. 387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct
[37] The reason for the dismissal of the applicant was stated by the employer in the termination of employment letter dated 7 October 2021. The termination of employment letter relevantly stated that;
“On Friday 1 October 2021, you verbally advised Shane Garde (Afternoon Shift Supervisor) that you would not be at work on Tuesday 5 October 2021 as you were receiving a covid vaccination. Unfortunately, you did not follow the established Company procedures which was to contact your Manager of your absence. You have been also given a verbal warning and first and final written warning regarding this.
Regrettably, your inability to follow established company procedures in the event you are going to be absent from work has led to your employment being terminated effective today, 7 October 2021.” [emphasis added]
First and Final Written Warning
[38] It is immediately apparent that there was a significant factual error contained in the termination of employment letter and upon which an erroneous foundation for the reason for dismissal was established. The applicant was never given a first and final written warning.
[39] Although the applicant steadfastly maintained that he had never been given the first warning letter dated Monday, September 13, 2021, in any event, it could not be construed to represent a first and final written warning. The penultimate paragraph of the 13 September first warning letter stated, “This is your 1st warning letter and you will be reviewed if your performance does not improve by 13th December, further action, including termination of your position may occur.”
5 October Absence – Second COVID-19 Vaccination
[40] In addition to this erroneous foundation upon which the reason for the dismissal of the applicant was established, an examination of the totality of the evidence presented in this case has not revealed that the applicant failed to follow any promulgated “established company procedures” in respect to his absence on 5 October 2021 for the purposes of receiving a second COVID-19 vaccination. It was clear that the applicant told his supervisor on Friday, 1 October that he would be absent on the following Tuesday, 5 October. The termination of employment letter stated that the “established Company procedures which was to contact your Manager of your absence.”
[41] Consequently, the extent to which the applicant had allegedly failed to follow established company procedures was that he had told his supervisor rather than his manager of his absence. Notwithstanding that the purported transgression would, on any reasonable and objective basis, be little more than a technical and trivial issue, the evidence, particularly that provided by Mr Finkelde, confirmed that the applicant had earlier told his manager, Mr Finkelde, of his anticipated absence and that Mr Finkelde was aware of the applicant’s absence on 5 October.
[42] Mr Finkelde provided evidence during cross examination regarding his purported lack of any knowledge of the applicant’s intended absence on 5 October, which, on any reasonable and objective analysis, provided no logical support for the assertion that he was not aware that the applicant would be absent on that day for the purposes of receiving his second COVID-19 vaccination. The following extract from transcript includes the unfortunate suggestion made by Mr Finkelde that his phone records for October 2021 could not have been accessed in order to establish whether or not he telephoned the applicant in reaction to the purportedly unexpected absence:
“I am suggesting to you that he told you that he was vaccinated and that he'd had his first vaccination and he would be going for his second vaccination in three weeks time?---Okay.
Do you recall that?---I recall the conversation saying that he had his first vaccination and that he was going to have his second vaccination, but a specific date, at a specific time I'm not sure.
By the way have you ever - with all these employees wanting to go and get vaccinated have you ever denied an employee time off to get vaccinated?---No.
It's company policy, isn't it, to have them vaccinated and you will grant them the time off to be vaccinated?---If they apply in the right way, yes.
Well, I suggest to you that you were well aware that Mr Jayasinghe was going for his vaccination on 5 October?---I disagree with that.
So you're just saying that on 5 October he didn't show up for work and you thought nothing of it?---I'm sure I would have called him.
But you didn't, did you, because you knew he was going to be vaccinated that day?---My phone records don't go back that far.
I suggest to you that - just give me one moment, Commissioner.
THE WITNESS: I am still the same way, that if someone doesn't turn up for their shift within half hour I do call them.
MS HICKLETON: But you're not going to call them if you know they're not going to show up, correct?---Correct.
And I am suggesting to you that you never called Mr Jayasinghe on the 5th because you knew he wasn't going to show up, because you knew he was going to get his second vaccination?---I don't agree with that.” 2
[43] Further, there was no dispute that on Friday, 1 October, the applicant advised his supervisor, Mr Garde, that he would be absent from work on the following Tuesday, 5 October, for the purposes of receiving his second COVID-19 vaccination. There was also no suggestion made that Mr Garde did not pass this information onto Mr Finkelde. However, the 7 October meeting minutes produced by Mr Carter included the following strange statement:
“We asked AJ why he waited until the evening of the workday before he was off to tell anyone, his response was he mentioned it a few months before and thought it would have been remembered.” 3 [emphasis added]
[44] An objective and careful examination of all of the evidence has established that there was no factual basis to support the stated reason for the dismissal of the applicant. The extent to which the applicant did not follow established company procedures in respect to his absence on 5 October 2021, was no more than the technical and trivial transgression of advising his supervisor rather than his manager. A transgression of this nature would on any reasonable contemplation, and, in the absence of any repeated conduct, attract no more than a verbal warning to ensure that notification was provided to the employer’s preferred managerial representative.
[45] It is also important to note that the applicant provided notification of his anticipated absence to a managerial representative of the employer 4 days before the event. However, the meeting minutes provided by Mr Carter indicated that the employer was at best confused, and apparently mistaken about whether the applicant waited until the evening before the absence to “tell anyone”. This conundrum then manifested into the alternative proposition contained in the termination of employment letter, that the applicant’s failure to follow established company procedures was confined to providing notification to his supervisor Mr Garde rather than the manager Mr Finkelde.
[46] In addition, it is also relevant that the applicant’s absences on 5 and 6 October 2021 were covered by a medical certificate. The applicant, like many individuals, experienced an adverse reaction to his second COVID-19 vaccination, and during the meeting held on 7 October 2021 he provided the employer with a medical certificate which verified his incapacity to work on 5 and 6 October 2021. At 9:40 am on 6 October 2021, the applicant telephoned Mr Finkelde and notified him of his absence for his 2 pm shift later that day caused by the adverse reaction to the vaccination. This was reasonable notification made to the correct manager and clearly not the actions of an individual that was failing to comply with the employer’s preferred notification arrangements. Further, the applicant had accumulated personal leave entitlements which covered this absence, and upon his termination he had a further 5 days entitlement that was unused. In these circumstances, there could be no valid suggestion made that the applicant was deliberately failing to provide reasonable and timely notice for personal leave absences, nor did he have a record of excessive utilisation of personal leave.
7 to 10 September Absences – COVID-19 Protocols
[47] The termination of employment letter and the meeting minutes produced by Mr Carter referred to and relied upon what was erroneously described as the final written warning that was purportedly provided to the applicant on 13 September 2021. It was clear that the reason for the dismissal of the applicant also encompassed the applicant’s conduct in respect to his absence from 7 to 10 September 2021, and the subsequent warning that followed that conduct.
[48] As earlier mentioned, the applicant insisted that the first warning letter was not provided to him at the meeting held on 13 September 2021. The applicant said that he first saw the first warning letter when he read the employer’s response to his unfair dismissal claim. There was some curious evidence about the first warning letter dated Monday, September 13, 2021, which when carefully analysed, discredits the position that was advanced by the employer about the provision of the first warning letter to the applicant during the meeting held on 13 September 2021.
[49] Firstly, the factual assertions contained in the employer’s documentary material included the following:
“AJ was given the document “2021 09 13 – jayasinghe ajith first warning 1” (attached) in a formal meeting with Shaun and Paul listed above. Both Shaun and Paul will attest in court that Ajith was read the letter verbatim, asked if he understood it, (which he replied yes to) and was asked to sign a letter. Ajith did refuse to sign the letter, but he did leave the room with a copy of the letter.” [emphasis added]
[50] Mr Finkelde provided the following evidence when questioned about the applicant’s refusal to sign the first warning letter:
“Now, you say he refused to sign the warning letter. Is that correct? --- I did not state that.
Did you ask him to sign the letter? ---No.” 4
[51] Secondly, the first warning letter was identified in the employer’s documentary material as the named attachment “2021 09 13 – jayasinghe ajith first warning 1” and during cross examination Mr Finkelde was questioned about what appeared to be the discreetly identified and named document which was reproduced as the first warning letter. Unfortunately, Mr Finkelde provided unconvincing evidence when questioned about the verification that could have been provided so as to establish the date that the first warning letter document had been created. Relevantly, the following extract from transcript includes an example of the implausible and unconvincing evidence provided by Mr Finkelde:
“I suggest to you the reason that it wasn’t signed by Mr Jayasinghe is that it was never shown to Mr Jayasinghe. You can agree or disagree with me? --- I completely disagree with you.
You were aware because you were aware of Mr Jayasinghe’s application that he maintains that he was never shown this letter. You were aware of that, weren’t you? --- I’m aware that he says that he’s never seen a letter like this, yes.
And you’ve been aware of that for some time, haven’t you? --- Yes.
Again computers are marvellous things, they store data, such as the dates on which documents are created. Why did you not go into the computer system and look for the proof that this letter was in fact created on 13 September 2021? --- Another oversight by me. I have this warning letter template and I fill it in with the person’s details and all of the details around the warning letter of why I’m giving it to them, and then I delete it and go back to the original template and go forward again. So the only copy that I have is the warning letter that I have signed and given to our administration lady, and I don’t have dates created of continual documents.” 5
[52] Thirdly, when providing evidence in chief, Mr Finkelde gave an extensive and detailed account of his recollection of what occurred during the meeting of 13 September 2021. The details provided by Mr Finkelde as he gave his oral account of his recollection of particular aspects of the meeting, in circumstances where there was no earlier documentary record, regrettably introduced a degree of artificiality and implausibility about the evidence that he gave. The following extract from transcript provides an example of this detailed recount of the meeting which was provided for the first time as oral evidence recalled from memory:
“And then what happened?---We had our meeting. We had previously given a warning letter to a person who can't read, so it became standard then for me any time that I would give a warning letter that I would read the warning letter. I read the warning letter. As I was reading the warning letter to AJ he cut me off and said that, 'I know what this is about, you're just trying to get rid of me.' I said, 'No, we're not just trying to get rid of you, this is trying to get everyone on the same page so that we're all under the same understanding. Now I have to finish reading this letter.' I did finish reading the letter. When I finished reading the letter I handed him the letter, and then Shane, the afternoon shift supervisor, asked, 'Do you understand everything that we've spoken about', and he said 'Yes'.
And then?---And then I remember it fairly clearly. He took the letter, folded it up, put it in his left pocket, left back pocket, and then we walked out of the room out of the back door of the boardroom and he walked back to the binder and I just asked, 'Go off, have a five minute break, do what you've got to do, go off and get a water or something and then continue on with your shift.'” 6
[53] Following a detailed and careful contemplation of the various curious aspects of the evidence provided by the employer and having regard for the totality of the evidence in the context of the benefit provided by in-person observation of the demeanour and manner in which all witnesses gave evidence, a clear preference has been adopted for the applicant’s evidence wherever that differed from the evidence that was provided by the employer. Therefore, the applicant was not provided with the first warning letter at the meeting held on 13 September 2021, and the employer’s subsequent reliance upon the first warning letter could not represent valid reason for the dismissal of the applicant.
[54] It is relevant to also consider that even if the first warning letter had been provided to the applicant on 13 September 2021, it would not represent a proper or defensible basis for complaint in respect to the applicant’s conduct between 7 and 10 September 2021. The employer reprimanded the applicant because he “left the premises at 6:11 pm” on 7 September 2021, and because on the following 3 days he respectively notified of his ongoing absences at 10:12 am, 1:50 pm and 3:18 pm. The first warning letter emphasised the employer’s sick leave policy which mentioned “an obligation to notify your Manager, prior to eight (8) hours of your designated commencement time…”.
[55] The applicant left the workplace when his wife informed him that she was a close contact of a confirmed COVID-19 case and he was himself experiencing some symptoms that are frequently associated with the coronavirus. It was very regrettable that an employer would reprimand an employee because they left the workplace in these circumstances and when they were simply following prudent COVID-19 protocols. Further, it was plainly unreasonable for the employer to attempt to apply an 8 hour notification of absence requirement in circumstances where the employee was isolating whilst awaiting a COVID-19 PCR test result. The applicant had no way of knowing when the test result would be sent to him and in such circumstances an 8 hour notification requirement was absurd. Frankly, it is the employer who should be admonished for taking disciplinary action against an employee who was following the relevant COVID-19 protocols.
[56] Only brief mention needs to be made of the absence of the applicant on 21 September 2021. This absence was notified and taken in accordance with the practice that the applicant had observed on numerous past occasions when he attended regular medical specialist appointments. The employer had not raised any concern or complaint about the way the applicant notified and had subsequently taken personal leave for the purposes of attending these regular medical specialist appointments.
[57] In summary therefore, the reason for the applicant’s dismissal, described as “an inability to follow established company procedures” which arose in connection with notification of his absence on 5 October 2021, caused by an adverse reaction to his second COVID-19 vaccination, and in respect of his absences from 7 to 10 September 2021, whilst awaiting a COVID-19 PCR test result, could not represent a reason that was sound, well-founded and defensible. In substance, the reason for the applicant’s dismissal involved a very unfortunate disregard for the personal difficulties caused by the coronavirus pandemic. The evidence that was presented in this case has established that there was not a valid reason for the dismissal of the applicant but instead, a very regrettable failure by the employer to act in a reasonable, compassionate manner in circumstances where some accommodation for the personal impacts of the coronavirus pandemic should have been provided.
[58] The employer provided notification of dismissal by way of the termination of employment letter that was handed to the applicant at the meeting held on 7 October 2021. The evidence confirmed that the termination of employment letter or at least parts of it, had been prepared prior to the commencement of the meeting on 7 October 2021.
[59] The preparation of the termination of employment letter, or at least parts of it, prior to the commencement of the meeting on 7 October 2021 reflected a predisposition for dismissal on the part of the employer. The applicant was not given any opportunity to prepare for the disciplinary meeting that he was called into immediately upon his arrival at work on 7 October 2021. The manner in which the meeting of 7 October 2021 was arranged whereby the employer provided no prior indication to the applicant of the disciplinary nature of the meeting, deprived the applicant of any opportunity to formulate a considered response before the decision to dismiss was taken.
[60] The Commission has adopted a general preference for the evidence provided by the applicant wherever that differed from the evidence that was provided by the employer. Consequently, the applicant was simply summonsed to the meetings held on 13 September and 7 October 2021, and he was not provided with a proper opportunity to arrange assistance from a support person at these meetings. Indeed, the applicant was not provided with any advance warning that either meeting would be disciplinary in nature.
[61] The applicant was not dismissed for unsatisfactory performance but rather his alleged failure to follow established company procedures in respect to notification of his absences on 5 October and between 7 and 10 September 2021.
[62] The employer is a business operation of some significant size, and it would be expected to provide an appropriate level of professionalism and sophistication with its employment related procedures.
[63] There was no evidence that the employer had dedicated human resource management specialists. However, management specialists should not be required in order to ensure that disciplinary processes provide basic fairness. As a matter of fundamental fairness, any manager embarking upon a disciplinary process should ensure that advice is provided prior to a disciplinary meeting of the disciplinary nature of the meeting and the subject matter. In the absence of such advice, an employee will understandably and legitimately assert that they were ambushed at the disciplinary meeting.
[64] There was no evidence that the employer considered the personal circumstances of the applicant and the consequences that dismissal would particularly impact upon the applicant. Regrettably, there appeared to be no preparedness to accommodate any deficiency (albeit trivial), with the notification for absences that the applicant provided when such absences were directly attributable to personal health difficulties created by the coronavirus pandemic.
[65] The determination of this unfair dismissal claim has firstly focused upon the issue of whether there was a valid reason for the dismissal of the applicant. The applicant was dismissed for reason described as “inability to follow established company procedures”. The purported inability to follow established company procedures concerned the allegedly deficient notifications made by the applicant in respect to absences on 5 October 2021, and during the period of absence between 7 and 10 September 2021.
[66] Following a careful examination of all of the evidence concerning the reasons for the dismissal of the applicant, any deficiency with the notification for the applicant’s absence on 5 October 2021 was technical and trivial in that the notification was provided to his supervisor rather than his manager. The notification was provided 4 days before the absence, and the evidence has established that the relevant manager was aware of the anticipated absence. In the circumstances surrounding the applicant’s absence between 7 and 10 September 2021, the evidence has established that there was no proper or defensible basis for the criticism that the employer made of the actions of the applicant. Therefore, the reasons for the dismissal of the applicant were not sound, defensible, or well-founded. There was not a valid reason for the dismissal of the applicant that related to his capacity or conduct.
[67] The employer adopted a severely flawed procedure when dealing with its determination to dismiss the applicant. The employer did not provide the applicant with prior advice of the disciplinary meetings nor a proper opportunity to have a support person present during the meetings that were held on 13 September and 7 October 2021. The employer made the decision to dismiss the applicant without first providing the applicant with a proper opportunity to show cause as to why his employment should not be terminated. The termination of employment letter that was handed to the applicant at the meeting held 7 October 2021, had, at least in part, been prepared prior to the commencement of the meeting. The preparation of the termination of employment letter prior to the commencement of the meeting demonstrated a predisposition to dismiss and ensured that the applicant was not afforded a proper opportunity to plead his case. The dismissal of the applicant was harsh, unjust, and unreasonable.
[68] In summary, the dismissal of the applicant was without valid reason involving established misconduct or capacity inadequacy. Further, the dismissal involved an entirely unjust and unreasonable process including the absence of any proper opportunity for the applicant to be heard before the decision to dismiss was made. Consequently, upon analysis of the various factors that are identified in s. 387 of the Act, an objective and balanced evaluation of all of the relevant circumstances has provided compelling basis to establish that the dismissal of the applicant was harsh, unjust and unreasonable. Therefore, the applicant’s claim for unfair dismissal remedy has been established.
[69] The applicant has not sought reinstatement as a remedy for his unfair dismissal. In the circumstances, particularly as the employment relationship was severely damaged by the conduct of the employer surrounding the dismissal, reinstatement would not be an appropriate remedy.
[70] In the circumstances, the Commission has decided that compensation would be an appropriate remedy for the applicant’s unfair dismissal, and consideration has been made of the factors which involve the quantification of any amount of compensation.
[71] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. The question of compensation generally, and the basis upon which to determine the specific quantum of compensation that should be Ordered, has been approached having regard for the guidance that can be identified in the Full Bench Decisions of, inter alia; Sprigg v Paul’s Licensed Festival Supermarket 7 (Sprigg); Smith and Ors v Moore Paragon Australia Ltd 8 and more recently, the cases of; McCulloch v Calvary Health Care Adelaide9; Balaclava Pastoral Co Pty Ltd v Nurcombe;10 and Hanson Construction Materials v Pericich11 (Pericich).
[72] Firstly, the Commission confirms that an Order for payment of compensation to the applicant will be made against the respondent employer in lieu of the reinstatement of the applicant.
[73] Secondly, in determining the amount of compensation that is to be Ordered, the Commission has taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.
[74] There was no evidence provided which established that an Order of compensation would impact on the viability of the employer’s enterprise.
[75] The applicant had been employed for a period of about 2 ½ years. The applicant would have been likely to have received remuneration of approximately $1,256.00 per week if he had not been dismissed.
[76] As an employee with a generally unblemished work record, and possessing skills that had been developed specifically with the employer’s equipment, the applicant would have been likely to have continued in employment for some considerable period. Consequently, the Commission has determined that the employment of the applicant, would have been likely to have continued for a further 5 years after his unfair dismissal.
[77] For the purposes of calculation of remuneration that the applicant would have received or would have been likely to receive if he had not been dismissed, it has been considered that the employment of the applicant would have continued for a further 5 years. Therefore, the total remuneration that the applicant would have received in the notional period of 5 years following dismissal amounted to a figure of $326,560.00.
[78] The total amount of remuneration received in alternative employment, as identified, and that which may be reasonably likely to be earned between dismissal and the making of the Order for compensation, has been calculated to be $0.00.
[79] Thirdly, in this instance there was no identified misconduct of the applicant, and consequently the Commission has decided to make no reduction to the amount of compensation to be provided to the applicant on account of any established misconduct.
[80] Fourthly, the amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.
[81] Fifthly, the amount Ordered has been reduced so as not to exceed the compensation cap as prescribed by s. 392 (5) of the Act.
[82] Consequently, for the reasons outlined above, taking into account all of the circumstances of the case, and having cognisance so as not to apply the approach taken in the Decision in Sprigg in a rigid, determinative manner, as was cautioned in the Decision in Pericich, the Commission has decided that the amount of compensation to be provided to the applicant should be a gross figure of $32,656.00.
[83] Accordingly, separate Orders [PR739684] providing for unfair dismissal remedy in these terms will be issued.
COMMISSIONER
Appearances:
Ms J Hickleton, Counsel appeared for the Applicant.
Mr S Carter, General Manager appeared for the employer.
Hearing details:
2022.
Sydney:
February, 7.
Printed by authority of the Commonwealth Government Printer
<PR739683>
1 Exhibit 6 – penultimate paragraph.
2 Transcript @ PN560 to PN570.
3 Exhibit 6 - Attached “Meeting minutes”
4 Transcript @ PN536 and PN537.
5 Transcript @ PN539 to PN542.
6 Transcript @ PN411 and PN412.
7 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.
8 Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.
9 John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.
10 Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, (Hatcher VP, Gostencnik DP and Cribb C) [2017] FWCFB 429.
11 Hanson Construction Materials Pty Ltd v Darren Pericich, (Ross P, Masson DP and Lee C), [2018] FWCFB 5960.