Fair Work Act 2009
s.394—Unfair dismissal

Ben White
v
J Harding & P.A Harding T/A Trend Constructions NQ
(U2021/4640)

Application for unfair dismissal remedy – Jurisdictional objection – whether the Applicant was dismissed – Finding that Applicant was dismissed – Dismissal unfair – Assessment of compensation where application of Sprigg formula would lead to a manifestly inadequate result – Compensation awarded.

OVERVIEW

[1] These reasons for decision concern an application by Mr Ben White (the Applicant) under s.394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy in respect of the alleged termination of his employment by J Harding & P.A Harding T/A Trend Constructions NQ (the Respondent). The Respondent objected to the application claiming that the Applicant was not dismissed and that he abandoned his employment.

[2] The background to the application in summary, is that the Applicant was initially employed by the Respondent on a casual basis on 25 May 2017 until he left to take on alternative employment on 14 June 2019. The Applicant returned to work for the Respondent on 25 March 2020 and was again employed on a casual basis in a role which was advertised as “Qualified Shop Fitter or Cabinetmaker”. The Applicant performed work described as joinery work and was covered by the Joinery and Building Trades Award 2010 (the Award). It is not in dispute that the Applicant worked on a full-time basis and on the Applicant’s uncontested evidence he worked 42 hours per week over five days, Monday to Friday. The percentage of the Applicant’s work that was joinery work and his capacity to perform other work is disputed. There is also a dispute about the correct classification level for the Applicant under the Award.

[3] The Applicant claims that he should have been classified and paid as a Tradesperson level under the Award (level 5) on the basis that he was employed by the Respondent as a qualified shop fitter or cabinetmaker, while the Respondent variously contended that the Applicant was properly classified at level 2 or level 3 under the Award. The Applicant does not hold a formal trade qualification and did not provide any evidence that he has been assessed as competent at that level by any assessment body. At the time the Applicant’s employment ended, he was being paid an amount of $28.00 per hour, approximately $0.43 per hour above the Award rate for a level 3 employee, engaged on a casual basis.

[4] On or around 25 January 2021, the Applicant made a complaint to the Respondent about his wages. The Applicant’s complaint was taken up and investigated by the Office of the Fair Work Ombudsman (FWO). The FWO found that the Applicant had been underpaid and issued a compliance notice to the Respondent. Between 25 February and 13 March 2021, the Respondent paid the Applicant a total of $13,245.01 as back pay. The backpay was calculated based on the level 3 rate under the Award which was apparently accepted as being the correct rate by the FWO.

[5] The Respondent tendered correspondence from the FWO stating that the investigation in relation to the Applicant’s wages claim had been closed. The Applicant stated that he does not accept that his claim has been finalised but provided no evidence of what if any action he has taken to continue the claim. The Applicant tendered various emails he had sent to the Respondent in which he claimed amounts of unpaid wages in the vicinity of $500,000.00 and accused the Respondent of wage theft. Despite the fact that the Applicant was owed wages by the Respondent (albeit a much lower amount than claimed), the Applicant’s emails were aggressive and inappropriate, and the amounts claimed by the Applicant were unsustainable.

[6] The Applicant last performed work for the Respondent on 28 January 2021 and did not receive payment from the Respondent after that date. The Applicant claimed that he was not given work and was unfairly dismissed because he made a complaint about his wages. In his Form F2 application and at hearing, the Applicant claimed that his dismissal took effect on 12 May 2021 when he received correspondence from the Respondent’s legal representative in relation to his employment.

[7] For the reasons set out below, the Applicant’s employment ended at the initiative of the Respondent, by virtue of the Respondent ceasing to offer the Applicant work and sending him ambiguous and contradictory correspondence, including from its legal representatives, in relation to the status of his employment. In that correspondence the Applicant was variously informed that: he would be offered casual joinery work if/when such work was available; he would only be employed as a level 3; and the Respondent believed it would be in the best interests of both parties if the Applicant resigned his employment as part of a settlement of his unpaid wages claims.

[8] The Respondent and its legal representative did not confirm that the Applicant would retain his existing wage rate if he accepted employment on the basis he would be classified at level 3, in circumstances where the Applicant’s rate at the point he ceased to be offered work, was above the Award rate for level 3, albeit slightly. It is also the case that the settlement amount offered by the Respondent was less than the total amount the Respondent was ultimately required to pay the Applicant in response to the investigations conducted by the FWO. Essentially, had the Applicant accepted the offer, he would have resigned his employment and given the Respondent a complete release and discharge, for a lesser amount of backpay than was assessed by the FWO as owing to the Applicant.

[9] While I accept that the Respondent suffered a downturn in its business in early 2021 and could not have maintained the hours it had previously offered the Applicant, I do not accept that there was no work that the Applicant could have performed at that time. The Applicant was a casual employee and there was work that he could have done. Notwithstanding the aggressive and inappropriate way the Applicant pursued his wages claim and fact that the amount of the Applicant’s claim was unreasonable and unsustainable, the substance of the claim was not entirely without merit. Given the failure of the Respondent to produce any evidence, beyond assertions of witnesses about the reduction in its business and the tone of the correspondence with the Applicant sent by the Respondent and its legal representatives, I am also of the view that there was a link between the fact that the Applicant made a claim for unpaid wages and the conduct of the Respondent, which ended the Applicant’s employment.

[10] The Applicant’s dismissal was unfair. My reasons for this conclusion are further detailed below. Having been unfairly dismissed, the Applicant should have a remedy. Reinstatement is not an appropriate remedy and I decided to grant an amount of compensation to the Applicant of $4,256.00 less applicable tax and superannuation contributions of 9.5% totalling $404.32 and issued an order to that effect on 13 December 2021.

[11] The award of compensation I decided to grant was less than the amount of $11,703.00 sought by the Applicant. The basis of the Applicant’s claim was that he sought compensation to cover a period of 12 to 15 weeks (later said to be 11 weeks), between 31 January 2021 when he was without income because the Respondent stopped providing him with work, and the date upon which he commenced new employment. Based on the Applicant’s evidence at the hearing, he started his new employment on or around 12 May 2021 – 11 weeks after 31 January 2021. This is the same as the date upon which the Applicant contends that he was dismissed and that his dismissal took effect.

[12] The way the Applicant conducted his case made the calculation of compensation difficult. The Commission does not have the power to award compensation for hurt, humiliation, unpaid wages for work prior to the dismissal or lost earnings prior to the dismissal. Nor does the Commission have power to include amounts of backpay in awards of compensation for unfair dismissal. However, lost income prior to the dismissal or a failure to pay entitlements on dismissal, may be relevant to the unfairness of the dismissal.

[13] The first step in calculating compensation for person found to have been unfairly dismissed, is to estimate the remuneration the person would have received, or would likely have received, if the employer had not dismissed the person. The Commission is required to estimate the period that the person would have remained in employment but for the dismissal and to calculate what the person would have earned between the date of the dismissal and the estimated period of employment. While this exercise is hypothetical, the starting point for the calculation involved in this step, is the date the person was dismissed.

[14] The second step in calculating compensation involves deducting moneys earned in the period between the date the person was dismissed and the estimated period that the person would have remained in employment had the person not been dismissed.

[15] Applying these steps in the present case, would result in no compensation being awarded. This is because the Applicant’s evidence is that he was dismissed on 12 May 2021 and that the dismissal took effect on that date. The Applicant also states that he commenced alternative employment in a permanent position, at a higher classification level, on the same day he was dismissed from his casual position with the Respondent, which was classified at a lower classification level.

[16] It is clear from the evidence that the Applicant does not accept that he was properly classified at level 3 and maintains the view that he is entitled to be classified at level 5 and that the Respondent maintains that the Applicant is not entitled to be classified at level 5 under the Award and is properly classified at either level 3 or level 2. Accordingly, it is strongly arguable that even if the Applicant was not dismissed, he would have sought alternative employment in any event and left his employment with the Respondent upon finding a position where he was classified and paid at a level that he believes is his entitlement.

[17] It is also notable that the Applicant sent hostile and aggressive correspondence to the Respondent in relation to his wages claim and in the course of these proceedings, demonstrated complete distrust of everything that Mr Harding and Mr Cardier said or did. While I understand the Applicant is upset that he was underpaid, his attitude was disproportionate considering that the Respondent complied with the FWO notice and made backpay amounts identified as owing. As I have previously observed, the Applicant’s views about what he was owed in terms of backpay were also misconceived. The Applicant’s antipathy to Mr Harding and Mr Cardier also leads to the conclusion that he would not have remained in employment for a lengthy period.

[18] Accordingly, applying steps one and two of the Commission’s approach to assessing compensation in the present case, would result in no compensation being awarded. In my view, to find that the Applicant was unfairly dismissed and to decline to grant compensation, would result in clearly inadequate outcome. It is therefore appropriate that I reassess the assumptions made in reaching that amount.

[19] In reassessing those assumptions, I consider that despite his assertion that his employment ended on 12 May 2021, it is equally probable that the Applicant’s employment ended before that date so that part of the period where the Applicant was without income could be included in the compensation award. I am unable to accurately determine when employment ended and in the present case, it is not strictly necessary that I do so. For the application to have been made within the 21 – day period required by s. 394(2) it is necessary that the Applicant’s employment ended on or after 7 May 2021. However, if the employment ended at an earlier point, the manner in which the Respondent dealt with the Applicant, including the correspondence sent to the Applicant, would have weighed in favour of a further period being granted to make the application.

[20] I also consider that had the Applicant not been dismissed, he may have waited for a longer period before seeking alternative employment and that he would have remained in employment for that further period. I therefore assumed that the Applicant would have remained in employment for a period of 8 weeks from the date he was dismissed. I also assumed that the Applicant would have worked at least 152 hours in that 8 week period on the basis that there was some reduction in the Respondent’s work. Accordingly, I awarded an amount of compensation of 152 hours at the Applicant’s hourly rate of $28.00 ($4,256.00) and superannuation contributions of 9.5% of that amount ($404.32).

PROCEDURAL MATTERS

[21] Consistent with s. 397 of the Act, I decided to conduct a hearing to determine the matter on the basis that there were disputed issues of fact and I considered this to be the most appropriate means to resolve them. The hearing was held by Microsoft Teams on 20 August 2021. The Respondent sought permission to be represented by a lawyer. The Applicant objected. After hearing from the parties, I refused permission on the basis that I was not satisfied that permission should be granted with respect to any of the grounds in s. 596 of the FW Act. The matter was not complex such that it would be more efficiently dealt with if permission was granted. The Applicant was unrepresented and there was no evident unfairness to the Respondent or between the parties, on the basis that the Respondent would not be able to be effectively represented. In this regard, the Respondent was represented by the owner, Mr Paul Harding, assisted by the Leading Hand/Foreman Mr Ethan Cardier.

[22] Having found that the Applicant was dismissed, s. 396 of the Act requires that four specified matters must be decided before the merits of the application may be considered. There was no contest between the parties regarding these matters, and I find that:

(a) the application was made within the period required by s.394(2);

(b) the Applicant was a person protected from unfair dismissal;

(c) although the Respondent was a “small business employer” as defined in s.23 of the FW Act, the Applicant was not dismissed because of his conduct and the Small Business Fair Dismissal Code is therefore not relevant; and

(d) the dismissal was not a case of genuine redundancy.

LEGISLATION

[23] In relation to when a person has been dismissed, s. 386 of the Act provides as follows:

“Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on the completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time, or was for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[24] The term “conduct” is defined under s. 12 of the Act to include an omission.

[25] In relation to whether a dismissal is unfair, s. 387 of the FW Act provides:

“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.”

APPROACH TO APPLYING LEGISLATIVE PROVISIONS

[26] In relation to whether an employee has been dismissed, s. 386(1) of the FW Act encompasses both termination of employment on the employer’s initiative and a resignation forced by the conduct of the employer. In the present case, the Applicant did not resign but instead, contends that he was dismissed by virtue of correspondence sent to him on 12 May 2021 by the Respondent’s lawyers. The Explanatory Memorandum to the Fair Work Bill 2008 states as follows in relation to s. 386:

“Clause 386 - Meaning of dismissed

528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

● where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

● where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”

[27] In Mohazab v Dick Smith Electronics Pty Ltd the Industrial Relations Court of Australia was dealing with a case where an employee resigned his employment after being directed to do so or the police would be called. The Court did not consider the issues in that case solely within the paradigm commonly described as “constructive dismissal”. Rather the Court considered the meaning to be given to the term “termination at the initiative of the employer” and held that:

“…it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”³⁰

[28] The Court went on to cite with approval the judgement of Wilcox CJ in APESMA v David Graphics Pty Ltd where his Honour said:

“I agree with the proposition that termination may involve more than one action. But I think it necessary to ask oneself what was the critical action or what were the critical actions, that constituted a termination of the employment?”³²

[29] In relation to Mohazeb a Full Bench of the Australian Industrial Relations Commission said in O’Meara v Stanley Works Pty Ltd:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there... be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

[30] Section 386(1) covers a wide range of circumstances whereby the employment relationship is not left voluntarily by the employee. These include but are not limited to repudiation of the contract of employment by the employer, which is accepted by the employee and constructive dismissal. It is well established that where there is conduct by the employer that amounts to repudiation of the employment contract, which is accepted by the employee, it is the conduct of the employer that brings the employment relationship to an end.

[31] In relation to consideration of whether a dismissal was unfair, the matters in s. 387(a) – (e) relate to dismissals on the grounds of capacity or conduct. The matters in those sections go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:

Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.¹

[32] In the present case, the Applicant’s dismissal was not based on his capacity or conduct but rather the Respondent contends that it was due to shortage of work. The Respondent – which had access to legal representation when drafting its Response to the application and its submissions for the hearing – does not press an objection on the grounds of genuine redundancy.

The Applicant’s qualifications and experience

[33] The evidence of the Applicant can be summarised as follows. On 24 May 2017, the Applicant applied to the Respondent for an advertised position as a Qualified Shopfitter or Cabinetmaker. The Applicant tendered the advertisement he responded to dated 17 May 2017. During a conversation with Mr Harding about the position, the Applicant explained that he was looking for a full-time job and advised that he did not have a “ticket”. According to the Applicant, Mr Harding responded, stating “tickets don’t mean anything to me as long as you can do the work to the same standards and qualities as a tradesman”. The Applicant said that he informed Mr Harding that he could perform work to that standard.

[34] The Applicant was hired on 25 May 2017. He states that he was not provided with a Contract of Employment detailing the classification, position title or anything to state what he was employed to do. The Applicant was placed on a three-month probation period to demonstrate that the Applicant was competent. The Applicant said that within three months, he had performed various types of work and completed them to the standards of a tradesperson and above. The Applicant continued in his employment after the end of the probationary period and said that Mr Harding was satisfied that he was competent and had the required standard of skills for the role.

[35] After probation, the Applicant continued in this role for 18 months. The Applicant said that during this time, he completed a variety of work at a trade standard and was also required on numerous occasions to supervise an apprentice at the workplace and onsite, for a few hours or at times, for a whole day. In addition, the Applicant said that he was expected to complete numerous jobs where he was required to travel and live away from home at places such as Wunjunga, Emerald, and Bowen. The Applicant said that he was never paid any entitlements or allowances for such work and was underpaid during this period.

[36] The Applicant ceased working for the Respondent on 7 June 2019 and recommenced with the Respondent on 25 March 2020 when the Applicant states that Mr Harding contacted him and requested that he come back and work in the same role. There is a dispute, which it is not necessary to resolve, about whether the Applicant was contacted by Mr Harding while he was working in New South Wales and requested to return to work for the Respondent or whether the Applicant had returned to Townsville at the point Mr Harding made contact.

[37] The Applicant said that after twelve months, he discovered that he was being underpaid following some investigations and phone conversations with “Fair Work Australia”. The Applicant was advised that he was receiving the incorrect hourly rate and that he had not been paid any penalty rates, overtime or allowances, such as industry allowance, tool allowance, meal allowance, distant job allowance and special rates, that he was entitled to be paid under the Award.

[38] The Applicant also said that he was entitled to be classified at Level 5 under the Award on the basis that Mr Harding had employed him as a person with the knowledge, skills and qualities of a tradesperson as he had proven during his three-month probation period. The Applicant maintained that Mr Harding accepted and deemed him competent in the role and to perform the duties of a tradesperson in his workplace and onsite. The Applicant listed skills and duties specified in the Award for Level 5 employees and contended that he performed those duties while working for the Respondent. In support of his contentions that he worked as a tradesperson, the Applicant tendered a series of photographs of jobs he had undertaken, and which were posted by the Respondent on its social media sites.

[39] The Applicant disputed Mr Harding’s evidence that work can be done by labourers, advising that the Respondent paid ticketed tradesman the same amount of hourly rate as the Applicant during the time he was employed by the Respondent. The Applicant asserted that Mr Harding had treated the Applicant as if he was a tradesman, but only changed his mind about the Applicant’s skills and classification after the Applicant queried his classification. The Applicant also disputed Mr Harding’s assertion that he does not have a forklift licence and stated that he was one of two employees who have a forklift licence.

[40] In cross examination, the Applicant confirmed he has no formal qualifications. The Applicant denied that he predominantly undertook joinery work whilst employed by the Respondent, however, agreed that about 50% of his total duties was joinery work. The Applicant also agreed that about 50% of the work completed in January was joinery work.

[41] Mr Farrell confirmed that the Applicant commenced work with the Respondent in March 2017 just after the time Mr Farrell started his apprenticeship and that the Applicant worked with the Respondent until June 2019 where he left for approximately 9 months before returning in March 2020 after Mr Harding offered the Applicant work. It is Mr Farrell’s view that during the time the Applicant worked for the Respondent, the Applicant performed tasks and duties of a tradesperson given to him by Mr Harding. The Applicant and Mr Farrell would often be left unsupervised in the workplace and on jobsites by Mr Harding, and the Applicant would supervise Mr Farrell. This was a duty the Applicant had performed on a regular basis, both on site and in the workplace.

[42] Mr Farrell stated that he and the Applicant have completed a large variety of work, such as joinery work, shopfitting, construction and fitting of joinery for boats, caravans and horse floats, demolition work, dirty work during the Townsville floods, heavy block lifting, house renovations, making furniture, applying finishes, onsite templates for joinery work, laminating bench tops and other types of joinery components.

[43] Mr Harding’s evidence about the Applicant’s employment is that the Applicant initially applied for a position advertised on Facebook. The Applicant was the only person who responded to the advertisement. Mr Harding confirmed that he was informed by the Applicant that he was not a qualified shopfitter or cabinetmaker. Mr Harding said that given he was unable to employ a qualified tradesman, he employed the Applicant as a casual employee to assist the joinery section of his business as the Applicant stated that he had prior experience through working for his father’s joinery and manufacturing business.

[44] Mr Harding said that the Applicant resigned from his first employment effective 14 June 2019, because the Applicant was moving states. On or around March 2020, Mr Harding became aware that the Applicant had returned to Townsville. At the time, Mr Harding had a lot of joinery work and he contacted the Applicant, offering him the same casual position that he had previously held prior to resigning. The Applicant accepted the offer and returned to work with the Respondent on 25 March 2020.

The Applicant’s claim for underpayment of wages

[45] The Applicant’s evidence was that on 18 January 2021 he contacted Mr Harding about an alleged underpayment of his wages. According to the Applicant, Mr Harding advised he would look into it and get back to the Applicant in the next couple of days. The Applicant did not confirm how he contacted Mr Harding and nor did he produce evidence confirming that contact, such as a text message or telephone record.

[46] The Applicant said that following this contact, there was a lot of tension in the air at work and after a couple of days he was told that there was no work available for him. The Applicant found this strange as there was renovation work, kitchens to be finished off, shop fit outs to be done and various small jobs to be completed. This is work he would ordinarily complete with the Respondent. It later came to the Applicant’s attention that the Respondent employed Mr Nikolas Pronk who is qualified as a carpenter. Mr Pronk performed all the roles that the Applicant had performed as well as carpentry work. The Applicant tendered a photograph taken by him of Mr Pronk performing work at one of the Respondent’s projects on or around 26 March 2021. The Applicant said that he would usually have undertaken this work. 2 Mr Farrell who gave evidence on behalf of the Applicant confirmed that Mr Pronk was performing joinery work on that day and on other days, after the Applicant was dismissed.

[47] Mr Harding’s evidence was that on Friday, 22 January 2021, he verbally informed the Applicant that due to a shortage of work, he was not required to attend work on Monday 25 January 2021. Tuesday 26 January was a public holiday. At 9.59 pm on 25 January 2021, Mr Harding received an email from the Applicant stating that after filling out a pay calculator on the Fair Work website, the Applicant was aware that he was underpaid and that he was entitled to back pay for wages, penalty rates and overtime for six years. The email contained a link to the pay calculator that the Applicant had used. 3

[48] The Applicant continued to work on Wednesday 27 January 2021 and Thursday 28 January 2021. At 8:31pm on Thursday 28 January 2021, Mr Harding sent a text message to the Applicant to advise that he had no work to offer him on Friday, 29 January 2021. Mr Harding said that this was because Mr Harding and Mr Ethan Cardier, another employee of the Respondent, were required to travel to Wunjunga to revisit a job site where water damage occurred. The Applicant sent a text message at 8:35pm on Thursday, 28 January 2021 requesting that Mr Harding sort out his pay rate and backpay. On Sunday, 31 January 2021, Mr Harding sent a text message to the Applicant stating that he could not offer him work for the following week as they had quoted for a job but another business was engaged instead and no quotes for Joinery work had been returned.

[49] Upon receiving the wage query from the Applicant, Mr Harding said that he contacted “Fair Work” and reviewed the wages that he had been paying the Applicant. Throughout this process, Mr Harding became aware of an error in his interpretation of the Award and rectified the error by paying a sum of $9,900.00 less the applicable tax as backpay for the salary owed to the Applicant at a Level 3 classification under the Award on 25 February 2021.

[50] On Saturday, 6 February 2021, Mr Harding received an email from the Applicant which detailed his calculations for the payment, alleging that he was owed approximately $27,580.00. In this email, the Applicant stated that he was entitled to be classified at Level 5 and that he made his calculations based on the Award rate for Level 5. The Applicant also made a request for conversion to full time employment. On 19 February 2021, Mr Harding sent a letter to the Applicant advising that the Respondent did not have sufficient regular work moving forward that could support a conversion to full time employment. He also informed the Applicant that the Respondent’s current work was construction work, not joinery, and they would offer him work when joinery tasks were available.

[51] Mr Harding stated that through the process of ascertaining the correct backpay for the Applicant, he contacted a staff member at the FWO, who informed him that he had attempted to arrange a meeting between Mr Harding and the Applicant to ascertain his correct classification under the Award but the Applicant refused to participate. The Applicant denied that the had refused to participate in such a meeting.

[52] Mr Harding said that he was made aware of an error in the first calculations in respect of back payments owed to the Applicant and on 4 March 2021, the Respondent processed through its MYOB accounting system payment to the Applicant in the sum of $2,045.62 less the applicable tax, as further backpay to rectify this error. This amount was paid from the Respondent’s account on 22 March 2021. On 9 March 2021, Mr Harding received an email from the Applicant detailing a full claim for alleged underpayments totalling over $500,000.00 including unpaid allowances and 10% daily interest on the total amount. Mr Harding reviewed the allowances on 13 March 2021 and paid to the Applicant the sum of $1,299.39 less the applicable tax as backpay for allowances Mr Harding accepted that the Applicant was owed.

[53] On 11 March 2021, Mr Harding received a general protections application not involving dismissal from the Applicant. A conference of the parties was conducted on 14 April 2021, at which agreement was not reached. The Applicant did not pursue this claim further. Mr Harding said that in the period from 19 February and the Applicant making a general protections application, the Applicant did not contact him asking to return to work or whether work was available. Mr Harding noted that the only correspondence he received both during this period and following were emails and text messages in relation to the Applicant’s wage query.

[54] On 15 March 2021, Mr Harding received an email from the Applicant stating that his calculations for the allowances owed were not correct, and that the FWO could go right through the calculations. On 16 March 2021, Mr Harding received another email from the Applicant stating that he had not paid the Applicant as per his claim, and as such the Applicant was increasing the daily interest to 20% and a further 10% increase every week.

[55] On 22 April 2021, Mr Harding received an email from the FWO advising that an official investigation into the allegations of underpayment and alteration of time sheets made by the Applicant was being conducted. Mr Harding participated in the investigation process. The FWO determined that the Respondent owed a further sum of $1,010.99 as backpay for salary owed to the Applicant which was due by 1 July 2021. A Compliance Notice was issued to Mr Harding on 10 June 2021, stating that the Applicant was employed as a Casual Level 3 employee in accordance with the Award. Mr Harding advised he made this payment to the Applicant in two instalments - $10.99 on 29 June 2021 and $1,000.00 on 30 June 2021. Mr Harding received an email from the Fair Work Ombudsman on 30 June 2021 stating that the Respondent had complied with the Compliance Notice and that the investigation conducted by the Fair Work Ombudsman was now closed. 4

Alleged shortage of work

[56] Mr Harding said that from October 2020 onwards, the Respondent was impacted by a shortage of work. In January 2021, Mr Harding informed all employees that no quotes had been returned to him and accepted by potential customers, and as a result, work would be slow. During this month, Mr Harding stated he provided the Applicant and other employees with non-Joinery tasks to offer them hours due to the shortage of work. These tasks including cleaning the workshop shed, demolition work and replacing a boat floor. This was reflected in the Applicant’s time sheets. Mr Harding tendered the Applicant’s time sheets for the period from 15 to 29 January 2021, evidencing that the Applicant spent a number of days working on a boat and cleaning up a shed as well as undertaking other tasks, some of which were joinery tasks

[57] Mr Harding also stated that it was not financially viable for him to continue providing casual employees with these hours as the Respondent is a small business and unable to afford to continue incurring expenses. Further, Mr Harding said that many joinery jobs were delayed for the period between September 2020 to March 2021 due to various reasons including COVID-19 and Mr Harding’s health. Mr Harding had estimated that the Joinery work included in some of these jobs would be able to be started between the end of March to early April. On 3 April 2021, Mr Harding became unwell. He was required to remain in the hospital for two days and spent two weeks at home due to this illness. Mr Harding was unable to work during this time and could not source work for his employees. For the following two weeks, Mr Harding was on light duties as he was still unwell but was able to attend at the workplace. On 8 May 2021, Mr Harding’s was diagnosed with Q Fever. Adding to the shortage of work, on 16 March 2021, Mr Harding received an email from a client who advised that due to health issues he required the Respondent to cease work on two projects. This also meant that less joinery work was available.

[58] Mr Harding denied the Applicant’s allegation that the Respondent hired other employees to do the work the Applicant was hired to do. Mr Harding said he had engaged Mr Walsh, who is a subcontractor experienced in tiling for the last 15 years, to undertake predominately tiling work as well as other general maintenance work. Mr Harding also engaged Mr Pronk, who is a qualified Carpenter, as a subcontractor. Mr Harding first engaged Mr Pronk in or around February 2021 to undertake carpentry work for the Respondent when there is carpentry work to be done. Mr Harding stated that the Applicant was unqualified and unskilled to perform the duties that these subcontractors were hired to undertake.

[59] While reviewing the Award to rectify what was owed to the Applicant, Mr Harding discovered that under the Award, casual employees have a minimum daily engagement of 7.6 hours. Mr Harding said that he did not have enough work during the period from February to April to be able to provide the Applicant with a full day’s worth of work that he was qualified and skilled enough to undertake. Mr Harding confirmed that he continued to engage an apprentice Shopfitter (Mr Farrell) during this time as he was required to provide the apprentice with hours of work. The apprentice was undertaking some joinery tasks in between his other duties, however, Mr Harding advised that there was not enough Joinery work to warrant engaging another casual employee for a full day’s worth of work.

[60] In his oral evidence, Mr Harding said that as the Applicant was a casual employee, it is Mr Harding’s view that he could tell the Applicant to come to work when he needed him and not to come to work at other times. While there had been less work, there was enough work for Mr Cardier, who had been with the Respondent for six months but was engaged in a different role to that of the Applicant. In this regard, Mr Harding said that 95% of Mr Cardier’s work was not the same as the work of the Applicant and that Mr Cardier could perform some joinery work and then be otherwise engaged on other work such as carpentry involving stud work (which relates to the walls of a house), any minor demolition required to be done, putting steel beams in place or putting roof trusses on. Mr Pronk only did short fitouts that would require about two hours work. Mr Harding confirmed that he did not offer the Applicant work as the work he could complete would be relatively short periods and the Applicant could not complete the other work that could be done by Mr Cardier.

[61] In cross examination, Mr Harding confirmed that Mr Cardier does not have a qualification in joinery but said that he does allow Mr Cardier to complete joinery work as he has done it before. Mr Harding confirmed that everybody did everything on every job but the Applicant was not good at completing carpentry work. For example the Applicant was unable to complete tasks such as building or laying a wall out, unless told how to do it. While Mr Harding agreed that the Applicant had undertaken some of this work, he maintained that the Applicant had mostly done joinery work. Mr Harding accepted that Mr Cardier and Mr Pronk performed joinery work months after the Applicant left but maintained that available joinery work was approximately two half days and a few hours here and there to help with loading and unloading units.

[62] During the hearing, I put the proposition to Mr Harding that if he had four employees who can all do roughly the same thing, and there was work to be done, but less of it, Mr Harding’s options were to reduce the number of employees or give each employee less work and divide work between them. Mr Harding explained that he had to find full time work for Mr Farrell as he was still an apprentice. When asked why Mr Harding did not provide the Applicant work but gave work to Mr Cardier when the Applicant had been engaged for a longer period, Mr Harding reiterated that Mr Cardier performed different tasks and was responsible for running jobs. Mr Cardier did these tasks and a small amount of joinery work during the period when no work was offered to the Applicant. In relation to the photographs of work done by the Applicant posted on social media, Mr Harding said that these were all jobs that Mr Harding had advised the Applicant about and ensured that they were properly completed. Mr Harding also said that when a small amount of joinery work was given to Mr Cardier and Mr Pronk, the Applicant had made a point that he was not coming back.

[63] Mr Walsh was engaged to complete tiling and trimming tasks. Mr Harding denied that these were tasks that the Applicant would normally do. Mr Walsh was engaged because Mr Harding required his experience and advice on how he could fix certain problems with a project. Mr Harding stated that Mr Walsh was not a qualified tiler. However, he had a lot of experience. At the time, Mr Harding faced an issue and was unable to figure it out. They tried the tilers and tried tile shops but ended up working out a solution with Mr Walsh. Mr Walsh tried to see if it worked with the help of Mr Farrell. This was a day and a half of work. Mr Harding denied that this was work that the Applicant was able to do.

[64] Mr Walsh’s evidence is that he is a subcontractor for the Respondent, having been engaged on an irregular basis since approximately 2005. Mr Walsh is a multi-skilled handyman and is engaged by the Respondent whenever his skills are required. Mr Walsh noted that this can be rare, and there have been years where the Respondent only engaged him once. Mr Walsh stated that the only jobs he had been engaged by the Respondent in 2021 include:

•  1 x plaster repair job around 18 May 2021;

•  1 x grout repair tiling job around 18 February 2021; and

•  1 x painting job around 20 May 2021.

[65] Mr Walsh also stated that while he was on the job site completing the plaster repair job, he assisted the Respondent’s apprentice put glass panels into a pool fence. This took approximately 15 minutes. Mr Walsh confirmed that he did not complete any joinery work for the Respondent. In cross examination, Mr Walsh stated that the work he performed for the Respondent in February and May 2021 was not joinery work. He denied that this was work that anyone can do and said that it requires a person with skills. This is work that Mr Walsh has conducted regularly for approximately 20 years.

[66] Mr Cardier said in his evidence that he has been engaged by the Respondent as Leading Hand Foreman since April 2020 and has been employed for his experience in construction. Mr Cardier advised that he is tasked with managing materials, trades and staff for the Respondent’s various active jobs. During Mr Cardier’s time with the Respondent, he has been trained to use drawing and quoting programs to help in the efficiency of tendering for jobs. He has also developed his social interactions with clients to ensure that they have full confidence that he can complete the work to their satisfaction. During the month of January, COVID-19 caused delays in both materials and trades which subsequently lead to delays at their job sites and their onsite and manufacturing facility production slowed down. Mr Cardier said this hampered the progress of many joinery quotes that had been sent to clients.

[67] From February to April, the joinery workload was not enough for the Respondent’s full- time apprentice. Mr Cardier stated that it was not economical to engage another casual employee to complete the joinery work at this time as there was no work. Mr Harding’s illness over this period also affected work, specifically completing and sourcing joinery work. Mr Cardier also stated that he was not experienced enough in the joinery side of business, including both the generation of accurate drawings and the quoting of joinery materials, to have been able to capably assist in this area and generate work while Mr Harding was sick. From Mr Cardier’s understanding, the Applicant was still employed by the Respondent and was available to be called if there was any joinery work to be completed.

[68] Mr Pronk has been engaged by the Respondent as a subcontractor since February 2021 and owns and operates his own business – Pronk Constructions. Mr Pronk is a qualified carpenter and is engaged by the Respondent to complete carpentry work on a sporadic basis, which is when there is carpentry work for Mr Pronk and when he is able to do work for the Respondent, between duties required to conduct his own business. When engaged by the Respondent, Mr Pronk’s duties include construction work involving the renovation of houses. He has never been engaged by the Respondent to complete joinery work. On occasion, he has helped load or unload cabinets on some of the Respondent’s job sites because he was already working on the job site. Mr Pronk has never made or installed joinery.

[69] Mr Pronk recalled assisting Mr Farrell on one occasion where he unloaded and held some items for Mr Farrell, in circumstances where Mr Pronk was already onsite unloading cabinetry for the Respondent. Mr Pronk said that on that occasion, Mr Harding was unable to lift the units by himself. Mr Pronk left another job to assist in moving the units and while on the site, helped Mr Harding by holding a vacuum. Mr Pronk denied having ever installed or marked anything and said that Mr Farrell was the shopfitter at the relevant time.

[70] Mr Pronk left his own vehicle at the Respondent’s workshop while he assisted in transporting the units to site and unloading them, before coming back to get his own vehicle. Mr Pronk’s view is that he was not engaged in this work for the majority of the day and he maintained that he did not assist in installing the joinery other than by putting a hand against the units to help them holding it up before he left. He did not have any screw guns, nor did he screw anything together.

[71] Mr Pronk said that that for the majority of the half day period when he did this work and then went back to the office, loaded up more, and came back, while Mr Harding and Mr Farrell did the installation work. Mr Pronk confirmed that he was paid while standing around and agreed that the Applicant could have done this work.

[72] The Applicant contended that there was not a shortage of work justifying the termination of his employment and that the reason for the termination was that he had made a claim for underpayment of wages. In his oral evidence the Applicant said that in the period of his employment, he usually worked 42.5 hours a week, over five days, from 7:00am to 4:00pm. Around 24 January 2021, the Applicant was told not to come to work as there was no work for him to perform. This coincided with the time the Applicant raised issues about his terms and conditions of employment. The Applicant also said that before 24 January 2021, he worked full time hours every day and was not advised that he should or should not come to work and was simply expected to be at work five days a week. Mr Farrell confirmed that the Applicant would work every day up until the time he was told not to come to work and that the Applicant was a full-time worker.

[73] The Applicant tendered the text message exchange with Mr Harding in relation to him not being required to attend for work in January 2021. The first message tendered by the Applicant was received at 8:31pm on 28 January 2021, and was simply a statement from Mr Harding that: “I’ve got nothing for you tomorrow. See you Monday.” At 8:35pm on the same day, the Applicant sent a text message asking, “Can u please sort out my pay rate and back pay for under payment and overtime tomorrow please thanks Ben.” On Sunday, 31 January 2021, the Applicant received another text message from Mr Harding stating: “We have nothing for you this week. Concrete cutter got himself another guy”. The Applicant responded: “No work all week?”. The Applicant confirmed that until he received the text message on 31 January, he was expecting to go to work on the following day.

[74] The Applicant made a number of assertions to the effect that between 24 January 2021 and the termination of his employment, other persons were employed to do work that he could have done. In support of those assertions the Applicant tendered a photograph which he asserted depicted a new employee who was employed to install joinery work on site on 26 March 2021. The Applicant said that this is work which the Applicant would have ordinarily done. It is not in dispute that the photograph depicts Mr Pronk, who gave evidence in these proceedings and who was engaged as a subcontractor and was not an employee.

[75] Under cross-examination the Applicant accepted that Mr Pronk is a subcontractor and not an employee but rejected the proposition that Mr Pronk did not undertake joinery work and maintained that Mr Pronk spent a whole day painting kickboards and installing joinery. The Applicant also said that Mr Pronk was driving a company car at the time.

[76] In response to Mr Harding’s evidence that he had assigned the Applicant tasks, such as cleaning the workshop, the Applicant said that this is general housekeeping in the workplace and happens daily or weekly. The Applicant disputed that he was given these tasks because of a shortage of other work. The demolition work was all current work that was taking place and had taken place on numerous occasions throughout the Applicant’s employment. In relation to the boat floors, the Applicant advised that Mr Harding had done work for the boat owner to repay him for work he had done for Mr Harding. This was not something that was just given to the Applicant because there was no work but was a task that was required to be completed as the work the boat owner had for Mr Harding done needed to be paid for.

[77] Mr Farrell’s evidence was that work has been a little bit slow since the beginning of 2021, but there were still tasks to be done. Mr Farrell also said that throughout the four years he has worked for the Respondent, when work has been quiet, Mr Harding would be generous enough to give them tasks and jobs that would not benefit himself, but to employees busy enough until work was picked up again. Mr Farrell advised this would normally last a few weeks to a month. In his oral evidence, Mr Farrell confirmed that Mr Pronk had assisted him on site at Cignall during the time when the Applicant was not given work. Mr Farrell also said that he undertook work at Kelso with Mr Pronk and Mr Harding. This work involved Mr Pronk planing kickboards into position and Mr Harding screwing all the cupboards, and most of the units, together while Mr Farrell and Mr Pronk put them all into position.

[78] Mr Farrell said that all the work he has done with Mr Pronk is work that he had normally done with the Applicant, including shopfitting, demolition, flood work and carpentry. According to Mr Farrell, Mr Cardier would also complete joinery work. Mr Farrell advised that on one occasion, he was asked to take the day off while Mr Cardier and Mr Harding headed north and installed at Cignall and it is Mr Farrell’s understanding that they worked overtime on that day. To Mr Farrell’s knowledge, Mr Cardier does not have any background in joinery, kitchens or anything to do with kitchens. He further stated that Mr Cardier was not employed to do joinery. Rather, from what Mr Farrell heard, Mr Cardier was employed to do carpentry work, but somehow that did not happen. Mr Farrell also said that Mr Cardier tended to do foreman’s work rather than the labouring but Mr Farrell was never informed that Mr Cardier was the foreman, or leading hand.

[79] When asked whether he could recall Mr Pronk working on an occasion other than at Cignall, Mr Farrell said that he could not as it was that long ago. Mr Farrell also said that Mr Pronk worked for the Respondent on a weekly basis and undertook some cabinetry or shopfitting work and carpentry work on other sites. During the time the Applicant was gone from the workplace and Mr Farrell was back from TAFE, Mr Farrell confirmed that he was completing four weeks of work and doing partial bits of overtime.

[80] Mr Farrell also said that “there was talk about Mr Cardier being put on a salary” and he had been informed of this by Mr Harding. Mr Farrell ceased working for the Respondent on or around 18 June 2021. In cross examination, Mr Farrell confirmed that there were two days when he went to complete a job at Cignall. The first day was an installation day, and the second was when Mr Farrell returned to finish off some work. Mr Farrell confirmed that he and Mr Pronk pulled out the original bases. Under cross-examination, Mr Farrell agreed that Mr Pronk was undertaking carpentry work and dismantling, which Mr Farrell and the Applicant would not be able to do or understand. Mr Farrell also agreed that Mr Pronk was employed to install roof trusses, and that this was not something Mr Farrell or the Applicant knew how to do. Mr Farrell advised that he was aware that Mr Pronk was doing work other than joinery. Further, Mr Farrell confirmed that while Mr Cardier and Mr Pronk did bits of joinery work for parts of the day, for other periods they were doing work other than joinery.

[81] Mr Farrell agreed that there was not a significant amount of work after January 2021 but maintained that there was still work that required more than one person. When it was put to Mr Farrell that there was only enough work for Mr Farrell, Mr Harding and Mr Cardier, Mr Farrell advised that for any side of the work, there was enough work as Mr Pronk would come and assist them on a few occasions, and so did other carpenters. Mr Farrell also agreed that he could recall two occasions when Mr Pronk assisted with joinery work for part of a day but also agreed that on other occasions Mr Pronk may have been doing carpentry work. Mr Farrell confirmed that during April and May he was asked to take time off due to lack of work, and was allowed to take time off to complete his Heavy Rigid truck licence but was required to use his annual leave for this purpose. Mr Farrell also said that he did not take this leave because there was no work but because he wanted to obtain the Heavy Rigid truck licence to advance his career.

The Applicant’s unpaid wages claims

[82] As previously stated, the Applicant initially corresponded with Mr Harding on 25 January 2021 alleging an entitlement to unpaid wages. In his oral evidence, the Applicant said that he was contacting Mr Harding almost every day about his wages and asking why he was not being given any work. 5 On 6 February 2021, the Applicant sent further correspondence to Mr Harding claiming $27,580.00 in back pay based on Level 5 classification in the Award and seeking conversion to full time employment in accordance with the casual conversion provisions in the Award. On 19 February 2021, Mr Harding sent a letter to the Applicant stating that the Respondent did not have sufficient regular work moving forward that could support a conversion to full time employment. The letter also stated that the current work was construction work rather than joinery work and that the Applicant would be offered work when joinery work was available.

[83] In his witness statement the Applicant referred to correspondence from the Respondent’s lawyers offering him money to settle his underpayment claim on condition that the Applicant resigned. The Applicant tendered the correspondence. It is marked “Without Prejudice Save as to Costs” and is dated 19 February 2021. The Applicant filed his witness statement on 23 July 2021, appending the letter. In his witness statement filed on 6 August 2021, Mr Harding said that he instructed his lawyers to make a without prejudice settlement offer to the Applicant which was sent on 19 February 2021. Mr Harding contended that this correspondence should not be admitted into evidence.

[84] I did not accept this submission and decided that the letter would be admitted into evidence. The letter is relevant only to the extent that it evidences that the Respondent offered to rectify underpayments to the Applicant on the condition that he resign his employment. The letter does not relate to the present proceedings but rather to the Applicant’s claim for unpaid wages, the substance of which is not the subject of the Applicant’s unfair dismissal claim. The letter was written on 19 February 2021 and the Applicant’s claim for unfair dismissal was not filed with the Commission until 28 May 2021. Self-evidently, the without prejudice offer does not relate to the unfair dismissal application with which I am dealing and is not an attempt to settle that dispute. The offer could only relate to the unfair dismissal application if the Applicant had accepted the settlement terms, then offered and subsequently proceeded with an unfair dismissal application. As such, the tender of the letter is not contrary to the purpose of privilege in relation to such offers – that they are not to be used in evidence if the matter is subsequently litigated. Privilege does not extend to other matters not subject of the correspondence.

[85] The letter is dated 19 February 2021, and states that the Applicant had been employed as a casual Assembler B for the periods 25 May 2017 to 14 June 2019 and 25 March 2020 to the date of the correspondence. The letter acknowledged the Applicant’s claim that he should be Level 5 under the Award and asserted the Respondent’s view that the Applicant’s correct classification was Level 2. The letter went on to state that on a commercial basis, the Respondent believes it is in the best interests of both parties if the Respondent made a lump sum payment of $9,900.35 to the Applicant at the Level 3 pay rate on condition that the Applicant resign his employment and indemnify the Respondent from any claims arising out of or in connection with his employment. That offer was left open until 25 February 2021. The Applicant did not accept this offer.

[86] On 25 February 2021, the Applicant was paid the amount of $9,900.35 (less applicable tax) notwithstanding that he had not agreed to the terms set out in the 19 February correspondence. On 1 March 2021, the Applicant made further claims in relation to non-payment of allowances, which were advised to the Respondent by the Office of the Fair Work Ombudsman. On 2 March 2021, the Respondent’s lawyers corresponded with the Applicant informing him that he had been paid what the Respondent believed he was owed being an amount of $9,900.35 which included a deduction of $2,047.25 for what was said to be overpaid superannuation.

[87] Also on 2 March 2021, the Respondent corresponded with the Applicant informing him that as previously advised, there was insufficient regular work moving forward to support the conversion of his casual employment to full time employment and that the Respondent was intending to restructure its business model towards being a principal contractor and supervisor of construction jobs, which was its predominant workload at the time. The correspondence also stated that joinery work was becoming non-profitable and that this work would be subcontracted out. The Applicant was advised that if this restructure proceeded, the job he was required to do would be removed from the organisation and not replaced. The letter sought the Applicant’s feedback by 5.00 pm on 5 March 2021 and requested that he not attend at the office until a decision was made. The letter concluded by informing the Applicant that he was directed not to discuss the letter with anyone and that a breach of this “lawful and reasonable direction” could amount in disciplinary action, being taken including termination.

[88] The Applicant responded to both letters by a single email stating that he would be unable to provide feedback by the required time as he would be seeking legal advice which would not occur until the following week. The email also stated that the deduction from back payments for overpaid superannuation was “wage theft” and the Applicant would be charging interest on the deduction at the rate of 10% per day until the money was returned to his bank account.

[89] On 4 March an additional amount of $2,045.62 (less applicable tax) was paid to the Applicant on the basis that the Respondent identified errors in its original calculations. On 9 March 2021, the Applicant made further wages claims based on allowances he claimed were unpaid and the Respondent paid an additional amount of $1,299.39 in relation to this claim.

[90] Thereafter, the Applicant sent a series of emails variously alleging wage theft, that he had been “ripped off” and that incorrect taxation had been applied to amounts paid to him and demanding clarification in relation to what had been paid. The Applicant also demanded increasing amounts of interest on wages said to be owed to him. Further, the Applicant queried why amounts had been paid to him when he had not agreed to resolve his wages claim and it was ongoing. On 9 March 2021 the Applicant sent an email to the Respondent entitled “Complete Claim” which included components said to be for underpayment of wages and overtime at the level 5 Award rate, non-payment of allowances, penalty for late pay, 10% interest on total amount per day and “theft” of superannuation charged at the rate of 10% per day until paid into the Applicant’s account. The amounts claimed by the Applicant were in excess of $500,000.00 and included:

● Underpayment at level 5 rates - $31,584.55;
● Industry allowance - $5,574.96;
● Tool allowance - $4,415.25;
● Meal allowance - $1,104.04;
● Clause 26.3 late payment - $487,200.00
● Special rate - $1,000.00;
● Distant job - $962.50; and
● 10% interest per day - $5,2194.17

[91] In addition, the Applicant claimed an amount of $200.04 per day said to be calculated at the rate of 10% per day based on an amount alleged to be stolen superannuation. Further, the Applicant demanded to be paid the amounts claimed within seven days and in weekly instalments and not as a lump sum, so that tax would be reduced. The Respondent did not pay the amount claimed. Thereafter, the Applicant continued to demand payment and to insist that it should not be taxed as it was an “amendment of wages”.

[92] Also on 9 March 2021, the Applicant filed a General Protections application not involving dismissal, asserting that when he raised claims in relation to underpayment of wages, he had been told not to come to work and had not been paid. Mr Harding’s evidence is that this application was conciliated on 14 April 2021 and was not resolved but has not been progressed by the Applicant.

[93] On 19 March 2021, the Respondent’s lawyers wrote to the Applicant, again noting that the correspondence was “Without Prejudice Save as to Costs”. That correspondence stated that the Applicant was still engaged as a casual employee by the Respondent and referred to “telephone correspondence” whereby the Applicant had been advised that the Respondent was seeking clarification as to whether the Applicant would return to work, when the Respondent had work available that was within the Applicant’s skills and qualifications. The correspondence stated:

“Our client wishes to make clear that any casual engagement will be as a Level 3 casual position under the Joinery and Building Trades Award 2020 (the Award). If you are agreeable to returning to work in this role, then you will be paid Level 3 casual pay rates pursuant to the Award.

You advised that you required time to consider the above and would revert to the writer on Monday, 22 March 2021.”

[94] Mr Harding did not object to the letter of 19 March 2021 being tendered. The Applicant said that eventually, Mr Harding no longer spoke to him, including ignoring phone calls, text messages and emails. The Applicant said that in his view he was expected to communicate directly with the Respondent’s legal representative in respect to his employment as the Respondent no longer wanted to employ the Applicant after he had raised underpayment issues.

[95] In addition to the correspondence the Applicant sent to the Respondent making various allegations and demands in relation to unpaid wages, there is evidence that he made complaints in relation to wages to the FWO. Mr Harding tendered a series of correspondence between the Respondent and the FWO in relation to that claim. The correspondence indicates that an Officer of the FWO emailed Mr Harding on 22 April 2021, referring to a telephone conversation on 21 April, setting out allegations made by the Applicant that:

● He was underpaid overtime rates during his employment;
● He was underpaid allowances during his employment; and
● The employer has altered his timesheets.

[96] The email required a response to the allegations by 29 April 2021 with supporting documents including confirmation of period of employment; records or documents detailing hours of work including time sheets; and an excel spread sheet outlining steps/calculations in relation to the Applicant’s payments. The purpose of the investigation was said to be to assess and determine whether the employer had complied with the Joinery and Building Trades Award in relation to underpayment, rates of pay including overtime rates and allowance rates. 6

[97] A compliance notice was issued by the FWO on 10 June 2021 indicating the view that the Respondent had contravened terms of the Joinery and Building Trades Award, by failing to pay the Applicant the applicable minimum wage and loading in respect of ordinary hours worked and failing to pay overtime rates. The information appended to the compliance notices indicates that the FWO assessed the non-compliance on the basis that the Applicant was classified as a Level 3 casual employee and entitled to be paid a casual rate of $27.58 per hour. 7 On 30 June 2021, the FWO wrote to the Respondent confirming that it had complied with the compliance notice and the FWO investigation had been closed.

The cessation of the Applicant’s employment

[98] The Applicant maintained that he was dismissed on 12 May 2021. He said that he formed this view after receiving a letter from the Respondent’s lawyers stating that he would only be paid at Level 3 under the Award. The relevant paragraph of the letter was in the following terms:

“We confirm that at present, you are not prepared to be employed by our client as a Level 3 position under the Joinery and Building Trades Award 2020 (“the Award”) and only wish to be employed as Level 5 position. Our client will only engage a Level 5 employee who is qualified Cabinetmaker and you are not qualified to perform this Level 5 position.”

[99] The Applicant understood that the Level 3 rate was less than $28 an hour which is the rate he was being paid immediately before he was told not to come to work. The Applicant said that the casual rate for a Level 3 employee at that time, was around $24.00 per hour. Mr Harding said that he did not state to the Applicant that his rate of pay would be reduced. The Applicant was claiming a level 5 rate of pay which was higher than the $28 per hour that the Respondent was paying the Applicant as a casual level 3 employee and Mr Harding said that the Respondent could not afford to pay the Applicant at the level 5 rate in circumstances where he could not perform the full range of work at that level. The Respondent was unable to point to any communication with the Applicant – either directly or from the Respondent’s lawyers – in relation to the actual rate of pay the Applicant was being offered as a Level 3 casual employee. Nor was the Respondent able to point to any correspondence with the Applicant confirming that he would retain his existing hourly rate if he accepted the level 3 position. There was also no evidence of any correspondence or communication between the parties in the period from 12 May 2021 until 8 June 2021, when the Applicant made his unfair dismissal application.

[100] Mr Harding said that if it is found that the Applicant was dismissed, there was a valid reason for dismissal based on the following matters. The Applicant was engaged as a casual employee to assist with the Respondent’s Joinery work as he had experience in this area and was not qualified shopfitter or cabinetmaker. The Applicant was aware what work existed in January 2021, and that Mr Harding was providing employees with non-joinery tasks to offer them hours due to the shortage of work. It was not financially viable for the Respondent, being a small business, to continue to incur these expenses for a casual employee.

[101] Mr Harding denied that there was sufficient work available for the Applicant and said that work at the time was very minimal and could easily be completed by Mr Harding or Mr Cardier (the Leading Hand Foreman) without needing to engage other employees. Mr Harding said that the shop fit that the Applicant referred to was in the pipeline, but very little work was required to be completed at this stage. Mr Harding advised that this worked ceased on 16 March 2021 upon the client’s instructions and noted that the Applicant was not qualified to undertake the carpentry work that was required to be undertaken at this time, including work on trusses and battening out internal wall frames. Mr Harding also said that the Joinery work was so minimal that during February 2021, the apprentice was required to undertake labouring work with Mr Pronk.

[102] Mr Harding said that the Respondent did not have enough work over this period to engage the Applicant for a full day of work as alleged. Further, the Respondent did not hire any other employee to perform the work the Applicant was engaged to do. Mr Harding engaged subcontractors – Mr Walsh and Mr Pronk – to perform duties that employees, such as the Applicant, were unqualified and/or unskilled to perform. Mr Harding stated that the person in the photographs tendered by the Applicant, was Mr Pronk, who was a subcontractor engaged by the Respondent to undertake carpentry work. In relation to the work being performed when the Applicant took the photograph, Mr Harding said that Mr Pronk assisted with lifting cabinets and counters (as Mr Harding had an injured back) and completed carpentry work and did not perform joinery work.

[103] Mr Harding disputed the Applicant’s evidence that he had the skills and performed the duties for the Respondent as set out in his statement. Mr Harding tendered a document he sent to the Fair Work Ombudsman on 1 May 2021, in response to a request that he provide information about the Applicant’s skill level and duties so that his classification level could be assessed. It suffices to say that Mr Harding’s assessment of the Applicant’s competencies differed significantly from the Applicant’s assessment of his own competencies. Mr Harding also said that the did not pay the same rate to the Applicant as he paid to other ticketed tradespersons.

[104] On 19 March 2021, after receiving the general protections application filed by the Applicant, Mr Harding instructed his legal representatives to contact the Applicant and seek clarification as to whether he was willing to return to work as a Level 3 employee when work was available. A without prejudice letter was sent to the Applicant on this day. As previously noted, Mr Harding acknowledged that the Applicant submitted this letter into evidence, and Mr Harding consents to waiving privilege on this letter so it may be admitted. Mr Harding advised that the only response received from the Applicant from this letter were emails with respect to his unpaid entitlements and the Applicant did not confirm that he was agreeable to return to work.

[105] Mr Harding further stated that he notified the Applicant of the valid reasons for his dismissal via two letters. On 2 March 2021, Mr Harding sent a letter to the Applicant stating he was unable to offer him regular work moving forward and that they were considering restructuring the business to subcontract out joinery work. That letter further stated that should this restructuring proceed, then the Applicant’s role would be made redundant. The Applicant was provided an opportunity to respond to the letter. The Applicant’s response was to lay out his full claim for underpayment of wages and entitlements which the Applicant said amounted to more than $500,000.00. The second letter, sent by Mr Harding on 19 March 2021 sought clarification whether the Applicant was agreeable to return to work as a Level 3. Mr Harding said that the Applicant did not respond to his request for clarification.

Other relevant matters

[106] The Applicant confirmed he obtained other employment approximately eleven weeks after 31 January 2021, the date upon which the Respondent ceased to offer him work. He further advised that prior to this, he applied for many positions but was unsuccessful because Mr Harding gave him a bad reference. The Applicant also confirmed that in his new employment, he receives paid leave and other entitlements and is classified as a full-time tradesperson.

[107] The Applicant said that because he was not paid for 11 weeks prior to obtaining full time employment, he suffered financial difficulties and fell behind with respect to paying bills. The Applicant does not seek reinstatement, contending that he feels intimidated because there are “illegal firearms” in the workplace. The Applicant sought compensation to cover the period from 31 January until he commenced his new employment.

[108] The Applicant denied that he refused to participate in a meeting with Mr Harding and the FWO. He further denied that his main priority was receiving payment for his underpayment issues. He advised that he still needed work and a job. He has a family to feed and bills to pay. He confirmed to have received around 12 to 13 thousand dollars in back pay entitlements, however the Applicant advised this was irrelevant to his unfair dismissal application and he was entitled to that money for the three years he had been working for the Respondent. The Applicant said that he is aware that as far as the FWO is concerned, the Applicant’s back pay claim is resolved but maintained that he does not accept that the matter is resolved to his satisfaction.

[109] Mr Harding said that the Respondent is a small business having employed only three employees at the time of the Applicant’s alleged dismissal. As stated above, the Respondent was not financially able to incur expenses for a casual employee and was not able to afford to engage a level 5 casual employee who was not qualified to undertake the work of a level 5. Mr Harding further noted that the Applicant never informed him that he feared for his safety whilst attending work.

[110] Mr Harding also said that the relationship of trust and confidence between himself and the Applicant is broken. He does not believe the Applicant is entitled to compensation of $11,703.00 as the Applicant would not have received that amount of remuneration over the 11 week period specified by the Applicant. This is because the Applicant was a casual employee, and the Respondent was unable to offer him work during that period which the Applicant was informed of. Furthermore, Mr Harding asserted that the Applicant did not adequately attempt to mitigate the loss suffered because of the dismissal. Mr Harding denied that he gave the Applicant a bad reference to other employers. Mr Harding said that there was insufficient work in the industry and all jobs are being prolonged or delayed at present, due to the impact of COVID-19.

SUBMISSIONS

[111] The Respondent submitted that the Applicant was advised on 22 January 2021, that he was no longer required to work on Monday, 25 January 2021 due to a shortage of work. The email from the Applicant stating that he was entitled to backpay was not received until 10:31pm on 25 January 2021. As a result of this email the Respondent audited its records and agreed that there was an issue and back paid the Applicant all the amounts considered to be owed to the Applicant.

[112] On 19 February 2021, the Respondent corresponded with the Applicant and offered the Applicant work when joinery work was available. The fact that there was no work for the Applicant was reaffirmed in another letter dated 2 March 2021. It was submitted that the Applicant did not contact the Respondent throughout this period requesting to come back to work but sent emails and text messages with respect to his wage his wage query.

[113] The Respondent’s lawyers wrote to the Applicant on 12 May 2021 confirming to the Applicant that it was not prepared to engage him as a Level 5 under the Award. Considering these matters, the Respondent submitted that it did not, at its initiative, terminate the Applicant’s employment. The Respondent did not force the Applicant to not return to work due to the Respondent’s conduct. Rather, the Respondent alleged that the Applicant refused to return to work to a position designated as Level 3. This was said to constitute abandonment of the Applicant’s employment.

[114] In the alternative, if the Applicant was found to have been dismissed, the Respondent submitted that the Applicant’s dismissal was not unfair. In this regard, there was a valid reason for the dismissal related to the Applicant’s capacity or conduct on the grounds that the Applicant was a casual employee, the Respondent was unable to offer work to the Applicant and the Applicant was unwilling to continue to work at the Level 3 pay rate.

[115] While accepting that the Applicant’s initial employment was in response to an advertisement posted by the Respondent on Facebook as stated by the Applicant, the Respondent denied that the Applicant was hired as per the title of the job advertisement. The Respondent submitted that the Applicant could not be hired as a “qualified shopfitter or cabinetmaker” because he was not qualified for these roles. The Applicant’s own evidence confirms that he informed the Respondent that he did not have his “ticket” for these roles. The Respondent submitted that the Applicant was employed to assist with the joinery section of its business as the Applicant had experience in joinery work.

[116] The Respondent also submitted that the Applicant was aware the work was slow in January 2021 and that during this period, the Respondent provided the Applicant and other employees with non-Joinery tasks to complete to offer them hours due to the shortages of work. The Respondent continued to have a shortage of work and eventually, it was not financially viable for the Respondent to continue offering the Applicant hours of work as a casual employee. The Respondent disputed the Applicant’s contention that there was sufficient work available for the Applicant when he was not offered work. In this regard the Respondent said that it had not employed other employees to perform the roles that the Applicant could do as alleged. The Respondent has engaged subcontractors to perform work that the Applicant is unqualified and unskilled to perform. The images filed by the Applicant show that Mr Pronk (a subcontractor) was engaged to undertake carpentry work on a job site. The Respondent submitted that it did not have enough Joinery work to warrant engaging the Applicant for a full day’s work.

[117] Mr Harding further denied the Applicant’s contention that he held all the skills and undertook the duties as outlined in his materials when employed by the Respondent. Mr Harding said that the Applicant has no knowledge of how the Respondent quotes for jobs and does not pay the Applicant the same pay rate as a ticketed tradesman. The Applicant was paid $28 an hour for the duration of his employment. The minimum rate of pay for a Level 3 casual employee undertaking joinery work under the Award, applicable at the time the Applicant’s employment ended was $27.58 per hour. The Respondent advised that the Applicant was employed and was being compensated as a Level 3 employee, not as a Level 5 employee as stated by the Applicant. The Applicant’s pay sheets indicate that he was being paid a rate of $28.00 per hour – $ 0.42 per hour more than the Award rate.

[118] Mr Harding denied that the Respondent suggested that the Applicant’s pay rate would be decreased. In an email dated 6 February 2021 and 9 March 2021, the Applicant told the Respondent that he was a Level 5 employee and made his backpay calculations as such. Mr Harding said that the rate of pay for a Level 5 casual employee under the Award, applicable at the time the Applicant’s employment ended, was $30.70 per hour and that the Respondent contended that it could not afford to engage a Level 5 employee who was not qualified to perform the work of a Level 5.

[119] Further, the Respondent submitted that had the Applicant been willing to return to work as a Level 3 employee, he would have been paid the rates applicable for a Level 3 employee. In the Applicant’s signed statement, the Respondent noted that the Applicant submitted that he should be paid $28 per hour for the role that he was performing, which is what the Applicant was being paid and would have continued to be paid by the Respondent.

[120] The Respondent contended that the Applicant did not provide a response to this request for clarification other than to send further emails with respect to his unpaid entitlements. The Applicant did not confirm that he was agreeable to work with the Respondent as a level 3. The Respondent acknowledged that the Applicant had been underpaid during his period of employment and acted to backpay the Applicant for what the Applicant was owed under the Award. This has been confirmed after an investigation by the Fair Work Ombudsman which has now been closed.

[121] If the Applicant was found to have been dismissed, the Respondent submitted that the Applicant was notified of the reason for the dismissal on several occasions via letters that advised that the Respondent was unable to offer the Applicant work. The letter dated 2 March 2021 from the Applicant’s materials, was one such letter. The Respondent’s legal representative also sent a letter on a without prejudice basis to the Applicant dated 19 March 2021 seeking clarification whether the Applicant was agreeable to returning to work at Level 3 when there was work available. The Respondent submitted that the only correspondence received in response was further emails with respect to the Applicant’s unpaid entitlements. The Applicant did not confirm that he was agreeable to return to work with the Respondent as a level 3.

[122] In relation to the degree to which the size of the Respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal, the Respondent does not have any dedicated Human Resources employees and is a small business that employed three employees at the time of the Applicant’s alleged dismissal. Accordingly, the Respondent submitted that the size of the Respondent’s enterprise would likely to impact on the procedures followed in effecting the dismissal.

[123] The Respondent also submitted that it could not continue to incur the expenses involved with engaging a casual employee if there was not sufficient work for the employee to undertake. Further, the Respondent submitted that the Applicant never informed the Respondent that he fears for his safety while attending work with the Respondent.

[124] The Respondent further submitted that the relationship with the Applicant has broken to the point where reinstatement of the Applicant is not viable. The Respondent also denied that the Applicant is entitled to an order for the payment of compensation in the sum of $11,703.00.

[125] In the circumstance that the Applicant is held to be entitled to compensation, the Respondent is of the view that the Applicant is not entitled to the maximum amount as claimed by the Applicant, asserting that:

•  The Applicant would not have received the amount of remuneration claimed over the stated period as the Applicant was a casual employee and the Respondent was unable to offer the Applicant work for that entire period of 11 weeks.

•  The Applicant did not adequately attempt to mitigate the loss suffered because of the dismissal.

[126] The Applicant asserted in his closing submissions that there was plenty of work for him to do and that he would have earned 11 weeks’ pay had he not been dismissed. The Applicant also said that Mr Farrell had completed his apprenticeship and had been given work and the Applicant could have worked with Mr Farrell. Accordingly, the Applicant maintained that he was unfairly dismissed and should be awarded compensation in the amount of 11 weeks’ pay.

CONSIDERATION

Whether the Applicant was dismissed

[127] On balance, I am satisfied that the Applicant’s employment was terminated at the Respondent’s initiative. Notwithstanding that the Applicant was a casual employee, I accept his uncontested evidence that in the 12-month period prior to the termination of his employment, the Applicant worked over 42 hours per week, Monday to Friday from 7.00 am to 4.00 pm. I also accept that the Applicant was expected to be at work each day, and that he effectively had a standing instruction in this regard. From 28 January 2021, the Applicant was not provided with any work. I accept that the Respondent had a downturn in its business, but I do not accept that there was no work that the Applicant could have performed.

[128] The subcontractors hired by the Respondent may have performed some work that the Applicant was not qualified to do, but on balance, I am satisfied that there was work that the subcontractors did that could equally have been undertaken by the Applicant. The Applicant’s evidence in relation to this point was confirmed by Mr Farrell who stated that on the date that the Applicant photographed Mr Pronk, Mr Pronk was doing work that the Applicant would normally have done and that there was other such work available in the first part of 2021. Other than making general assertions about the downturn in the Respondent’s business, no business records were produced by the Respondent’s witnesses to verify the extent of the claimed downturn.

[129] It is also the case that the timing of the Respondent advising the Applicant that there was no work for him to perform, coincided with the Applicant making a claim in relation to unpaid wages. The Applicant has not made a general protections application in relation to his dismissal, and I make no finding that the Applicant was dismissed because he made the wages claim. However, I am of the view that the response to the claim, particularly the correspondence from the Respondent’s legal representative, brought about the termination of the Applicant’s employment and the claim and the ending of the Applicant’s employment are linked.

[130] While the way the Applicant advanced his wages claim was aggressive and inappropriate, the claim had some basis and the Applicant had been underpaid. I accept that the Applicant was justifiably aggrieved at the fact he had been underpaid. The Applicant’s sense of grievance would have undoubtedly been exacerbated by the fact that when he made a claim for unpaid wages, he was informed at or around that time, that there was no work for him in circumstances where he had worked on a full time basis for in excess of 12 months. Further, the Applicant was self-represented and did not have recourse to legal assistance in formulating his claim.

[131] Against the background of his wages claim and the fact that he had been offered no work since 31 January 2021 and in circumstances where immediately prior to that time he had worked 42 hours per week on a regular basis, the Applicant was sent contradictory and ambiguous correspondence by the Respondent and its legal representatives, which can be summarised as follows:

● 19 February 2021 – from the Respondent advising the Applicant that his request for conversion of his casual employment to full time employment was not agreed and that he would be offered casual joinery work if and when such work became available.

● 19 February 2021 – from the Respondent’s legal representative advising the Applicant that it is the Respondent’s view that his role was covered by the Level 2 classification under the Award and offering him an amount of $9,900.35 in settlement of his wages claim on the basis that he resign his employment and accept the amount in full and final settlement of any claims and subject to a deed of settlement, with such offer being open until 25 February 2021.

● 2 March 2021 – from the Respondent advising that as previously advised the Respondent did not have sufficient work to support a conversion of the Applicant’s employment to full time and advising of an intention to restructure by subcontracting joinery work to other companies so that the Applicant’s job would be “removed from the organisation and …not replaced” and seeking the Applicant’s feedback in respect to the proposed “redundancy”.

● 2 March 2021 – from the Respondent’s legal representative advising that the Respondent accepted that it owed him $9,900.35 and that the amount had been paid to him and taxed according to the Australian Taxation Office’s Schedule 5 – Tax Table for Back Payments, Commissions, Bonuses and Similar Payments.

● 19 March 2021 – from the Respondent’s legal representative advising that the Applicant was still engaged as a casual employee and seeking clarification as to whether the Applicant was agreeable to returning to work as a level 3 casual employee “when/if” work was available.

● 12 May 2021 – from the Respondent’s legal representative confirming that the Applicant was not prepared to be employed by the Respondent in a Level 3 position under the Award and would only be employed in a Level 5 position and that the Respondent would only engage a Level 5 employee who is a qualified cabinetmaker and that the applicant was not qualified to perform this Level 5 position.

[132] There were no concrete offers of work made to the Applicant. It is significant that in all the correspondence sent to the Applicant by the Respondent’s legal representative, there is no reference to the rate that the Applicant will be paid if he accepts the level 3 classification if/when he is offered work. There is also no guarantee in any of the correspondence that the Applicant will maintain his existing pay rate. It was not disputed that the level 3 casual rate under the Award at the time the Applicant’s employment ended, was $27.58 and the rate the Applicant had been paid at the time he last performed work for the Respondent was $28.00 per hour. Although this difference in rates of $0.42 per hour may be viewed as insignificant, to the Applicant, in the context of his dealings with the Respondent, his rate and classification was a significant issue. The Applicant said in his evidence that he would have accepted any work that he was offered by the Respondent but would not have accepted a lower rate of pay than the rate he was already receiving. In my view, the ambiguity of the correspondence makes it reasonable for the Applicant to have believed that he would be paid a lower rate of pay if he accepted the level 3 classification. Further, even if the Applicant had accepted the level 3 classification, there was no guarantee that he would be provided with work.

[133] After receiving the two pieces of correspondence on 19 February 2021, the Applicant can have been in little doubt that the Respondent was seeking to exit him from its business. That view can only have been cemented after the further correspondence and the significant gap in correspondence between 19 March and 12 May 2021. I do not accept that the Applicant was under any obligation to contact the Respondent to seek work. The correspondence he received did not request that he make contact for this purpose and offered him only the possibility of work upon confirmation that he would accept a lower wage rate.

[134] If the Applicant ended his employment by abandoning his employment in the face of the Respondent’s conduct, then I am also satisfied that he did so because the Respondent engaged in a course of conduct which had the probable result of bringing the Applicant’s employment to an end. Accordingly, I am satisfied and find that the Applicant was dismissed within the meaning in s. 386(1). I am also of the view that the dismissal took effect at an earlier date than the 12 May 2021 when the final letter was sent by the Respondent to the Applicant. The Applicant was seeking other employment before that date and obtained other employment at or around 12 May. The fact that the Applicant was seeking other employment earlier than 12 May indicates that his employment ended at an earlier date.

[135] As I have previously stated, for the application to have been made within the time required in s. 394(2) of the Act, the Applicant was required to have been dismissed on or after 7 May 2021 and I am satisfied that the dismissal occurred at this point.

Whether the Applicant was unfairly dismissed

Valid reason for the dismissal – s. 387(a)

[136] Section 387(a) requires that the Commission consider whether there was a valid reason for a person’s dismissal, related to the person’s capacity or conduct. This provision does not require that the Commission form a view as to whether other reasons for dismissal which do not concern the capacity or conduct of the dismissed person, are or are not, valid.

[137] In the present case, there is no evidence that the dismissal was related to the Applicant’s conduct. There is evidence of any conduct on the part of the Applicant in the period of his employment, that provided a reason for dismissal. In relation to his capacity, at the point the Applicant was dismissed he had been employed for a period of more than 12 months, undertaking joinery work. The Applicant had also previously been employed by the Respondent for a period of two years and regardless of whether the Applicant or the Respondent initiated the second period of employment, the fact remains that the Respondent re-employed the Applicant, indicating that the Respondent had no issue with his capacity or conduct.

[138] The dismissal did not relate to the Applicant’s capacity to undertake the work he was employed to do, but rather with the rate that the Respondent was prepared to pay the Applicant for that work. The Respondent was not prepared to pay level 5 rates and indicated that it would pay level 3 rates, which were lower – albeit by $0.52 per hour – than the rates the Applicant was being paid. If the Respondent was prepared to maintain as asserted in these proceedings, the Applicant’s existing wage rate, I can only wonder at why the Respondent or its legal representative did not simply inform the Applicant of this fact.

[139] The Applicant does not hold a trade qualification and regardless of the Applicant’s views about the level of his competence, the FWO did not accept that the Applicant was entitled to be classified at the trade level under the Award. I am also not satisfied based on the evidence, that the Applicant was entitled to be classified as a tradesperson. I consider that the Applicant was properly classified at level 3 under the Award. Notwithstanding the inappropriate tone of the Applicant’s correspondence with the Respondent about his wages and classification level, a dispute about the Applicant’s classification level under the Award, was not a valid reason for dismissal, particularly given the Respondent’s failure to clearly articulate its position in relation to the Applicant’s rate of pay. In any event, a dismissal for this reason was not related to the Applicant’s capacity or conduct. Accordingly, s. 387(a) is not relevant in the present case and I reject the submission advanced by the Respondent to the contrary.

Matters in ss. 387 (b) – (e)

[140] The matters in ss. 387(b) – (d) of the Act go to procedural fairness. They are relevant to dismissals based on the capacity, conduct or unsatisfactory performance on the part of the person being dismissed. While s. 387(d) refers to discussions relating to dismissals and is not limited to discussions relating to capacity or conduct, such discussions are not mandated and the section relates to opportunity to have a support person in any discussions which may occur. As the dismissal in the present case did not relate to the Applicant’s capacity or conduct,

Matters in ss. 387(f) and (g)

[141] These matters relate to the size of the employer’s enterprise and its access to human resource management specialists or expertise and the degree to which this impacted on the procedures followed in effecting the dismissal. In the present case, the Respondent is a small business and did not have access to human resource management specialists or expertise.

[142] While I have had regard to this, I also consider that the Respondent had access to legal advice in relation to its dealings with the Applicant. Regrettably, despite this, the way the Respondent dealt with the Applicant, was unsatisfactory.

Any other relevant matters – s. 387(h)

[143] In my view the following matters are relevant to whether the Applicant’s dismissal was unfair. The Applicant had worked for the Respondent for a total of three years in two separate periods. There is no evidence of any issues with his conduct, capacity or work performance. Immediately prior to the Applicant’s dismissal he was working 42 hours per week Monday to Friday on a basis which his evidence establishes was regular. While there was a downturn in the Respondent’s business there was work the Applicant could have performed which continued after his employment ended.

[144] It is also relevant that immediately after being informed that there was no work for him to perform, the Applicant raised an issue with respect to his rate of pay. Notwithstanding that the quantum of the Applicant’s claim was misconceived and that he pursued his claim through aggressive and inappropriate communications, the claim had substance and the Respondent had underpaid the Applicant.

[145] The written communication from the Respondent and its legal representatives to the Applicant left much to be desired and contributed significantly to the unfairness of his dismissal. The correspondence was confusing and contradictory, and at no time was the Applicant clearly informed of the hourly rate that he would be paid, if he accepted the offer to resume employment. The offer was itself ambiguous in that the Applicant was offered joinery work when/if that work was available. While the Applicant was a casual employee, the offer of work on that basis was inconsistent with the hours he had previously worked. Although I have accepted that there was a downturn in the Respondent’s business, there was some work that the Applicant could have performed.

[146] The Respondent took no steps to contact the Applicant to advise him about the ongoing status of his employment or to cause its legal representatives to advise the Applicant of these matters. At the hearing, the Respondent criticised the Applicant for failing to contact the Respondent to indicate that he wished to be provided with work. In my view this criticism is not warranted as the Respondent simply informed the Applicant that he would be provided with work if and when it was available and did not inform the Applicant that he needed to make contact if he wanted to work. The Applicant cannot be criticised for failing to contact the Respondent in those circumstances and when the correspondence with the Applicant is considered in its totality.

[147] There is no evidence of any issue with the standard of the Applicant’s work and the Respondent did not dispute the Applicant’s contention that it had used images of work undertaken by the Applicant to advertise its business, although Mr Harding maintained that the work had been done under his supervision. The Applicant also said that he had a family to support and financial obligations which he was unable to meet and would have done any work that he was offered by the Respondent in the period up to when he obtained alternative employment.

[148] The Applicant states, and I accept, that he was without income for a period of 11 weeks and that despite obtaining alternative employment which is permanent, the Applicant fell behind in his financial commitments.

Conclusion in relation to unfair dismissal

[149] On balance, weighing the matters in s. 387, and particularly in s. 387(h), I am satisfied that the Applicant was unfairly dismissed. I turn now to consider the question of remedy.

REMEDY

[150] As required by s. 390 of the Act, I am satisfied that the Applicant was protected from unfair dismissal and that he was unfairly dismissed. I am also of the view that the Applicant should have a remedy for his unfair dismissal. The parties agree that their relationship has irretrievably broken down and cannot be re-established. I share their view and have concluded that reinstatement is not an appropriate remedy. I have made the necessary findings that are prerequisite to awarding compensation.

[151] In relation to the assessment of compensation, s. 392 of the Act provides as follows:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

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

(b) the length of the person’s service with the employer; and

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

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

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

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

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

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

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

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person 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 employee 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 employee for the period of leave in accordance with the regulations.”

[152] Based on the findings in relation to the criteria for deciding amounts in s. 392(2), the approach to calculating compensation is as set out in Sprigg v Paul’s Licenced Festival Supermarket 8. The approach, sometimes described as the Sprigg formula, is in summary, to estimate the remuneration the employee would have received if they had not been dismissed (usually calculated by estimating how long the person would have remained in the relevant employment but for the termination of their employment); deduct any remuneration earned by the person since their dismissal until the end of the anticipated period of employment; deduct an amount for contingencies; consider the impact of taxation and adjust the figure accordingly; and assess the figure against the compensation cap set by s.392(5).

[153] It has also been observed by Full Benches of the Commission that if the application of the Sprigg formula “yields an amount which appears either clearly excessive or clearly inadequate” than the Commission should reassess the assumptions made in reaching that amount. 9 The order for the payment of compensation must be appropriate having regard to all the circumstances of the case (see s.390(3)(b) and s.392(2)).

[154] In relation to the criteria, I am required to consider in deciding the amount of compensation to be awarded to the Applicant for his unfair dismissal, I find as follows.

The effect of the order on the viability of the Respondent – s. 392(2)(a)

[155] There was no evidence that the Respondent’s viability would be affected by the order I made.

Length of the Applicant’s service – s. 392(2)(b)

[156] The Applicant had been employed by the Respondent for just over 12 months, at the point he was dismissed.

Remuneration the Applicant would have or would likely have received – s. 392(2)(c)

[157] I am satisfied based on the evidence that the Applicant’s relationship with the Respondent was under considerable strain at the point he made his claim for backpay. The Applicant was fixated on being classified and paid at the trade level under the Award and would not have accepted the level 3 classification he was being offered for a period beyond when he obtained alternative employment on 12 May 2021, given that the alternative employment is permanent.

[158] Further, the quantum of backpay claimed by the Applicant was vastly inflated and completely unrealistic. It is also the case that the tone of the Applicant’s correspondence with the Respondent became increasingly hostile and aggressive. The Applicant had placed the matter into the hands of the FWO which was pursuing his claim and the Respondent was cooperating with this process and paid the amounts assessed by FWO. I have accepted that the correspondence from the Respondent and its legal representative to the Applicant was confusing and contradictory. Notwithstanding that correspondence, it was not reasonable for the Applicant to correspond with the Respondent in the terms which he employed. The Applicant continued to display hostility towards Mr Harding and Mr Cardier at the hearing of his application.

[159] It is also the case that the Applicant was fixated on the pursuit of his claim to be classified at level 5 under the Award and paid accordingly. The Respondent was maintaining the position that the Applicant was only entitled to be classified at level 3 at most, and that it would not pay level 5 rates to an employee who did not hold a trade qualification. The FWO accepted that the Applicant’s underpayment claim had been addressed by the Respondent and by extension, that he was properly classified at level 3. The Applicant did not accept this outcome and maintains his position to the present day.

[160] Further, the Applicant was employed on a casual basis. The Respondent is a small business and could have reduced the Applicant’s hours of work at any time or decided to contract out the work that the Applicant was performing. The Respondent could also have restructured its business along the lines set out in the letter to the Applicant advising him that joinery work was being removed from the business. While the Applicant had a right to request the conversion of his casual employment to permanent employment and had done so, the Respondent had a right to refuse conversion on reasonable business grounds.

[161] Finally, the Applicant states that he found other employment 11 weeks after he ceased being offered work by the Respondent (which according to his evidence was on or around 31 January 2021). Accordingly, the Applicant started his new employment on 12 May 2022. This is the date that the Applicant says he was dismissed and that his dismissal took effect. The Applicant was looking for alternative employment during the period he was not being provided with work by the Respondent. The new employment is permanent, and the Applicant is classified as a tradesperson which is the outcome he sought while employed by the Respondent.

[162] When these matters are considered, it is likely that the Applicant would not have remained in the employment of the Respondent for a lengthy period and would have left employment when he found other employment, which the Applicant commenced on 12 May 2021.

The Applicant’s efforts to mitigate loss – s. 392(2)(d)

[163] The Respondent contended that the Applicant was not entitled to the amount of compensation he claimed because of his failure to mitigate his loss for the 11-week period upon which that claim was based. I do not accept that submission. The Applicant was under no obligation to mitigate loss prior to the date his dismissal took effect.

[164] I accept that the Applicant was actively looking for work and that he took reasonable steps to mitigate the loss of his employment. I am also of the view that the uncertainty caused by the Respondent’s conduct and correspondence impacted the Applicant’s ability to find alternative work. I make no deduction based on failure to mitigate.

The amount of any remuneration earned since dismissal – s. 392(2)(e)

[165] The Applicant has earned no remuneration between the date of his dismissal and 12 May 2021 when he started alternative employment. No deduction is made on this basis.

The amount of any income reasonably likely to be earned during the period between the making of the order for compensation and the actual compensation – s. 392(2)(f)

[166] Given the period over which I have assessed compensation, based on my view about the likely period that the Applicant would have remained in employment, this matter is not relevant to the calculation of compensation.

Any other matter that the FWC considers relevant – s. 392(2)(g)

[167] It was also suggested at the hearing that the back pay received by the Applicant meant that he did not suffer a loss in this period. I do not accept this submission. As the Applicant correctly stated at the hearing, the backpay is money that he was entitled to receive during his employment and there is no basis to offset compensation for an unfair dismissal by the amount of backpay.

[168] There are no other matters I consider relevant to the assessment of compensation.

Deduction for misconduct

[169] The Applicant did not engage in misconduct and no deduction is made on this basis.

Application of the Sprigg formula in the present case

[170] In the present case, the application of Step 1 of the Sprigg formula would yield an amount of nil as remuneration that would have been received or likely would have been received by the Applicant if the employer had not terminated the employment. This is because the Applicant started his new job on the same date as he states that his dismissal by the Respondent took effect.

Is the amount manifestly inadequate?

[171] I am of the view that the application of the Sprigg formula in the present case would yield an amount of compensation – nil – which is clearly inadequate in circumstances where the Applicant has been unfairly dismissed in all the circumstances that pertained.

[172] Accordingly, I reassess the assumptions upon which I based my findings in relation to the s. 392 matters and find that the Applicant would have remained in employment for a further period of 6 weeks had he not been dismissed. I base this assumption on the fact that had the Respondent communicated with the Applicant in a reasonable manner and informed him that while he would not be classified at level 5 under the Award but he would maintain his current rate of pay, the Applicant may have agreed to return to work while continuing to agitate his wages claim. The Applicant may also have delayed his search for alternative employment until his wages claim was resolved, resulting in him commencing that employment at a later date.

[173] I therefore find that but for his dismissal, the Applicant would have remained in employment for a further period of eight weeks. I also find that the Applicant would not have worked full time during that period and have assessed that he would have worked 152 hours or half of the full-time hours in that period.

[174] I maintain my conclusions in relation to the criteria in s. 392. However, the assumption I have made in relation to when the Applicant’s employment would have ended, means that the Applicant earned remuneration from his new job during the period I have estimated he would have remained in employment but for his dismissal. I have taken that remuneration into account but in all of the circumstances of this case, I have decided not to deduct it from the compensation I have calculated.

[175] The Respondent treated the Applicant unfairly and placed him in a position where he was without income for 11 weeks prior to him obtaining his new employment. The Respondent had access to legal advice and there was no reasonable basis to treat the Applicant in the manner that it did, including by sending him confusing and contradictory correspondence about his employment that can only have prolonged the dispute about his wages and probably impacted on him seeking alternative employment, given that the uncertainty of the status of his employment with the Respondent.

ORDERS

[176] I conclude as follows:

1. An order for the payment of compensation in the amount below would not affect the viability of the Respondent’s business.

2. The period of the Applicant’s employment was just over 1 year and no deduction from compensation should be made on this basis.

3. But for the dismissal, the Applicant would likely have earned an amount of $4,256.00.

4. Given the length of the period over which I have assessed compensation based on how long the Applicant would have remained in employment I make no deduction for contingencies.

5. I make no deduction in relation to failure of the Applicant to mitigate loss.

6. The Applicant earned remuneration from other sources during period over which I have assessed compensation but for the reasons set out above, I make no deduction on this basis. I make no deduction for income likely to be earned during the period between the making of my order and the actual compensation.

7. I make no deduction in respect of misconduct.

8. The amount of compensation is less than the compensation cap calculated in accordance with s. 392(5) and s. 392(6).

[177] In all the circumstances of this case I considered it appropriate that I make an Order for compensation. The Order issued on 13 December 2021 and required the Respondent to pay the Applicant in lieu of reinstatement a gross amount of $4,256.00 to be taxed according to law and a further amount of $404.32 for superannuation contributions.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR740022>

Appearances:

The Applicant on his own behalf.

Mr P Harding for the Respondent.

Hearing details:

16 September.

2021.

By Video using Microsoft Teams.

1 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR  410 at 465-8 per McHugh and Gummow JJ.

 2   Transcript PN93 – PN101.

 3   Exhibit R 1 – Statement of Paul Harding Annexure C.

 4   Exhibit R1 Statement of Paul Harding – Annexure Z.

 5   Transcript PN103.

 6   Statement of Paul Harding 30 July 2021 Attachment W.

 7   Ibid Attachment W.

 8   (1998) 88 IR 21.

 9   Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32].