[2013] FWC 5910

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Fair Work Act 2009

s.394—Unfair dismissal

Con Plessas
Phillip Foxman T/A Botany Building Recyclers Pty Ltd



Application for relief from unfair dismissal.

[1] On 4 March 2013 an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Con Plessas (the applicant).

[2] The applicant was employed from 20 September 2010 until 11 February 2013 by Phillip Foxman T/A Botany Building Recyclers Pty Ltd (the respondent). The reason he gave in his application for dismissal was “lateness”.

[3] The respondent’s “employer response” form, on the other hand, said that “the applicant was terminated . . . for gross misconduct on the basis that he took the work utility vehicle without permission and drove it whilst unlicensed”. The respondent’s business is a waste management facility in the southern suburbs of Sydney.

[4] The matter was the subject of considerable delay, mainly as a result of the applicant’s lack of response and inability to be contacted.

[5] A non compliance hearing was conducted by telephone, by Commissioner Jones on 17 May 2013 which led to directions being issued. A telephone conciliation conference took place on 12 June.

[6] The matter was listed before me for a pre-hearing telephone conference on Thursday, 27 June. Mr Khoury from the Waste Contactors & Recyclers Association of NSW represented the respondent at this conference but did not take a role in the matter thereafter. There was no appearance from the applicant.

[7] At the first hearing on 5 July, there was also no appearance by the applicant despite numerous attempts to contact him.

[8] At the hearing the respondent made an application pursuant to s.399(a) of the Act that the matter be dismissed.

[9] However, the applicant made contact with the Commission later that day.

[10] I considered that fairness necessitated one last attempt to hear the matter. Correspondence was sent to both parties on 5 July setting this out. It also repeated the request to the respondent to file and serve its submission/witness statements as per the directions. The applicant had done so on 21 May. The respondent filed on 8 July.

[11] At the 16 July proceedings the applicant was represented by Mr W. Bass who undertook that he was not a legal representative. Therefore, no permission was required to appear pursuant to s.596 of the Act.

[12] The applicant was the only witness on his own behalf.

[13] The respondent was represented by Sandy Durrant, the Financial Controller, who also filed a statement. Also in attendance was Robert Josef, the Yard Manager, who had also filed a witness statement. Additional statements were filed by the sole director, Phillip Foxman and also by Jacob Foxman, Machinery Operator.

[14] With the agreement of the parties, the 16 July proceedings took the form of a determinative conference in accordance with s.398 of the Act.

Background and Submissions of the Parties

[15] On 18 June 2011, the applicant was involved in a workplace incident which led to a worker’s compensation claim, which it appears has not been satisfactorily resolved. The applicant submitted that his ongoing medical problems led to a change of attitude by the respondent.

[16] The applicant’s statement outlined a conflict with his supervisor Robert Josef. The applicant said that Mr Josef had told him not to attend work on Saturday, 9 February 2013.

[17] On the morning of Monday, 11 February there was an altercation about the applicant’s timekeeping.

[18] The applicant says he then received a call from a friend who asked him for help urgently about a personal matter. He took the work utility, and because of the timekeeping altercation, forgot to tell Mr Joseph. He says that it was not unusual for him and other workmates to take the utility for short errands.

[19] When he returned to the yard, the applicant was told by Mr Josef to go home. He was hand delivered a dismissal letter from Phillip Foxman that night.

[20] The termination letter said that the applicant had been “terminated, effective immediately for misconduct”. It further said:

[21] Ms Durrant, in her statement, said that the applicant had left early on Friday, 8 February, had not shown up on Saturday, 9 February, despite being rostered on and with no advice and was an hour late on Monday, 11 February.

[22] Ms Durrant said that she and other management were not aware that the applicant had taken the vehicle until told by the front gate attendant. She had not called the police, as instructed by Phillip Foxman, because of concerns about the consequences for the applicant.

[23] Mr Phillip Foxman, in his statement, confirmed the reasons for the termination letter, as set out above. The statements of Jacob Foxman and Robert Josef were consistent with the respondent’s version of events.

Protection from Unfair Dismissal

[24] An order for reinstatement or compensation may only be issued where I am satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[25] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

[26] There is no dispute, and I am satisfied, the Applicant has completed the minimum employment period is covered by a modern award, and is below the high income threshold. Consequently, I am satisfied the Applicant was protected from unfair dismissal.

Was the dismissal unfair?

[27] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

Was the Applicant dismissed?

[28] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the Act. Section 386 of the Act provides that:

[29] There is no dispute that the Applicant was dismissed.

[30] The Respondent had 35 to 40 employees, so issues relating to the application of the Small Business Fair Dismissal Code do not arise.

[31] There was no argument that the Applicant was a case of “genuine redundancy” pursuant to s.385 (d) of the Act.

Harsh, unjust or unreasonable

[32] Having dealt with each of s.385(a),(c)-(d) of the Act, I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

[33] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

[34] The Applicant submits the dismissal was harsh, unjust or unreasonable because:

[35] Reinstatement, however, was not sought.

[36] The respondent submits the dismissal was not harsh, unjust or unreasonable because:

[37] I am under a duty to consider each of these criteria in reaching my conclusion, Sayer v Melsteel [2011] FWAFB 7498.

[38] I will now consider each of the criteria contained in s.387 of the Act separately.

Valid Reason - s.387(a)

[39] The Respondent must have a valid reason for the dismissal which should be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced” Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (Selvachandran). The question is whether the respondent’s summary dismissal action was justified.

[40] Regulation 1.07 of the Act defines “serious misconduct”:

[41] There was no dispute that the applicant took the vehicle without authorisation and drove it unlicensed. There was no corroborative evidence that this had occurred previously or was a common practice. The respondent’s witnesses denied that it had occurred previously.

[42] I find that the action of the applicant was serious misconduct which was wilful and deliberate and inconsistent with the continuation of the employment contract. The reason for dismissal was “sound, defensible and well founded” (Selvachandran).

[43] I find that there was a valid reason for the dismissal.

Notification of the Valid Reason - s.387(b)

[44] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

[45] It appears that the applicant was not notified of the reason for the dismissal before the decision was made. The evidence of the events of the day of the dismissal indicate that there was a breakdown in the employment relationship. In any event, I am satisfied that the applicant was not notified of the reason for dismissal.

Opportunity to respond - s.387(c)

[46] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.

[47] Given the circumstances of the day, the applicant was not given an opportunity to respond to the reason for dismissal, although clearly, he was aware of the issues around attendance and timekeeping which had been previously raised.

Unreasonable refusal by the employer to allow a support person - s.387(d)

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

[49] There was no evidence that the applicant sought to have a support person in attendance at discussions relating to the dismissal. I find also that the respondent did not unreasonably refuse to allow the applicant to have a support person in attendance.

Warnings regarding unsatisfactory performance - s.387(e)

[50] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal.

[51] Clearly, there had been informal warnings about timekeeping and attendance, but these were not the primary reasons for dismissal.

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

[52] There is no doubt that the size of the respondent’s enterprise did impact on the procedures followed to effect the dismissal.

[53] The monitoring and disciplinary systems that might have been expected in a larger operation did not exist.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[54] There is no doubt that the absence of dedicated human resource management or expertise in the respondent’s enterprise impacted on the procedures followed in effecting the dismissal. Of course, this issue is closely related to the size of the business.


[55] I accept the evidence of the respondent’s witnesses as being the most reliable account of events. I have found that the conduct of the applicant was a valid reason for dismissal. The applicant was not then given notification and opportunity to respond in accordance with s.387(b) and (c). This was understandable, given the events of the day, the nature of the business and the circumstances of the employment relationship.

[56] Having considered each of the matters specified in s.387, I am satisfied the dismissal of the applicant was not harsh, unjust or unreasonable.



W. Bass for the applicant with C Plessas.

S. Durrant with R. Josef for the respondent.

Hearing details:



June 26 telephone conference;

July 5, 16.

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