DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mr A
v
The Respondent
(U2016/8747)

Application for relief from unfair dismissal – termination at initiative of the employer – no valid reason – compensation.

[1] On 8 August 2016 Mr A lodged an application pursuant to s.394 the Fair Work Act 2009 (the FW Act) in which he asserted that he had been unfairly dismissed by the Respondent. In this decision I have not identified the parties, consistent with a position agreed with them in the hearing of the matter. I have separately provided the parties with a legend to identify the parties in this matter.

[2] Mr A’s application was the subject of a telephone directions conference before Commissioner Hampton on 6 October 2016. In this conference the Commissioner identified the following issues:

● There is a dispute between the parties as to whether the Applicant, Mr A was dismissed within the meaning of s.386 of the Fair Work Act 2009.

● The Applicant contends that he was dismissed by virtue of communications from the Respondent purporting to indicate that he had terminated his employment (resigned) when leaving work on Thursday 14 July 2016. The Applicant denies that he resigned.

● It is not clear whether, in the alternative, the Applicant is contending that should there have been a resignation, that resignation was forced so as to be a dismissal within the meaning of s.386(1)(b) of the Act. This should be clarified by the applicant in the materials to be filed in this matter.

● The Respondent contends that the applicant did resign his employment and that no dismissal has occurred on any grounds.

● The parties have agreed that it would be convenient for the jurisdictional matter (whether there was a dismissal) to be heard along with the merit (whether the dismissal was unfair – s.387) and any remedy (s.390 – 392 of the Act).

● The original application seeks an extension of time for the lodgement of the matter under s.394(3) of the Act. This does not arise if the Commission finds that a dismissal took place on 19 or 20 July 2016 as contended by the applicant. This issue also does not arise if the Commission finds that the Applicant was not dismissed as contended by the Respondent. The time for lodgement will only arise if a dismissal is found to have taken place prior to 19 July 2016 and neither party is contending that this occurred.

[3] The application was the subject of a hearing on 28 November 2016. In this hearing, Mr A represented himself. The Respondent was represented by Mr H as its owner. The material and evidence provided to me by the parties is of limited assistance in this matter. Further, Mr A substantially ignored the directions issued with respect to the provision of documentation in support of his application. Mr A advised that he suffered from depression, had generalised anxiety, social anxiety and occasional panic attacks. His advice was that his condition most closely associated to Borderline Personality Disorder but also showed many traits of other personality disorders. 1 Additionally, I have noted that the medical evidence before me2 indicates that Mr A has a form of disorganised schizophrenia and accordingly extended to him additional opportunities to provide information to me in the course of the hearing. As a consequence, I also provided the Respondent with an opportunity to further consider that material during the hearing.

[4] I have summarised the essential facts in the following terms.

[5] Mr A worked for the Respondent from 1 June 2015 until July 2016. I have addressed the exact date upon which his employment concluded later in this decision.

[6] On 14 July 2016 Mr A advised Mr H, that he was leaving but did not provide any further explanation for his departure from work. The nature of this discussion is disputed. Mr A then had a further discussion with Ms H and took various of his belongings with him when he left the workplace.

[7] The Respondent’s position is that the combination of a deterioration in Mr A’s attitude, work and work performance over the preceding two months with the advice provided to Mr H and Mr A’s discussion with Ms H, led the Respondent to conclude that Mr A had resigned his position and had left its employment. The Respondent subsequently sought advice from both an employer association and the Fair Work Ombudsman which confirmed this position and, in an email to Mr A on 18 July 2016, the Respondent confirmed that it had concluded that he had left their employment of his own volition.

[8] Mr A’s position is that he had a panic attack at work on 14 July 2016 and that this was the result of behaviour directed towards him by the Respondent since he had commenced working for that company. Mr A asserted that his behaviour on 14 July 2016 should not be viewed as a resignation because it was due to what he perceived as an immediate threat to his health and safety. In the hearing, Mr A provided doctors certificates for varying dates commencing from 14 July 2016. Additionally, Mr A has provided copies of email exchanges between himself and Mr H in which he advised that he was forced to leave work on 14 July because he considered his physical health was in immediate danger. I have addressed this somewhat complex chain of emails later in this decision.

[9] Mr A asserts that the Respondent terminated his employment. He does not dispute that the Respondent was a small business but asserts that this employment termination was not consistent with the Small Business Fair Dismissal Code. Further, Mr A asserts that the termination of his employment was harsh, unjust and unreasonable. Mr A seeks compensation of six month’s pay.

The evidence

[10] Mr A’s evidence was that increased unreasonable demands on him in the period leading up to 14 July 2016 exacerbated his mental health issues, which included depression and anxiety disorders and panic attacks. He asserted that he provided information about his mental health to Mr H in the week before 14 July 2016. Mr A asserted that a dispute he had with Mr H on 13 July 2016, about the employment of a casual tradesperson caused him some distress but that he took work home that night and developed a plan to handle a higher than normal workload on the following day. Mr A’s evidence was that that he had not intended to resign his employment on 14 July 2016 but had left the workplace because he had what he described as a panic attack. He recalled the discussions he had with Mr H on the basis that he advised Mr H that he couldn’t stop his heart rate from going up, that he was stressed but had already taken all of the daily medication he had been prescribed and that he needed to leave to consult with his general practitioner as his medication was not doing its job. Mr A advised that Mr H simply did not respond to this advice. Mr A then repeated this information in a discussion with Ms H. He asserted that Ms H responded by saying that he had not informed the Respondent of his medical condition when he started. Mr A’s evidence was that he responded to Ms H by saying “your behaviour is disgusting”, before leaving the office. He advised that he then put a number of things in his car before returning to the workplace to load a pattern into a machine. He said that he then went into the lunchroom where his colleagues observed that he was upset and helped him load various personal items into his car in accordance with his normal daily practice. Mr A then left the workplace and went to his father’s house where he made an appointment to see his general practitioner later that day.

[11] Mr A’s evidence confirmed that he had been diagnosed with various mental health disorders, including schizophrenia. He provided a number of medical certificates from 14 July 2016. He advised that he had been medically certified as unfit for work until at least 31 December 2016.

[12] Mr A’s evidence was that he arranged for another employee to provide to the Respondent, a copy of the medical certificates provided to him and that, following email advice that the Respondent considered that his employment was terminated, he obtained advice about the most appropriate form of remedy. Mr A sought Centrelink payments and contacted Ms H in early August to request a Centrelink Employment Separation Certificate. Mr A provided what he asserted was this Certificate 3 which advised that he had been unfairly dismissed on 14 July 2016. Mr A confirmed that he had received Centrelink benefits from 11 August 2016.

[13] Whilst Mr A initially asserted that he should still be regarded as an employee of the Respondent and should be paid workers compensation until at least 31 December 2016, he subsequently conceded that he had acknowledged in his unfair dismissal application that he had been advised of the termination of his employment and had been terminated by email on 19 July 2016.

[14] Mr A’s father, Mr B’s evidence was that his son arrived at his house on 14 July 2016, shortly after he left work at the Respondent and advised that he had left work because of an anxiety attack and had made a medical appointment for later that day. Mr B was concerned about his son’s well-being and advised that he telephoned the Respondent and spoke with Ms H. His evidence was that Ms H did not indicate to him that the Respondent considered that his son had resigned his employment.

[15] Mr A’s sister, Ms L, gave evidence about the extent to which, in late July 2016, she went to the Respondent to return property held by Mr A and collected various other items owned by him.

[16] Mr H’s evidence was that, given the emails which Mr A had forwarded to him after 14 July 2016, he could not now recall whether he was aware that Mr A had mental health issues as at 14 July 2016. However, he was aware that Mr A had anger management issues and had difficulty managing stress. Mr H advised that, around 14 July 2016, the Respondent was confronted with other business problems, including payments that were overdue from a major South Australian home building firm.

[17] Mr H advised that, when Mr A commenced his employment with the Respondent he had agreed that he would eventually take over at least some of the business operations in the future and accordingly had worked to help and teach him to run the business. Whilst Mr A’s performance had initially been satisfactory, it had progressively deteriorated and, in the 6 to 8 weeks prior to 14 July 2016, Mr A had displayed a poor work attitude, poor performance and consistent lateness. He recognised that Mr A had struggled to adapt to the requirements of a new machine and had endeavoured to “cheer him up” 4.

[18] Mr H advised that he did not warn Mr A as he liked him, and needed him to operate a new machine so that he chose to ignore his failures. He did not anticipate that Mr A would resign.

[19] Mr H advised that Mr A simply came to his office door on 14 July 2016 and said:

“Don’t try to stop me
I am leaving
it’s finished
I am going” 5

[20] Mr H’s evidence was that Mr A then walked away and that he did not say anything in response to him. He understood from Mr A that he was leaving the Respondent.

[21] About 10 minutes later, Mr H met with Ms H. His evidence was that Ms H advised him that she had seen Mr A take a large screen, pens and a calculator, put these in a carry bag and then leave the Respondent. Mr H advised that the combination of the two discussions caused him to conclude that he had “lost his little mate Mr A”. 6 Mr H advised that he did not chase after Mr A on 14 July 2016 because he recalled that Mr A had advised him that: “I hurt people I love and I can’t help doing it”.7

[22] Mr H advised that on the following Tuesday, 19 July 2016, he spoke with Business SA and then the Fair Work Ombudsman who confirmed that he could regard Mr A as having quit his own employment. Mr H advised that he and Ms H had decided to give Mr A one week’s extra pay notwithstanding that he had not given notice of the termination of his employment.

[23] Mr H’s evidence was that he attempted to talk with Mr A by telephone on the following Monday or Tuesday and left messages for Mr A which were not returned. He understood that Ms H ultimately made telephone contact with Mr A who advised her that he could not talk with her because he had been ordered not to do so.

[24] I note that, despite a request I made to this effect, Ms H did not give evidence in this matter. Mr H advised that he did not want to impose this on her and that he understood that my decision would simply be made on the basis of the evidence before me. Notwithstanding this, I note that on 29 November 2016 Ms H forwarded a copy of the Employment Separation Certificate which she signed on 9 August 2016. This certificate simply records that Mr A ceased work voluntarily on 14 July 2016. Having contrasted this certificate with the certificate provided by Mr A 8 I have concluded that it is most likely that Mr A modified the original certificate so as to refer to his contention that he had been unfairly dismissed.

[25] The email exchanges in this matter, provided by Mr A may not be entirely sequential and are, at best somewhat difficult to follow. Nevertheless, I have taken particular note of the following exchanges. At 8:33 pm on 18 July 2016, Mr H emailed Mr A and referred to medical certificates presumably provided by him. He confirmed that the Respondent considered that Mr A had resigned his employment when he left on 14 July 2016. At 7:39 am on 19 July 2016, Mr A responded by advising of his health concerns and expressing substantial criticisms of the Respondent. In this email Mr A confirmed his position that he had not resigned on 14 July and referred to his intention to pursue further legal proceedings relative to the termination of his employment and to underpayment claims which he had.

[26] The Respondent provided a further email to Mr A at 7.16 pm on 19 July in relation to arrangements for Mr A’s collection of any remaining personal items and the return of paperwork and keys, the property of the Respondent. At 9.14 am on 20 July 2016, Mr A forwarded a further email in which he again disputed that he had resigned and confirmed that he had received medical advice to the effect that he should not be communicating with the Respondent. At 11.08 pm on 21 July 2016, the Respondent again sent an email to Mr A relating to the return of its keys and advising that Mr A’s entitlements would be paid after that date.

[27] At 3.13 am on 22 July 2016, Mr A sent a further email disputing the termination of his employment and the extent to which this could be regarded as a resignation. He requested an explanation of the Respondent’s position and that payment should be made to him. At 2.14 pm on that same day, Mr A sent a further email in which he confirmed his mental illness, disputed the termination of his employment and again claimed payment for various entitlements. On 23 July 2016 Mr A provided a further email in which he advised that he was lodging a general protections claim and asserted that he remained an employee of the Respondent.

Findings

[28] As Commissioner Hampton noted in his directions, Mr A’s application gives rise to a number of initial issues. Section 396 of the FW Act requires that I reach conclusions about these issues before I consider the merits of the application. The issues which may become relevant in this respect are:

● whether Mr A was dismissed
● if he was dismissed, when that dismissal took effect
● depending on when that dismissal took effect, whether the application was lodged within the 21 day statutory time limit
● in the event that Mr A was dismissed and the application was lodged within the time limit, whether the Respondent was a small business and, if so, whether the termination of Mr A employment was consistent with the Small Business Fair Dismissal Code
● in these circumstances, if the termination of Mr A employment was not consistent with that Code, whether it was fair in the context of s.387 of the FW Act.

[29] I have applied this sequence of considerations on the facts before me.

[30] In reaching my conclusions about various of the facts in this matter I have noted that Mr A’s evidence to me reflected the confusion which he had about various events and issues and have concluded that this reflected the mental health issues which he had at that time. This is consistent with the tenor of various of the emails which he sent to the Respondent. 9 I have also noted that Mr H’s recollection of key events was, on his own admission, unreliable. Finally, the absence of any evidence from Ms H means that I am unable to confirm critical information relative to the events leading up to, and including 14 July 2016.

[31] Notwithstanding these significant difficulties, I have reached the following conclusions. Firstly, that the relationship between Mr A and Mr H was substantially strained by 14 July 2016 and that Mr H had major concerns over Mr A’s work performance and attitude.

[32] I have concluded that Mr H was aware that Mr A had mental health issues prior to 14 July 2016. Mr H’s evidence that he was aware that Mr A had anger management and stress issues and that he was inclined toward hurting those people whom he loved seems to indicate that Mr H had at least some awareness that Mr A’s behaviour was abnormal. I have also concluded that, by 14 July 2016, Mr H was dissatisfied with Mr A’s attitude and work performance.

[33] In terms of the critical discussion between Mr A and Mr H, on 14 July 2016, I prefer the evidence of Mr H. It seems to me that had Mr A said that he was leaving work to go to the doctor there would have been absolutely no basis for doubt about his continued employment. It seems to me to be highly likely that Mr A was in a distressed state when he spoke with Mr H. However, even on Mr H’s version I do not consider that Mr A announced his resignation. I can only conclude that the evidence shows that Mr A was leaving the workplace. Absent evidence from Ms H, I accept that Mr H was told by Ms H that Mr A had taken a number of personal items with him when he left work on 14 July 2016 but I am not able to conclude that these items differed from Mr A’s normal practice. I accept that Mr and Ms H had subsequently discussed the nature in which Mr A had left work on that day. The absence of evidence from Ms H does not enable me to reach a conclusion that the combination of the discussions between Mr A and Mr H and then between Mr A and Ms H, was to the effect that Mr A was resigning.

[34] I have concluded that it is most likely that the Respondent did not express a conclusion about the standing of Mr A’s employment until Mr H spoke with his employer association and the Fair Work Ombudsman on 18 July 2016. Consequently Ms H’s failure to mention this when Mr A’s father contacted her later that day is understandable. However, the information available to me about the content of that discussion does not permit any broader conclusions. Had I been provided with evidence from Ms H, I may have been able to reach different conclusions in this respect.

[35] I have accepted that Mr and Ms H endeavoured to contact Mr A after 14 July 2016. I think it likely that this was before they sought advice about whether they could regard him as having resigned his employment. The evidence before me does not establish what information was provided to both the employer association and to the FWO which must have formed the basis of the advice then provided to the Respondent.

[36] I have accepted that the emails sent by Mr A on and from 19 July 2016 made it clear that he had not intended to resign his employment but this does not affect the requirement that an objective rather than a subjective assessment of the circumstances needs to be undertaken.

[37] I have concluded that, by 22 July 2016, Mr A was aware that the Respondent regarded his employment as having been concluded. That is clear from the email of that date 10 and from Mr A’s email to a Respondent’s client of 23 July 2016.11 It is also consistent with Mr A’s approach to Centrelink and his provision of an Employment Separation Certificate.

Was Mr A dismissed?

[38] Section 385 of the FW Act states:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[39] Section 386 defines a dismissal in the following terms:

“386 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 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.

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.”

[40] The concept of termination at the employer’s initiative has been an essential characteristic of the concept of dismissal in workplace relations legislation for many years. In Mohazab v Dick Smith Electronics Pty Ltd (No2) the Court summarised this concept in the following terms:

“On the finding of fact that the respondent directed the appellant to resign or have the police “called in”, it is our view that what occurred was a termination of employment at the initiative of the employer. When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee's initiative. But for the insistence of the employer, termination of employment would not cross the mind of the employee.”

[41] There can be little doubt that this approach remains apposite to the current legislative provision as it was referenced in the Explanatory Memorandum.

[42] The position adopted by the Court in Mohazab was further endorsed by a Full Bench of the Commission in O’Meara v Stanley Works Pty Ltd in the following terms:

“[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 to 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.”

[43] I have applied this approach. The immediate question goes to whether Mr A actually resigned on 14 July 2016. Whilst this may have been the case, the evidence provided to me does not establish this. Notwithstanding that there is no evidence that indicates that Mr A communicated a resignation, I have concluded that Mr H and Ms H had a legitimate cause for doubt about whether he had, in fact resigned. Additionally, as the Respondent had not been able to talk further with him, this created additional doubt. I have concluded that the soured relationship between Mr A and Mr H may well have contributed to the conclusions reached by the Respondent. I have concluded that the Respondent then relied on the advice provided by the employer association and the Fair Work Ombudsman so as to conclude that he had resigned. Evidence about the information that was provided to the employer association and to the Ombudsman is not before me. As a result, I am not satisfied that Mr A resigned on 14 July 2016 and have concluded that the Respondent made a decision, between 14 and 18 July 2016 to the effect that they would regard his employment as having been concluded. This was confirmed in the email of that date. 12 Consequently, on the approach in Mohazab, the termination of Mr A’s employment was at the initiative of the employer.

[44] I consider that employment termination took effect on the date upon which it was communicated to Mr A, which was Monday, 18 July 2016.

[45] Mr A’s unfair dismissal application was lodged within the statutory 21 day time limit.

[46] There is no dispute that the Respondent was, at the time of the termination of Mr A’s employment, a small business consistent with s.23 of the FW Act. Consequently, pursuant to s.385 of the FW Act, if the termination of Mr A’s employment was consistent with the Small Business Fair Dismissal Code (the Code), it cannot be unfair.

[47] The Code states:

“Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[48] The email advice of 18 July 2016 states:

Hi Mr A

Thanks for the information

We would like to offer you are sincere best wishes with your condition.

The legal advise we have been given that you terminated your employment with the Respondent affective on Thursday 14/7/16 at 12.30 when you walked out the door.

Could you please return all paper work for the job xxx xxxxxxxx xxxxxx xxxxxxxxxx and the workshop keys and any other company items.

We will then process your entitlements due

All the best for the future & all your help

Kind Regards,
Mr H
The Respondent 13

[49] The termination of Mr A’s employment does not correspond neatly with either a summary or other form of dismissal. Mr H’s evidence was that he understood that the Respondent had paid Mr A’s one week’s pay. There is no evidence that supports this position and it appears contrary to the advice included on the Employment Separation Certificate. Accordingly, I have concluded that there was no payment made to Mr A, apart from the annual leave entitlements specified in that Employment Separation Certificate. 14

[50] Irrespective of whether I regard the termination of Mr A’s employment as a summary dismissal or another form of dismissal, I am unable to conclude that the requirements of the Code were met. Consequently, I have considered the evidence before me in the context of the provisions of s.387 of the FW Act which states:

“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.”

Valid Reason

[51] Notwithstanding subsequent legislative changes, I have adopted the principles set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd¹⁵.

[52] The evidence before me does not establish that there was a valid reason for the termination of Mr A’s employment which related to his capacity or his conduct. That evidence indicates that Mr H had significant concerns relative to Mr A’s work performance but it does not establish that those concerns represented a valid reason for employment termination. Furthermore, and as I have already observed, the evidence before me does not establish that Mr A’s behavioural conduct on 14 July 2016 represented a valid reason for the termination of his employment. Convoluted as it was, the advice which Mr A provided to Mr H before he left work on 14 July 2016 cannot represent a valid reason for the subsequent termination of his employment.

Notification of the reason

[53] The email of 18 July 2016 advised Mr A of the reason for the termination of his employment.

Opportunity to respond

[54] The Respondent endeavoured to contact Mr A after 14 July 2016. The information before me does not definitively establish whether those endeavours were made before, or after the decision to regard his employment as terminated. Notwithstanding the absence of evidence from Ms H, I have concluded that it is most likely that she had a brief discussion with Mr A on 18 July 2016, before the email confirming the termination of his employment was sent. Had Mr A been prepared to discuss the matter more extensively with Ms H on that day, the termination of his employment may have been avoided. To this extent, an opportunity for Mr A to respond to the proposed termination of his employment was provided.

Refusal to allow a support person

[55] The Respondent did not refuse to allow Mr A access to a support person but it is significant that I note that there were no discussions that related to his dismissal such that there was a realistic possibility for Mr A to request such a support person.

Warnings about unsatisfactory performance

[56] Mr H confirmed that no warnings had been given to Mr A. I think it most likely that the Respondent’s concerns about Mr A’s recent work performance contributed to the decision to regard him as having resigned. Nevertheless, I have not applied this factor as an indication of unfairness.

Size of the Respondent’s enterprise - impact on procedures

[57] The Respondent is a small business. I do not consider that it had sophisticated human resource management procedures which may have assisted in avoiding this issue. This is a factor which goes against any findings of unfairness.

Absence of dedicated human resource management expertise

[58] I have concluded that the Respondent did not have access to dedicated human resource management expertise. To the extent that contact was made with an employer association and the Fair Work Ombudsman, I have already remarked on the extent to which the advice provided by both of those groups must be heavily dependent on the nature of the questions put to them. Access to that type of external advice must be dependent the information provided to them. Again, this is a factor which mitigates against findings of unfairness.

Other matters considered relevant.

[59] Had Mr A been more fulsome in his reasons for his departure from work on 14 July 2016, or had he been prepared to talk with Mr or Ms H after that day, or had he authorised someone else to talk on his behalf, this matter could have concluded differently.

Conclusion - harsh, unjust or unreasonable

[60] I have concluded that the termination of Mr A’s employment should be regarded as harsh in that the consequence of his abrupt departure from work on 14 July 2016 was not such that the Respondent could regard that as a resignation. The subsequent dismissal was unjust in that I am not satisfied that Mr A’s conduct warranted dismissal and it was unreasonable in that it was based on inference rather than being confirmed by facts. Consequently, I consider that dismissal to be unfair.

Remedy

[61] In these circumstances, s.390 establishes that the Commission may order a remedy. The primary remedy is that of reinstatement. Mr A has not sought reinstatement but has sought an amount as compensation. In this respect he appears to have confused his claim for compensation for his dismissal with a foreshadowed workers compensation claim.

[62] Consequently, and, in any event, I do not consider reinstatement to be appropriate. It is clear that the relationship between the parties cannot be re-established. I have considered the relevant amount of compensation in the context of section 392 which sets out the factors which I am required to consider in determining an amount of compensation.

[63] There is no evidence before me about the extent to which an order of the magnitude being contemplated would affect the viability of the Respondent’s enterprise. Mr A had worked for the Respondent for just over one year. I do not consider that this was a long time so as to favour a significant amount of compensation.

[64] In McCulloch v Calvary Health Care Adelaide 16 a Full Bench of the Commission reviewed the assessment of compensation in a situation where there was a finding that there was no valid reason for the employment termination. In following this approach, I have had particular regard to the evidence provided by Mr A as the basis for my conclusions. In terms of the remuneration which Mr A would have received, or would have been likely to receive, had he not been dismissed, the medical advice indicates that Mr A has been certified as unfit for work from 14 July 2016 to 31 December 2016. The evidence indicates that, until 14 July 2016, Mr A had taken only limited personal leave. Consequently, I have concluded that Mr A would have been entitled to payment of personal leave consistent with the provisions of the Timber Industry Award 2010 under which he worked. I have concluded that it would be unlikely that he would be paid beyond that personal leave entitlement. The evidence of Mr H went to the financial impact on the Respondent of the inability of a major customer to make payments around this time and I consider it unlikely that the Respondent would make on-going payments beyond Mr A’s statutory entitlements. I have not taken the possibility of workers compensation claims into account because Mr A advised that he had not yet made such a claim.

[65] Had Mr A not been dismissed on 18 July 2016 I think it unlikely that his employment would have continued indefinitely given the concerns expressed by Mr H about his work performance. Even more significantly, Mr A’s own evidence was that he considered that his work was placing him under severe stress and his evidence was that he was in a very fragile state. This is clearly demonstrated by the following evidence:

Arrived at work Thursday, (I had tears most of the way, as I get upset about myself over sleeping in…,) when greeting my employer, he asked If Ms H (Employers wife) could ask some questions, about my mental health etc. and he told me to “pretend I’m not here”, Ms H then proceeded to ask me questions, which mostly were right, and I agreed with what she had said but, I didn’t say much, “yeahs” and “No’s”, nodded or shook my head as I was struggling to contain myself (contain myself from breaking down in tears). I agreed with Ms H, and said “I’m just going through a rough patch etc. I’ll be better, very soon”

• That’s when my employer got up off his seat, and had an opinion about my answers and Ms H’s questions and said he didn’t agree or something. That Ms H did all the talking or something …



• Which I asked him why did he say to me to pretend he’s he wasn’t there? And I asked why, if he only wanted to observe, why did he have an opinion?

(Even though I have Depression and Anxiety I can stick up for myself)

• Then my employer walked up to me pointed in my face and said to Ms H, “Look at him he’s not even here” – in reference to my eyes. Which he may have been unaware I had just been in tears for over 30 minutes so my eyes they probably did look very good…



• At this stage I am feeling extremely fragile and wasn’t in the best frame of mind to speak with anyone. So I went into my office (which over-sees the workshop) and did office duties for a half hour or so before going out into the workshop. 17

[66] I do not think the duration of Mr A’s employment would have been a significant factor in the determination of remuneration which Mr A would have received had he not been dismissed. It may have been the case that the medical certificates certifying Mr A as unfit for work, arose as a consequence of the termination of his employment. However, that would require such conjecture, that I have simply taken those certificates on face value. If Mr A had not been dismissed, his absence from 14 July 2016 means that it is likely that he would only have been paid his personal leave entitlements or 2 week’s pay.

[67] In any event, even if Mr A had returned to work, and I adopted the position that the medical certificates would not then have been issued, I do not think that his employment would have been of a long duration in any event. Mr A’s emails 18 to the Respondent indicating a significant suite of issues associated with his employment, are not conducive to significant on-going employment. In this case, I do not think Mr A would have received more than 4 week’s pay even if he had not been dismissed on 18 July 2016. I have not adopted this figure because I have relied on the medical advice certifying Mr A as unfit for work until at least 31 December 2016.

[68] I accept that Mr A is certified as unfit for work and do not consider that the absence of mitigation efforts since the termination of his employment should reduce the compensation otherwise payable. Equally, I do not consider that any deduction for income earned since the termination of Mr A’s employment is appropriate. Again, consistent with the approach in McCulloch, I have not taken Centrelink payments made to Mr A since 11 August into account in this regard. I do not consider that Mr A is likely to earn income before 31 December 2016.

[69] In terms of other matters that might be relevant, I have not deducted any amount for contingencies, consistent with Mr A’s circumstances and the decision in McCulloch.

[70] Misconduct on the part of Mr A was not a factor contributing to his dismissal so that no deduction consistent with s.392(3) is appropriate.

[71] I have reviewed the approach I have adopted to the calculation of a compensation amount and am satisfied that it is consistent with that applied in Sprigg v Paul’s Licensed Festival Supermarkets.¹⁹

[72] I have concluded that the appropriate amount of compensation to be payable to Mr A is two (2) week’s pay, less tax, but with commensurate superannuation payments. An Order (PR588109) reflecting this decision will be issued.

Appearances:

Mr A on his own behalf.

Mr H for the respondent.

Hearing details:

2016.

Adelaide:

November 28.

 1   Exhibit A3

 2   Exhibit A8

 3   Exhibit A9

 4   Transcript, Audio Recording, 28 November 2016, 13.45pm

 5   Exhibit R1

 6   Transcript, Audio Recording, 28 November 2016, 13.41pm

 7   Transcript, Audio Recording, 28 November 2016, 13.59pm

 8   Exhibit A9

 9   Exhibit A6

 10   Exhibit A5

 11   Exhibit A6

 12   Exhibit A5

 13   Exhibit A5

 14   Exhibit A9

15 (1995) 62 IR 371 at 373

 16   [2015] FWCFB 2267

 17   Exhibit A3, from 1.5.1

 18   Exhibit A5

19 AIRC, Print R0235, (24 December 1998)

Printed by authority of the Commonwealth Government Printer

<Price code C, PR588108>