| FWC 1488|
|FAIR WORK COMMISSION|
Fair Work Act 2009
Precept Services Pty Ltd
MELBOURNE, 16 MARCH 2017
Application for relief from unfair dismissal.
 Mr Stephen Hanson was employed by Precept Services Pty Ltd (“Precept Services”) in January 2012 in the position of Operations Manager. He reported to the Managing Director of the business and had around 20 employees reporting to him. However, on 7 September 2016 Mr Hanson’s employment was terminated, with effect immediately. He subsequently lodged an unfair dismissal application. This decision deals with that application.
 Both parties filed submissions and witness statements in accordance with the directions issued. The Commission also allowed Mr Hanson to file an additional witness statement at the commencement of the proceedings. The hearing was briefly adjourned at this point to enable the Respondent to consider the content of that statement before the proceedings continued.
 Mr Trent Hancock from McDonald Murholme was given permission to appear on behalf of Mr Hanson under s.596(2)(a) and (c) as the matter involves a degree of complexity, and it would be unfair not to as it would be difficult otherwise for Mr Hanson to represent himself effectively. Ms Alana Costa from the National Electrical Contracting Association appeared on behalf of Precept Services.
 Section 385 of the Fair Work Act 2009 (Cth) (“the Act”) provides that a person has been unfairly dismissed if the Commission is satisfied “the dismissal was harsh, unjust or unreasonable.” Section 387 continues to set out the various considerations the Commission must take into account. It 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.” 1
 The Commission is accordingly required to determine whether Mr Hanson’s summary dismissal on grounds of serious misconduct was harsh, unjust or unreasonable taking into account the various matters in s.387.
 Mr Hanson’s submissions make reference to a number of matters in support of his application. On the morning of 7 September last year he was directed by the Managing Director of Precept Services, Mr Andrew Lowcock, to attend a meeting in the boardroom. He submits he was given only 5 minutes’ notice of the meeting, and was not told in advance what was to be discussed. He was then told that allegations of misconduct had been made against him by two employees which had since been investigated and, as a consequence, his employment was to be terminated with immediate effect. He submits that the nature of the complaints, and who made them, were only made known to him when he received a copy of the Employer Response document filed after his unfair dismissal application was lodged.
 As a consequence he did not have an opportunity to respond to the reasons relied on by Precept Services to justify his termination. He was also not provided with the opportunity to have a support person present in the meeting because of the limited notice, and the fact he was not aware the meeting was going to involve a discussion about termination of his employment.
 He also submits that the size of the business and the absence of a dedicated human resource specialist or dedicated human resource expertise should not provide an excuse for the manner in which his termination was carried out.
 Mr Hanson also submits that he had a good work record in the time he was employed and was not warned about his performance, apart from one occasion in August last year when he did not leave his diary at work whilst on annual leave. In addition, he has not been able to find other employment since being dismissed.
 Mr Hanson’s evidence refers to a discussion that took place with Ms Lisa Lowcock, the National WHS/HR Manager at Precept Services, on 20 July 2016. Ms Lowcock is also the wife of the Managing Director. This discussion followed a meeting earlier in the day with his son, who is also employed by the business as an apprentice electrician. Mr Hanson had not been permitted to be part of this discussion and went to Ms Lowcock’s office to find out why he wasn’t able to be involved. He was told the decision had been made by the Managing Director, Mr Lowcock. Mr Hanson indicated in response, “Your sneaky husband made that decision, did he?” 2 When Ms Lowcock asked what he meant by “sneaky” he made reference to a previous telephone conversation between his wife and Mr Lowcock that occurred some months ago in which Ms Hanson told him Mr Lowcock had sworn at her and then hung up.
 Mr Hanson said that neither Mr Lowcock nor his wife made any further reference to the discussion on 20 July 2016 and Ms Lowcock did not seem worried or concerned about interacting with him after that time. He also said Mr Lowcock often swore at other employees, including his wife. He indicated in cross-examination that he had also seen him punch and kick walls in the office, as well as slamming doors, and he was often verbally abusive to other staff in the workplace.
 On 17 August last year Mr Hanson returned to work after a period of annual leave. He was immediately called into a meeting with Ms Lowcock and told he was being issued with a written warning because he had not left his diary at work before going on annual leave. He signed the warning as acknowledgement of having received it but told Ms Lowcock that the diary was his own personal property, and he was not using the diary supplied by the business. He also indicated in his examination in chief that Ms Lowcock was smiling and joking when she gave him the warning and said, “Unfortunately, I’ve got to do this.” 3
 On the following day he felt stressed and unwell and told his son to inform the business that he would not be at work that day. He then consulted his general practitioner and was given a medical certificate indicating he would be off work until 26 August 2016. This was subsequently extended by a further week, and Mr Hanson did not return to work until 5 September 2016.
 On 7 September 2016 Mr Lowcock asked Mr Hanson if he could meet in the boardroom. Mr Hanson said he walked into the room and felt “more or less ambushed when I went in” 4 as Ms Lowcock and Ms Julie LaMonica, who was the Office Manager at a related business, were also present. Mr Hanson denied he was told before going into the meeting that he could have a support person with him. He said Mr Lowcock told him there had been two complaints made about his behaviour and these had been investigated. As a consequence it had been decided to terminate his employment. Mr Hanson asked for details about these complaints, but Mr Lowcock refused to provide any further information. He said the termination letter was given to him “there and then,” and made reference to a range of matters that were said to constitute the reasons for his dismissal. He was also provided with a spreadsheet setting out his entitlements that had a cheque stapled to it. The letter from Mr Andrew Lowcock states as follows under the heading “NOTICE OF TERMINATION OF EMPLOYMENT”:
“This letter is to confirm that your employment with Precept Services Pty Ltd is terminated, effective today.
The reason for your dismissal of your breach of Precept Services Pty Ltd Code of Conduct, PO-SA-009 Mobile Phone & Office Phone policy, PO-SA- 013 Information Technology Policy, PO-SA-014 Conflict of Interest and Confidentiality Policy.
Also, your termination is as a result of investigations by management based on written complaints regarding your general behaviour and attitude. Your ongoing and consistent failure to carry out lawful and reasonable instructions which are part of your job constitutes an example of serious misconduct according to Fair Work Australia.
Further, you have made no effort to discuss the matters with me or other relevant company personnel, although this has been suggested to you.
As you are aware, you were issued with a first written warning on 15/08/2016, following a breach of the requests by management. At a meeting on that date, you were informed of the details of the issue, and of the fact that a further breach may lead to further disciplinary action. You have continued the behaviour which led to the first written warning and various verbal warnings on other issues prior to that.
Therefore, Precept Services Pty Ltd has to terminate your employment.
Payment of your termination pay will be made which represents payment up to and including 07/09/2016, plus your accrued entitlements.” 5
 Mr Hanson also denied in cross-examination that he had refused to sign the minutes taken during the course of the meeting, and said they were not shown to him at any stage.
 Ms Julie Hanson is Mr Hanson’s wife. She states that in the middle of last year her son, who is an apprentice at Precept Services, asked her to check whether his pay rates were correct. After speaking with “Fair Work” 6 she said she called Mr Lowcock to discuss what she had been told. She said he responded by telling her the information was wrong and then said “fuck off, you do not have your facts right.”7 He then hung up. She said he then rang back 5 minutes later. She told him she was upset by the way in which he had spoken to her and he responded by threatening to sack her son. She told her husband about this conversation “a few days later.”8
 Precept Services submits Mr Hanson’s employment was terminated because of his misconduct in the meeting with Ms Lowcock, and his subsequent refusal to participate in the meeting arranged to discuss the written complaints received from her and Mr Marty Barlow. The complaints alleged Mr Hanson had behaved in an intimidating and aggressive way towards Ms Lowcock in the discussion in her office on 20 July 2016, which included the use of offensive language. It submits the complaint was subsequently investigated and found to have been substantiated. In its submission the language used “was insulting, abusive and directed at challenging the authority of the employer.” 9
 Mr Hanson was then asked to attend a disciplinary meeting following his return from annual leave to discuss the allegations and the outcome of the investigation. A third person was also invited to attend to take minutes. After being told that the reason for the meeting concerned two written complaints about his behaviour alleging serious misconduct it submits Mr Hanson responded by repeatedly stating “this is bullshit”. 10 He then refused to participate in the meeting. It also submits he was invited to have a support person present, but this offer was refused.
 It then decided to terminate his employment based on his behaviour in the discussions with Ms Lowcock and his refusal to participate in the meeting. A termination letter was then prepared and given to him. In its submission Mr Hanson’s behaviour in confronting an employee, and his subsequent refusal to participate in the meeting, constituted serious misconduct and justified its decision to summarily dismiss him.
 Ms Lisa Lowcock is the National WHSE Manager at Precept Services and has been with the business since 1998. Her evidence indicates that on 20 July last year she met with Mr Hanson’s son, who is employed by the business as an apprentice electrician. The purpose of the meeting was to discuss his failure to satisfy the academic requirements associated with his apprenticeship. Mr Hanson was not involved in the meeting as his responsibilities did not extend to apprenticeship issues. In addition, the business did not normally include parents in discussions involving adult apprentices.
 She said that later that afternoon Mr Hanson came to her office and asked why her “sneaky husband” 11 hadn’t involved him in the meeting with his son. Ms Lowcock said he then lent over her desk and asked her, “How would you fucking feel if I said get fucked to you.”12 He then repeated this question in a louder and more intimidating tone. She said he was clearly very angry and continued “to storm in and out of the room rambling on about his issues at work.”13 He then left her office. She understood he then went to his desk, packed up, and left the building.
 Ms Lowcock said she was shocked by Mr Hanson’s behaviour and immediately spoke to Mr Barlow, who was in an adjoining office and had witnessed the incident. She indicated in her witness statement, “I still find the incident extremely unsettling and intimidating. His behaviour was overtly directed at my husband but he had taken out his aggression on me.” 14 She then called her husband, who was working in regional Victoria at the time. He told her Mr Barlow had already been in contact about the incident. He also asked her to lodge an official complaint, together with an incident report, which she did. These were both completed and emailed to Mr Lowcock later that afternoon.
 Ms Lowcock then met with Mr Hanson again on 17 August 2016 after he returned from a period of annual leave. She had been instructed by Mr Lowcock to give Mr Hanson a written warning “for failing to comply with a reasonable instruction”. 15 This related to his failure to leave behind his diary before going on leave. However, Mr Hanson was then absent from work on sick leave until Monday, 5 September. On 7 September he was asked to attend the meeting in the boardroom to “discuss the issues.”16 Ms Lowcock said that prior to this meeting she “had created an agenda for Andrew to discuss all the concerns we had regarding Stephen’s general conduct and the incident that had occurred with me.”17
 She said Mr Lowcock told Mr Hanson that there had been two complaints made against him and these had been investigated. However, before Mr Lowcock could continue Mr Hanson made clear he was not going to participate in the discussion and repeatedly stated, “I don’t know what this is about”, “it’s all news to me”, and “this is bullshit, I’m off.” 18 At the same time he appeared to be deleting information from his company supplied phone. She said Mr Lowcock attempted to calm the situation down, but Mr Hanson continued to refuse to engage in any discussion. Mr Lowcock then told him to sign an exit form and return all company property. Mr Hanson then left the meeting and commenced to pack up his desk, while Ms Lowcock prepared a termination letter. The minutes of the meeting, taken by Ms LaMonica, were then signed by each of the participants, apart from Mr Hanson.
 Mr Andrew Lowcock is the Managing Director of Precept Services and has been with the business since it was established in 1998. He employed Mr Hanson in January 2012 in the role of Operations Manager. He said, “When Stephen started with the company he was conscientious and keen. However, as time went on his thoroughness and commitment began to wane. His ability to take directions and follow processes and procedures was lacking in co–operation and commitment.” 19
 Mr Lowcock was working in Albury on 20 July 2016 when he received a phone call from Mr Barlow informing him about the incident involving Mr Hanson and Ms Lowcock. He asked Mr Barlow to “keep a watch out for Lisa,” 20 and indicated he would deal with the matter when he returned to Melbourne. He then received a call from Ms Lowcock. He said she sounded shaken and upset. He asked her to put the details in writing and arranged for incident reports to be provided so the circumstances could be appropriately investigated. Mr Lowcock subsequently carried out an investigation into what had occurred by speaking to Mr Barlow, Ms Lowcock and Mr Davies, who was the Purchasing Officer and had seen Mr Hanson leave work on the day in question.
 Mr Lowcock wanted to “address the incident correctly and with due process but due to my work schedule and Stephen taking leave, there were not many opportunities to address this incident sooner.” 21 He subsequently instructed Ms Lowcock to give Mr Hanson a written warning because he had failed to leave the operations diary and his work phone in the office prior to going on annual leave. This occurred in mid-August.
 On 7 September 2016 he asked Mr Hanson to attend a meeting in the boardroom. His intention was to discuss the complaints received from Ms Lowcock and Mr Barlow and, “To sit down and discuss what’s happened and then move forward.” 22 He said he did not have a predetermined view about the outcome of the meeting. He also invited Mr Hanson to have a support person with him, as he had arranged for an independent witness to attend. He initially explained that there had been two complaints received about his behaviour which had been investigated. However, Mr Hanson immediately got up saying, “I don’t know what this is about”, “it’s all news to me”, and “this is bullshit.”23 He then refused to participate in any further discussions and said, “right, I’m off”24 and left the room. Mr Lowcock followed him to his desk as he was packing up to leave. He then asked Ms Lowcock to arrange a termination letter and a final payout of Mr Hanson’s accrued entitlements. He also asked Mr Hanson to sign off indicating all company property had been returned, but he refused. It also appeared that he was deleting information from his company phone.
 Mr Lowcock also indicated in his examination in chief that he could not recall being involved in the telephone conversation described in the evidence of Ms Hanson.
 He also confirmed in cross-examination that Mr Hanson was not dismissed because of the issue to do with the work diary. He also did not believe it was necessary to immediately call Ms Lowcock after being told by Mr Barlow about the incident on 20 July 2016. He said the investigation into the incident took place over several weeks, but Mr Hanson was not interviewed during this time. The meeting on 7 September 2016 was instead arranged for this purpose. In addition, he did not compile a written report into the investigation prior to the meeting, and acknowledged that he stated in his witness statement, “It was quite clear to me that Stephen’s behaviour was completely unacceptable.” 25
 He also indicated in cross-examination that despite taking some weeks to meet with Mr Hanson he had given strict instructions to Ms Lowcock that she was not to be alone with him. He also confirmed that Mr Hanson was not given prior notice of the meeting on 7 September 2016, or what it was to be about. He also acknowledged that he had not raised the incident with him in the 7 weeks since it had occurred. He also said the termination letter had been prepared in advance of the meeting in the event that it was decided to terminate Mr Hanson’s employment as an outcome of the meeting. He also acknowledged that he had sworn in the workplace on occasions, and this had included language directed at Ms Lowcock, possibly while Mr Hanson was present.
 Mr Marty Barlow said he was sitting in his office on 20 July when he heard raised voices in Ms Lowcock’s office and observed a discussion between her and Mr Hanson. He could not understand what the conversation was about, but heard Mr Hanson raise his voice and Ms Lowcock ask him several times to shut the door and sit down so they could continue the discussion. He then saw Mr Hanson standing over Ms Lowcock’s desk and swearing in a very loud voice. Mr Hanson then left the office and went downstairs. Mr Barlow then went and checked on Ms Lowcock, who said she was shocked by Mr Hanson’s reaction, but was otherwise okay. He then telephoned Mr Lowcock to report what he had seen and was told to complete an incident report.
 Mr Barlow also indicated in cross-examination that he was not able to understand the context of the discussion between Mr Hanson and Ms Lowcock from where he was sitting. He also did not consider it necessary to intervene. He was interviewed by Mr Lowcock around two weeks later and told him that he viewed Mr Hanson’s behaviour as intimidating, but did not consider it constituted physical or verbal abuse. He also said he had seen Mr Lowcock swear and yell in the office, and on occasions this behaviour had been directed at his wife.
 The parties in this matter have, in large part, provided divergent evidence about what occurred in the final months of Mr Hanson’s employment at Precept Services. The evidence indicates that up to that point he had generally been regarded as a valued employee. However, the relationship clearly soured in the period leading up to his termination.
 The letter of termination makes reference to a range of matters that formed the basis of the decision by Precept Services to terminate Mr Hanson’s employment. However, the evidence of the Managing Director makes clear that the decision to dismiss him with immediate effect on grounds of serious misconduct was based on his behaviour in the discussion with Mr Lowcock’s wife, Ms Lisa Lowcock, in her office in July last year, and his subsequent refusal to participate in the discussions in the meeting on 7 September. I now turn to deal with the application taking into account each of the considerations in s.387.
 An explanation about the nature of conduct or behaviour that might be encompassed within the phrase “harsh, unjust or unreasonable” is contained in the decision in Byrne & Frew v Australian Airlines Ltd 26 when McHugh and Gummow JJ stated as follows:
“…It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 27
 The decision of the Full Bench of Fair Work Australia in the matter of L. Sayer v Melsteel Pty Ltd 28 also provides guidance about the Commission’s role in regard to each of the considerations in s.387. It concluded:
“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 29
 The existence or not of a “valid reason” is invariably an important issue in any unfair dismissal application, and is often determinative. For example, in the often cited decision of Parmalat Food Products Pty Ltd v Kasian Wililo 30 a Full Bench of the Commission made the following statement about the importance of “valid reason”:
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination.” 31
 It is also clear that the reason must be objectively valid. It is not sufficient that the employer believes it had a valid reason for termination. This was made clear in the Full Bench decision handed down in Rode v Burwood Mitsubishi 32 at paragraph 19 where the Full Bench held:
“...the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 33
 The decision in Selvachandran v Peterson Plastics Pty Ltd 34 also makes clear that the reason should also be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”35
 As indicated, the evidence of Mr Lowcock makes clear that the decision to dismiss Mr Hanson on grounds of serious misconduct was initially based on what occurred in the discussion on 20 July last year involving Mr Hanson and Ms Lowcock. His evidence also makes clear that the decision did not have anything to do with the warning provided to Mr Hanson about his failure to leave his operations diary at work when he went on annual leave. The evidence also indicates that the decision was not related to the other matters set out in the termination letter. It is unclear why those additional matters were included in the letter, although it appears that a draft letter encompassing a broad range of matters was prepared by Ms Lowcock in advance of the discussions on 7 September 2016 when Mr Hanson’s employment was terminated. This was confirmed in the evidence of Mr Lowcock.
 On reviewing the respective evidence provided by the parties I am satisfied, firstly, that it establishes that Mr Hanson’s behaviour in the discussions with Ms Lowcock on the afternoon of 20 July 2016 was inappropriate and unacceptable. Ms Lowcock’s evidence is that she felt intimidated by Mr Hanson’s actions in leaning over her desk in an aggressive manner, and by his language which involved the use of various swear words. This evidence is supported by Mr Barlow, who was in an adjacent office. He heard Mr Hanson swearing in a loud voice, although he was not close enough to be able to understand the context of what was being discussed. He did not consider Mr Hanson’s behaviour required him to intervene, although he did telephone Mr Lowcock, who was in Albury at the time, to tell him what had occurred.
 However, despite concluding that Mr Hanson’s behaviour was inappropriate and unacceptable I am also satisfied that other considerations need to be taken into account in determining whether Precept Services had a valid reason to terminate his employment. Firstly, the evidence makes clear that Mr Hanson was dealing with some difficult issues at the time. He was concerned that his son, who is also employed at Precept Services as an electrical apprentice, had failed to satisfy the academic requirements associated with his apprenticeship. In addition, he was annoyed because he had not been permitted to be involved in a meeting earlier that day with his son to discuss this situation, and he blamed Mr Lowcock for this. This apparently led him to confront Ms Lowcock that afternoon, and to recall a conversation between Mr Lowcock and his wife some months previously, when Mr Lowcock allegedly swore at his wife and then hung up the phone. Mr Hanson’s understandable concern about his son does not necessarily excuse his behaviour, but it does provide an explanation about why he behaved as he did.
 Secondly, despite the significance that Precept Services now places on what happened in those discussions in July last year its immediate response was very different. The evidence indicates that the incident was not discussed, or made mention of, or raised in any way with Mr Hanson until he was finally asked to attend the meeting on 7 September when his employment was terminated. This was more than 7 weeks after the incident occurred.
 This was despite the fact that the evidence indicates Mr Lowcock was back in the office on the following day after returning from Albury. He was also in the office in the days that followed. However, the subsequent process of investigation moved slowly. Mr Barlow’s evidence indicates he was interviewed by Mr Lowcock around 2 weeks after the incident. Mr Lowcock also spoke with his wife at some point. As indicated, the matter was not raised with Mr Hanson until 7 weeks after the incident. There were some periods of annual leave and other commitments that delayed the investigation, however, the lack of urgency in responding is hard to understand in the context of behaviour that was ultimately deemed significant enough to warrant summary dismissal on grounds of serious misconduct.
 Mr Lowcock also instructed his wife to make sure she was not alone with Mr Hanson from that point, however, this did not prevent him from instructing her to give Mr Hanson a written warning about another matter, admittedly in the presence of the Office Manager. Mr Hanson’s evidence, which was not contradicted, indicates this discussion took place in a jovial and light-hearted manner, with no sense that Ms Lowcock felt threatened or concerned about meeting with him, despite the apparent significance attached to the earlier incident.
 The evidence also indicates that what might be described as robust language was commonly used in the workplace, particularly by the Managing Director. This was referred to in the evidence of Mr Hanson when he stated that Mr Lowcock often swore at other employees, including his wife. Mr Lowcock also acknowledged in cross-examination that he had sworn in the workplace, on occasions, and this had included language directed at Ms Lowcock, possibly while Mr Hanson was present. Mr Barlow also indicated in cross-examination that he had seen Mr Lowcock swear and yell in the office, and on some occasions this behaviour had been directed at his wife.
 Ms Hanson also indicated in her evidence that Mr Lowcock had sworn at her during the course of a telephone discussion sometime during the middle of 2015, after she had contacted him to discuss issues involving her son, who was also employed by the business. She said Mr Lowcock then hung up on her. Mr Lowcock could not recall this discussion.
 However, I am satisfied that the evidence establishes that the use of robust language in the workplace was not unusual or uncommon, and that it was accepted and tolerated to a large extent, given the example set by the Managing Director. While this again does not provide an excuse for Mr Hanson’s behaviour, he does appear to have been judged by a different standard to that applied to the behaviour of others in the workplace.
 The circumstances also raise an issue of proportionality in terms of whether, to use a hackneyed analogy, the punishment can be said to fit the crime. Mr Hanson’s behaviour was not acceptable and is not condoned. However, the surrounding circumstances raise a legitimate question about whether his behaviour provided a valid reason for his summary dismissal on grounds of serious misconduct, or whether instead some lesser disciplinary action was more appropriate. As the decision in Rode v Burwood Mitsubishi 36 makes clear it is not sufficient for an employer to simply maintain or act in the belief that termination was for a valid reason. It must instead have a valid reason that is sound and defensible and can be justified on an objective analysis of the relevant facts. I am not satisfied that this test has been met in the context of what occurred on 20 July last year and Mr Hanson’s summary dismissal 7 weeks later.
 Mr Hanson submits that he was not notified of the reasons for his dismissal. Apart from being told two written complaints had been received his evidence indicates the nature of the complaints, and who made them, were only made known to him when the Employer Response document was filed after his unfair dismissal application was lodged. The termination letter also does not make specific reference to what occurred on 20 July 2016. Mr Hanson’s evidence also indicates that Mr Lowcock refused to provide any further details in the meeting on 7 September. However, Mr Hanson’s frustration at being “ambushed” 37 in that meeting, as he described it, and then walking out also precluded any further discussion from taking place.
 The evidence indicates that Mr Hanson was not given any prior notice of what the meeting on 7 September was to be about. He was instead asked at short notice to attend the meeting in the board room, with no prior indication of what was to be discussed. He was then told that two complaints had been made about his behaviour. It appears he then ended the discussion before any further elaboration could be provided.
 Mr Lowcock’s evidence also confirmed that a termination letter had been prepared in advance of the meeting, suggesting that a decision to terminate Mr Hanson’s employment had already been made and the meeting was simply a case of “going through the motions.” The meeting was then curtailed when Mr Hanson’s frustration at the process he was involved in caused him to abruptly leave the meeting.
 There is nothing to suggest that there was any unreasonable refusal by Precept Services to allow Mr Hanson to have a support person present in the discussions on 7 September. However, I am also satisfied that he did not turn his mind to the option of having a support person present, given he was not told he was being asked to attend a meeting involving a discussion relating to his dismissal.
 It is also clear that by contrast Precept Services had gone to some lengths to prepare for the meeting. Both Mr and Ms Lowcock were in attendance. They had also arranged for an employee from a related business to attend to take minutes. This suggests it was clearly aware of the significance of the matters to be discussed and their potential impact on Mr Hanson. It is unfortunate that he was not provided with the same opportunity to prepare himself.
 This consideration is not relevant as Mr Hanson’s termination was not due to unsatisfactory performance.
 Precept Services is not a large organisation and it is acknowledged that its size and limited resources had an impact in terms of the processes involved in investigating what occurred, and then implementing the decision to dismiss Mr Hanson.
 Precept Services does not have a dedicated HR specialist, and does not have dedicated HR expertise. The evidence indicates it relies on its industry body for advice and assistance in this regard. The lack of dedicated resources in these areas inevitably had an impact on the procedures involved in effecting Mr Hanson’s dismissal.
 I am not aware of any further issues that need to be considered in this context.
 I have had regard to each of the matters in section 387 that the Commission must take into account. I am satisfied, in conclusion, that Mr Hanson’s dismissal was at least harsh and unreasonable. In coming to this decision I have had particular regard to the conclusions reached in regard to “valid reason.” Mr Hanson was provided with a letter of termination at the time of his dismissal which cited various reasons for the decision to terminate his employment. However, the evidence indicates that the actual reason for his dismissal was not specifically referred to in the letter. In short, it is difficult to understand why his employment was actually terminated and what was the real reason for that decision. Regardless, I am not satisfied that the behaviour ostensibly relied on provided a valid reason for his dismissal, particularly as it was deemed to constitute serious misconduct justifying summary dismissal. I am satisfied instead that some lesser response was more appropriate.
 I have also had regard to the process involved. Mr Hanson was not given a clear indication about the reason for his dismissal, even in the termination letter given to him at the time. This obviously made it difficult for him to respond. In addition, he was not provided with any advance notice or forewarning of the matters to be discussed in the meeting on 7 September 2016. This clearly contributed to his frustration which boiled over in the meeting and led to it coming to an abrupt end.
 Having determined that Mr Hanson was unfairly dismissed I now turn to consider what is appropriate by way of remedy. Section 390 of the Act provides:
“(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.” 38
 Mr Hanson does not seek to be reinstated to his former position. His submissions refer to the fact that Precept Services is a small business, and both the Managing Director and his wife, who also has a senior position in the business, were directly involved in the circumstances surrounding his termination. On this basis Mr Hanson concedes that reinstatement is not a realistic option given the breakdown in trust and confidence between the parties. I agree with this submission.
 Section 392 of the Act continues to state:
(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.
(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.” 39
 In deciding what, if any, compensation should be ordered I have had regard to each of the matters in s.392 and the evidence I consider relevant in this context. It is also clear from the established authorities that orders in regard to compensation are designed to compensate in lieu of reinstatement for losses reasonably attributable to the employee’s unfair dismissal. I have also had regard to the approach adopted by the Full Bench in the decision of Sprigg v Paul’s Licensed Festival Supermarkets (Sprigg). 40 In summary, it requires that an estimate is firstly made of the remuneration the employee would have received if he/she had not been dismissed. This requires that an assessment be made about the anticipated period of future employment. Secondly, any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment is deducted. Thirdly, an amount for contingencies should be deducted. This generally involves deduction of an amount attributable to potential changes in earnings or earning capacity. This amount should next be adjusted for the impact of taxation. Finally, it should be assessed against the compensation cap. If the amount is more than the cap then it should be reduced to that level.
 Precept Services is not a large organisation, having around 20 employees. However, there is no evidence to suggest an order for compensation in favour of Mr Hanson would impact on its viability.
 It is always difficult to anticipate with any certainty how much longer a person is likely to remain in their current employment. Mr Hanson had been employed by Precept Services for more than four and a half years at the time he was dismissed. As indicated in his submissions this is not a “fleeting” 41 period of employment. He was in a position of some seniority. The evidence also indicates that for much of this time he was considered to be a conscientious and valued employee. However, it also appears that for whatever reason the business decided in the period leading up to his dismissal that it wanted to terminate his employment. In these circumstances I am satisfied that it is reasonable to conclude against the background of his past employment record and his likely future prospects that Mr Hanson would have continued in employment for a further period of at least 6 months or 26 weeks.
 His gross salary was indicated to be $77,188.80, or a weekly amount of $1484.40. This amounts to $38,594 over a 26 week period. I am satisfied that it is appropriate to deduct an amount of 10% in respect of contingencies from this figure given possible changes in earning capacity, leaving an amount of $34,734.56. I am also satisfied that Mr Hanson’s misconduct did contribute to the decision to dismiss him, despite not providing a valid reason for his dismissal. It is appropriate in these circumstances to reduce the amount of compensation by a further amount of 20%, leaving an amount of $27,787.65. This amount will obviously be required to be taxed according to law. I therefore determine that an amount of $27,787.65 should be awarded to Mr Hanson, less taxation. This amount is to be paid within 30 days of this decision. An order to this effect is also issued in conjunction with this decision.
T Hancock for the Applicant.
A Costa for the Respondent.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR591013>
1 Fair Work Act 2009 (Cth) s 387.
2 Transcript at PN169.
3 Ibid at PN128.
4 Ibid at PN141.
5 Exhibit SH2 at attachment SH-2.
6 Exhibit SH1 at .
8 Ibid at .
9 Respondent’s Outline of Submissions, dated 12 December 2016, at .
11 Exhibit PS3 at .
13 Ibid at .
14 Exhibit PS2 at .
15 Exhibit PS3 at [13.]
16 Ibid at .
18 Ibid at .
19 Exhibit PS1 at .
20 Ibid at .
21 Ibid at .
22 Transcript at PN457.
23 Exhibit PS1 at .
24 Ibid at .
25 Ibid at .
26 (1995) 185 CLR 410.
27 Ibid at 465.
28  FWAFB 7498.
29 Ibid at .
30  FWAFB 1166.
31 Ibid at .
32 Print R4471, 11 May 1999, Ross VP , Polites SDP , Foggo C.
33 Ibid at .
34 (1995) 62 IR 371.
35 Ibid at 373.
36 Print R4471, 11 May 1999, Ross VP , Polites SDP , Foggo C.
37 Transcript at PN141.
38 Fair Work Act 2009 (Cth) s 390.
39 Ibid at s 392.
40 (1998) 88 IR 21.
41 Transcript at PN1952.