| FWC 2207|
|FAIR WORK COMMISSION|
Fair Work Act 2009
Construction Staff NSW
DEPUTY PRESIDENT LAWRENCE
SYDNEY, 21 APRIL 2017
Application for relief from unfair dismissal.
 On 20 September 2016 Mr Jose Melim (the Applicant) lodged with the Fair Work Commission (the Commission), pursuant to s.394 of the Fair Work Act 2009 (the Act) an application for a remedy for unfair dismissal. The application, which was lodged by the Construction, Forestry, Mining and Energy Union (CFMEU) on the Applicant’s behalf, identified “Westform Formwork Construction Contractors Pty Ltd” as the employer.
 The Applicant commenced work on 11 August 2014. He was notified of his dismissal on 1 September 2016 and the dismissal took place on the same day.
 The Applicant was employed as a permanent full-time concrete patcher. On 22 July at the request of his supervisor, Alex Angelucci, the Applicant commenced leave due to a “shortage of work”. However, he received no further call. After a number of calls, including to the CFMEU, he was offered work on a job at Mascot. This was done by Paul Tilocca, a director of the employer. He commenced work on 24 August 2016. On 31 August, the Applicant stated that he had cleaned up some unset concrete, as instructed. On 1 September, he was told by the foreman and subsequently Mr Tilocca, on the telephone, that he was no longer required. The Applicant says that he was given no proper explanation for his dismissal other than an email that attached a separation certificate which referred to “shortage of work”. The Applicant denies that his work on 31 August was in any way substandard.
 The Applicant also submits that there was no fair process of investigation by the Respondent. He was not told the reason for his dismissal or given an opportunity to respond.
 The matter was listed for conciliation on 27 October 2016.
 However, “Westform Formwork Contractors” lodged an F3 on 24 October 2016 which asserted that the Applicant was not an employee of theirs.
 The CFMEU lodged an amended F2 on 27 October 2016 which nominated the employer as “Construction Staff NSW”. It states that the Applicant’s commencement date was 25 March 2015. The Applicant was covered by the A.C.N. 604 437 292 Pty Ltd t-as Construction Staff NSW/ CFMEU Collective Agreement 2015 – 2017 [AE415740] (the Agreement). The nominal expiry date of the Agreement is 30 June 2017. It appears that there was a transfer of business from Gavcon Constructions Pty Ltd, the Applicant’s original employer, on or about 25 March 2015 to the Respondent.
 The CFMEU also lodged an application on 27 October 2016 seeking to amend the original application, pursuant to s.586 of the Act.
 Mr Paul Tilocca, on behalf of the Respondent advised Deputy President Clancy’s chambers on 24 November, that it did not object to the amendment.
 Deputy President Clancy issued an order on 28 November 2016 granting the amendment.
 The Respondent lodged an F3 response on 2 December 2016. It was signed by Paul Tilocca. It confirmed that the Applicant commenced on 25 March 2015 and was dismissed on 31 August. It said that the application was out of time. It stated that the Applicant was terminated on 31 August 2016 because he refused to clean up the spilt concrete as instructed by his supervisor “Matai". It also stated that there was not sufficient work for a patcher on the job.
 I conducted a telephone mention on 11 January 2017. Mr T. Fischer of the CFMEU appeared for the Applicant who it appears was overseas. Mr Tilocca appeared for the Respondent.
 Directions were issued and the matter set down for hearing on 6 March 2017.
 There was another telephone mention on 20 January in which Mr Fischer and Mr Tilocca participated. It had been anticipated that I would attempt to conciliate but the Applicant’s continued unavailability prevented this.
 Because of its inability to contact the Applicant, the CFMEU advised me on 6 February 2017 that it was ceasing to act for him.
 However, on 9 February the Applicant did answer his phone in response to a call from my chambers. It appears that he had been overseas.
 The hearing was then confirmed for 6 March with amended directions being issued.
 The CFMEU commenced to act for the Applicant again and lodged an outline of submissions and witness statement from the Applicant.
 Mr Fischer and the Applicant appeared at the hearing but there was no appearance on behalf of the Respondent, despite repeated attempts to contact Mr Tilocca.
 The hearing proceeded with oral submissions and evidence being provided by the Applicant. On 13 March I sent a copy of the transcript of proceedings to Mr Tilocca, but have received no reply.
 I must decide whether the application should be granted, despite the Respondent’s failure to participate in the hearing.
Protection from Unfair Dismissal
 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.
 Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
 As mentioned above, the Applicant was covered by an enterprise agreement. His hourly rate, according to the Respondent’s F3 was $30.02 per hour, equating to $1,140.76 for 38 ordinary hours, which is well below the high income threshold. It is clear, therefore, that he was a person protected from unfair dismissal in accordance with s.382.
 Section 396 provides that certain matters must be determined by the Commission before proceeding to deal with the merits of a matter. It provides:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
 The Respondent took issue in its F3 as to whether the application was lodged in time. Presumably, this related to the amended application. The application was lodged in time and the order of Deputy President Clancy cured the defect in the naming of the employer. The correcting order had the effect of making the original application apply to the Respondent. The Applicant cannot be blamed for the error that was made.
 There was also no proper submission that this was a genuine redundancy.
 I note that the Respondent had 58 employees.
 I am therefore satisfied that no s.396 matters are at issue.
Was the dismissal unfair?
 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:
“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.”
 No issue was raised pursuant to s.385(a), (c) or (d).
Harsh, Unjust or Unreasonable
 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:
“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.”
The Applicant’s case
 It was conceded that the Applicant worked somewhat irregularly for the Respondent, which was a labour hire operator, whose main client was Westform Formwork Contractors Pty Ltd, hence the confusion about the identity of the employer. He had a break of five weeks before starting at the Mascot job on 24 August where he worked until 31 August. He was dismissed without notice on the following day.
 It is submitted that there was no valid reason for the dismissal and no proper process for investigating the allegations against the Applicant or providing him with an opportunity to respond.
 Further, nothing was put by the Respondent which could establish a genuine redundancy. The Respondent simply asserted, in the separation certificate that there was a “shortage of work”. No consultation took place as required by the enterprise agreement.
 The Applicant denies the Respondents’ version of events. He says that he and other workers were instructed by Matai, his supervisor, to clean up the unset concrete. He went to get shovels from the concreters but Matai angrily snatched them off him. The Applicant continued with his existing work. The Applicant had no role in creating the mess and was prepared to help in cleaning it up.
 It was Matai who told him on 1 September 2016 that there was no more work for him. The Applicant questioned this and was told by Paul Neville, the Respondent’s General Manager, that he accepted the supervisor’s version of events.
 The Applicant attached his pay slips for 2016, up to 15 July, which showed that his average weekly earnings were $1,853 per week. Discussion with Mr Fischer during the hearing established the figure of $1,554.72 as a reasonable estimate for ordinary hours (see Transcript PN146 – PN188).
Valid Reason – s.387(a)
 In Container Terminals Australia Limited v Toby  Print S8434, a Full Bench said ‘In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable’.
 Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 said:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct, or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly ...”
 In Parmalat Food Products Pty Ltd v Wililo,  FWAFB 1166, the Full Bench held:
“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. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”
 The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post  FWCFB 6191 provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered under s.387:
“ Northrop J’s reasoning anticipated the reasoning of the High Court in Victoria v Commonwealth – that s.170DE(2) by its operation could render invalid a reason that would otherwise have been a valid reason. The fact that some dismissals are “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” means that the class of dismissals that are “harsh, unjust or unreasonable” is greater than the class of dismissals where there is no “valid reason” for the dismissal.
 Section 387 specifies a range of matters that must be considered in each case. Section 387(h) requires consideration of “any other matters that FWA considers relevant”. In any given case, there will be a range of matters, beyond those specified in s.387(a) to (g), that rationally bear upon whether the dismissal is “harsh, unjust or unreasonable” and thus are “relevant matters” that must be considered pursuant to s.387(h).
 Often it will not make any difference to the ultimate outcome whether a particular circumstance is considered pursuant to s.387(a) in determining whether there is a valid reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate determination of whether the dismissal was “harsh, unjust or unreasonable”. However, in some cases it may matter greatly. That will tend to be so when the particular misconduct, shorn of the personal circumstances of the employee and the broader context beyond the particular acts or omissions that are said to constitute the misconduct, is clearly a matter that a reasonable employer is entitled to take seriously. This is such a case.
 In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1). “
 Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.
 A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.
. . .
 Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.”
 I respectfully adopt this approach.
 The CFMEU substantially treated this as case of summary dismissal. In my view, they were correct in doing so. In the absence of evidence and submissions from the Respondent, the Applicant’s version of events is the only one that can be tested.
 The Applicant did change his story somewhat from the original application when he was in the witness box. However, he presented as generally truthful. There is no reason to think that he behaved inappropriately or refused to carry out instructions. There is no evidence of any previous warnings or issues with his performance.
 Accordingly, I find that there was no valid reason for the dismissal.
Notification of a valid reason – s.387(b)
 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  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:
“ As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
 I am satisfied that the Applicant was not notified of the reason for his dismissal before the decision was made. No proper investigation of what occurred was carried out by the Respondent. Indeed, the Applicant was given a false reason for his dismissal by the Respondent when he was told that it was because of a shortage of work.
Opportunity to respond s.387(c)
 An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal way to ensure the employee relating to the conduct or capacity of the person. This criterion is to be applied in a common sense is treated fairly and should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.
 It follows that the Applicant had no opportunity to respond.
Unreasonable refusal by the employer to allow a support person – s.387(d)
 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.
 The Applicant was not given an opportunity to have a support person involved.
Warnings regarding unsatisfactory performance – s.387(e)
 There is no evidence of any prior warnings being given.
Impact of the size of the Respondent on procedures followed – s.387(f)
 The Respondent is not a large business but that is no excuse for its complete failure of proper process and failure to attend the hearing.
Absence of dedicated human resources management specialist/expertise on procedures
followed - s.387(g)
 This factor does not excuse the Respondent’s conduct.
Any other matter that the FWC considers relevant
 Section 387(h) allows the Commission to consider any other matters it considers relevant. These must be considered in the context of the object of Part 3 - 2 of the Act contained in s.381(2) to “ensure that a ‘fair go all round’ is accorded to both the employer and the employee concerned”.
 The fact that the Respondent chose not to participate in the final hearing does it no credit.
 I am satisfied that the Applicant’s dismissal was harsh, unjust and unreasonable in accordance with s.387. Accordingly, I find that the dismissal was unfair within the terms of s.385.
 Having found that the dismissal was unfair, I now turn to the appropriate remedy.
 Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:
(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.”
 Given the uncertain status of the Respondent I do not consider that reinstatement is appropriate. There was a suggestion from the CFMEU that the Respondent may have ceased trading. As well, the Applicant’s employment relationship with the Respondent was somewhat tenuous which is not surprising given that it is a labour hire company.
 Section 390(3)(b) provides that I may only issue an order for compensation to the Applicant if it is appropriate in all the circumstances.
 I have found that the Applicant has been unfairly dismissed and that reinstatement is not appropriate in all the circumstances. I am satisfied that an order for compensation should be made.
 Section 392 of the Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered provides:
(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.”
 The method for calculating compensation under s.392 of the Act was dealt with by a Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge,  FWCFB 431 (Bowden). In that decision the Full Bench set out the order in which the criteria and other factors should be applied, taking into account authority under the Workplace Relations Act 1996 in Sprigg v Paul’s Licensed Festival Supermarket, (1998) 88 IR 21 and Ellawala v Australian Postal Corporation, Print S5109 (Ellawala). I have adopted the methodology utilised in Bowden in determining the amount of a payment of compensation.
 I will now consider each of the criteria in s.392 of the Act.
Remuneration that would have been received: s.392(2)(c)
 As I have already noted, the Applicant earned on average $1,554.72 per week. Given his relatively short term and intermittent employment, I am satisfied that he would have remained in employment with the Respondent for another eight weeks if he had not been dismissed. He could have earned $12,433.60.
 There was no evidence of the Applicant earning significant income since the dismissal.
Income likely to be earned: - s.392(2)(f)
 This matter is not relevant.
Other matters: - s.392(2)(g)
 There are no other matters that I consider appropriate to consider.
Viability: - s.392(2)(a)
 This matter is not relevant.
Length of service: - s.392(2)(b)
 I have taken the Applicant’s service into account.
Mitigating efforts: - s.392(2)(b)
 In considering whether the Applicant has taken steps to mitigate the loss suffered as a result of the dismissal I should take into account whether the Applicant acted reasonably in the circumstances, (Ellawala).
 I have no reason to doubt that the Applicant has been searching for work.
There are no grounds for adjusting the compensation on the ground of any misconduct by the Applicant.
Shock, distress: s.392(4)
 I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.
Compensation cap: s.392(5)
 I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the Applicant, or to which the Applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or half the amount of the high income threshold immediately prior to the dismissal.
 Obviously, this factor is not relevant.
 Accordingly, I will order the Respondent to pay to the Applicant an amount of $12,433.60.
 I am satisfied that the Applicant was protected from unfair dismissal and that the dismissal was unfair and a remedy of compensation is appropriate. In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’.
 An Order [PR592034] will be issued with this decision.
T. Fischer with J. Melim for the Applicant;
January 11, 20;
Printed by authority of the Commonwealth Government Printer
<Price code C, PR591984>