| [2017] FWC 5068 [Note: Appeals pursuant to s.604 (C2017/5799 and C2017/5803) were lodged against this decision - refer to Decision dated 31 October 2017 [[2017] FWC 5647] and Full Bench Decision dated 24 January 2018 [[2018 FWCFB 479] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Minas Trialonas
v
Steric Solutions Pty Ltd
(U2016/15558)
COMMISSIONER JOHNS |
SYDNEY, 29 SEPTEMBER 2017 |
Application for an unfair dismissal remedy.
Introduction
[1] On 23 December 2016 Mr Minas Trialonas (Applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of his dismissal by his employer, which he identified as “3D Scaffolding”. The identity of the employer was disputed. It was necessary to determine the same at as a preliminary issue (Preliminary Hearing).
[2] On 23 June 2017 I issued a decision 1 about the identity of Mr Trialonas’ employer. I determined that Steric Solutions Pty Ltd (Steric Solutions/Respondent/Employer) “was, at all times, the real and effective employer of Mr Trialonas”.2 I then decided to amend the original F2 – Unfair Dismissal Application to reflect the same.3 An Order to that effect was issued.4
[3] To ensure that both parties were afforded procedural fairness, in advance of the hearing concerning the merits of the unfair dismissal application and what remedy, if any, should be awarded, the substantive application for an unfair dismissal remedy was programmed for further hearing.
[4] Both the Applicant and Steric Solutions were directed to file in the Commission and serve on the Applicant “any further outline of argument, statements of evidence or other documents” they intended to rely upon.
[5] Noting that the Applicant had already filed extensive materials in the lead up to the Preliminary Hearing, on 5 July 2017 the Applicant filed only an additional submission (Exhibit “A9”).
[6] On 14 July 2017 the respondent filed a one page letter (Exhibit “R1”). For reasons known only to Steric Solutions it chose only to address s.387(a) of the FW Act.
[7] This decision is about the merits of the unfair dismissal application, i.e. whether Mr Trialonas was unfairly dismissed by Steric Solutions and, if so, what remedy, if any, should be awarded.
The Merit/Remedy Hearing
[8] At the merit/remedy hearing:
a) the Applicant continued to be represented by Mr A Jensel of counsel, instructed by Mr A Keleman, the Applicant’s paid agent. The applicant gave evidence on his own behalf.
b) Steric Solutions was represented by Leanne Docherty, its Director. She gave evidence on its behalf.
[9] In advance of the Preliminary Hearing the parties had filed materials. In coming to this decision the Commission, as presently constituted, has had regard to those documents to the extent that they addressed substantive issues and remedy. The Commission, as presently constituted has also had regard to the documents filed in advance of the merit/remedy hearing and the evidence given on 28 July 2017.
[10] In coming to this decision I have also had regard to the non-contentious matters listed in the decision of 23 June 2017 and repeated below:
“[26] …
a) In or around June 2006 the Applicant received a phone call from Robert Docherty. Robert Docherty offered the Applicant a job. The applicant understood that job to be with 3D Scaffolding. 5 Only the Applicant and the respondent were party to that conversation.6
b) Leanne Docherty accepted that her father hired Mr Trialonas. 7 It was her evidence that it was likely that, after speaking with the Applicant, Robert Docherty spoke to her about the Applicant commencing work.8
c) On 1 July 2006 the Applicant commenced work. 9 He was employed as a yard hand.10 His job was to drive the forklift, sort scaffolding, stack scaffolding and check scaffolding.11
d) The applicant reported to Leanne Docherty. 12 In the day to day conduct of his work the Applicant received instructions from Leanne Docherty.13
e) The applicant wore a 3D Scaffolding uniform. 14
f) ….
g) The applicant’s wages were paid by Steric Solutions. For all of his employment he received payslips and Group Certificates from Steric Solutions. 15 When the Applicant filed his annual tax returns he listed Steric Solutions as his employer.16
h) When the Applicant made claims for workers’ compensation he nominated Steric Solutions as his employer. 17
i) On 6 December 2016 there was an incident. From the Applicant’s perspective there was machinery obstructing a pathway. Leanne Docherty said the Applicant should move it. Mr Trialonas (who is vision impaired in one eye) explained that when he walks into the factory from outside it takes time for his eyesight to adjust. He has previously stumbled and hurt himself. An argument ensued, in the course of which the Applicant called Leanne Docherty a “backstabbing cunt”.
j) ….
k) Leanne Docherty was so upset by what Mr Trialonas called her that she sent him home.
l) On 7 December 2016 the Applicant sent Leanne Docherty a text message and apologised. Ms Docherty did not respond, so Mr Trialonas called her. They chatted for a short while. Leanne Docherty invited Mr Trialonas to her home that evening so that they could talk. 18
m) At the meeting at her home Leanne Docherty offered Mr Trialonas his job back. She said she felt sorry for him. 19
n) On 8 December 2016 the Applicant attended for work. He and Leanne Docherty interacted normally and there was no discussion of the disagreement. 20 However, Ms Docherty said she thought she had made a mistake by allowing Mr Trialonas to return.21
o) On 9 December 2016 James Docherty attended the site. He and his niece, Leanne Docherty, had a loud disagreement. 22 It was Leanne Docherty’s evidence that James Docherty told her that Mr Trialonas was an unsafe worker and that “he shouldn’t be there anymore”.23 The exchange with her uncle caused Ms Docherty to cry.24
p) After the discussion with her uncle, Leanne Docherty approached the Applicant and told him that “James had directed her to dismiss [him]”. When the Applicant asked why, Ms Docherty responded by saying “because [you] don’t listen”. 25 Leanne Docherty said she could not recall what was said during this conversation.26 James Docherty said that all he did was provide his niece with “advice”. I reject his evidence. The version of events put forward by the Applicant is consistent with Leanne Docherty being in tears after the conversation with her uncle. Consequently, I accept the Applicant’s version of events.
q) The applicant packed up his belongings and left. 27
r) On 14 December 2016 Mr Trialonas and Leanne Docherty met at a pub. They spent a few hours together drinking and talking. 28 Ms Docherty apologised to the Applicant for putting him off so close to Christmas. According to Mr Trialonas, Ms Docherty said “James had forced her to do it against her will.”29 Ms Docherty initially said that she could not remember saying that.30 However, when it was put to her that that was Mr Trialonas’ evidence, she said “Okay”.31
s) From all of the above it seems that, more likely than not, the reason for the termination of Mr Trialonas’ employment was not the vulgar language that he directed at Ms Docherty on 6 December 2016, but a direction given by James Docherty to his niece. It seems that the reason for the termination was that the part owner of Ms Docherty’s only customer wanted Mr Trialonas gone. This put her in a difficult position, but she obliged.
t) At the time of his dismissal the Applicant earned $990.97 gross per week ($51,530.44 per annum).
u) Since the termination of his employment on 9 December 2016 the Applicant has been unemployed. 32 Although he has been able to pick up a couple of days work.33”
[11] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.
[12] 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.
[13] Having decided that Steric Solutions was the employer, the Commission, as presently constituted, is satisfied, the Applicant completed the minimum employment period, and the sum of his 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. Consequently, the Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal.
[14] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the FW Act.
[15] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW 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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[16] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the FW Act. Section 386 of the FW Act provides that:
(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.”
[17] There is no dispute that Ms Docherty as the Director of Steric Solutions, on 9 December 2016 terminated the Applicant’s employment. Consequently, the Commission, as presently constituted, finds that the Applicant was dismissed from his employment with the Respondent within the meaning of s.386 of the FW Act.
Was the dismissal a genuine redundancy?
[18] The Respondent did not submit that I should dismiss the application because the dismissal was a case of genuine redundancy. It is not applicable in the present matter.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[19] A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (Code). It is useful to set out s.388(2) of the FW Act:
“388 The Small Business Fair Dismissal Code...
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”
[20] To be satisfied that a dismissal was consistent with the Code the Respondent must be a “small business employer” for the purposes of the FW Act, which is defined at s.23:
“23 Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”
[21] The Respondent was a small business employer if immediately before dismissal they, and any associated entities, employed fewer than 15 employees including casuals employed on a regular and systematic basis and the Applicant.
[22] The Respondent submits they were a small business employer at the relevant time because it only employed two people (namely, David Docherty and the Applicant). This was not disputed by the Applicant.
[23] The Commission, as presently constituted, is satisfied that immediately before dismissal the Respondent employed fewer than 15 employees.
[24] Consequently, the Commission, as presently constituted, finds the Respondent was a small business employer within the meaning of s.23 of the FW Act immediately before the dismissal.
[25] The Small Business Fair Dismissal Code was declared by the Minister for Employment and Workplace Relations on 24 June 2009:
“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.”
[26] For the first time on 14 July 2017 the Respondent submits the dismissal of the Applicant complied with the Code because:
“Minas Trialonas was dismissed for serious misconduct including but not limited to language, intimidation, bullying and serious safety breaches as admitted by Mr Trialonas in the last hearing.”
Consideration
[27] A Full Bench of Fair Work Australia considered the summary dismissal aspect of the Code in John Pinawin T/A RoseVi.Hair.Face.Body v Domingo 34. The Full Bench set out a two part test to determine if the Respondent had complied with the Code:
“[29]... There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.” 35
[28] The relevant authority makes clear I must be satisfied the Respondent held a belief that the reason for dismissal was conduct sufficiently serious to justify summary dismissal. Further, I must also be satisfied that, if the Respondent held that belief, that it was based on reasonable grounds. Satisfaction as to whether the belief was based on reasonable grounds will include consideration as to whether investigations conducted by Respondent were a reasonable investigation of the matter.
[29] Accordingly, before I can apply the Code I must first determine the reason for dismissal.
[30] The chronology above evidences that,
On 6 December 2016 there was an incident that resulted in the Applicant swearing at Leanne Docherty. Leanne Docherty was so upset by what Mr Trialonas called her that she sent him home.
a) On 7 December 2016:
i. the Applicant sent Ms Docherty a text message and apologised.
ii. Mr Trialonas called Ms Docherty. They chatted for a short while.
iii. Ms Docherty invited Mr Trialonas to her home that evening so that they could talk. 36
iv. At the meeting at her home Leanne Docherty offered Mr Trialonas his job back.
b) On 8 December 2016 the Applicant attended for work. He and Leanne Docherty interacted normally and there was no discussion of the disagreement. 37
c) On 9 December 2016:
i. James Docherty attended the site. He and his niece, Leanne Docherty, had a loud disagreement. 38 It was Leanne Docherty’s evidence that James Docherty told her that Mr Trialonas was an unsafe worker and that “he shouldn’t be there anymore”.39 The exchange with her uncle caused Ms Docherty to cry.40
ii. After the discussion with her uncle, Leanne Docherty approached the Applicant and told him that “James had directed her to dismiss [him]”. When the Applicant asked why, Ms Docherty responded by saying “because [you] don’t listen”. 41
iii. The applicant packed up his belongings and left. 42
d) On 14 December 2016 Mr Trialonas and Leanne Docherty met at a pub. They spent a few hours together drinking and talking. 43 Ms Docherty apologised to the Applicant for putting him off so close to Christmas. According to Mr Trialonas, Ms Docherty said “James had forced her to do it against her will.”44
[31] Having considered all the evidence, I am not satisfied that Mr Trialonas was terminated because of “language, intimidation, bullying and serious safety breaches.” Ms Docherty unequivocally reinstatement of him on the evening of 7 December 2016. She did not even give him a written warning about the events that led to termination on 6 December 2017. She did not give him a written warning about issues associated with language, intimidation, bullying and serious safety breaches. Despite Ms Docherty’s continuing concerns Mr Trialonas was reinstated. He worked without incident on 8 December 2016.
[32] For these reasons I find that the reason for the termination of Mr Trialonas’ employment on 9 December 2016w as that Ms Docherty’s uncle, James Docherty, directed her to do so. The reason for the termination was that the part owner of Ms Docherty’s only customer wanted Mr Trialonas gone. This put her in a difficult position, but she obliged.
[33] The reason for decision does not come within the ambit of the Code. In any case there is no evidence that Ms Docherty applied the Code.
[34] In all the circumstances, the Commission, as presently constituted, is satisfied the dismissal of the Applicant was not consistent with the Code.
[35] As I have found that the dismissal of the Applicant was not consistent with the Code, I proceed to consider s.387 of the FW Act.
[36] Having been satisfied of each of s.385(a),(c)-(d) of the FW Act, the Commission must consider whether it is satisfied the dismissal was harsh, unjust or unreasonable. The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the FW 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.”
[37] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:
.... 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.
[38] I am under a duty to consider each of these criteria in reaching my conclusion. 45
[39] I will now consider each of the criteria at s.387 of the FW Act separately.
Valid reason - s.387(a)
[40] The Respondent must have a valid reason for the dismissal of the Applicant “related to the person’s capacity or conduct”, although it need not be the reason given to the Applicant at the time of the dismissal. 46 The reasons should be “sound, defensible and well founded”47 and should not be “capricious, fanciful, spiteful or prejudiced.”48
[41] On 14 July 2017 Steric Solutions submitted that,
“Minas Trialonas was dismissed for serious misconduct including but not limited to language, intimidation, bullying and serious safety breaches as admitted by Mr Trialonas in the last hearing.”
[42] Mr Trialonas submitted that,
“1. The Commission has found, at [26] (with emphasis added):
From all of the above it seems that, more likely than not, the reason for the termination of Mr Trialonas’ employment was not the vulgar language that he directed at Ms Docherty on 6 December 2016, but a direction given by James Docherty to his niece. It seems that the reason for the termination was that the part owner of Ms Docherty’s only customer wanted Mr Trialonas gone. This put her in a difficult position, but she obliged.
2. The respondent has advanced just one reason to justify the dismissal of the applicant – the language he used on 6 December 2016. No other reason for dismissal has ever been advanced. Accordingly, the Commission has found that the ostensible reason for the dismissal is not the actual reason for the dismissal.
3. That Leanne Docherty’s only customer (James Docherty) wanted the applicant to be dismissed undoubtedly put Ms Docherty in a “difficult position.” Whatever commercial (and other) considerations may have led her to oblige do not cure an otherwise unfair dismissal. Ms Docherty’s commercial considerations are entirely separate from statutory obligations of fairness as between employer and employee. Those statutory obligations were not delegable.
4. Steric Solutions, not having advanced any, and the Commission not having found any, justifiable basis for the dismissal, it is necessarily to be regarded as unfair. Further, there is no evidence that, whatever the “true” reason for dismissal was, that it was ever:
(a) The subject of any prior warning to the applicant; or
(b) Put to the applicant at the time of dismissal or previously, such as to give him a procedurally fair opportunity to answer.
5. Although James Docherty suggested (apparently for reasons connected with his personal safety) that there had been safety issues as between the applicant and Steric (TT PN408-417), Leanne Docherty (as the putative employer) did not adopt that suggestion or provide any evidence whatsoever in that connection.”
[43] I have already determined above that,
“the reason for the termination of Mr Trialonas’ employment on 9 December 2016w as that Ms Docherty’s uncle, James Docherty, directed her to do so. The reason for the termination was that the part owner of Ms Docherty’s only customer wanted Mr Trialonas gone. “
[44] There is nothing in the reason for the dismissal that was related to Mr Trialonas capacity or conduct.
[45] In Exhibit R1, Ms Docherty submitted that,
“Minas Trialonas was dismissed for serious misconduct including but not limited to language, intimidation, bullying and serious safety breaches as admitted by Mr Trialonas in the last hearing.”
[46] However, notwithstanding the Directions issued by the Commission on 23 June 2017 to file “any further outline of argument, statements of evidence or other documents”, and being provided with every opportunity to submit evidence of “language, intimidation, bullying and serious safety breaches”, Ms Docherty/Steric Solutions decided not to do so.
[47] Consequently, I find that there was not a valid reason for the dismissal.
Notification of the valid reason - s.387(b)
[48] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 49 in explicit terms50 and in plain and clear terms.51 In Crozier v Palazzo Corporation Pty Ltd52 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations FW Act 1996 stated the following:
“[73] 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.” 53
Consideration
[49] While Mr Trialonas was notified of the reason for his dismissal (i.e. because “James had directed her to do so”), it was not a valid reason relating to Mr Trialonas’ capacity or conduct, it necessarily follows that the Applicant was not notified of the reason for the dismissal as contemplated by s.387(b) of the FW Act.
[50] I so find.
Opportunity to respond - s.387(c)
[51] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 54
[52] Because the termination of the Applicant’ employment did not relate to Mr Trialonas’ conduct or capacity it necessarily follows that he was no provided with an opportunity to respond to the same. The issued does not arise in the present matter.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[53] 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.
[54] Mr Trialonas did not request a support person. Consequently, I find the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.
Warnings regarding unsatisfactory performance - s.387(e)
[55] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 55
[56] At the hearing Ms Docherty submitted that,
“This is two years leading to this and I have given Mini so many warnings. I could no longer work with Mini any more. I’d had enough…” 56
“On numerous occasions. Numerous occasions. Numerous discussions about safety breaches, his attitude, his swearing, his behaviour towards me.” 57
[57] However, notwithstanding the submissions made on 28 July 2017, Steric Solutions decided not to file any evidence when provided with the opportunity to do so through the Directions issued on 23 June 2017.
Consideration
[58] The reason for termination was unrelated to unsatisfactory performance. Consequently, the issue of warnings did not arise in the present matter.
Impact of the size of the Respondent on procedures followed - s.387(f)
[59] The size of the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.
[60] In the present matter, I find the size of the employer’s enterprise did impact on the procedures followed in effecting the dismissal. Quite clearly, it impacted negatively. There was no procedure implemented by the Respondent.
Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[61] The absence of dedicated human resource management or expertise in the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.
[62] I find the absence of any such management or expertise did impact on the procedures followed by the Respondent in effecting the dismissal. No human resources specialist would have recommended to Ms Docherty that she terminate Mr Trialonas in the manner in which she did.
Other relevant matters - s.387(h)
[63] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.
[64] I consider it to be relevant to the determination of whether the dismissal of the Applicant was harsh, unjust or unreasonable that Ms Docherty terminated the employment of Mr Trialonas at the direction of Mr James Docherty, a shareholder in the business that was her only customer.
[65] One can imagine a circumstance were an employer might be left with no option but to act on the direction (for example, if the sole customer made a genuine threat to end the business relationship if the direction was not carried out). However, the evidence in this matter does not support such a finding.
Conclusion
[66] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is satisfied the dismissal of the Applicant was harsh, unjust or unreasonable. Accordingly, I find the Applicant’s dismissal was unfair.
[67] Section 390 of the FW Act sets out the circumstances in which I may make an order for reinstatement or compensation:
“390 When the FWC may order remedy for unfair dismissal
(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 Commission may make the order only if the person has made an application under section 394.
(3) The Commission 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.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[68] I have already dealt with the issues at s.390(1)(a)–(b) above. The Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal pursuant to s.382 of the FW Act and the Applicant was dismissed unfairly. Accordingly, the Commission is required to determine whether to order the reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate, an order for compensation if it is satisfied such an order is appropriate in all the circumstances.
Reinstatement
[69] The Applicant does not seek reinstatement. He seeks compensation as the primary remedy. Regardless of the remedy sought by the Applicant, s.390 of the FW Act requires I first determine whether reinstatement is appropriate before I may consider an order for compensation.
[70] The parties agree that reinstatement would be inappropriate.
Consideration
[71] In Regional Express Holdings Ltd T/A Rex Airlines 58 a Full Bench of Fair Work Australia considered what factors may be taken into account when considering if reinstatement is inappropriate under s.390(3)(a) of the FW Act:
“[26] Whenever an employer dismisses an employee for misconduct, assuming the employer is acting honestly, there is an implied loss of trust and confidence in the employee. If it is subsequently found that the termination was harsh, unjust or unreasonable it is appropriate to consider whether the relationship can be restored if the employee is reinstated. That question cannot be answered solely by reference to the views of management witnesses. All of the circumstances should be taken into account. In this case there are a number of relevant matters. They include the fact that not all of the conduct alleged against the respondent has been proven, the respondent’s apparently unblemished record in the performance of his flying duties over a period of 14 years, the fact that the misconduct is not directly related to the performance of the respondent’s professional duties as a first officer and Rex’s failure to pursue any substantial disciplinary action against another pilot who, it is alleged, has been guilty of misconduct at least as serious as that of which the respondent was accused. The significance of the last consideration is that the pilot in question is still carrying out the full range of his duties, despite allegations of conduct of a kind which, in the respondent’s case, is said to have led to an irrevocable loss of trust and confidence. Assuming a positive approach on both sides we find there is a reasonable chance that the employment relationship can be restored with the necessary level of mutual trust.” 59
[72] It could be argued that in circumstances where,
a) Mr Trialonas engages in appalling conduct on 6 December 2016,
b) Mr Trialonas apologises for that conduct on 7 December 2016,
c) Mr Trialonas and Ms Docherty meet and resolve their differences on 7 December 2016,
d) Mr Trialonas returns to work on 8 December 2016 and is not given a warning about his conduct on 6 December 2016 (or any other conduct),
e) After the final termination on 9 December 2016, Ms Docherty is still prepared to socialise with Mr Trialonas on 14 December 2016,
that this is an employment relationship that is amendable to reinstatement.
[73] However, in the circumstances where:
a) the parties agree that reinstatement would be inappropriate;
b) the work environment would have Ms Docherty and Mr Trialonas again work in close proximity with each other (and likely Mr James Docherty when he attend the site),
c) the level of animosity that the present proceedings have caused,
d) more than 9 months have now elapsed since the termination of employment,
e) Mr Trialonas has found some (albeit minimal) alternative employment,
the Commission, as presently constituted, is satisfied that it should order reinstatement is inappropriate.
Compensation
[74] Section 390(3)(b) provides the Commission may only issue an order for compensation to the Applicant if it is appropriate in all the circumstances.
[75] The Applicant submits that an order for compensation is appropriate in all the circumstances. The Respondent submits compensation is not appropriate.
[76] I have already determined that the dismissal was unfair. Consequently, the Commission, as presently constituted, is satisfied that an order for compensation is appropriate in all the circumstances of this case.
[77] Section 392 of the FW 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:
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[78] The method for calculating compensation under s.392 of the FW Act was recently 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 60 (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 FW Act 1996 in Sprigg v Paul’s Licensed Festival Supermarket61 and Ellawala v Australian Postal Corporation62. I have adopted the methodology utilised in Bowden in determining the amount of a payment of compensation.
[79] I will now consider each of the criteria in s.392 of the FW Act.
Remuneration that would have been received: s.392(2)(c)
[80] The Applicant’s remuneration with the Respondent was $51,530.44.
[81] I should now determine the period of time the Applicant would have remained employed by the Respondent, or would have likely remained employed with the Respondent, had they not been dismissed.
[82] Mr Trialonas’ counsel submitted that the period of time would have been “if not for the long term foreseeable future, then certainly for the period of six months following termination.” 63
[83] Ms Docherty when asked for her submission on this issue said “Not long” 64 and that, “There’s no way he would have stayed there another six months.”65 She submitted the termination would still have occurred “prior Christmas”.66
[84] In the present matter the Applicant had been an employee for more than 10 years. There were no written warnings. His employment was (but for the events of 6 December 2016) unblemished.
[85] Notwithstanding the events of 6 December 2016, Ms Docherty decided to look beyond the same and reinstate the Applicant on and from 8 December 2016. Ms Docherty did not issue Mr Trialonas with a warning in respect of his conduct on 6 December 2016. Nor did she issue him with a warning in relation to any of the other the matters that she now alleges founded a decision to terminate his employment (“language, intimidation, bullying, serious safety breaches”). On 7 December and again on 14 December 2016 Ms Docherty was content to socialise with Mr Trialonas.
[86] Consequently, the conclusion to be reached is that, but for the intervention of Mr James Docherty, it is conceivable that Mr Trialonas’ employment would have continued, likely for some time. However, it must also be acknowledged that the working relationship was fractious and sensitive. Emotions were running high.
[87] I find that the Applicant would have continued to be employed by the Respondent for at least 12 months had he not been dismissed. The amount the Applicant would have received is therefore $51,530.44.
Remuneration earned: s.392(2)(e)
[88] Between the date of the dismissal (9 December 2016) and the Preliminary Hearing (5 May 2017) the Applicant had been unemployed. He had earned no income.
[89] 26 weeks from the date of dismissal takes a consideration of this issue up to 8 June 2017. Consequently, at the Merit/Remedy Hearing on 28 July 2017 Mr Trialonas gave some additional evidence to the effect that, between 1.5 and 2 months prior to 28 July 2017 (i.e. at or around 8 June 2017) he obtained some casual work (2 or 3 days per week) as a trades assistant earning around $300 per week. 67
[90] Ms Docherty elected not to cross-examine Mr Trialonas about this matter. 68
[91] I find the Applicant has earned $300 in remuneration for employment or other work during the period since the dismissal and deduct this amount from the compensation to be ordered. That is to say, the compensation to be Ordered is $51,230.44.
Income likely to be earned: s.392(2)(f)
[92] Because the termination occurred on 9 December 2016 and the Order to be made is more than 26 weeks after the termination occurred it is not relevant in the present matter to give consideration to the income likely to be earned by the Applicant from the time of the making of the order for compensation.
Other matters: s.392(2)(g)
[93] No submissions were made about the application of any contingencies. Ms Docherty elected not to say anything about this criterion. 69 Consequently, the Commission, as presently constituted, fines it is not appropriate in the circumstances that a contingency should be applied.
Viability: s.392(2)(a)
[94] Ms Docherty elected not to say anything about this criterion. 70
[95] I find an order for compensation in the amount proposed will not affect the viability of the Respondent’s enterprise.
Length of service: s.392(2)(b)
[96] I find that the Applicant’s period of service with the Respondent, being 10 plus years, should not affect the amount of compensation to be ordered.
Mitigating efforts: s.392(2)(d)
[97] 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. 71
[98] The evidence is that the Applicant has attempted to find work, but was unsuccessful until he found some casual work from around mid-May 2017.
[99] The Commission, as presently constituted, finds that the Applicant has made efforts to mitigate their loss suffered as a result of the dismissal.
Misconduct: s.392(3)
[100] I have not found any misconduct by the Applicant that contributed to the dismissal.
Shock, Distress: s.392(4)
[101] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.
Compensation cap: s.392(5)
[102] 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 the high income threshold immediately prior to the dismissal.
[103] The high income threshold immediately prior to the dismissal was $138,900.
[104] The amount the Applicant would have earned, or to which the Applicant was entitled, for the 26 week period immediately prior to the dismissal was $25,765.22.
[105] The amount of compensation I will order exceeds the compensation cap. I will reduce the amount of compensation to be ordered to $25,765.22.
Payment by instalments: s.393
[106] Noting that Ms Docherty made no submission about an order affecting viability of Steric Solutions I will not order that the payment be paid in instalments.
[107] The full amount must be paid within 28 days of the Order that will accompany this decision.
Conclusion
[108] The Commission, as presently constituted, is satisfied that the Applicant was protected from unfair dismissal, that the dismissal was unfair and a remedy of compensation in the amount of $25,765.22 is appropriate.
[109] An order will be issued with this decision.
COMMISSIONER
Appearances:
Mr A Jensel, for the Applicant
Ms Leanne Docherty, on behalf of Steric Solutions Pty Ltd
Hearing details:
2017
28 July
Sydney
Printed by authority of the Commonwealth Government Printer
<Price code C, PR596462>
2 Ibid [49].
3 Ibid [60], [63].
5 Exhibit “A6” para 2. At the hearing the Applicant maintained that he was offered a job by Robert Docherty (see Transcript PN209). The applicant’s Witness Statement was filed and served on or about 8 April 2017. 3D Scaffolding had every opportunity to call Robert Docherty to contest the evidence that he offered a job to the Applicant. For whatever reason 3D Scaffolding chose not to call Robert Docherty. Accordingly, the Commission was left with the uncontroverted evidence of the Applicant in so far as he attested to the conversation he had with Robert Docherty in June 2006. James Docherty gave evidence that Robert Docherty did not have the authority to employ anyone in June 2006, however, that evidence does not contradict what the Applicant says occurred in his conversation with Robert Docherty.
6 Transcript PN451.
7 Transcript PN896.
8 Transcript PN897.
9 In material filed after the hearing Leanne Docherty asserted that Mr Trialonas commenced employment on 7 February 2005. The Tax File Declaration document was not tendered by her.
10 Transcript PN92.
11 Transcript PN94.
12 Exhibit “A6”, para 3.
13 Transcript PN95 and PN475.
14 Exhibit “A6”, para 5.
15 Transcript PN187.
16 Transcript PN187.
17 Transcript PN203.
18 Exhibit “A6”, para 13. Confirmed by Ms Docherty Transcript PN967-976.
19 Transcript PN977.
20 Exhibit “A6”, para 15.
21 Transcript PN983.
22 Exhibit “A6”, para 16. Confirmed by Ms Docherty Transcript PN985-987.
23 Transcript PN988.
24 Exhibit “A6”, para 16. Confirmed by Ms Docherty Transcript PN994.
25 Exhibit “A6”, para 16.
26 Transcript PN995.
27 Exhibit “A6”, para 16.
28 Exhibit “A6”, para 16. Confirmed by Ms Docherty Transcript PN998-999.
29 Exhibit “A6”, para 17.
30 Transcript PN1001.
31 Transcript PN1002.
32 Transcript PN104.
33 Transcript PN105.
35 Ibid at [29].
36 Exhibit “A6”, para 13. Confirmed by Ms Docherty Transcript PN967-976.
37 Exhibit “A6”, para 15.
38 Exhibit “A6”, para 16. Confirmed by Ms Docherty Transcript PN985-987.
39 Transcript PN988.
40 Exhibit “A6”, para 16. Confirmed by Ms Docherty Transcript PN994.
41 Exhibit “A6”, para 16.
42 Exhibit “A6”, para 16.
43 Exhibit “A6”, para 16. Confirmed by Ms Docherty Transcript PN998-999.
44 Exhibit “A6”, para 17.
45 Sayer v Melsteel [2011] FWAFB 7498.
46 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
47 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
48 Id.
49 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
50 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
51 Previsic v Australian Quarantine Inspection Services Print Q3730.
52 (2000) 98 IR 137.
53 Ibid at 151.
54 RMIT v Asher (2010) 194 IR 1, 14-15.
55 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
56 Transcript PN348.
57 Transcript PN374.
59 Ibid at [26].
61 (1998) 88 IR 21.
62 Print S5109.
63 Transcript PN267.
64 Transcript PN402.
65 Transcript PN406.
66 Transcript PN408.
67 Transcript PN73-81
68 Transcript PN84-85.
69 Transcript PN434.
70 Transcript PN418.