[2018] FWC 5816

Due to a system error, the attached document issued with codes [2018] FWC 4960, PR620134 issued on 24 August 2018 has been re-issued to correct document referencing.

Yota Amanatidis

Relief Associate

Dated 14 September 2018

Fair Work Act 2009
s.394 - Application For Unfair Dismissal Remedy

Wenfu Yang
v
Comfort Management Pty Ltd
(U2018/4121)

Application for Relief of Unfair Dismissal – extended worker’s compensation, applicant unable to perform inherit requirements of role.

Introduction

[1] On 19 April 2018 Wenfu Yang (Applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work FW Act 2009 (FW Act) for a remedy in respect of his dismissal by Comfort Management Pty Ltd (Employer/Respondent).

[2] At the time that the unfair dismissal application (UFD Application) was made the Applicant:

a) had not physically worked for the Respondent for 4 years, 9 months and 4 days, and

b) continued to have medical restrictions that meant he could not perform the inherent requirements of his job, and

c) had not prospects of being able to perform the inherent requirements of his job any time in the foreseeable future.

[3] Each of these matters were conceded by the Applicant. 1

[4] On 26 April 2018 the Employer filed a response to the unfair dismissal application. It initially objected to the Commission exercising jurisdiction in relation to the matter on the basis that, it contended, the Application was outside the 21 day time limit provided for in the FW Act. I heard the issue concerning an extension of time on 29 June 2018. The result of that hearing was the Respondent, solely for the purposes of the UFD Application and in order to facilitate the matter being dealt with more efficiently, withdrew its jurisdictional objection. The matter proceeded on the basis that the termination of employment occurred on 18 May 2018. That date is therefore used in this decision. However, it is recognised, and accepted by the Applicant, that the Respondent does not conceded that, for any other purpose, the employment ended on that date.  2

[5] Attempts at conciliation were attempted, but the matter remained unresolved. Taking account:

a) any differences in the circumstances; and

b) the wishes;

of the parties to the matter, and considering whether a hearing would be the most effective and efficient way to resolve to the matter I decided to conduct a Determinative Conference.

The Determinative Conference

[6] At the Determinative Conference on 10 August 2018:

a) the Applicant represented himself.

b) The Respondent was represented by Ms Lisa Russo, the Respondent’s Accounts, Payroll and HR Manager.

[7] In advance of the hearing the parties filed materials. In coming to this decision I have had regard to the following:

[8] I have had regard to all of the filed material and the evidence given at the Determinative Conference in coming to this decision

Background

[9] The following matters were either agreed 3 between the parties or not otherwise substantially contested:

a) On 21 May 2007 the Applicant commenced employment with the Respondent. His hourly rate was $20.01 per hour.

b) On 14 August 2007 the Applicant suffered a workplace injury and commenced a period on workers’ compensation.

c) The workplace injury resulted in a chronic back pain and a capacity restriction of listing less than 5 kg.

d) On 8 January 2014 the Respondent advised its workers’ compensation insurer, GIO, that there were no suitable duties available for the Applicant.

e) On 22 July 2014 the Respondent again advised GIO that they were unable to provide suitable employment to the Applicant.

f) On 28 February 2018 the applicant commenced employment with a real estate company.

g) In May 2018 the Applicant successfully passed the probation period with his new employer.

h) At the date of the Determinative Conference the Applicant continues to work for the real estate company. He works approximately 24 hours per week at an hourly rate of $90.80.

i) On 9 April 2018 GIO advised the Respondent that it was now able to proceed with “separating from the [Applicant]’s”.

j) On 18 April 2018 the Respondent Wrote to the Applicant in the following terms,

“This email is to formally notify you that your employment has been terminated from Comfort Management as of the 31.3.2018.

I’m currently in contact with both GIO and Fair Work Ombudsman in relation to leave payment and as soon as I’m advised and confirm I will email you about the outcome.

If you are entitled to Annual Leave you will be paid to you immediately once confirmed.”

k) On 28 May 2018 the Respondent made a payment to the Applicant in respect of annual leave, annual leave loading, long service leave. It also made a payment to him of four weeks’ pay in lieu of notice.

[10] The Applicant submits he was unfairly dismissed and seeks an Order that he reinstated.

Protection from Unfair Dismissal

[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] There is no dispute, and the Commission, as presently constituted, is satisfied, the Applicant has completed the minimum employment period, and is covered by a modern award. 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.

Was the dismissal unfair?

[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.”

Was the Applicant dismissed?

[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. In the present matter the Respondent concedes 4 that it dismissed the Applicant. Consequently, I am satisfied the Applicant was dismissed.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[17] A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (the Code). In the present matter the Respondent does not rely upon Code compliance. 5 I do not need to deal with this issue further.

Was the dismissal a genuine redundancy?

[18] The Respondent does not submit I should dismiss the application because the dismissal was a case of genuine redundancy. 6

[19] Consequently, I find that the dismissal was not a case of genuine redundancy within the meaning of s.389 of the FW Act.

Harsh, unjust or unreasonable

[20] 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.”

[21] 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.

[22] I am under a duty to consider each of these criteria in reaching my conclusion. 7

Valid reason - s.387(a)

[23] The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. 8 The reasons should be “sound, defensible and well founded”9 and should not be “capricious, fanciful, spiteful or prejudiced.”10

[24] The Respondent contended that the valid reason for the dismissal related to the Applicant’s performance because he had been unable to perform the inherent requirements of his job for the previous 4 years, 9 months and 4 days and he was not fit to perform it in the future. 11

[25] Before me the Applicant conceded that his injury was not temporary, but permanent. 12 He agreed that his incapacity to perform his job was a valid reason for termination.13

[26] In circumstances where the Applicant was unable to perform the inherent requirements of his job for such a considerable period of time and had a continuing medical restriction on his capacity to perform the inherent requirements job I am satisfied that there was a valid reason for the dismissal of the Applicant. The reason was sound defensible and well founded.

[27] Consequently, I find that was a valid reason for the dismissal.

Notification of the valid reason - s.387(b)

[28] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 14 in explicit terms15 and in plain and clear terms.16 In Crozier v Palazzo Corporation Pty Ltd17 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.” 18

[29] In the present matter it was conceded by the Respondent that, while the Applicant was notified of the dismissal on 18 May 2018, he was not was notified of the reason for dismissal. 19

[30] I find the Applicant was not notified of the reason for the dismissal.

Opportunity to respond - s.387(c)

[31] 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. 20

[32] In the present matter it was conceded by the Respondent that the Applicant was not provided with an opportunity to respond in circumstances where the Respondent was contemplating terminating employment. 21

[33] I find the Applicant was not given an opportunity to respond to the reason for the dismissal.

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

[34] 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. Because there was no notice provided to the Applicant that the Respondent was contemplating terminating his employment, there was no opportunity provided to him to bring a support person.

[35] 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)

[36] 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. 22

[37] In the present matter the termination of employment did not so much relate to the Applicant’s performance because he had not been performing in his role for a period of 4 years, 9 months and 4 days. However, as noted above the Applicant was not warned about the Respondent’s intention to terminate his employment. He was not warned that his incapacity to perform the inherent requirements of his job was being considered as the basis for ending the employment relationship.

[38] I find the Respondent did not warn the Applicant about their unsatisfactory performance before the dismissal.

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

[39] The size of the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.

[40] The Respondent has 34 employees. While is not a small business is also not a large enterprise. It is not uncommon for such enterprises not to have as well developed policies and procedures.

[41] I find the size of the employer’s enterprise did impact on the procedures followed in effecting the dismissal.

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

[42] 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.

[43] In Ms Russo the Respondent has a person performing the human resources function. However, Ms Russo has no human resources qualifications. She is a qualified accounts manager. 23

[44] I find the absence of any such management or expertise did impact on the procedures followed by the Respondent in effecting the dismissal.

Other relevant matters - s.387(h)

[45] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.

[46] Despite not having worked for the Respondent for 4 years, 9 months and 4 days when his employment was terminated, the Applicant maintained that the termination of his employment was unfair. He pointed to the concession made by Ms Russo about the procedural defects in effecting the termination of employment. Even though the Applicant has a continuing medical restriction which means he cannot perform the inherent requirements of his job presently, or in the foreseeable future, he maintains that the dismissal was unfair because he thinks the Respondent should have found an alternate position. The procedural deficiencies relied upon by the Applicant other matters that I have taken into account other than under s.387(h).

[47] The Respondent contended that I should take into account the fact that in circumstances where the Applicant had refused to provide GIO with his bank details, in effect for the 4 years, 9 months and 4 days that it continue to pay the Applicant it was the paying agent of GIO. The Respondent says it fully supported the Applicant during his period of workers’ compensation.

[48] I consider the unusual circumstances which caused the Applicant to “remain on the books” of the Respondent while the Applicant was unable to work for the Respondent as relevant to the determination of whether the dismissal of the Applicant was harsh, unjust or unreasonable. I also consider relevant the fact that the Applicant has secured new employment and that when his employment was terminated by the Respondent he was paid four weeks’ pay in lieu of notice. In those circumstances the Applicant has suffered no economic loss by reason of the decision to terminate his employment.

Conclusion

[49] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied the dismissal of the Applicant was harsh, unjust or unreasonable. Accordingly, I find the Applicant’s dismissal was not unfair.

[50] However, even if I had found that the dismissal was unfair I would not have reinstated the Applicant to his position. This is because reinstatement would have been inappropriate. The facts are that the Applicant has a continuing medical restriction which means that he cannot perform the inherent requirements of the job. Further, he has commenced new employment in a different industry.

[51] I would further have declined to award the Applicant compensation. This is because the only aspect of the matter that may have given rise to the finding of unfairness was that fact that the Applicant was not provided with an opportunity to respond to the Respondent’s proposal that it terminate his employment in circumstances where he could not perform the inherent requirements of his job. In my assessment had that procedural step been taken it would not have altered the outcome. The Applicant could not (and continues not to be able to) perform the inherent requirements of his job. If the consultation had occurred then, maybe the employment would have continued for a further 2 weeks. I note that the Applicant was paid out 4 weeks in lieu of notice (even though he was in receipt of workers’ compensation payments). Consequently, he did not experience any economic loss. There was no unfairness arising from the failure to consult. A “fair go all round” would have dictated that, had I found the dismissal unfair, that no remedy flowed from the same.

[52] The Commission, as presently constituted, is satisfied that the Applicant was protected from unfair dismissal, that the dismissal was not unfair. Consequently, the application for a remedy is dismissed.

[53]
An order will be issued with this decision.

COMMISSIONER

Appearances:

Mr W Yang for the Applicant

Ms L Russo for the Respondent

Hearing details:

10 August 2018

 1   Transcript PN98 - 111

 2   Transcript PN41 - 44

 3   Transcript PN49 - 97

 4   Transcript PN40

 5   Transcript PN46

 6   Transcript PN48

 7   Sayer v Melsteel [2011] FWAFB 7498.

 8   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

 9   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 10   Id.

 11   Transcript PN110 - 113

 12   Transcript PN108 - 109

 13   Transcript PN114 - 115

 14   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

 15   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 16   Previsic v Australian Quarantine Inspection Services Print Q3730.

 17   (2000) 98 IR 137.

 18   Ibid at 151.

 19   Transcript PN116 - PN130

 20   RMIT v Asher (2010) 194 IR 1, 14-15.

 21   Transcript PN116 - PN130

 22   Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

 23   Transcript PN147

Printed by authority of the Commonwealth Government Printer

<PR700431>