[2019] FWC 3177
FAIR WORK COMMISSION

DECISION NO. 2


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Chanintorn Siri
v
Urban Orchard Food Pty Ltd
(U2018/12555)

COMMISSIONER CAMBRIDGE

SYDNEY, 21 MAY 2019

Unfair dismissal - Small Business Fair Dismissal Code - summary dismissal implemented by telephone call - no basis to establish serious misconduct - no basis to establish reasonable grounds for belief of serious misconduct - dismissal not consistent with Small Business Fair Dismissal Code - no valid reason - absence of procedural fairness - dismissal found to be harsh, unjust and unreasonable - compensation Ordered.

[1] This Decision involves an application for unfair dismissal remedy which has been made under section 394 of the Fair Work Act 2009 (the Act). The application was made by Chanintorn Siri (the applicant). The respondent employer has been identified to be Urban Orchard Food Pty Ltd ABN: 37 610 526 022 (the employer).

[2] The application was filed on 5 December 2018, and it indicated that the date of the applicant’s dismissal was 18 November 2018. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) (a) of the Act.

[3] Conciliation of the matter occurred on 10 January 2019. However, agreement was not reached to settle the matter, and at a Pre-Hearing Conference held on 21 January 2019, the employer raised objection to the applicant being granted permission to be represented by a lawyer. In a Decision [2019] FWC 610 issued on 6 February 2019, the Fair Work Commission (the Commission) determined to grant permission for the applicant to be represented by lawyers or paid agents.

[4] The employer raised a jurisdictional objection to the application on the basis that the dismissal was consistent with the Small Business Fair Dismissal Code (the SBFD Code). The matter has proceeded to arbitration before the Commission in a Hearing conducted in Sydney on 14 March 2019. The Hearing dealt with evidence and submissions which encompassed both the jurisdictional objection raised by the employer and also the substantive issues of the alleged unfair dismissal.

[5] At the Hearing, Mr Q Nguyen solicitor from Legal & Company appeared for the applicant. Mr Nguyen introduced evidence from the applicant as the only witness called in support of the unfair dismissal claim. Ms Gabrielle Jean Levette, the owner of the employer’s business, appeared for the employer at the Hearing. Ms Levette was the only witness who provided evidence on behalf of the employer. The Commission also permitted Ms Levette to introduce further evidence in the form of Statutory Declarations made by two other individuals who were not available to attend the Hearing so as to provide evidence as witnesses.

Factual Background

[6] The employer is a small business employer, which at the time of the dismissal of the applicant, employed less than 15 persons. The employer conducted a business as the operators of a takeaway food store which is located in the Gateway Building at Circular Quay, Sydney (the shop).

[7] The applicant was employed for a period of about 2 years and 1 months. The applicant was engaged as a full-time salaried Chef working at the shop. The applicant’s regular working hours were fixed to be 7:30 am to 3:30 pm Monday to Friday, and 10am to 3:30pm on every second Saturday.

[8] The work of the applicant was apparently the subject of various complaints which the employer asserted to have involved the applicant receiving “numerous verbal warnings over the years” about his underperformance, behaviour, and poor timekeeping. The applicant disputed that he had at any time been warned that his work performance and/or conduct, was of such concern that his ongoing employment was in jeopardy. There was no evidence that the applicant was provided with any written warning(s) about any aspects of his work performance, conduct or timekeeping.

[9] On Saturday, 13 October 2018, the applicant closed the shop at about 2:30 pm, approximately half an hour earlier than scheduled. The applicant claimed that the earlier closing of the shop on 13 October 2018 was necessitated by pest control spraying of the shop premises that occurred that afternoon. However, the applicant did not provide such an explanation in response to a text message that had been sent to him on that day at 3:23 pm from Ms Levette who inquired about the reason for the early closing of the shop.

[10] During the afternoon of Saturday, 13 October 2018, Ms Levette also made text message inquiries of another person who was working with the applicant on that day (Melissa), as to the reason for the early closing of the shop. Melissa responded by indicating that she was following the instructions of the applicant (a.k.a. Ken), who had indicated that the early closing was required so that he had time to clean up. Ms Levette then sent a further text message to Melissa in which she stated; “The store is not to be closed until 3pm. Ever. No excuses. I will only pay you and Ken up until the shop closed at about 1:45. I’m very disappointed in Ken for asking you to shut early.” 1

[11] The employer asserted that on 15 October 2018, the applicant had been provided with a verbal warning about the early closing of the shop, and that the Head Chef had told the applicant that it was unacceptable to put down full hours on his timesheet when he finished shifts early, and that if that happened again his employment was at risk. The applicant disputed that he had been provided with any verbal warning of this nature from the Head Chef.

[12] On Thursday, 8 November 2018 the applicant sent a text message to Ms Levette requesting that on the following day, Friday, 9 November, he needed to leave work early, (at approximately 1 pm), to collect the results of a blood test. Further, the applicant advised his employer that subject to such results, he may be unable to work on the following Saturday, 10 November 2018.

[13] On Sunday, 11 November 2018, Ms Levette sent a text message to the applicant which inquired about his capacity for work on the following day, Monday, 12 November. The applicant responded with a text message that indicated that he was okay to work on the next day. The applicant then worked as usual on Monday, 12 November 2018. However, that evening, 12 November, the applicant was experiencing severe stomach pain and after seeing his local doctor he was admitted as a patient into Concord Hospital.

[14] The applicant had his wife convey news of his hospitalisation to the employer, and he was provided with paid sick leave for the period 13 to 16 November 2018. The applicant was discharged from Concord Hospital on Friday, 16 November, and he said that he had telephoned Ms Levette after he had been discharged from hospital, and told her that he would be returning to work on Monday, 19 November 2018.

[15] Conversely, Ms Levette said that she had not been able to make contact with the applicant in order to ascertain his anticipated return to work. On the morning of Friday, 16 November 2018, Ms Levette sent a text message to the applicant which stated: “Hi. I hope Ken is feeling better. Can you let me know his plans for work please? Gabrielle.” 2

[16] Ms Levette stated that in the absence of any response to the text message which she had sent to the applicant on Friday morning, she had to treat the applicant as having abandoned his position, and she offered his job to another Cook.

[17] On the afternoon or evening of Sunday, 18 November, Ms Levette had no difficulty making telephone contact with the applicant, and she advised him that he had been dismissed from his employment because he had not kept her informed about his return to work. Ms Levette told the applicant that she had hired someone else to fill his position. Further, during the telephone conversation that included advice to the applicant of his dismissal, Ms Levette told the applicant that he had been an unreliable employee.

[18] On Tuesday, 20 November 2018, the applicant sent a text message to Ms Levette requesting that he be paid all his termination pay entitlements. The applicant was not initially provided with any documentary confirmation of the verbal advice of his dismissal as conveyed during the telephone conversation on 18 November 2018. On 25 November 2018, the applicant sent a further text message to Ms Levette requesting that she provide him with what he referred to as a job separation certificate.

[19] On 28 November 2018, Ms Levette provided the applicant with a Centrelink Employment Separation Certificate which indicated that the reason for separation was unsuitability for this type of work. The Employment Separation Certificate indicated that on 29 November 2018, the applicant was to be paid a gross amount of $4,000.00 in respect of a period of 20 days annual leave. Further, on or about 29 November 2018, the applicant was paid sick leave amounting to a further one weeks’ wages.

[20] Following his dismissal, the applicant unsuccessfully sought alternative employment. However, it appeared that the applicant had only made two formal applications for other positions, and his pursuit of alternative employment opportunities was curtailed as a result of his ongoing medical treatment for pancreatic cancer. The applicant has not sought reinstatement, but alternatively, monetary compensation as remedy for his alleged unfair dismissal.

The Case for the Applicant

[21] Mr Nguyen, who appeared on behalf of the applicant, made verbal submissions in elaboration of documentary outline of submissions material that had been filed. Mr Nguyen submitted that the dismissal of the applicant was not in compliance with the law, and it was unfair. In particular, Mr Nguyen submitted that the applicant had been summarily dismissed on Sunday, 18 November 2018, by telephone call, and that the evidence did not establish valid reason for such summary dismissal.

[22] The submissions made by Mr Nguyen referred to the alleged absence of compliance with the Small Business Fair Dismissal Code (the SBFD Code). Mr Nguyen said that when the evidentiary factual matrix was properly considered, there was no misconduct upon which the dismissal of the applicant could be connected. In this regard, Mr Nguyen stressed that any alleged misconduct of the applicant, which related to alleged timesheet fraud associated with the early closing of the shop on 13 October, occurred some weeks before his summary dismissal. Mr Nguyen said that the summary dismissal of the applicant happened because he was sick.

[23] Mr Nguyen made further submissions which referred to the Employment Separation Certificate that had been completed by the employer and which made no mention of misconduct or unsatisfactory performance, let alone fraud. Mr Nguyen said that the reason for the dismissal of the applicant was because he had been sick, and the employer was aware of his hospitalisation and anticipated potential further absence from work because of the applicant’s illness. Consequently, according to the submissions made by Mr Nguyen, the dismissal of the applicant was not consistent with either the summary dismissal components or the other dismissal provisions of the SBFD Code.

[24] In further submissions, Mr Nguyen said that the assertion that the applicant had abandoned his employment was just nonsense, and that the reasons that the employer had provided for the dismissal of the applicant were to some extent contrived. Mr Nguyen made detailed submissions regarding the hand written entries that were made on the timesheets and upon which the employer asserted that the applicant had committed some fraud. Mr Nguyen rejected that the applicant had made the particular hand written entries in respect to the hours worked on 13 October 2018.

[25] The submissions made on behalf of the applicant also rejected that he had been provided with any warning regarding his work performance or conduct. Further, it was submitted that the dismissal of the applicant was harsh, unjust and unreasonable because of the manner of the dismissal and the particular absence of valid reason.

[26] Mr Nguyen made further submissions which reiterated that the applicant was seeking monetary compensation as remedy for his alleged unfair dismissal. In this regard it was submitted that the evidence of the applicant’s attempts to find alternative employment provided a satisfactory level of mitigation, particularly given that the applicant had been receiving ongoing medical treatment for his illness.

The Case for the Employer

[27] Ms Levette made verbal submissions on behalf of the employer during the Hearing. The verbal submissions of Ms Levette elaborated upon the documentary outline of submissions material that she had filed.

[28] Ms Levette submitted that the SBFD Code applied to the circumstances of the dismissal of the applicant, and that in this instance the dismissal was consistent with the SBFD Code. Ms Levette submitted that the applicant was summarily dismissed on 18 November 2018, because the employer believed that the applicant’s ongoing conduct of fraudulently completing his timesheet justified his dismissal.

[29] The submissions made by Ms Levette stressed that the employer did not need to prove that the misconduct of the applicant had occurred, but rather that the employer had reasonable grounds to hold the belief that the conduct had occurred. In this regard, Ms Levette submitted that the employer held the belief that the applicant was acting fraudulently with respect to completing his timesheets. Ms Levette submitted that the employer had reasonable grounds for that belief, and that in circumstances where the business operated on profit margins of between 0% and 5% of turnover, the conduct of the applicant caused serious risk to the profits and viability of the employer’s business and as such, represented proper basis for serious misconduct that justified his summary dismissal.

[30] Ms Levette made further submissions which rejected the applicant’s reliance upon the contents of the Employment Separation Certificate which did not disclose the reason for termination to involve any misconduct or unsatisfactory work performance. Ms Levette said that her reason for not indicating misconduct in the Employment Separation Certificate was that she was always trying to do the best thing for the applicant, and that she did not want to jeopardise his ability to receive Centrelink payments. Ms Levette rejected that she had in any way falsified the Employment Separation Certificate because she had ticked the box regarding unsuitability for work and this was true, as it was just one of many reasons for why the applicant had been dismissed.

[31] The submissions made by Ms Levette also addressed an alternative proposition that the dismissal of the applicant complied with the other dismissal provisions of the SBFD Code. In this regard, it was submitted that the applicant had been dismissed due to poor work performance including; taking regular sick leave for no apparent reason; commencing work late at least once per week for the entire period of his employment; taking extended breaks without recording these on his timesheets; inability to cope under pressure when the cafe was busy; inability to follow instructions; disturbing the flow of the kitchen with childish antics; undermining the authority of the Head Chef; and being an unproductive staff member due to his personal lifestyle choices.

[32] According to the submissions made by Ms Levette, the applicant had been repeatedly verbally warned about the various performance and conduct issues that were of concern to the employer. Further, Ms Levette submitted that the applicant had been provided with numerous opportunities over the years to improve his performance but he had failed to do so.

[33] Ms Levette made a further submission that asserted that the applicant had abandoned employment when, during the period between 13 and 18 November 2018, he was absent from work without making any attempt to inform the employer as to when he intended to return to work. Ms Levette said that the applicant had a history of taking many sick days, and he had “gone missing with a sore stomach and we never hear from him again.” 3

[34] In further submissions, Ms Levette asserted that she had lost all trust and confidence in the applicant because he would routinely close the store early in breach of the trust of the owner, and he would lie about that. Ms Levette said lying about his timesheets breached trust and confidence in the employment relationship, and lying was grounds for summary dismissal.

[35] Ms Levette made further submissions regarding the question of remedy in the event that the Commission found in favour of the applicant. Ms Levette submitted that the Commission should not exercise its discretion to award any monetary compensation to the applicant. In support of this submission Ms Levette said that the Commission had been provided with evidence that any Order of compensation would likely force the employer to close its business. Further, Ms Levette submitted that the applicant had not been employed for a lengthy period of time, and that his misconduct contributed to the employer’s decision to dismiss him. In addition, Ms Levette said that the applicant had only made two job applications seeking alternative employment, and therefore he had not taken sufficient action to mitigate his loss.

[36] In conclusion, Ms Levette summarised her submissions by stating that the Commission should find that the summary dismissal of the applicant was based on the reasonable belief of the employer that the applicant had committed misconduct which involved him having undermined the trust necessary for the continuation of the employment relationship. Alternatively, according to Ms Levette, if the Commission found against the employer, any monetary compensation provided to the applicant as remedy should be reduced to zero.

Consideration

[37] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements can be identified in s. 385 which is in the following terms:

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.”

[38] In this instance there was no dispute that the applicant had been dismissed, and that the dismissal was not a case of genuine redundancy. Consequently, only the provisions of subsections (b) and (c) of s. 385 of the Act have any relevance.

Small Business Fair Dismissal Code

[39] There was no dispute that the employer was a small business employer as comprehended by the meaning of small business employer stipulated by the terms of s. 23 of the Act. Therefore, the provisions of subsection 385 (c) of the Act require consideration. Specifically, by way of operation of s. 388 of the Act, it is necessary to determine whether the dismissal of the applicant was or was not consistent with the Small Business Fair Dismissal Code (referred to as “the SBFD Code”).

[40] Logically a determination of any application of the SBFD Code should precede any more general contemplation of whether the dismissal could have been considered to have been harsh, unjust or unreasonable. Further, in the event that the dismissal of the applicant is found to have been consistent with the SBFD Code, any further consideration as to whether the dismissal was harsh, unjust or unreasonable would become unnecessary.

[41] The SBFD Code is in the following terms:

“Small Business Fair Dismissal Code

Summary Dismissal

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

Other Dismissal

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

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

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

Procedural Matters

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

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

[42] In this case, the reasons for the dismissal of the applicant that were proffered by the employer were many and varied. Primarily, the employer contended that the summary dismissal of the applicant was for reason of his serious misconduct associated with the fraudulent completion of timesheets and the associated dishonesty. The employer also advanced alternative propositions, which separately or in combination, were said to be the basis for the dismissal of the applicant.

[43] One alternative that was advanced by the employer was that the dismissal of the applicant was due to unsatisfactory performance including various capacity and conduct issues which were allegedly the subject of numerous verbal warnings. As a further alternative, the employer contended that the applicant’s failure to properly advise of his intention to return to work following his hospitalisation meant that the employer was able to treat the employment to have been abandoned.

[44] In its approach to the defence of the unfair dismissal claim, the employer has attempted to rely upon both parts of the SBFD Code which respectively relate to summary dismissal and other dismissal. This is a somewhat unusual approach as any dismissal must logically fall within the SBFD Code to be either a summary dismissal or an other dismissal, and could not conceivably be both.

[45] It is difficult to comprehend how, in circumstances where the employer acknowledged that the dismissal of the applicant was summary in nature, that is, it was implemented with immediate effect via telephone call, and there was no notice or payment in lieu of notice provided to the applicant, that such dismissal could somehow be construed to be appropriately assessed against the other dismissal provisions of the SBFD Code. In simple terms, the other dismissal provisions of the SBFD Code do not represent a fall-back position that might be used to buttress a summary dismissal.

[46] Consequently, the summary dismissal of the applicant is to be tested for compliance with the summary dismissal provisions of the SBFD Code, and should not necessarily also be examined for potential compliance with the other dismissal provisions.

[47] The employer asserted that the dismissal of the applicant accorded with the first sentence of the SBFD Code which is repeated: “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.” It is relevant to construe the application of the SBFD Code having regard for the Full Bench Decision in the case of Ryman v Thrash Pty Ltd (Thrash). 4

[48] In this instance, the employer did not provide notice or payment in lieu of notice, and the dismissal was immediate in effect when it was conveyed over the telephone. Importantly however, the dismissal did not possess at least one fundamental component usually associated with a summary dismissal, namely, an identifiable causation between the misconduct event and the act of dismissal. The alleged misconduct upon which the dismissal was said to have been founded was known to the employer on and from 13 October 2018. However, the employment was permitted to continue after that event in the full knowledge of the extent and nature of the alleged misconduct. Further, the applicant was allegedly provided with a verbal warning about the misconduct regarding the closing of the shop early and without making appropriate adjustment on his timesheet.

[49] Consequently, the conduct for which the applicant was allegedly dismissed was not treated by the employer as misconduct sufficiently serious to justify his dismissal but rather it warranted the alleged verbal warning provided by the Head Chef on 15 October 2018. The evidence clearly established an important disconnection between the applicant’s early closing of the shop on 13 October, and his subsequent summary dismissal on 18 November. This disconnection was reflected and strongly reinforced by the absence of any mention of misconduct in the Employment Separation Certificate that was completed by Ms Levette.

[50] A careful examination of all of the evidence has established that the primary operative reason for the dismissal of the applicant was his absence from work involving his hospitalisation. There was no evidence upon which to establish that there was any conduct on the part of the applicant that was sufficiently serious to justify immediate dismissal. Further, there were no reasonable grounds upon which the employer could hold a belief that any conduct of the applicant was sufficiently serious so as to justify his immediate dismissal.

[51] The conduct of the applicant that gave rise to his dismissal was, at its highest, some lack of clarity about his return to work on Monday, 19 November 2018. Even if the absence of clarity regarding the applicant’s return to work was coupled with some history of unsatisfactory work performance and/or conduct, there was no basis upon which to provide reasonable grounds for the employer to believe that the applicant had misconducted himself in some manner that was sufficiently serious to justify his summary dismissal.

[52] The employer has attempted to construct support for its summary dismissal of the applicant with the use of the applicant’s early closing of the shop on 13 October so as to translate into reasonable grounds for a purported belief in the existence of misconduct that would comply with the summary dismissal part of the SBFD Code. However, in circumstances where the employer was clearly aware of that conduct on and after 13 October, and it had allegedly implemented only verbal warning about the conduct, it could not subsequently have reasonable grounds for a belief that the conduct was, suddenly on or about 18 November, sufficiently serious to justify immediate dismissal.

[53] The summary dismissal of the applicant was not consistent with the summary dismissal provisions of the SBFD Code as there were no reasonable grounds for any belief on the part of the employer that the applicant’s conduct was sufficiently serious to justify his immediate dismissal. Further, to the extent that the dismissal of the applicant could be assessed against the other dismissal provisions of the SBFD Code, there was no warning given to the applicant of any reason that he was at risk of being dismissed, nor was he provided with any opportunity to respond to any warning. The dismissal of the applicant was not consistent with the SBFD Code.

Harsh, Unjust or Unreasonable

[54] As the dismissal of the applicant was not consistent with the SBFD Code, the matter has required further consideration in respect to that element contained in s. 385 (b) of the Act, being whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(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.

S. 387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct

[55] Despite the array of reasons that the employer offered for the dismissal of the applicant, the evidence has provided compelling basis to conclude that the real reason for dismissal was his absence from work due to illness for which he was hospitalised. The only issue involving any conduct or performance of the applicant that was contemporaneous with the hastily implemented dismissal of the applicant was his sick leave absence, and some associated uncertainty about his short-term return to work, and his longer term incapacity due to illness.

[56] Although the primary reason for dismissal that was advanced by the employer was the applicant’s alleged serious misconduct involving timesheet fraud, there was no factual basis for such purported reason. The applicant closed the shop early on 13 October 2018, and such early closure was, in all likelihood, not associated with any pest control spraying of the premises but rather the applicant’s desire to have additional time to clean up before 3:30 pm. However, the timesheet records and associated evidence do not reveal any basis upon which to find that the applicant deliberately misrepresented the circumstances surrounding the early closure of the shop. In any event, the employer indicated that it would reduce wage payments to both the applicant and his co-worker, Melissa, to adjust for the early closure of the shop. In addition, the employer asserted that it had implemented a verbal warning to the applicant about the 13 October event.

[57] The employer has attempted to resurrect the early closure of the shop on 13 October 2018 and to misrepresent that event as serious misconduct involving timesheet fraud, so as to provide a reason for the summary dismissal of the applicant. The fallacious resurrection of previous conduct of the applicant which had, on the employer’s evidence, been dealt with, could not provide sound, defensible or well-founded reason for dismissal. Rather, such reason was capricious, fanciful and spiteful.

[58] The alternative suggestion that the dismissal of the applicant was for established reason concerning historical unsatisfactory performance and conduct issues must also be rejected as having no factual foundation. The employer sent a text message to the applicant on the morning of Friday, 16 November 2018, indicating concern for the applicant’s state of health and inquiring about his plans for return to work. Any historical performance and/or conduct issues could not have possibly changed in the time after sending that text message and telephoning the applicant on the following Sunday to advise of his dismissal.

[59] Further, there was no basis upon which the employer could properly treat any uncertainty about the applicant’s return to work on Monday, 19 November, as the abandonment of the employment. The applicant may not have provided a response to the employer’s text message inquiry sent at 6:49 am on Friday, 16 November. However, Ms Levette acted with extraordinary haste when she decided to offer the applicant’s position to another Cook. Ms Levette acted before there had been any reasonable opportunity for clarification to emerge regarding the return to work of the applicant and his ongoing availability.

[60] Although the applicant may have exhibited some level of what might be described as less than perfect work performance, conduct and capacity, these were not matters that jeopardised the ongoing employment. Rather, the absence of the applicant which involved his hospitalisation and presented the employer with potential for the applicant to require further absences from work provided the catalyst for the actions of the employer to engage another Cook to replace the applicant.

[61] Consequently, the real reason for the dismissal of the applicant was his absence on sick leave involving his hospitalisation and the prospect of further absences from work due to his illness. The actual extent of the applicant’s ongoing capacity had not been clarified. However, the employer acted with callous and undue haste when it engaged a replacement employee. As a result, the reason for dismissal of the applicant was not sound, defensible or well-founded. There was not a valid reason for the dismissal of the applicant.

S. 387 (b) - Notification of Reason for Dismissal

[62] The employer notified the applicant of his dismissal and the reason for that dismissal by way of telephone, and it did not provide any documentary confirmation of the notification of dismissal in the form of a termination of employment letter. Subsequently, following repeated requests made by the applicant, the employer provided an Employment Separation Certificate which included false and misleading information.

S. 387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[63] The employer did not provide any opportunity for the applicant to respond or provide any form of explanation for any of the conduct that was alleged to have been of concern to the employer regarding the applicant’s work performance, conduct or capacity. Importantly, the employer did not provide the applicant with an opportunity to clarify the prognosis of his health issues and the impact that his illness may have on his ongoing capacity to attend work in both the short and longer terms.

S. 387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[64] There was no opportunity for the applicant to have a support person present during any meeting or other process that dealt with any issues surrounding the ongoing employment of the applicant. The employer made the decision to dismiss the applicant without any discussion or other communication with him, and instead it just telephoned him to let him know the bad news.

S. 387 (e) - Warning about Unsatisfactory Performance

[65] The applicant was not provided with any identifiable warning in respect to any unsatisfactory performance that may have been relevant to the employer’s decision to dismiss.

S. 387 (f) - Size of Enterprise Likely to Impact on Procedures

[66] The employer is a small business employer and appropriate recognition for a degree of informality and flexibility in respect to employment related procedures has been provided.

S. 387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[67] There was no evidence that the employer had dedicated human resource management specialists, although apparently Ms Levette has a law degree. The absence of human resource management specialists and the level of informality that would understandably exist in a small business enterprise, could not justify the adoption of an extraordinarily hasty procedure whereby the decision to dismiss was taken without providing any opportunity to hear from the applicant.

[68] Further, the absence of management specialists or other expertise, and the informality that would understandably exist in a small business, could not provide justification for the unnecessarily undignified implementation of a dismissal by way of a telephone call. This unnecessarily harsh approach was compounded by the extraordinarily heartless disregard for the personal circumstances of another human being who was suffering from pancreatic cancer.

S. 387 (h) - Other Relevant Matters

[69] There were no other relevant matters identified as requiring consideration.

Conclusion

[70] This unfair dismissal claim has involved consideration of the application of the Small Business Fair Dismissal Code (the SBFD Code). The applicant was dismissed with immediate effect, and not paid any amount in lieu of notice. Upon analysis, there was no factual basis to establish reasonable grounds upon which the employer could hold any belief that the applicant had committed conduct that was sufficiently serious to justify his immediate dismissal.

[71] In such circumstances, I have determined that the summary dismissal of the applicant was not consistent with the relevant provisions of the SBFD Code. If it were applicable to the dismissal of the applicant, the dismissal was not consistent with the other dismissal provisions of the SBFD Code. Therefore, the dismissal of the applicant was not consistent with the SBFD Code.

[72] Further, in this case, the reason for the dismissal of the applicant could not be established in fact. Therefore, the reason for the dismissal of the applicant was not sound, defensible or well-founded. There was not a valid reason for the dismissal of the applicant related to his capacity or conduct.

[73] The procedure that the employer adopted whereby it advised the applicant of his dismissal by way of telephone call, and which was for reasons that the applicant had no prior knowledge of, was plainly unjust, manifestly unreasonable, unnecessarily harsh, and in this case, unconscionably insensitive.

[74] In summary, the dismissal of the applicant was firstly not consistent with the SBFD Code and secondly, without valid reason involving established misconduct or capacity inadequacy. Further, the dismissal involved an entirely unjust and unreasonable process including the complete absence of any opportunity for the applicant to be heard before the decision to dismiss was made. Consequently, upon analysis of the various factors that are identified in s. 387 of the Act, an objective and balanced evaluation of all of the relevant circumstances has provided compelling basis to establish that the dismissal of the applicant was harsh, unjust and unreasonable. Therefore, the applicant’s claim for unfair dismissal remedy has been established.

Remedy

[75] The applicant has not sought reinstatement as a remedy for his unfair dismissal. In the circumstances, particularly as the employment of the applicant was irreparably damaged by the unfortunate circumstances surrounding the dismissal implemented by way of telephone call, reinstatement would not be an appropriate remedy.

[76] In the circumstances, I am satisfied that reinstatement of the applicant would be inappropriate, and that payment of compensation would represent an appropriate remedy for the applicant's unfair dismissal. I now turn to the factors which involve the quantification of any amount of compensation.

[77] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidance that can be identified from the Full Bench Decisions of, inter alia; Sprigg v Paul’s Licensed Festival Supermarket 5 (Sprigg); Smith and Ors v Moore Paragon Australia Ltd 6 and more recently, the cases of; McCulloch v Calvary Health Care Adelaide7; Balaclava Pastoral Co Pty Ltd v Nurcombe;8 and Hanson Construction Materials v Pericich9 (Pericich).

[78] Firstly, I confirm that an Order for payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.

[79] Secondly, in determining the amount of compensation that I Order, I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[80] There was some evidence provided which established that an Order of compensation may impact on the viability of the employer’s enterprise. In view of this evidence, the amount of compensation has been reduced by 20%.

[81] The applicant had been employed for a period of about 2 years and 1 months. The applicant would have been likely to have received remuneration of approximately $1,000.00 per week if he had not been dismissed.

[82] There was no evidence to provide any basis to conclude that the employment of the applicant may not have continued for a significant period of time, notwithstanding that there would likely have been some absence associated with the applicant’s ongoing medical treatment. I have reduced the amount of compensation by a further 10% to allow for the likelihood that the applicant would have been absent on unpaid personal leave for a period after dismissal.

[83] For the purposes of calculation of remuneration that the applicant would have received or would have been likely to receive if he had not been dismissed, I have notionally considered that the employment of the applicant would have continued for at least a further 26 weeks. Therefore, the total remuneration that would have been received in the notional period of 26 weeks following dismissal amounted to a figure of $26,000.00.

[84] The total amount of remuneration received in alternative employment, as identified, and that which may be reasonably likely to be earned between dismissal and the making of the Order for compensation, has been calculated to be $0.00.

[85] Thirdly, in this instance there was no established misconduct of the applicant, and consequently I have decided to make no reduction to the amount of compensation to be provided to the applicant on account of any established misconduct.

[86] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.

[87] Fifthly, the amount Ordered does not exceed the compensation cap as prescribed by s. 392 (5) of the Act.

[88] Consequently, for the reasons outlined above, taking into account all of the circumstances of the case, and having cognisance so as not to apply the approach taken in the Decision in Sprigg in a rigid, determinative manner, as was cautioned in the Decision in Pericich, I have decided that the amount of compensation to be provided to the applicant should be calculated by subtracting 30% (20% + 10%) from $26,000.00; the resultant figure being: $18,200.00 gross.

[89] Accordingly, separate Orders [PR708101] providing for unfair dismissal remedy in these terms will be issued.

COMMISSIONER

Appearances:

Mr Q Nguyen of Legal & Company Solicitors appeared for the applicant.

Ms G Levette, Owner appeared for the employer.

Hearing details:

2019.

Sydney:

March, 14.

Printed by authority of the Commonwealth Government Printer

<PR708100>

 1   Exhibit 3 – Annexure “E”.

 2   Exhibit 3 – Annexure “H”.

 3   Transcript @ PN717.

 4   Jeremy Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264.

 5   Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 6   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

 7   John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.

 8   Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, (Hatcher VP, Gostencnik DP and Cribb C) [2017] FWCFB 429.

 9   Hanson Construction Materials Pty Ltd v Darren Pericich, (Ross P, Masson DP and Lee C), [2018] FWCFB 5960.