DECISION

Fair Work Act 2009
s.394—Application for Unfair dismissal

Andrew Jackson Wood
v
Delshine Pty Ltd
(U2019/633)

Application for an unfair dismissal remedy.

[1] On 21 January 2019 Mr Andrew Jackson Wood (Mr Wood) made an application pursuant to section 394 of the Fair Work FW Act 2009 (FW Act) for a remedy in respect of his dismissal by Mr Leslie Bus (Mr Bus) and Mrs June Margaret Bus (Mrs Bus).

[2] On 1 February 2019, Mr and Mrs Bus filed a response to Mr Wood’s Application asserting that Mr Wood resigned and objecting to the Application on the grounds that Mr Wood resigned and was not dismissed (Jurisdictional Objection).

[3] The Application was listed for a conciliation conference before Deputy President Binet on 12 March 2019, but Mr and Mrs Bus did not wish to proceed with the conciliation and the listing was cancelled.

[4] Mr and Mrs Buss are the owners and operators of Delshine Pty Ltd which manufactures and distributes cleaning chemicals (Delshine). Mr Wood was employed by Delshine for more than 20 years and for a period of time was married to the daughter of Mr and Mrs Bus. An error in Registry had incorrectly recorded Mr and Mrs Bus, rather than Delshine, as the Respondent to the Application. On 26 March 2019 an order was issued by consent (PR706235) changing the name of the Respondent to Delshine Pty Ltd.

[5] Taking into account the parties’ circumstances, and their wishes, I determined that a Determinative Conference would be the most effective and efficient way to determine the Jurisdictional Objection and the merits of the Application. The Application was therefore listed for a Determinative Conference on Wednesday, 2 May 2019. Directions were issued to the parties on 20 March 2019 for the filing of submissions and evidence in preparation for the Determinative Conference (Directions). Inter alia the Directions required Mr Wood to file his materials no later than 4 April 2019.

[6] Mr Wood did not file his materials by the date specified in the Directions and Delshine made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Wood had not complied with a direction of the FWC.

[7] Section 399A of the FW Act provides as follows:

“399A Dismissing applications

a. The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: for another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

b. The FWC may exercise its power under subsection (1) on application by the employer.

c. This section does not limit when the FWC may dismiss an application.”

[8] Mr Wood subsequently filed materials late in the afternoon on Friday 5 April 2019 and throughout the weekend.

[9] Given that Mr Wood is a self represented litigant unfamiliar with legal processes, that he eventually complied with the Directions to the best of his ability and that he did so within a timeframe which did not prevent Delshine properly preparing their case I declined to grant the Dismissal Application and informed the parties accordingly on 10 April 2019.

[10] Neither party sought permission to be represented by a lawyer or paid agent at the Determinative Conference. Mr Wood appeared on his own behalf and Mr Bus appeared on behalf of Delshine. Mr Wood called his partner Ms Wendy Cini (Ms Cini) as a witness and gave evidence on his own behalf. Mr Bus called the following witnesses and gave evidence on behalf of Delshine:

a. Mrs Daphne Wallis (Ms Wallis)

b. Mr Ian Norman Allen (Mr Allen)

c. Ms Tiana Jaxine Wood (Miss Wood) 1

d. Mr Brodie Leslie Wood (Master Wood)

e. Mrs Bus

[11] Both Ms Wallis and Mr Allen have been family friends of Mr and Mrs Bus for more than 30 years. 2 Miss Wood is Mr Wood’s daughter and eldest child and the granddaughter of Mr and Mrs Bus. Master Wood is Mr Wood’s eldest son and middle child and the grandson of Mr and Mrs Bus. Master Wood currently lives with his grandparents. Mr and Mrs Bus are Mr Wood’s ex in laws and his employers. According to Mr Bus, at the time of Mr Wood’s dismissal he and Mr Wood were the only employees of Delshine. I note that both of Mr Wood’s children gave evidence that from time to time they performed work for Delshine. I also note that Mrs Bus, even if not employed by Delshine, is normally present in the workplace.

Background

[12] Mr Wood commenced employment with Delshine in 1997. His duties involved manufacturing and delivering cleaning chemicals. Mr Wood’s marriage to the daughter of Mr and Mrs Bus broke down in acrimonious circumstances in 2015. 3

[13] Around this time Delshine suffered a down turn in sales and Mr Wood’s hours of work with Delshine began reducing. To support himself financially Mr Wood took odd jobs including mowing lawns for Mr Bus and other customers. Mr Wood slowly began to build a mowing and garden maintenance business utilising his long service, his annual leave and the reduced hours of work offered by Delshine. 4

[14] By the end of 2018 Mr Wood’s hours had decreased to 9am to 4pm.  5

[15] In late December the factory closed down for the Christmas break and Mr Wood took holidays. Sometime after 21 December 2018 and before 4 January 2019, while he was still on holiday, Mr Wood asked Mr Bus to meet privately with him. At that meeting Mr Wood raised various allegations about Mrs Bus including that she had had an extra marital affair. Mr Bus says that Mr Wood informed him that he no longer wished to work with Mrs Bus because she was sexually harassing him. Mr Bus says that he subsequently investigated the allegations made by Mr Wood and the people Mr Wood had identified all denied the allegations made by Mr Wood. 6

[16] Ms Cini confirmed that Mr Wood in the past disclosed to her that Mrs Bus had been propositioning and sexually harassing him. 7 Miss Wood also conceded that she had on at least one occasion witnessed her grandmother behaving inappropriately8.

[17] Notwithstanding this Mr Bus says when Delshine re-opened after the Christmas break on the morning of Monday 7 January 2019 he discussed with Mr Wood his request to no longer work with Mrs Bus. Mr Bus said that he told Mr Wood that given his age he could not guarantee to Mr Wood that he would be in the workplace any later than 2pm on any day. He says that Mr Wood and he mutually agreed that Mr Wood’s hours of work would be 9am to 2pm and that Mr Wood, would be free to work in his lawn mowing and garden maintenance business after 2pm each day. 9

[18] Mr Wood says that it was not until the completion of his shift on Friday 11 January that Mr Bus informed him that his hours of work would be reduced to 9am – 2pm with no lunch break commencing immediately.

[19] Both men do agree that at the completion of his shift on Friday 11 January Mr Bus instructed Mr Wood that he must sign the following notation written by Mr Bus in the wages book: 10

“As discussed due to sexual harassment claim and reduction in sales the new working hours will be 9am – 2pm each day with no lunch break commencing immediately” 11

[20] Mr Wood refused to sign as instructed. Mr Wood says that he refused to do so because:

“Just because his wife was being inappropriate to me and I had a problem with it, and his way of dealing with it was to cut my hours down which I found that was very unfair.” 12

[21] The parties agree that the conversation became heated. 13

[22] Mr Wood says that Mr Bus told him that if he didn’t sign it that he “knew where the door is”. 14

[23] Mr Bus says that Mr Wood was angry because his wages had not been deposited in his bank account, due Mr Bus says to an error with the National Australia Bank website. Mr Bus says that Mr Wood refused to sign the wages book and stated:

“I don’t have to sign it. You can stick your job. I’m suing you. I’ll see you in court.” 15

[24] Mr Bus says that Mr Wood then ‘stormed out’ of the workplace. 16

[25] Mr Wood denies he told Mr Bus to ‘stick his job’ or words to this effect. According to Mr Wood he simply repeated that he did not agree to the change in his hours of work and that he believed that the change was unfair. Mr Wood agrees that he left the workplace but said that he did so because his shift had finished.  17

[26] The parties agree that the conversation was observed by employees of Stagger’s Cleaning, however neither party called them as witnesses. Mr Bus says that the cleaners only heard raised voices but not precisely what was said. 18

[27] On Monday morning Mr Wood presented at the workplace at his normal start time. Mr Bus approached him and asked Mr Wood what he was doing there. 19 Mr Wood told Mr Bus he was there to start work and Mr Bus told Mr Wood that he was not to enter the factory because he was no longer an employee as Mr Wood had quit on Friday. The conversation became heated. Mr Bus informed Mr Wood that if he entered the factory he would call the police and have him removed.20

[28] The conversation between the men was captured by Mr Wood on his telephone.

[29] When Mr Wood refused to leave Mr Bus called the police. According to Mr Bus:

“I did not dial triple 0 like he has stated, I just phoned the ordinary police and they said, you know, “Is he being violent?” and I said, “No, he’s just verbally aggressive”. They said, “Fine, we’ll send someone around”. And half an hour later the police phoned me and said, “Everything all right?”. I said, “No, he’s still here pacing up and down outside”. “Is he threatening violence?” I said, “No, he’s just verbally aggressive”. “All right we’ll send someone around”, and that’s what they did. The police entered and she asked me, “Do you want this person in here?” I said, “No, I’ve told him I don’t want him in here”. She said, “Fine, we’ll just tell him to leave”

[30] The police attended at the workplace and spoke to Mr Wood. Mr Wood says that the police advised him to leave the workplace and make an application for unfair dismissal. 21

[31] Mr Wood says that two men from a neighbouring property overhead the conversation with the police however he did not call either as witnesses at the hearing. 22 According to Mr Bus they did not overhear what occurred. Mr Wood did not return to the workplace again.

[32] On 21 January 2019 Mr Wood filed the Application with the FWC. Mr Woods submits what occurred constituted unfair dismissal and he seeks an Order that he be compensated an amount equivalent to six months salary.

Is Mr Woods protected from unfair dismissal?

[33] Section 396 of the FW Act requires that the FWC decide four preliminary issues before considering the merits of an application for unfair dismissal.

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

a. whether the application was made within the period required in subsection 394(2);

b. whether the person was protected from unfair dismissal;

c. whether the dismissal was consistent with the Small Business Fair Dismissal Code;

d. whether the dismissal was a case of genuine redundancy.”

[34] I am satisfied that the Application was made within the twenty-one-day period required by subsection 394(2) of the FW Act. There is no assertion that Mr Woods was dismissed because of a genuine redundancy. I will consider whether the dismissal was consistent with the Small Business Fair Dismissal Code (Code) later in this decision.

[35] Section 382 of the FW Act sets out the circumstances that must exist for Mr Woods 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.”

[36] It is agreed by the parties that Delshine is a national system employer and that Mr Wood was engaged by Delshine in the capacity of permanent employee.

[37] It is uncontested that Mr Woods had completed the minimum employment period and that the sum of Mr Woods annual rate of earnings was less that the high income threshold. Consequently, I am satisfied the Mr Woods was protected from unfair dismissal. 23

Was Mr Wood’s dismissal unfair?

[38] Section 385 of the FW Act sets out the circumstances in which a dismissal will be considered unfair.

“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.”

[39] As previously noted there is no assertion that Mr Wood’s dismissal was a case of genuine redundancy.

[40] Mr Bus submits that Mr Wood resigned from his employment from Delshine on Friday 11 January 2019 and was not dismissed.

[41] Mr Wood denies that he used any language which was intended to or did convey an intention to resign from his employment. He submits that his attendance at the workplace at the normal time on the next business day, Monday 14 January 2019 corroborates his assertion that he did not resign from his employment. Mr Wood submits that he was dismissed by Mr Bus on Monday 14 January 2019 when Mr Bus refused to allow him to enter the workplace and called the WA Police to have him removed from the premises.

[42] Mr Bus says that Mr Wood clearly stated that he intended to resign. Mr Bus says that Mr Wood turned up on Monday morning because he discovered that if he resigned he would not be entitled to Centrelink assistance for 13 weeks.

[43] Several witnesses gave contemporaneous evidence of the discussions between Mr Wood and Mr Bus.

[44] Mrs Bus was a witness to the conversation between Mr Wood and Mr Bus on Friday 11 January 2019. Her evidence is that her husband presented the wages book to Mr Wood and:

“Then Andrew looked at it and he said, “I’m not signing that”. I think my husband had written in there the hours of 9 till 2, which he had discussed with Andrew, apparently a few days before, that I believe was agreed to, and he said, “What, no lunch break?”, he made a comment about no lunch break. My husband said to him, “You’re not entitled to a lunch break if you’re only working 9 till 2”, and he didn’t want to sign it and then he got very agitated. I was just standing there, listening to this conversation, which, you know, Andrew blew up a storm and wouldn’t sign the book. He said, “You can stick your job, I don’t work a 38 hour week and you can stick your job and I’ll see you in court”. And we were just left standing there, shocked” 24

[45] Given the allegations made by Mr Wood about Mrs Bus to her husband, her financial interest in the Jurisdictional Objection being upheld and her demeanour in the witness box I have attached limited weight to her evidence.

[46] Ms Cini asserts that Mr Wood did not resign. She says that when Mr Wood came home that evening, he informed her that his hours had been reduced to 9am – 2pm and that he was anxious as to how he would make ends meet working only from 9am to 2pm.  25 Ms Cini’s verbal evidence was confused and disjointed. She has an interest in her partner being vindicated.

[47] Mr Wood’s son spoke to his father on Friday 11 January 2018 after the conversation in which it is alleged that Mr Wood resigned. Master Wood’s evidence is that his father told him that he had had an argument with Mr Bus about payment and sexual harassment and that he planned to take Delshine to court. According to his son Mr Wood never stated that he had resigned. 26 Of all the witnesses who gave evidence Master Wood was the most credible. Unlike the other witnesses his evidence did not appear to be coloured by allegiances to one side or the other.

[48] Mr Wood was clearly and justifiably unhappy about the reduction in his hours of work. A reduction in hours of work is not an appropriate response to a complaint by an employee that they are the subject of sexual harassment. I am not satisfied that Mr Wood did state that he resigned. If he did do so this statement clearly occurred in the heat of the moment and was a consequence of conduct engaged in by his employer.

[49] The term ‘dismissed’ is defined in section 386 of the FW Act. Subsection 386(1) provides that:

“386 Meaning of dismissed

(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.

[50] The legal principles governing the application of section 386(1) in the context of cases where the employee is said to have resigned rather than been dismissed are well established. Together with an analysis of its legislative history, they were recently set out by a Full Bench of the FWC in Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWC 3200 as follows:

“(1) There may be a dismissal within the first limb of the definition in section 386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in section 386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”

[51] The parties agree that the exchange which occurred on Friday 11 January 2019 was heated. Mr Bus concedes that a resignation was unexpected. In fact it is evidence of Mr Bus that he anticipated Mr Wood remaining with Delshine indefinitely:

“He’d still be there now, because the whole plan over many years, because, you know, I’m 70 in a couple of months’ time, that he knows it would be nice for me to be able to retire. And the plan was that he could be running the business with his son and his daughter. You know, and we set it up as a family business 30 years ago, and so the whole idea was that family would continue it. And I used to say to him, “You can pay me $1000 not to be here”. So it’s just come as a shock to his son and his daughter because they thought they had a future there as well.”

[52] In these circumstances, and given that Mr Wood had been employed by Delshine for more than 20 years, Mr Bus should have subsequently clarified or confirmed with Mr Wood after a reasonable time that Mr Wood genuinely intended to resign. The failure of Mr Bus to do so means that Mr Wood’s resignation, if it did in fact occur, can on the authority of Bupa Aged Care Australia Pty Ltd v Tavassoli be properly characterised as a termination of the employment at the initiative of the employer.

[53] Furthermore, or in the alternative, I am satisfied that the termination was a probable result of the employer’s conduct such that Mr Wood had no effective or real choice but to resign. It is unclear of the true extent of the conduct but it appears likely, given the corroborative evidence of Ms Cini 27 and Miss Wood, that Mr Wood was in fact subjected to inappropriate treatment by Mrs Bus. The only solution posed by Mr Bus was to impose a significant reduction in Mr Wood’s employment conditions. Mr Wood is entitled to enjoy a workplace free of harassment. A refusal to provide such a work environment other than at the cost of a significant portion of his income left Mr Wood with no real choice but to resign.

[54] Consequently, I find that Mr Wood was dismissed from his employment with Delshine within the meaning of section 386 of the FW Act.

Was Mr Wood’s dismissal consistent with the Small Business Fair Dismissal Code?

[55] A dismissal will not be an unfair dismissal if the employer is a small business and the dismissal was consistent with the Code.

[56] It is agreed by the parties that Delshine is a small business employer within the meaning of section 23 of the FW Act.

[57] The Code was declared by the Minister for Employment and Workplace Relations on 24 June 2009 and provides as follows:

“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.

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.”

[58] Mr Bus says that he did not dismiss Mr Wood. He concedes that he had no concerns in relation to Mr Wood’s performance or conduct and it was his expectation that Mr Wood would continue in his employment with Delshine. In his own words:

“There were no performance issues. He’s been working for me for 21 years. If I wanted to get rid of him I would have done it five years ago when he split up with my daughter, but I kept him employed. In actual fact, I fell out with my daughter because I kept him employed. And I said to her, “I can’t just sack him because you’ve fallen out with him”. You know, “I have to have reasons to sack him”, and he was a good employee, he did his job, got on well with everybody, and we haven’t had a problem in 21 years.” 28

[59] In these circumstances the dismissal of Mr Wood could not have been consistent with the Code.

[60] Having been satisfied of sub-sections 385(a), and (c)-(d) of the FW Act, I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable.

Was Mr Wood’s dismissal harsh, unjust or unreasonable

[61] The criteria which must be taken into account when assessing whether a dismissal was harsh, unjust or unreasonable are set out at section 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 Commission 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 Commission considers relevant.”

[62] 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.”

[63] To determine whether Mr Wood’s dismissal was, in the circumstances, harsh, unjust or unreasonable, it is necessary to consider each of the criteria set out in section 387 of the FW Act.

Did Delshine have a valid reason to dismiss Mr Wood? -- s.387(a)

[64] An employer must have a valid reason for the dismissal of an employee protected from unfair dismissal. A valid reason is one which is ‘sound, defensible and well-founded’ 29 and not ‘capricious, fanciful, spiteful or prejudiced.’³⁰ The reason or reasons relied upon by an employer as a valid reason for dismissal need not be the ones given to the employee at the time of the dismissal.31 The requirement to be reasonable must be applied in a practical common sense way to ensure that the employer and employee are each treated fairly.³²

[65] Mr Bus concedes that he had no concerns in relation to Mr Wood’s performance or conduct and that it was his expectation that Mr Wood would continue in his employment with Delshine. 33

[66] Consequently, I find that there was not a valid reason for the dismissal.

Was Mr Wood notified of the reason for his dismissal? (s.387(b))

[67] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,³⁴ in explicit terms,³⁵ and in plain and clear terms.³⁶

[68] Given that Mr Bus says that he did not intend to dismiss Mr Wood and that no valid reason existed for him to do so Mr Wood could not have been notified of the reason for his dismissal.

[69] I therefore find that Mr Wood was not notified of the reason for his dismissal.

Was Mr Wood provided with an opportunity to respond to the reasons for his dismissal? (s.387(c))

[70] 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 employee. 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.³⁷

[71] Given that Mr Wood was not notified of the reason for his dismissal he could not have had an opportunity to respond to that reason.

[72] I therefore find that Mr Wood was not given an opportunity to respond to the reasons for his dismissal.

Was Mr Wood unreasonably refused a support person? (s.387(d))

[73] 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. There is however, no positive obligation on an employer to offer an employee the opportunity to have a support person.³⁸

[74] In the circumstances of this matter this consideration is not applicable and I have therefore treated it as neutral.

Was Mr Wood given warnings regarding his unsatisfactory performance? (s.387(e))

[75] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.³⁹

[76] Mr Bus does not assert that Mr Hanson was dismissed for unsatisfactory performance. This consideration is therefore not applicable and I have treated it as neutral.

What is the impact of the size of Delshine and the absence of dedicated human resources management specialist/expertise on the procedures followed? (s.387(f) and s.387(g))?

[77] Delshine is a small family owned and operated business with no dedicated human resource management expertise. The size of Delshine and the absence of dedicated human resource management or expertise has impacted on the procedures followed by Mr Bus in effecting the dismissal.

Are there any other relevant matters? - s.387(h)

[78] Section 387(h) of the FW Act provides the Commission with a broad scope to consider any other matters it considers relevant. Other than the matters considered elsewhere in this decision, there are no other matters I consider relevant to the determination of whether the dismissal of Mr Wood was harsh, unjust or unreasonable:

Was Mr Wood’s Dismissal Unfair?

[79] Having considered each of the matters specified in section 387, I am satisfied that the dismissal of the Mr Wood was harsh, unjust or unreasonable. Accordingly, I find Mr Wood’s dismissal was unfair.

What is an appropriate remedy?

[80] Section 390 of the FW Act sets out the remedies which are available if a dismissal is found to be unfair and the circumstances in which a remedy made be ordered:

“390 When the Commission may order remedy for unfair dismissal

(1) Subject to subsection (3), the Commission may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the Commission 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 Commission is satisfied that reinstatement of the person is inappropriate; and

(b) the Commission 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.”

[81] For the reasons set out above I am satisfied that Mr Wood was protected from unfair dismissal and that he was dismissed unfairly.

[82] Mr Wood seeks compensation of six months wages as the remedy for his unfair dismissal. Regardless of the remedy sought by Mr Wood, section 390 of the FW Act requires I first determine whether reinstatement is appropriate before I consider whether making an order for compensation.

[83] Mr Wood says that reinstatement is inappropriate because of the risk that his former mother in law Mrs Bus will sexually harass him. He also says that Mr Bus is ‘not a nice person to work with.”, that Mr Bus does not pay him correctly or comply with the environmental or safety laws and that it would be awkward and uncomfortable for him to return to work at Delshine. 40

[84] Mr Bus submits reinstatement would be inappropriate because Mr Wood doesn’t want to work at Delshine anymore. He also says that Mr Wood has been mentally unstable over issues involving his ex-wife, including threatening to hang himself in the factory. Mr Bus also alleges that since his dismissal Mr Wood has made disparaging comments about Delshine to its clients and various government authorities. 41

[85] In the circumstances I am satisfied that reinstatement is inappropriate.

Is an order for compensation appropriate?

[86] Section 390(3)(b) of the FW Act provides that an order for compensation may only be made if it is appropriate in all the circumstances.

[87] Mr Woods submits that an order for compensation is appropriate because reinstatement is not appropriate and he should be compensated for now being without employment.

[88] Mr Bus submits that an order for compensation is not appropriate because Mr Wood resigned from the business without giving notice causing significant disruption to the capacity of the business to manufacture and deliver its product. 42

[89] For the reasons set out above I am satisfied that Mr Wood did not resign but was dismissed and that an order for compensation is appropriate in all the circumstances of this case.

[90] 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:

“392 Remedy—compensation

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 Commission 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 Commission considers relevant.

Misconduct reduces amount

(3) If the Commission is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the Commission 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 Commission 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 Commission 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.

Note: subsection 392(5) indexed to $61,650 from 1 July 2012

(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

(c) 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.”

[91] In order to determine the appropriate amount of compensation to order each factor specified in section 392(2) of the FW Act must be evaluated and given appropriate weight. No one consideration is paramount but regard must still be had to each of them. 43

[92] Mr Wood has been employed by Delshine for more than 20 years. His renumeration at the time of his dismissal was $40 per hour gross.

[93] Mr Wood asserts that he would have remained in the employment of Delshine for ‘quite a while’ but for his dismissal because he enjoyed the delivery part of his role. 44 

[94] Mr Bus says that he had no intention of dismissing Mr Wood in the foreseeable future:

“He’d still be there now, because the whole plan over many years, because, you know, I’m 70 in a couple of months’ time, that he knows it would be nice for me to be able to retire. And the plan was that he could be running the business with his son and his daughter. You know, and we set it up as a family business 30 years ago, and so the whole idea was that family would continue it. And I used to say to him, “You can pay me $1000 not to be here”. So it’s just come as a shock to his son and his daughter because they thought they had a future there as well. Everything’s changed in the last two or three years since he’s met his present girlfriend.”

[95] However, Mr Bus asserts that Mr Wood intended to resign so that he could pursue his lawn mowing and garden maintenance business. Mrs Wallis, Mr Allen and both Mr Wood’s son and daughter gave evidence that Mr Wood had indicated to them at various times that his lawn and garden business was going well and that he intended to eventually leave Delshine. 45 

[96] Given the decline in sales that Delshine was experiencing and the subsequent contraction in his hours of work it is unsurprising that Mr Wood might seek to grow his own small business.

[97] Notwithstanding his assertions that he enjoyed the delivery part of his role Mr Wood was clearly uncomfortable in the workplace. His only companions in the workplace were his former in-laws and his children. His relationship with his in-laws and children had deteriorated since his marriage breakdown. 46 His evidence, which is corroborated by his daughter and new partner, is that for some period of time he had concerns about the way his mother in law interacted with him.47 It is clear he believed that this unwelcome behaviour was likely to continue.

[98] Not withstanding the allegations of harassment, it is likely that the hours of work available to Mr Wood at Delshine were likely to contract further in the foreseeable future. Clearly Mr Wood was unhappy about a proposal that his hours be reduced to 9am – 2pm and it appears unlikely that he would have continued in employment with Delshine with such restricted hours.

[99] According to Mr Wood he was not wanted in the business anymore and was to be imminently replaced by his son. Mr Wood gave evidence that he would not wish to remain in a workplace where he was not wanted.

[100] Given all of the above and Mr Wood’s evidence that he was prepared to agree to terms for his departure from the business 48 I think it is unlikely that Mr Wood would have remained employed by Delshine for any extended period of time following the heated arguments on Friday 11 January 2019.

[101] Had Mr Wood remained calm on Friday 11 January 2019 he may have been able to negotiate alternative work arrangements or a departure from the business which would have resulted in him being able to avoid the loss resulting from a sudden departure from the business and the harm that the sudden departure caused to the business and to his relationship with his father in law and his children.

[102] Had Mr Bus not refused to permit Mr Wood to enter the workplace on Monday 14 January 2019 it seems most probable that Mr Wood and he would have negotiated terms for Mr Woods departure from the business.

[103] In considering whether Mr Wood has taken steps to mitigate the loss suffered as a result of the dismissal I should take into account whether Mr Wood has acted reasonably in the circumstances. 49

[104] To his credit Mr Wood has obtained a working with children check and a construction induction card to increase his employability. 50

[105] Mr Wood says that he has been diligently applying for jobs through Seek and Centrelink since his dismissal but has been unsuccessful in obtaining any employment. He tendered a bundle of job applications. I note that almost all of these were for roles for which Mr Wood did not possess the necessary minimum qualifications and/or experience.

[106] Mr Wood says that he has also been applying for odd jobs. He asserts that he has not obtained any income from such sources or in fact from his lawn mowing and gardening business.

[107] I am not satisfied that Mr Wood has made reasonable efforts to mitigate the loss suffered as a result of the dismissal. Given the evidence of all the witnesses including that of Mr Wood about growth of his lawn mowing and garden maintenance business I think it is unlikely that Mr Wood has earned no remuneration since his dismissal from this source. Given the lack of candour in Mr Wood’s evidence with respect to income from his lawn mowing service I am not satisfied given his evidence of the range of tasks he performed at Delshine that he has not obtained at least a small amount of casual or cash work.

[108] Mr Bus submits that the business cannot afford to pay Mr Wood compensation because sales are declining, and the business is incurring additional costs since Mr Wood’s departure engaging couriers to do deliveries previously performed by Mr Wood. Mr Bus is currently training Mr Wood’s son to manufacture chemicals so presumably productivity is also adversely affected by Mr Wood’s departure. 51

[109] In light of all of the above I will order Delshine to pay to Mr Wood an amount equivalent to four weeks’ pay working 9am to 4pm daily (Order). This amount is to be paid by Delshine to Mr Wood on a date or dates to be agreed by the parties within 7 days of the Order being issued. In the absence of a written agreement between the parties being filed by Delshine with Chambers by Tuesday 25 June 2019 I will make a subsequent order on the application of Mr Wood setting out payment terms. Mr Wood must make such application by 2 July 2019.

Conclusion

[110] I am satisfied that Mr Wood was protected from unfair dismissal, that the dismissal was unfair and a remedy of compensation is appropriate.

[111] An Order [PR708695] will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Mr A Wood on his own behalf.

Mr L Buss for the Respondent.

Hearing details:

2019.

Perth.

2 May.

Printed by authority of the Commonwealth Government Printer

<PR708694>

 1   I have given limited weight to Ms Wood’s written statement. It appears to contain statements which appear clumsily intended to ‘bolster’ Delshine’s case but are inconsistent with the evidence of other witnesses. For example she alleges that her father discussed an intention to act “…aggressively to start arguments with his Boss and Manager whenever possible in hopes of getting fired”. However the evidence of Mr Bus is in fact that he had no performance or conduct issues with Mr Wood before the events of Friday 11 January 2019 and the events of that day did not prompt him to wish to fire Mr Wood.

 2   Transcript at PN513

 3   Transcript at PN145, PN260

 4   Transcript at PN145, PN264

 5   Transcript at PN190

 6   Transcript at PN265

 7   Transcript at PB419

 8   Transcript at PN629

 9   Transcript at PN266

 10   Transcript at PN154

 11   Exhibit A4

 12   Transcript PN184

 13   Transcript at PN183

 14   Transcript at PN183

 15   Transcript PN267

 16   Transcript PN267

 17   Transcript at PN192

 18   Transcript at PN126, PN268

 19   Transcript at PN142

 20   Transcript at PN207

 21   Transcript at PN207

 22   Transcript at PN206-209

 23   Transcript at PN36-PN66

 24   Transcript at PN775

 25   Transcript at PN415

 26   Transcript PN727- PN754

 27   Transcript at PB419

 28   Transcript PN273

 29   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.

30 Ibid.

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

32 Ibid.

 33   Transcript PN273

34 Chubb Security Australia Pty Ltd v Thomas (Print S2679) at [41].

35 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [151].

36 Previsic v Australian Quarantine Inspection Services (Print Q3730).

37 RMIT v Asher (2010) 194 IR 1, 14–15.

38 Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542].

39 Annetta v Ansett Australia Ltd (2000) 98 IR 233 at 237.

 40   Transcript at PN228-PN229, Exhibit A1 at q.7

 41   Transcript at PN274-275

 42   Transcript PN274 -PN289

 43   Tempo Services Ltd v TM Klooger (2004) 136 IR 358

 44   Transcript at PN231

 45   Transcript at PN477-479, PN574, PN711, Exhibit R5

 46   Transcript PN288 and PN695

 47   Transcript at PN635

 48   Transcript at PN206

 49   Biviano v Suji Kim Collection PR915963 at [34].

 50   Transcript at PN221

 51   Transcript at PN292