DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Troy Currie
v
The Trustee for B&S Hambleton Trust T/A Perfect Coat Painting
(U2019/4595)

Application for an unfair dismissal remedy – jurisdictional objection that dismissal complied with Small Business Fair Dismissal Code – applicant warned about attendance record and other conduct issues before dismissal – applicant not paid applicable penalty rate for weekend work throughout employment and would not have been paid applicable penalty rate had he attended for work – Code not met – jurisdictional objection dismissed – dismissal unjust and unreasonable – compensation to be ordered following further hearing.

[1] On 23 April 2019 Mr Troy Currie made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from The Trustee for B&S Hambleton Trust T/A Perfect Coat Painting (Perfect Coat) was harsh, unjust or unreasonable.

[2] In the course of lodging his application Mr Currie filed to the Commission both a Form F2 – Application for an unfair dismissal remedy and a Form F9 – Application for the Commission to deal with an unlawful termination dispute.

[3] On 24 April 2019 a Commission staff member contacted Mr Currie’s support person, Mr Stirling Eggmolesse, and clarified with him that the Form F9 had been filed in error and Mr Currie sought to progress only his application for an unfair dismissal remedy. On that basis, Mr Currie’s Form F9 was not served on Perfect Coat.

Background and jurisdictional objection

[4] Mr Currie commenced employment with ‘Perfect Coat Painting’ on 3 July 2017 as an apprentice painter. On 15 January 2018, Mr Currie’s employing entity changed to be The Trustee for B&S Hambleton Trust T/A Perfect Coat Painting. It is not contested, and I so find that there is continuous service between the two entities.

[5] Mr Currie was dismissed effective immediately on 14 April 2019 after he failed to attend for work on that day. He was dismissed by a text message sent to him by a co-owner of the business, Mr Brendan Card, which is set out below:

“You can find another job mate, you are sacked. I told you you were working today and yet you have ignored me once again. I hope your night out on the piss was worth losing your job over”.

[6] Perfect Coat submitted that on the date of Mr Currie’s dismissal it employed four people including Mr Currie and was consequently a small business employer. A jurisdictional objection to the application was made on the grounds that it had complied with the Small Business Fair Dismissal Code (the Code) in dismissing Mr Currie, as it had previously warned Mr Currie about his problematic conduct regarding his attendance and inaccurate timesheet recording. It was submitted that Mr Currie had specifically been warned the day prior to his dismissal that if he did not attend for work on 14 April 2019 he would be dismissed.

[7] On 13 June 2019 I directed both parties to file and serve material and submissions relevant to the jurisdictional objection and in respect of the merits of the application and the remedy sought.

[8] On 4 July 2019 Perfect Coat filed and served submissions regarding its jurisdictional objection and the merits of the application, as well as a witness statement given by each of Mr Card and Ms Hambleton, the other co-owner and Mr Card’s partner.

[9] On 16 July 2019, Mr Currie filed and served very brief submissions in response to Perfect Coat’s Form F3 response to his original application. His submissions did not address Perfect Coat’s jurisdictional objection and did not comment at all upon Perfect Coat’s submissions or the witness statements of Mr Card and Ms Hambleton.

[10] After the time for Mr Currie’s material to be filed and served expired without any further material being submitted, my Associate wrote to Mr Currie and noted that he had not complied with my directions as he had failed to file a witness statement regarding his dismissal, and had not dealt with Perfect Coat’s jurisdictional objection. I directed Mr Currie to file a witness statement regarding his dismissal, without which I would be unable to determine this matter.

[11] On 30 July 2019 Mr Currie filed and served a document purporting to be his witness statement, although the document was not dated or signed by Mr Currie and was not given in the first person. Further, the document still failed to deal with any of the matters raised in the witness statements given by Mr Card and Ms Hambleton. Again, I directed Mr Currie to file a witness statement as previously instructed, and directed him that his statement must be given by him in the first person. Later on 30 July 2019 Mr Currie filed and served a witness statement made out in the first person and signed by him on 30 July 2019.

[12] After receiving Mr Currie’s witness statement, my Associate received a phone call from Mr Eggmolesse, who informed my Associate that Mr Currie had not received any of Perfect Coat’s material of 4 July 2019, which was the reason that that material had not been addressed in Mr Currie’s statement. Later on 30 July 2019, my Associate re-sent Perfect Coat’s material to all parties and provided Mr Currie an opportunity to file any material he wished responding to Perfect Coat’s material.

[13] Mr Currie did not file any further material addressing Perfect Coat’s submissions or the witness statements of Mr Card and Ms Hambleton. Perfect Coat did not file any material in reply to Mr Currie’s submissions or his witness statement of 30 July 2019.

[14] This matter was listed for hearing by telephone before me on 9 August 2019. Mr Currie appeared along with Mr Eggmolesse. Mr Currie gave evidence on his own behalf, and during the proceedings it became necessary to hear evidence from Mr Eggmolesse. Ms Emma Kirkby of Master Builders Queensland appeared for Perfect Coat. Mr Brendan Card and Ms Shannon Hambleton appeared and gave evidence for Perfect Coat. After obtaining the views of the parties, I decided to conduct this matter as a determinative conference.

Legislation

[15] Section 385 of the Act defines the meaning of “unfair dismissal” and states as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[16] Section 388 of the Act provides:

“The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person's dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[17] The Code itself states:

“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 the Fair Work Commission, 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. [original emphasis]”

[18] If I determine that Mr Currie’s dismissal was not in accordance with the Code, it is necessary for me to consider if the dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act, which states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Evidence and submissions of Mr Currie

Evidence and submissions prior to determinative conference

[19] At the time of his dismissal Mr Currie was a second-year apprentice painter. The Australian Apprenticeship Support Network provider, assisting with the apprenticeship relationship was an organisation called ‘BUSY At Work’.

[20] Mr Currie stated that he had not attended work on 14 April 2019 due to a ‘family reason’; he wished to attend his cousin’s birthday celebrations on the Saturday night. He had already worked every day in the week commencing Monday, 8 April 2019, including Saturday, 13 April 2019. Mr Currie never received penalty rates for any overtime he worked throughout his employment, including work performed on weekends.

[21] Mr Currie submitted that there had been no prior warnings that he may be dismissed. It was his submission that he had signed a ‘standard apprenticeship contract to work during the week’ and he had no contractual obligation to work any additional hours, including weekends.

[22] Mr Currie’s evidence included a denial that he had falsely claimed work hours on his timesheets. He denied that Mr Card spoke to him about his performance or conduct at work. He was not aware that there were any issues with his work, before or after he turned 18 years of age. Mr Currie stated that once every four to six months he was required to travel to Brisbane for specialist medical appointments, and on each of those occasions he gave Perfect Coat at least one week’s notice of the date that he could not work.

[23] The following text messages were exchanged between Mr Currie and Mr Card on the Friday, Saturday and Sunday:

[24] Mr Currie stated that Perfect Coat had not provided him with any reason for his dismissal; he had simply received the text message set out above from Mr Card telling him that he didn’t have a job anymore. Mr Currie reiterated that Mr Card had not raised with him any issues with his work performance or conduct, and he had no idea that anything was wrong with his conduct or performance.

[25] Mr Currie stated that he received only one payslip from Perfect Coat throughout his employment and he never received a copy of his employment contract.

Further evidence and submissions during determinative conference

[26] Much of Mr Currie’s evidence, particularly in response to assertions put forward by Perfect Coat, was given at the determinative conference of this matter.

[27] During the conference Mr Currie stated that Perfect Coat had not ever raised any concerns with him about his performance. Mr Currie denied having received the written warning of 28 June 2018 (set out below at [50]) although he agreed that he had been living at the address described in the written warning as at 28 June 2018.

[28] Mr Currie could not recall meeting with Ms Hambleton on or about 28 June 2018, or any meeting during which Ms Hambleton had informed him that his performance and behaviour had been unsatisfactory and his employment may be terminated if his performance, behaviour and attendance at work did not improve.

[29] Mr Currie agreed with Mr Card’s evidence that on Saturday, 13 April 2019 he had attended for work at 7:15am and had not started work until 7:30am. Mr Currie stated that he had been late for work because his father had been late dropping him to work. It was put to him during the determinative conference that he had finished that day at around 11:00am. He rejected that assertion and stated that he had worked until 4:30pm, having worked with his colleague, Tim Payne (Timmy), who drove him home.

[30] Mr Currie rejected Mr Card’s evidence that Mr Payne had not worked on 13 April 2019 because Mr Payne had custody of his children that weekend. Following the determinative conference, the respondent was directed to, and did provide Mr Payne’s timesheet for 13 April 2019. The timesheet confirms that Mr Payne worked that day between 7:00am and 4:30pm.

[31] It was put to Mr Currie that he had been picked up by his father at around 11:00am, which Mr Currie rejected. He confirmed that there was an occasion where he had left work early to pick up his sister’s car, but it was on a different date and was not on Saturday, 13 April 2019.

[32] Mr Currie confirmed that the reason he had not attended for work on Sunday, 14 April 2019 because he had attended a party the previous night.

[33] I questioned Mr Currie if he would have been more likely to work on a Sunday if he was paid at penalty rates. He generally agreed, noting the difference in pay was $14.36 for single time and $28.72 for double time pay.

[34] Mr Eggmolesse submitted on Mr Currie’s behalf that throughout Mr Currie’s employment he was often required to work upwards of 50 hours per week, despite his apprenticeship contract requiring Mr Currie to work only 38 hours per week. It was submitted that Perfect Coat’s direction for Mr Currie to work on Sunday, 14 April 2019 was an unreasonable request for Mr Currie to work overtime, particularly in light of the additional hours he had already worked, and given that Mr Currie would be paid at his ordinary rate of pay rather than at a higher overtime rate. Mr Eggmolesse submitted that Perfect Coat’s direction for Mr Currie to work on Sunday, 14 April 2019 was unreasonable.

[35] In response to Mr Card’s evidence that he had told Mr Currie he could start at 8:00am on Sunday, 14 April 2019, instead of commencing at 7:00am, Mr Currie’s evidence is that he spoke with Ms Hambleton on 13 April 2019, and she made the offer that he could commence at 8:00am instead of 7:00am. He denied that Mr Card repeated this offer to him on the morning of 13 April 2019.

Evidence of Mr Stirling Eggmolesse during the conference

[36] Mr Eggmolesse stated that he had not picked Mr Currie up from work on 13 April 2019. He recalled that Mr Currie had been dropped home by his co-worker, Timmy.

Mr Currie’s submissions regarding the Code

[37] Mr Currie did not make submissions relevant to the application of the Code during the conference. If the Commission finds that the Code has not been correctly applied, it is necessary to consider s.387 of the Act.

Mr Currie’s submissions pursuant to s.387 of the Act

s.387(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)

[38] Mr Currie submitted that Mr Card’s text message of 14 April 2019 stating, “You can find another job mate, you are sacked. I told you you were working today and yet you have ignored me once again. I hope your night out on the piss was worth losing your job over” did not set out a valid reason for his dismissal and submitted that there was not a valid reason for his dismissal related to his capacity or conduct.

s.387(b) - Whether the person was notified of that reason

[39] Mr Currie agreed that he was notified of the reason for his dismissal by way of Mr Card’s text message dismissing him.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[40] Mr Currie submitted that he was not given an opportunity to respond to any reason for his dismissal related to his capacity or conduct.

s.387(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

[41] Mr Currie did not address me on this criterion.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[42] Mr Currie maintained that he did not receive the warning letter of 28 June 2018, either by post or by hand delivery. He conceded that Mr Card’s text message dismissing him described the reasons for his dismissal.

s.387(f) - Whether Perfect Coat’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated resource management specialist impacted on the procedures followed

[43] Mr Currie did not address me on these two matters.

s.387(h) - Other matters

[44] I asked Mr Currie for his views on Perfect Coat’s contention that he had been dismissed following his refusal to work reasonable overtime on 14 April 2019. Mr Currie submitted that Perfect Coat’s direction for him to work overtime on 14 April 2019 was not reasonable because he would only have been paid at his ordinary rate of pay for working on that day, and not at double-time as he should have been paid.

Remedy

[45] Mr Currie does not seek to be reinstated to his former employment.

[46] Mr Currie stated that he had worked for Brush Up Painting about four to five weeks after his dismissal from Perfect Coat, and stated that he received approximately $1,160 in cash payments during the month-and-a-half that he worked for Brush Up Painting. Mr Eggmolesse submitted that Mr Currie was still owed between $1,600 and $1,800 in respect of work he performed for Brush Up Painting. Mr Currie stated that he had also looked for work with other painting business but had not obtained any further employment following his dismissal.

Evidence and submissions of Perfect Coat

Evidence of Ms Shannon Hambleton

[47] Ms Hambleton gave a witness statement in respect of this matter and appeared and gave evidence at the determinative conference of 9 August 2019. Ms Hambleton is a co-owner and administrator for Perfect Coat and shares the responsibility of running Perfect Coat with Mr Card.

[48] Ms Hambleton stated that Mr Currie had been employed by Perfect Coat and its predecessor company since 3 July 2017. She stated that Mr Currie had been an excellent employee during the beginning of his employment. However, since around May 2018 he seemed to have lost interest in his work. Ms Hambleton stated that Mr Currie’s lack of interest manifested in Mr Currie:

•  Arriving for work late;

•  Leaving work early without permission;

•  Leaving work sites during work hours without permission;

•  Failing to be prepared with necessary personal protective equipment (PPE);

•  Not attending for work at all without notification.

[49] Ms Hambleton stated that Mr Currie had also developed a practice of putting down full hours on his timesheets even when he did not work his full hours, which created additional administrative tasks for Ms Hambleton to ensure that Mr Currie was paid for the hours he actually worked.

[50] Ms Hambleton stated that on 28 June 2018 she met with Mr Currie and another employee and addressed performance issues with them. She stated that she then prepared a warning letter for Mr Currie that afternoon before she had an absence of annual leave. It is her evidence that she posted to his home address the warning letter as follows:

“Dear Troy

Warning letter

I am writing to you about your performance and communication during your employment with Perfect Coat Painting.

On 28/06/2019 you met with Shannon Hambleton. At this meeting you were advised that your performance and/or behaviour has been unsatisfactory, and that immediate improvement is required. You were advised that you need to ensure you arrive at work on time and are not to leave early without letting Shannon or Brendan know. You are not to leave the jobsite to go to the shop ect outside of break times at your own leisure with out asking Shannon or Brendan first as you have been claiming the time away on your timesheet’. Ensuring timesheets get filled out daily to ensure correct start and finish times on timesheets. Work performance was also discussed as of late you have not been working efficiently or in a timely manner and not completing tasks to a satisfactory standard.

In the meeting you were asked if you had anything you wished to say or to respond to the situation and you said that you would try to do better and be at work on time and put in more effort.

After considering the situation it is expected that your performance and communication improves and specifically that you communicate with your employer if you are unable to attend work for any given reason or have to leave site at any time before the end of the work day and that you complete given tasks in a timely manner and of high standard. You must also ensure that correct start and finish times are on your timesheet.

This is your first written warning letter. Your employment may be terminated if your performance does not improve.

Yours sincerely,

Shannon Hambleton

Administration

Perfect Coat Painting [sic]”

[51] Ms Hambleton stated that at approximately 7:45am on 13 April 2019 she called Mr Currie to discuss his texts to Mr Card sent on 12 April 2019. Mr Currie confirmed to her that he wanted to have 14 April 2019 off so that he could go to a friend’s party on the night of 13 April 2019. She said to him that he was really needed on 14 April 2019, and the job may take only half a day. She told him that he could not be given 14 April 2019 off as he had not worked the previous weekend, and had planned to take three days off over the following weekend. Her evidence is that Mr Currie stated that he understood.

[52] Ms Hambleton stated that Mr Currie asked why Timmy, another employee did not need to work on 14 April 2019? She told him that Timmy had pre-planned leave for 14 April 2019 due to family arrangements.

[53] Ms Hambleton informed Mr Currie that if he did not show up for work on 14 April 2019 he would not have a job to come back to, and stated that Perfect Coat ‘could not keep letting [Mr Currie] get away with everything that had been happening in the last six months’. Ms Hambleton recalled that Mr Currie said in response ‘yep, ok’, which Ms Hambleton understood to mean that Mr Currie understood his employment was at risk if he did not attend for work on 14 April 2019.

[54] During the conference I asked whether Mr Currie had been paid notice upon his dismissal. Ms Hambleton stated that Mr Currie had been paid his outstanding annual leave entitlements, but had not been paid any notice or wages in lieu of notice. Ms Hambleton was not aware at the time of Mr Currie’s dismissal that notice was required to be paid.

[55] Relevant to Mr Currie being an indentured apprentice, Ms Hambleton stated that she had liaised with BUSY At Work about Perfect Coat’s concerns with Mr Currie’s performance. Betty from Busy at Work had attended and spoken with Mr Currie, which he confirmed happened on one occasion.

Evidence of Mr Brendan Card

[56] Mr Card gave a witness statement in respect of this matter and appeared and gave evidence at the determinative conference of 9 August 2019. Mr Card is a co-owner of Perfect Coat and shares the responsibility of running Perfect Coat with Ms Hambleton. Mr Card is responsible for overseeing commercial contracts and onsite operations and undertakes painting works himself as a trade-qualified painter.

[57] Mr Card stated that Mr Currie had worked for Perfect Coat Painting since 3 July 2017. He said that Mr Currie had ‘stopped applying himself’ as he approached the end of his first year of apprenticeship, as follows:

•  He had left sites outside of break times and without permission to go to the shops;

•  He had arrived for work late and without his PPE;

•  He had arranged for his father to collect him from work before the end of day without notifying Perfect Coat that he would be leaving early;

•  He frequently did not record his hours accurately on his timesheet

[58] Mr Card stated that Mr Currie had received a written warning during June 2018 regarding inaccurate timesheet entries, and stated that Ms Hambleton had raised the problems with him frequently, and had become accustomed to checking Mr Currie’s timesheets against other employees’ timesheets to ensure accuracy.

[59] During a ‘toolbox talk’ on 13 March 2019, Mr Card raised the importance of accurately recording time worked within timesheets. His evidence is that Mr Currie started laughing, and Mr Card asked him why he was laughing as the comments had been directed at Mr Currie, but Mr Currie continued to laugh. Mr Card said to Mr Currie that he did not see what was funny as Mr Currie was stealing money from Mr Card by lying on timesheets. Mr Card stated that Mr Currie’s actions on 13 March 2019 were indicative of how Mr Currie had begun to respond to directions.

[60] On 9 April 2019 he told Mr Currie that he needed him to work the upcoming weekend, to which Mr Currie did not say that he did not want to or could not work that weekend. Mr Card understood and relied upon Mr Currie working on the Sunday.

[61] After receiving Mr Currie’s text message on the Friday night, it is his evidence that he saw Mr Currie on the Saturday morning and knew that he had spoken with Ms Hambleton who had said that he could commence at 8:00am on the Sunday instead of 7:00am. He considered that Mr Currie was ‘moping’ about having to work the Sunday. He reiterated that he could commence at 8:00am.

[62] On the same day, 13 April 2019, Mr Card knew that Mr Currie did not arrive for work until 7:15am and did not commence work until 7:30am. It is Mr Card’s evidence that at approximately 10:00am Mr Currie told him that he was going to leave work at 11:00am with his father to pick up his sister’s car, and Mr Currie did not work the ‘big day’ that he said that he would. Mr Card maintained that Mr Currie did leave at around 11:00am despite Mr Currie’s evidence that he worked until 4:30pm and went home with Timmy.

[63] Mr Card gave evidence that Timmy did not work at all that day, but his timesheet, produced after the determinative conference demonstrates that he did work between 7:00am and 4:30pm.

[64] Mr Card stated he attempted to call Mr Currie’s mobile phone on the morning of 14 April 2019 but could not reach him. He considered that Mr Currie’s phone was turned off at the time, and that Mr Currie had chosen not to work on 14 April 2019 ‘even though he knew it would cost him his job’. Just prior to 9:00am he sent him a text message dismissing him.

[65] Mr Card received a text message from Mr Currie at 4:54pm on 14 April 2019 stating that he would send through his timesheet when he got home. Mr Card stated that when Mr Currie did send through his timesheet, he listed his start time for 13 April 2019 as 30 minutes earlier than he had actually started, which Mr Card had to correct.

[66] During the conference I asked Mr Card what alternative staffing arrangements could have been made if Mr Currie had told him earlier in the previous week that he was not going to work on 14 April 2019. Mr Card stated that no additional employees other than Mr Currie could have worked on 14 April 2019, besides one employee who had already agreed to work.

[67] During the conference I asked Mr Card what he understood were his obligations for the payment of overtime rates of pay for work performed on weekends. Mr Card stated that he understood he was obliged to pay time-and-a-half on Saturdays and double-time on Sundays. Mr Card stated that shortly after Mr Currie commenced employment with Perfect Coat, Mr Card asked him if he would work for a flat rate of pay, to which Mr Currie agreed, and Mr Currie was paid at a flat rate of pay throughout his employment with Perfect Coat.

[68] Mr Card stated that he had mistakenly thought that he did not need to pay Mr Currie overtime rates because Mr Currie had agreed to a flat rate of pay. Mr Card had been in business only one year prior. Mr Card stated that since Mr Currie’s dismissal he had been made aware that employees must be paid at the applicable overtime rate regardless of any purported agreement to be paid at a lesser rate of pay.

[69] Mr Card agreed that he had directed Mr Currie to attend for work on 14 April 2019 on the basis that he would be paid at his ordinary rate and not at double-time, which should have been the rate paid to Mr Currie for working on a Sunday.

Perfect Coat’s submissions regarding the Code

What kind of dismissal was it?

[70] During the conference, Perfect Coat submitted that Mr Currie’s dismissal fell within the Code’s ‘Other dismissal’ category as Mr Currie had been warned that his employment may be terminated if his conduct and attendance issues did not improve. Perfect Coat conceded that two weeks’ notice should have been paid to Mr Currie at the time of his dismissal, but submitted that its inadvertent failure to pay notice to Mr Currie when notice should have been paid does not change the nature of Mr Currie’s dismissal from an ‘other dismissal’ to ‘summary dismissal’.

[71] I understood Perfect Coat’s submission to be that Mr Currie was not summarily dismissed, despite the text message sent to him. I explained to Ms Kirkby that sometimes an employer might pay notice but nevertheless maintain that the employee was dismissed for serious misconduct and the dismissal should be treated so under the Code. Ms Kirkby expressly submitted that the dismissal should be treated as ‘Other Dismissal’ within the Code.

The small business employer must give the employee a reason why they are at risk of being dismissed

[72] Perfect Coat submitted that on 13 April 2019 Ms Hambleton advised Mr Currie that his employment would be at risk of termination if he did not attend work on 14 April 2019. Ms Hambleton made it clear to Mr Currie that his conduct over the previous few months was material to the risk to his employment, which Perfect Coat asserts Mr Currie acknowledged.

The reason must be a valid reason based on the employee’s conduct or capacity to do the job

[73] Perfect Coat submitted that on 28 June 2018 Mr Currie was warned about the following issues with his conduct:

•  Coming to work late;

•  Not being prepared for work with his PPE;

•  Leaving site during work hours without permission;

•  Leaving work early without prior discussion;

•  Not attending for work and failing to notify the employer; and

•  Repeatedly claiming payment for hours that were not worked.

[74] Perfect Coat submitted that the warning letter of 28 June 2018 informed Mr Currie that his employment was at risk of termination if he did not improve his performance in the above areas. Perfect Coat submitted that Mr Currie’s performance briefly improved after the warning letter was issued but his performance again deteriorated by December 2018. It was submitted that throughout February and March 2019 other Perfect Coat employees complained about Mr Currie’s behaviour and he was repeatedly warned about his attendance and timesheet related issues. Perfect Coat submitted that Mr Currie dismissed those complaints and warnings.

[75] The painting job which was undertaken on 14 April 2019 had a deadline for its completion by 15 April 2019. To meet that deadline, Perfect Coat required as many of its employees as possible to work on 13 and 14 April 2019. As noted in Ms Hambleton’s evidence, one Perfect Coat employee was unavailable due to pre-approved family arrangements.

[76] Perfect Coat submitted that Mr Currie requested not to work on 14 April 2019 so that he could go to a party on the night of 13 April 2019. Perfect Coat did not approve that leave and told Mr Currie he was required on 14 April 2019. Mr Currie did not attend work on 14 April 2019 and did not communicate to Perfect Coat that he would not be attending work. Perfect Coat submitted that Mr Currie’s non-attendance was ‘in direct conflict’ with the warning letter of 28 June 2018 and Ms Hambleton’s verbal warning to him of 13 April 2019.

[77] It was submitted that Mr Currie had not worked on the weekend dates of 6 and 7 April 2019, and he had been approved to take a three-day weekend over the weekend of 20 and 21 April 2019. Perfect Coat noted that Mr Currie was also not scheduled to work on 25 April 2019, which was ANZAC day. Perfect Coat submitted that in light of Mr Currie’s upcoming and recent past days off it was not reasonable for him to refuse to work overtime on 14 April 2019.

The employee must be warned verbally or preferably in writing, that they risk being dismissed if there is no improvement

[78] It was submitted that Mr Currie was first warned on 28 June 2018 about his poor attendance and inaccurate timesheets, and informed that his employment was at risk if he did not address those issues.

[79] During the conference, Perfect Coat noted Mr Currie’s evidence that he did not receive the written warning of 28 June 2018, and submitted that whether he had received the written warning or not, Ms Hambleton had met with him in person and explained Perfect Coat’s concerns about his conduct. Perfect Coat submitted that the written warning reflected the matters that the Ms Hambleton raised with Mr Currie in person during the meeting.

[80] Further, Perfect Coat submitted that during February and March 2019 Mr Currie was verbally warned multiple times about his poor attendance and inaccurate timesheets.

[81] Perfect Coat submitted that on 13 April 2019 Mr Currie was told by Ms Hambleton that his employment would be terminated if he did not attend work on 14 April 2019.

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

[82] Perfect Coat submitted that Mr Currie was given an opportunity to rectify the problems raised in the warning letter of 28 June 2018, but despite some initial improvement, Mr Currie had soon resumed his problematic conduct.

[83] It was submitted that Mr Currie made no attempt to address his problematic conduct throughout February and March 2019 despite further verbal warnings, and on 15 March 2019 laughed when confronted about his behaviour by Mr Card.

[84] Perfect Coat submitted that Mr Currie was given a final opportunity to rectify his problematic conduct on 14 April 2019 on the basis that he could have rectified his behaviour by attending for work, which he chose not to do.

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist

[85] Perfect Coat submitted that no discussion with Mr Currie took place regarding his dismissal. Mr Card attempted to call Mr Currie on 14 April 2019 to discuss his non-attendance at work. Had Mr Card been able to contact Mr Currie they may have discussed Mr Currie’s possible dismissal. However, Mr Card was unable to contact Mr Currie and no discussion occurred.

Perfect Coat’s submissions pursuant to s.387 of the Act

[86] Perfect Coat largely repeated its submissions regarding the application of the Code in respect of the criteria set out under s.387 of the Act. Only those criteria for which Perfect Coat made additional submissions are set out here.

s.387(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

[87] It was submitted that Mr Currie did not request a support person to be present at any discussions.

s.387(f) - Whether Perfect Coat’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated resource management specialist impacted on the procedures followed

[88] Perfect Coat submitted that it is small business employer with only four employees and has limited procedures regarding human resources, and does not directly employ any human resources staff. Perfect Coat noted that it is a member of Master Builders Queensland and has some human resources support available to it through that membership. However, Perfect Coat submitted that support from Master Builders Queensland was not available during the events leading up to and resulting in Mr Currie’s dismissal because all relevant events had occurred on a weekend.

s.387(h) - Other matters

[89] Perfect Coat submitted that the Building and Construction General On-Site Award 2010 (the Award) allowed Perfect Coat to require Mr Currie to work reasonable overtime. Perfect Coat submitted that its request for Mr Currie to work overtime on 14 April 2019 was not unreasonable in light of the requirements of the business as Perfect Coat was contractually obliged to complete the relevant job before 15 April 2019 and if it did not meet that deadline it would be penalised for not completing its contractual obligations on time.

[90] Perfect Coat submitted that Mr Currie had not refused to attend for work on 14 April 2019 because he would have been paid at his ordinary rate of pay rather than double-time, but rather because he had wanted to go to a party on the night of 13 April 2019. Perfect Coat submitted that taking into account the true reason for Mr Currie’s refusal to work on 14 April 2019 the reduced rate of pay that Mr Currie would have received had he attended for work did not change the reasonableness of Perfect Coat’s request for Mr Currie to work on 14 April 2019.

[91] Perfect Coat submitted that it requested Mr Currie to work overtime on 14 April 2019 five days prior on 9 April 2019, at which time Mr Currie made no objection to working on 14 April 2019. It was not until 12 April 2019 that Mr Currie requested not to work on 14 April 2019. When informed that he would be required to work on 14 April 2019, Mr Currie equivocated such that Perfect Coat was unsure up until 14 April 2019 as to whether Mr Currie would show up for work that day.

Remedy

[92] Perfect Coat did not address me on the possible reinstatement of Mr Currie, and it is noted that Mr Currie does not seek reinstatement. Submissions were made on the suitability of any order for compensation that may be awarded to Mr Currie.

[93] It was submitted that the small size of its business meant that any order that it pay an amount of compensation to Mr Currie would impact on the viability of its enterprise. Mr Card stated that any order more than $1,000 per week would affect the viability of the enterprise.

[94] Perfect Coat noted that Mr Currie had worked for it for just less than two years and submitted that the length of his service was a neutral factor. Perfect Coat submitted that given Mr Currie’s conduct and his failure to address Perfect Coat’s concerns, Mr Currie would not likely have remained in his employment for more than four weeks.

[95] Perfect Coat acknowledged Mr Currie’s attempts to mitigate his loss and submitted that it was aware that Mr Currie had commenced further employment on 3 June 2019.

[96] Perfect Coat submitted that any amount of compensation that I may award to Mr Currie should be reduced by 50 per cent in light of Mr Currie’s alleged misconduct which Perfect Coat submitted led to his dismissal.

Consideration

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

[97] A dismissal will not be an unfair dismissal if the employer is a small business and the dismissal was consistent with the Code. It is not disputed in this matter that Perfect Coat is a small business employer within the meaning of s.23 of the Act and Perfect Coat dismissed Mr Currie by way of Mr Card’s text message on 14 April 2019.

[98] Mr Currie was employed by Perfect Coat as an apprentice employee. It is not disputed and I am satisfied that Mr Currie was dismissed by way of Mr Card’s text message of 14 April 2019. Perfect Coat submitted Mr Currie’s dismissal fell within the ‘Other Dismissal’ category set out in the Code. Perfect Coat conceded that it should have paid two weeks’ notice to Mr Currie following his dismissal. Perfect Coat submitted that it had failed to pay Mr Currie the required notice on his dismissal because it was unaware of its obligations to pay notice, and not because it considered to Mr Currie’s conduct was sufficiently serious to justify his immediate, summary dismissal.

[99] Mr Currie did not address me on the application of the Code in this matter.

[100] Having regard to the circumstances surrounding the dismissal I am satisfied that Mr Currie was not summarily dismissed because Mr Card believed on reasonable grounds that Mr Currie’s conduct was sufficiently serious to justify immediate dismissal. While the dismissal by text might have constituted a summary dismissal, I am prepared to apply the benefit of the doubt to the small employer that it did not intend to summarily dismiss Mr Currie, but instead it was ‘fed up’ with Mr Currie and applied a termination as an ‘Other Dismissal’ under the Code. For the sake of clarity, I accept that Mr Card did not dismiss Mr Currie on Sunday, 14 April 2019 for serious misconduct.

[101] I must therefore consider whether Perfect Coat complied with the ‘Other Dismissal’ section of the Code, which requires that:

•  The employee was warned that if there is no improvement to their conduct or capacity, they could be dismissed;

•  The employee was given a reason as to why their employment was at risk and that reason was a valid reason based on the employee’s conduct or capacity to do the job;

•  The employer gave the employee an opportunity to respond to the warning and gave the employee a reasonable chance to rectify the problem, having regard to the employee’s response.

[102] Perfect Coat submitted that Mr Currie was warned about his conduct in writing in the warning letter of 28 June 2018 after being verbally warned by Ms Hambleton. Further, there were times throughout February and March 2019 where issues were addressed with him, and on 13 April 2019 where Ms Hambleton expressly told him that if he did not attend for work the following day, his employment would end.

[103] Mr Currie maintained throughout his evidence that Perfect Coat had not warned him about his conduct at all prior to his dismissal.

[104] On the evidence before me I am not satisfied that Mr Currie received the written warning of 28 June 2018, even though Ms Hambleton stated during the conference that the warning was posted to Mr Currie’s correct residential address at the relevant time. Ms Hambleton’s evidence was vague on this point, and she initially stated that she was packing her office up at the time and printed the letter later, either before or after taking annual leave. I do not accept that Mr Currie received the warning letter at his home, and there is no satisfactory explanation as to why it was not provided to him in person.

[105] Despite the above, I am satisfied that Mr Currie was warned about his conduct prior to his dismissal. The written warning itself describes the meeting between Ms Hambleton and Mr Currie on 28 June 2018 and states, “In the meeting you were asked if you had anything you wished to say or to respond to the situation and you said that you would try to do better and be at work on time and put in more effort”. I am satisfied that that meeting did occur, contrary to the evidence of Mr Currie. I am satisfied that Mr Currie was made aware of Perfect Coat’s problems with his conduct as early as 28 June 2018, and he understood what he needed to do to improve, and he in fact did make an effort to improve his conduct following the meeting of 28 June 2018. What is not clear is whether Mr Currie was aware at that time that he was at risk of dismissal if his conduct did not improve.

[106] I accept the evidence of Mr Card and Ms Hambleton that Mr Currie’s continued poor conduct was raised with him on several occasions throughout February and March 2019, including at a ‘toolbox talk’ on 13 March 2019. Mr Currie’s inexperience in the workplace, being a young apprentice was evident. His insolence in laughing while Mr Card was addressing the timesheet issue would have been, I accept, insulting to Mr Card.

[107] In my earlier decision in Sutton v Solar and Batteries Direct Pty Ltd [2019] FWC 5295 I stated the following:

“[29] While I consider that Mr Parke was annoyed and frustrated by Mr Sutton’s failure to communicate his non-attendance at work on 17 and 18 September 2018, I do not consider that he believed on reasonable grounds that Mr Sutton’s conduct was sufficiently serious to justify immediate dismissal. This is particularly the case where Mr Sutton was an indentured apprentice, and obligations arise between parties to an apprenticeship over and above obligations in a traditional employment relationship. I accept Mr Parke’s evidence that he did not know that he could call upon those who assisted the parties enter into the apprenticeship for assistance with the troubled relationship. However, he ought to have known, given his evidence of having employed apprentices in the past, that contractually, there is an obligation not to unilaterally terminate the relationship.

[30] The following information on employer responsibilities is detailed on the Department of Employment, Small Business and Training (Queensland) webpage. References to ASSN mean an Australian Apprenticeship Support Network provider:

“Events where the employer must notify their AASN provider or the department

The employer must notify their AASN provider or the department in writing within 14 days of any of the following events:

•  Agreement by the parties to amend or cancel the training plan.

•  Deciding that the apprentice or trainee is unlikely to meet the requirements of their training plan.

•  If the apprenticeship or traineeship will not be completed within the nominal term and an extension is required.

•  Sale or disposal of the business by the employer.

•  Dissolution or change of business partnership.

•  Where the purchaser of a business agrees to continue to train an apprentice or trainee, the employer must give notice to the AASN provider or the department of the agreement. On receipt of this notification, the training contract is taken to be assigned to the purchaser of the business (the new employer). Note that if a purchaser/new owner or new partnership does not wish to retain an apprentice or trainee, they must notify the AASN provider or the department in writing before the change takes effect.

•  Temporary transfer of a training contract (within seven days after the day the transfer takes effect).

•  Suspension of a training contract - suspension effect date cannot be less than seven days from the date the advice was given to their AASN provider or the department.

However, if the training contract ends during the probationary period, the employer must notify their AASN provider or the department within seven days of the apprenticeship or traineeship ending.

School-based apprentices and some school-based trainees will not complete their apprenticeship or traineeship while at school. Employers are required to convert the training contract to full-time or part-time when the apprentice or trainees completes their final day at school.

This is an automatic process carried out by the department. However, if the student leaves school before the end of Year 12, the parties will need to convert the training contract using ATF-035 Amendment of a registered training contract form. Once converted, appropriate award wages and conditions apply.

The employer must not directly or indirectly:

•  Obstruct or discourage in any way, the apprentice or trainee from participating in the training required under the training plan to be delivered by the training organisation.

•  Place the apprentice or trainee at a disadvantage, because they participate or attempt to participate in the required training.

It is very important that parties maintain open lines of communication and attempt to resolve disputes between themselves in the first instance. If these attempts fail, disputes should be referred to the AASN provider or the department for further assistance and early intervention.

For further information

Contact:

•  the nominated AASN provider for the training organisation

•  Apprenticeships Info on [phone number], regarding employer obligations under the training contract

•  Fair Work Ombudsman on [phone number], regarding employment concerns.”

[31] Further, the following advice is provided to the parties to an apprenticeship if troubles in the relationship become apparent:

“Information to get started

During the term of an apprenticeship or traineeship, an employer, apprentice or trainee may seek assistance or support from the Department of Employment, Small Business and Training, their Australian Apprenticeships Support Network (AASN) provider or, for more serious concerns, various other organisations.

Who can help?

Department of Employment, Small Business and Training

Some of the issues facing employers, apprentices and trainees that the department (or the AASN provider) can provide assistance with are:

•  communication problems

•  workplace mediation

•  negotiation and conflict resolution

•  emotional and mental health issues

•  personal issues

•  absenteeism and behavioural issues.

The department, in providing such assistance, may need to decide matters relating to the training contract or refer the employer, apprentice or trainee to other community-based and government specialist services.”

[32] If problems were arising with Mr Sutton’s conduct, especially his failure to notify an absence from work, even where he was being contacted by his supervisor and another adult worker, Mr Parke’s responsibilities were to seek assistance from the relevant government department, or the AASN provider who worked with the parties to create the apprenticeship.”

[108] I accept the evidence of Perfect Coat that Betty from BUSY At Work was on hand to offer assistance given the relationship was not one of simply employer and employee, but that of an indentured apprentice. Mr Currie stated that he met only once with Betty.

[109] I consider the responsibilities of an employer with an indentured apprentice to be a very important responsibility. So often the apprenticeship is with a young person, and it is important to ensure that if the apprenticeship is planned for three or four years, all parties know their responsibilities to each other.

[110] Mr Currie had responsibilities to Perfect Coat, and that included turning up to work on time, and importantly, not embellishing his start time. I accept Perfect Coat’s evidence that he did this on occasion, causing great frustration by having to carefully check his timesheets. This was also addressed with him during a toolbox, which regrettably, Mr Currie took as somewhat of a joke. Mr Currie also had obligations to work a reasonable amount of overtime.

[111] That being said, Perfect Coat had responsibilities to its indentured apprentice. That included working the apprentice reasonable hours and meeting all of its obligations with respect to the Act and to the Award applicable to the work performed. Where it was submitted that the employer could request Mr Currie perform reasonable overtime when asked or directed to work weekends, it is inconceivable in 2019 that an employer, even a small employer, could not be aware of its obligations to pay penalty rates for weekend work after the apprentice has performed work all week. It is difficult to accept as credible Mr Card’s evidence that he thought he could reach agreement with his indentured apprentice to have overtime paid at normal time.

[112] The relevant clause out of the Award is produced below:

“36. Overtime

36.1 Reasonable overtime

(a) Subject to s.62 of the Act and this clause, an employer may require an employee to work reasonable overtime hours at overtime rates.

(b) An employee may refuse to work overtime hours if they are unreasonable.

(c) In determining whether overtime hours are reasonable or unreasonable for the purpose of this clause the following must be taken into account:

(i) any risk to employee health and safety from working the additional hours;

(ii) the employee’s personal circumstances, including family responsibilities;

(iii) the needs of the workplace or enterprise in which the employee is employed;

(iv) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;

(v) any notice given by the employer of any request or requirement to work the additional hours;

(vi) any notice given by the employee of his or her intention to refuse to work the additional hours;

(vii) the usual patterns of work in the industry, or the part of an industry, in which the employee works;

(viii) the nature of the employee’s role, and the employee’s level of responsibility; and

(ix) any other relevant matter.

36.2 All time worked beyond an employee’s ordinary time of work (inclusive of time worked for accrual purposes as prescribed in clauses 33 – Ordinary hours of work and 34 – Shiftwork), Monday to Friday, must be paid for at the rate of time and a half for the first two hours and at double time thereafter.

…

36.6 No employee under the age of 18 years will be required to work overtime or shiftwork.

36.7 Except in an emergency, no trainee will work or be required to work overtime or shiftwork at times which would prevent the employee’s attendance at a Registered Training Organisation, as required by any statute, award or regulation.

…

36.16 All work performed on a Saturday or a Sunday will be paid in accordance with clause 37 – Penalty rates.”

[113] I accept the submission of Perfect Coat that Mr Currie did not cite the non-payment of penalty rates as the reason for his failure to attend for work on Sunday, 14 April 2019. I note, however, that Perfect Coat considered that Mr Currie had not worked the earlier weekend, being Saturday and Sunday, and that he was going to enjoy an upcoming three day weekend, together with ANZAC Day off work. I understand the submissions of Perfect Coat to mean that because he had not worked the weekend prior, and was not going to be working the following weekend, it could require him to work the weekend of 13 and 14 April 2019 as reasonable overtime.

[114] The submission is incredibly misguided. I understand and appreciate the pressure Perfect Coat was experiencing, trying to ensure the specific job was completed so as not to incur liquidated damages. The request of a young, indentured apprentice was, however, extraordinarily unreasonable to require him to work repeated Saturdays and Sundays without the payment of penalty rates after having completed his ordinary hours during the week. He was, after all, entitled to enjoy having weekends off work, and only work weekends where requested and where each weekend work day was reasonable in all the circumstances. Having regard to the criteria within clause 36 of the Award, I find the following relevant to the reasonableness of working Sunday, 14 April 2019:

(a) There was no purported or obvious risk to Mr Currie’s health and safety from working the additional hours;

(b) Mr Currie reasonably expected to be able to attend his cousin’s birthday celebrations on the Saturday night, which after a 6 day week, meant that he did not wish to work on the Sunday. I accept that was his desire, but it does not equate to having family responsibilities;

(c) Perfect Coat had certain needs, requiring the work to be performed on the Sunday;

(d) Mr Currie was entitled to receive overtime payments including penalty rates for working the additional hours to which Perfect Coat was supposedly ignorant to;

(e) The request on Tuesday to work the additional hours on the Sunday was reasonable, and Mr Currie only informed Perfect Coat on the Friday night that he anticipated that he would not be working the Sunday;

(f) Mr Currie stated on the Friday night that he would see how he felt after working Saturday as to whether he would work Sunday;

(g) There is no evidence before me as to the usual patterns of work in the industry;

(h) Mr Currie was a young apprentice employee and his level of responsibility should not have been, in my view, dependent on whether his employment would be maintained if Perfect Coat would incur liquidated damages if he did not attend for Sunday overtime paid at ordinary time rates of pay.

[115] Although Mr Currie did not cite the non-payment of Sunday overtime penalties as the reason for his refusal to work the Sunday overtime, he did state that he wanted to have Sunday off to rest up. This was not unreasonable, as he was free to enjoy his leisure time on the Saturday night, which included attending his cousin’s birthday celebrations.

[116] I accept that Ms Hambleton called Mr Currie on the morning of 13 April 2019 and informed him that he was needed on 14 April 2019 and if he did not attend for work on 14 April 2019 he would be dismissed.

[117] Relevant to the Code, I find that Perfect Coat gave Mr Currie a reason why he was at risk of being dismissed. He had earlier been informed of other performance issues, and he was informed that if he did not attend for work on 14 April 2019 he would be dismissed. Pursuant to the Code, however, I do not accept for the reasons stated above that the reason is a valid reason based on Mr Currie’s conduct or capacity to do the job. I find that it was not a valid reason for the dismissal.

[118] Accordingly, I find that Perfect Coat did not comply with the Code.

Was Mr Currie’s dismissal harsh, unjust or unreasonable?

[119] The Code not having been complied with, it is then necessary to determine whether the dismissal was harsh, unjust or unreasonable taking into account the criteria in s.387 of the Act.

s.387(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)

[120] As I have found above, I do not accept that there was a valid reason for the dismissal related to Mr Currie’s capacity or conduct.

s.387(b) - Whether the person was notified of that reason

[121] I consider that Mr Card’s text message to Mr Currie constituted notification of the reason for the dismissal.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[122] Mr Currie had the opportunity to address Ms Hambleton on 13 April 2019 as to why he should not be dismissed if he failed to attend for work the following day. His dismissal was foreshadowed.

s.387(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

[123] The decision to dismiss Mr Currie was made on 14 April 2019, and there was no discussion, simply dismissal by text message. Accordingly, I find that there was not an unreasonable refusal by Perfect Coat to allow a support person present.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[124] As I have found above, there was certainly a warning of unsatisfactory work performance, including timesheet irregularities before the dismissal. Mr Currie’s evidence on this issue is not accepted.

s.387(f) - Whether Perfect Coat’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated resource management specialist impacted on the procedures followed

[125] I accept that Perfect Coat is a small business without any dedicated resource management specialists, and I have taken that into consideration. I note, however, the evidence of Perfect Coat that it is a member of the Master Builders Association, and did not seek to obtain advice because the refusal to work on the Sunday eventuated on the Sunday, and advice was not available.

[126] I have also taken into consideration Ms Hambleton’s evidence that she knew that she ought to involve the Australian Apprenticeship Support Network (AASN) provider, BUSY At Work in assisting with difficulties she was experiencing with Mr Currie.

s.387(h) - Other matters

[127] I have taken into account Mr Currie’s relatively young age and the fact that he was an indentured apprentice with expectations to continue his apprenticeship.

 Conclusion

[128] Having taken the above into account, I conclude that the dismissal was unjust and unreasonable. Mr Currie’s expectations as a young apprentice to continue in his apprenticeship were severed on receipt of Mr Card’s text message of 14 April 2019, even though Mr Currie was aware of the likelihood of the dismissal as foreshadowed by Ms Hambleton.

[129] Far more should have been done by Perfect Coat to get the apprenticeship and employment relationship back on track, and it was unjust and unreasonable to sever the employment relationship on the basis of Mr Currie’s refusal to work overtime on Sunday after having already worked six days that week.

[130] Accordingly, I find that Mr Currie was unfairly dismissed.

Remedy

[131] Section 390 of the Act reads as follows:

“390 When the FWC may order remedy for unfair dismissal

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

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

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

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[132] Mr Currie is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether he can be reinstated.

[133] Mr Currie does not seek reinstatement, and I am satisfied in all of the circumstances that reinstatement is inappropriate.

[134] I now turn to consideration of compensation.

Compensation

[135] Section 392 of the Act provides:

“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 FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

Authorities

[136] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket.¹ That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;² Jetstar Airways Pty Ltd v Neeteson-Lemkes³ and McCulloch v Calvary Health Care (McCulloch).⁴

[137] I have had regard to the above authorities, and I have considered the submission of each party.

The effect of the order on the viability of Perfect Coat

[138] When questioned during the determinative conference on this issue, I asked Mr Card what, if any effect an order would have on Perfect Coat’s viability. Mr Card responded that an order of say, $15,000 would hurt Perfect Coat’s cash flow and prevent it from purchasing material. No further evidence was led on this issue.

The length of Mr Currie’s service

[139] Mr Currie was a second year apprentice with approximately 20 months’ service.

[140] I have had regard to the decision of SDP Richards in Davidson v Griffiths Muir’s Pty Ltd [2010] FWA 4342. His Honour determined at [140]:

“As an employee for a short period of time, the length of Applicant’s service with the Respondent on its own is not a powerful force making for a compensation remedy (or a compensation order of significant quantum)”

The remuneration that Mr Currie would have received, or would have been likely to receive, if he had not been dismissed

[141] Mr Currie did not make submissions on this point, and Mr Eggmolesse seemed to me to be unsure of appropriate submissions to make on this point.

[142] Perfect Coat submitted that Mr Currie’s employment would have lasted at most, for a further four weeks. It was conceded that Mr Currie should have been paid two weeks’ notice on termination.

[143] Taking into account Mr Currie’s failure to take seriously the concerns around incorrect time sheets, and his tardiness in attending for work on time, I consider that if appropriate assistance had been obtained by the AASN, the apprenticeship would have lasted no longer than eight weeks before it lawfully concluded.

The efforts of Mr Currie (if any) to mitigate the loss suffered because of the dismissal

[144] Mr Currie performed approximately six weeks of painting work for an organisation called Brush Up Painting. At the time of the determinative conference he had not obtained further work. It was stated that he was offered an apprenticeship through Brush Up Painting, however he is owed money for work already performed, and understandably, did not accept the apprenticeship.

[145] I am satisfied that Mr Currie took appropriate measures to mitigate the loss suffered because of the dismissal.

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

[146] Mr Currie’s evidence is that he received two lots of $580 cash payments equalling $1,160. His bank records indicate the following payments were received by him from Brush Up Painting:

[147] On the evidence before the Commission, it is unclear if Mr Currie was paid $1,160 in cash in addition to the amount of $930.00 in his bank account. Further, it was put by Mr Eggmolesse that Mr Currie was owed a further $1,600 - $1,800 from Brush Up Painting. I consider it necessary to hear further evidence from Mr Currie as to the amount of remuneration earned by him for work performed for Brush Up Painting, and whether the Commission should have regard to all of the remuneration earned but not yet paid, if this is still the case.

The amount of any income reasonably likely to be so earned by Mr Currie during the period between the making of the order for compensation and the actual compensation

[148] This factor is not relevant in the circumstances of this matter.

Other relevant matters

[149] No submissions were made on this consideration.

Misconduct reduces amount

[150] Section 392(3) of the Act requires that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

[151] The section requires that consideration be given by the Commission, amongst other things, as to whether a person’s misconduct contributed to the decision to dismiss an employee even if the Commission has found that there was no valid reason for the person’s dismissal. However, if there was no valid reason for the dismissal that may be relevant to the Commission’s decision as to the appropriate amount by which the amount of compensation should be reduced.⁵ 

[152] Perfect Coat submitted that the Commission should discount any compensation payable to Mr Currie by 50% on account of him not attending for work on Sunday, 14 April 2019.

[153] I have decided against discounting the amount of compensation to Mr Currie. Whilst I accept he should have definitively informed Mr Card that he would not be attending for work on 14 April 2019, I have earlier found that there was not a valid reason for the dismissal. In light of what I consider to have been the unreasonable request to work the Sunday overtime without payment at penalty rates, and even though Mr Currie’s reason for refusing was not on the payment basis, I do not accept that Mr Currie’s conduct was misconduct.

Shock, distress etc. disregarded

[154] 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 Mr Currie by the manner of the dismissal.

Compensation Cap

[155] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.

[156] The high income threshold immediately prior to the dismissal was $145,400, and the amount for 26 weeks was $72,700. The amount of compensation the Commission will order does not exceed the compensation cap.

Payment by instalments

[157] Perfect Coat submitted that any award of compensation should be paid in sums no greater than $1,000 per week. There appears to me to be a broad discretion afforded to the Commission to decide whether to allow a compensation order to be paid in instalments. Given the size of the respondent, I am prepared to make such an order.

Conclusion

[158] I have determined that Perfect Coat is to pay to Mr Currie the amount of eight weeks’ pay less an amount for earnings in the eight weeks following the dismissal. The matter will be called on to hear further evidence as to this amount, taking into account whether the Commission should award the base rate of pay for 38 hours only, or take into account the additional hours of work performed by Mr Currie.

[159] The final amount that I determine to be awarded to Mr Currie will be a gross amount and subject to taxation as required by law. In addition, Perfect Coat will be ordered to pay superannuation at the rate of 9.5% on the amount.

[160] When the amount to be ordered to be paid as compensation is further decided by me, the payment may be made in instalments pursuant to my decision at [157].

COMMISSIONER

Appearances:

Mr T Currie and Mr S Eggmolesse, for the Applicant.

Ms E Kirkby, Master Builders Queensland, for the Respondent.

Determinative conference details:

Brisbane, by telephone

2019

August 9.

Final written submissions:

Applicant’s statement and submissions, 30 July 2019.

Respondent’s submissions, 4 July 2019.

Printed by authority of the Commonwealth Government Printer

<PR713815>

1 (1998) 88 IR 21.

2 [2013] FWCFB 431.

3 [2014] FWCFB 8683.

4 [2015] FWCFB 2267.

5 Crawford v BHP Coal Pty Ltd [2017] FWC 154, [345] – [346]; Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762, [83].