[2019] FWC 8155

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathaniel Nunez
v
Elite Truck Bodies Pty Ltd T/A Elite Truck and Trailer Repairs
(U2019/5647)

COMMISSIONER GREGORY

MELBOURNE, 5 DECEMBER 2019

Application for an unfair dismissal remedy.

Introduction

[1] Mr Nathaniel Nunez was recruited from the Philippines to work as a welder by Elite Truck Bodies Pty Ltd T/A Truck and Trailer Repairs (Elite Truck Bodies) under the Temporary Work (Skilled) Visa program. He was sponsored under this program by the business, and it also paid for the cost of his airline travel to Australia.

[2] Mr Nunez commenced employment with Elite Truck Bodies on 20 February 2018 and worked until 8 May 2019 when his employment was terminated with immediate effect. He subsequently lodged an unfair dismissal application and this decision deals with that application.

[3] Mr A.Vasilaras of Vasilaras + Co. Lawyers appeared on behalf of Mr Nunez. Ms R. Preston of Counsel appeared on behalf of Elite Truck Bodies. Both were given permission to appear under s.596(2)(b) of the Fair Work Act 2009 (Cth) (the Act) as it would be unfair not to because the parties would otherwise be unable to represent themselves effectively.

[4] It is also noted that Elite Truck Bodies originally filed a witness statement from Mr Paul Myers, the principal Director and owner of Elite Truck Bodies. However, it was indicated during the course of the proceedings that it no longer sought to rely on the witness statement of Mr Myers and did not want the statement to be admitted into evidence. However, Mr Vasilaris indicated in response that he wished to call Mr Myers as a witness, and he subsequently gave evidence on behalf of the Applicant.

The Issue to be Determined

[5] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied “the dismissal was harsh, unjust or unreasonable.” Section 387 continues to provide that the Commission must take into account the following considerations in determining whether a dismissal was harsh, unjust or unreasonable. It 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.” 1

[6] The Commission is therefore now required to determine whether Mr Nunez’s dismissal was “harsh, unjust or unreasonable” taking into account the matters in s.387.

The Applicant’s Evidence and Submissions

Mr Nathaniel Nunez

[7] Mr Nunez commenced working for Elite Truck Bodies 20 February 2018. He was employed as a Welder under a Temporary Work (Skilled) (Subclass 457) Visa.

[8] On 7 May 2019 he was required to take his partner to hospital at 4:00 a.m. in the morning due to some complications arising from a miscarriage. At 5.54 a.m. he sent a text message to the foreman at Elite Truck Bodies, Mr Aaron Henson, indicating that he would not be in that day because he was required to care for his partner. He received a text message in response telling him that he needed to be at work by 7:00 a.m. Mr Nunez again responded by indicating that he was with his partner at hospital. Mr Henson then asked for a copy of the hospital referral 2. Mr Nunez responded by providing a copy of a text message received from the hospital on the previous day containing a reminder about the appointment.

[9] He again contacted Mr Henson at 7:00 a.m. and confirmed that he would not be at work that day. Mr Henson again responded by indicating that he needed to come to work and suggested that he leave his partner at the hospital. Mr Nunez responded by indicating that the operation would only take one hour, and he would then be required to drive his partner home and care for her.

[10] Mr Nunez returned to work on the following day and was immediately told by Mr Henson words to the effect of “You’re done, you’ve been terminated. Collect your things and leave the worksite.” Mr Nunez was shocked by this and went to see Elite Truck Bodies owner, Mr Paul Myers, however, he told him to “get the out of my office.” Mr Nunez later sent further text messages to Mr Myers on 20 May 2019 pleading for his job back but received a message back in response stating, “If you message me once more I will come and beat you do you understand. 3”

[11] Mr Nunez denied that he had lied in order to take days off at any time, or that he had failed to notify Mr Henson on days when he was going to be absent from work. He also denied that his performance was in any way unsatisfactory, or that he had received warnings about his work performance. He also denied that he had been insubordinate. None of these allegations were put to him prior to his employment being terminated, and there was no “lengthy discussion,” as claimed by Elite Truck Bodies, prior to his dismissal.

[12] His dismissal has had a significant impact upon him, both personally and financially. He has been forced to pay in excess of $11,000.00 in immigration related expenses to avoid being deported from Australia. However, due to the hostility he faced from Mr Myers, in particular, he has now lost all trust and confidence in Elite Truck Bodies and does not feel that he could now return to work there. He accordingly seeks an order for compensation.

[13] Mr Nunez also indicated in cross-examination that he first became aware that he would not be able to attend at work on 7 May 2019 at around 4:00 a.m. when he realised that he would need to take his partner to hospital immediately. It had previously been arranged for his sister to take his partner to hospital, but this changed because of the emergency situation that eventuated. Mr Nunez also confirmed that he was aware that if he was not going to be at work, he was required to call his Supervisor. However, he had instead sent a text on the morning of 7 May 2019 because he was nervous at the time. He then attempted to call on two occasions after that time. He subsequently clarified his evidence by indicating that he sent Mr Henson a text at 5.54 a.m., and then called him five minutes later. He then called him again at 7:00 a.m. as Mr Henson was attempting to force him to come into work. However, he denied that he had ever agreed during the course of their conversations that morning to come into work at 9:00 a.m. after he had dropped his daughter at school. He also denied he had ever been asked to provide a medical certificate regarding his partner’s hospitalisation, and he had already provided a copy of the hospital referral.

[14] He also denied in cross-examination that on five previous occasions when he had not turned up to work, he had also not called to advise that he would not be at work on that day. He also denied having received a written warning, however, he subsequently acknowledged that he had received two written warnings, which he had signed as having been received because he believed that he had no other option but to sign. He also denied that he had welded the toolbox onto the truck body as alleged by Mr Henson. He also denied that there had been any discussion with Mr Henson and Mr Myers on the day he was terminated, and he was instead told by Mr Henson as he was collecting his toolbox when he arrived at work that his employment was being terminated, and should collect his things and leave the worksite. He also denied that he had ever received any verbal warnings.

Mr Paul Myers

[15] Mr Myers indicated in his evidence that he could not recall whether there were any discussions with Mr Henson on 7 May 2019 about Mr Nunez’s absence from work. However, he believed that he would have supported Mr Henson when he said that he was going to have to speak to Mr Nunez about his employment. Mr Henson also had the authority to dismiss Mr Nunez and did not need his approval.

[16] He also indicated that he was not able to recall what happened on the morning of 8 May 2019 at the time that Mr Nunez was terminated. He was regularly involved in a number of meetings on a daily basis and was not able to recall the circumstances involved in each case. However, he also indicated that if Mr Henson needed to terminate an employee it would generally take place in his office, rather than on the factory floor. He also denied that he would ever have told Mr Nunez to “fuck off” after he came to see him on the morning of 8 May 2019, as he is alleged to have done.

The Applicant’s Submissions

[17] Mr Nunez indicated in his submissions that he was not provided with a reason for his termination at the time it occurred. He accordingly assumed he was dismissed for taking carers’ leave, which does not constitute a valid reason for dismissal. He also points to the lack of compassion shown by the business, given that on the day prior to his termination his partner was hospitalised following a miscarriage, and it was these circumstances that ultimately led to his dismissal.

[18] After he had lodged his unfair dismissal application Elite Truck Bodies made reference to a number of reasons as to why he was dismissed including lying in order to take days off, failing to notify it when he was going to be absent from work, and unsatisfactory performance. Mr Nunez denies all of these allegations and reiterates that he was not provided with a valid reason for his dismissal.

[19] He was also not notified of the reason for his dismissal at the time it occurred, and he was not provided with any opportunity to respond to the alleged reasons for his dismissal prior to him being terminated. He also takes issue with the evidence about the meeting that was alleged to have taken place on the morning of 8 May 2019 when his employment was terminated. It was claimed to have lasted for around 15 minutes based on the evidence of Mr Henson. However, Mr Nunez submits that the meeting did not take place, and points to the evidence of Elite Truck Bodies owner, Mr Myers, who was claimed to have been at the meeting, but cannot recall the meeting or what was discussed.

[20] He also did not receive any warnings in relation to his performance prior to being dismissed.

[21] Mr Nunez also submits that a Director of Elite Truck Bodies, Ms Belinda McIntosh, deals with human resource issues, and it was reasonable to expect that it would have had a fair procedure in place when dealing with the dismissal of an employee.

[22] Mr Nunez also submits that his dismissal was harsh based on his unblemished work record, and the circumstances created by the revocation of his 457 Visa, which have been profound.

[23] He continues to submit, in conclusion, that he and his partner were aware of the operation that his partner was to have on the following day, and he had intended to be at work after taking her to hospital on that morning. However, early that morning her condition worsened, and he decided it was necessary to drive her to hospital immediately. He subsequently advised Mr Henson that he would not be at work that day in a series of telephone conversations that followed. He continues to submit that the text messages that were exchanged do not support Mr Henson’s view that Mr Nunez indicated that he would be at work by 9:00 a.m. that morning.

[24] He also refers to the factual dispute about what occurred on the morning of 8 May 2019. Mr Nunez’s evidence indicated that shortly after arriving at work he was approached by Mr Henson who told him words to the effect of “You’re done. You’ve been terminated. Collect your things and leave the workplace.” There was no request to attend a meeting, and no discussions took place about his employment, and he was not provided with any opportunity to provide a response to the reasons relied on for his dismissal. Mr Nunez submits in response that this meeting did not occur. Mr Myers’ evidence also makes clear that he can be quite aggressive and hostile towards his employees.

[25] Mr Nunez also takes issue in his submissions with the suggestion that he was warned verbally on one or two occasions each week about issues to do with his work performance and submits that there is no evidence to support these submissions.

[26] He also refers to the written warnings and submits that they cannot be said to constitute a warning because they do not make clear what disciplinary action might follow if there is no improvement in performance. If Elite Truck Bodies intended to provide him with a warning, and to indicate at the same time that his employment was at risk if there was no improvement, then this should have been stated explicitly. The warning letters also do not identify the areas of improvement required.

[27] He also submits that in the discussions that took place on the morning of 11 May 2019 there is no evidence indicating that he was provided with details about the issues concerning his behaviour and conduct that led to his employment being terminated, or that he was then provided with a reasonable opportunity to respond to those reasons. In addition, Mr Myers states that he can’t recall what was discussed in the meeting, while Mr Henson said it was a brief meeting that went for maybe 15 minutes. There were accordingly serious procedural deficiencies in the way in which the termination was carried out.

[28] In regard to any other relevant matters that the Commission should take into account Mr Nunez submits that his dismissal was harsh given that he had an unblemished work record; he was not provided with a warning prior to being dismissed; and he was not told that his employment was at risk if his behaviour or conduct did not improve. The decision to terminate his employment also had the effect of revoking his 457 Visa sponsorship, and he has been forced to find another sponsor at considerable cost. This placed him in a very difficult position for a significant period of time.

[29] Mr Nunez does not seek to be reinstated and submits that the evidence makes it clear that both parties have lost trust and confidence in each other. However, he seeks compensation and estimates that if not for his termination he could have expected to have been employed at least until the end of his period of sponsorship which would have been a further period of two and a half years. He submits that on this basis it is open to the Commission to find that the statutory maximum amount of compensation should be awarded.

The Respondent’s Submissions and Evidence

Mr Aaron Henson

[30] Mr Henson is the foreman at Elite Truck Bodies and is responsible for the day-to-day management of employees, including hiring and firing.

[31] Mr Nunez commenced working with Elite Truck Bodies in February 2018 as a welder. He was required in that role to weld truck bodies, carry out truck body repairs, and install tow bars. However, Mr Nunez did not have some of the necessary skills or experience required to perform these, duties and Mr Henson spent a significant amount of time with him providing training and additional explanation about what was required.

[32] Elite Truck Bodies has a clear policy in place in regard to what is to occur if employees are not going to be at work. This is emphasised at the time that they commence their employment and there is also signage displayed around the premises which emphasises that if they are unable to attend at work, for any reason, they must phone and provide notice. This is important because Elite Truck Bodies has critical job schedules and customer expectations, and it is important that work is completed efficiently and on time in order to maintain good customer relations. Mr Henson estimates that on at least five different occasions Mr Nunez failed to attend work without calling him or advising him that he would not be at work on that day. When this happened, he would usually send Mr Nunez a message to ask where he was.

[33] Mr Henson confirmed that Mr Nunez was provided with a written warning on 12 March 2019, and then provided with a second written warning on 26 March 2019. On the second of these occasions Mr Nunez had indicated that he had not been able to get out of bed until 1:30 p.m. that afternoon, but Mr Henson had noticed that he was active on Facebook earlier that morning.

[34] Mr Nunez was also provided with other verbal warnings during the time he was employed in regard to his poor attitude, poor workmanship, and failure or refusal to follow instructions. He estimated that he gave Mr Nunez a verbal warning on at least one or two occasions each week. On some occasions his work was good, but most of the time his attitude and preparedness to cut corners meant there were issues with his work.

[35] Mr Henson referred to the email exchanges that occurred on 7 May 2019 and stated that he eventually spoke to Mr Nunez on the phone that morning. When he asked what was going on, and when he first became aware of the medical appointment involving his partner, Mr Nunez told him that he found out a few weeks ago. Mr Henson indicated in response that he should have told him about it before if that was the case as Elite Truck Bodies had a big repair that needed to be completed that day. Mr Nunez finally indicated that he would be at work at 9:00 a.m. that morning after taking his partner’s daughter to school. He also asked Mr Nunez if he could bring in a medical certificate because of his history of being absent from work without any prior notice.

[36] However, Mr Nunez did not arrive at work at 9:00 a.m., and did not attend at all on that day. He was also not in any further communication during the course of that day. This caused significant delays to the repair that was taking place on that day as the business had no welder on site in the workshop.

[37] On the following day Mr Nunez came to work and “acted like nothing had happened the day before.” He did not provide a medical certificate or any other documentation. Mr Henson told him that they needed to speak, and they went into Mr Myers’ office. Mr Henson told Mr Nunez that these absences were an ongoing situation and despite the warnings he had been given his attitude had not changed. However, Mr Nunez simply shrugged and offered no explanation in response. Mr Henson subsequently decided that given the various verbal and written warnings Mr Nunez had been provided with it was appropriate for his employment to be terminated. He was told that Elite Truck Bodies was going to finish him up immediately and he should collect his belongings and leave.

[38] Mr Henson also made reference in his examination-in-chief to what was described as the toolbox incident, when he asked Mr Nunez to attach a toolbox onto a truck body, but to not weld it on. However, Mr Nunez proceeded to weld the toolbox onto the frame, and when the tip truck was put down it hit the toolbox. This required a significant amount of work to rectify and was another significant example of him failing to follow directions.

[39] Mr Henson stated in conclusion that he has lost all trust and confidence in Mr Nunez and does not believe he could return to work at Elite Truck Bodies. He has no confidence that he would follow directions, given his failure to do so in the past. The issues to do with his work performance and his absences from work also jeopardised the services provided to its customers.

[40] Mr Henson acknowledged in cross-examination that the warnings provided to Mr Nunez did not make specific reference to the possibility of his employment being terminated, but he and Mr Nunez had discussed this possibility and he regularly spoke to him, on average, on two occasions a week about issues to do with his poor workmanship.

[41] He also stated that he did not repeatedly press Mr Nunez to come into work on 7 May 2019, but instead explained that it was a busy day at work and there was a repair that needed to be completed. When Mr Nunez told him that he had to go to the hospital and then drop his daughter at school Mr Henson asked if he could come into work after that for a couple of hours, as that would assist in getting the work completed. Mr Nunez then agreed that he would be at work by 9:00 a.m. that morning. It was also agreed that if the hospital called and he needed to leave work to collect his partner then Mr Henson was fine with that as well.

[42] Mr Henson also rejected Mr Nunez’s version of what occurred on the morning of 8 May 2019 and denied that he immediately approached him when he arrived at work and told him that he had been terminated. He was instead called into Mr Myers’ office and a discussion took place for around 15 minutes. Mr Henson discussed some of the issues to do with his workmanship and the fact that he did not come into work at 9:00 a.m. on the previous morning, as agreed. He referred to the installation of the toolbox on the truck as an example of him failing to follow directions. He also indicated that Mr Nunez did not say much during the meeting and simply shrugged his shoulders, which suggested to Mr Henson that his attitude did not appear to have changed. He also agreed that there were then a series of text messages and a telephone call between him and Mr Nunez in which Mr Nunez continued to ask whether he could have his job back.

Ms Belinda McIntosh

[43] Ms Belinda McIntosh is a Director of Elite Truck Bodies and the partner of Mr Paul Myers. She is responsible for the accounts, processing employee payments, and performing a variety of other administration functions. She deals with some employment issues, although she does not have any formal human resources training or expertise.

[44] In September 2017 she and Mr Myers investigated employing staff from the Philippines as they had previously advertised locally without success. They subsequently travelled to the Philippines to interview a number of candidates, including Mr Nunez. He was subsequently sponsored by Elite Truck Bodies on a 457 Visa. This involved an investment of approximately $10,000 in immigration fees in order to facilitate his employment. Elite Truck Bodies also paid for his flights to Australia and for one month’s accommodation on his arrival. It subsequently lent him a sum of money to assist with an operation that his mother required, and assisted him to bring his partner out from the Philippines.

[45] Mr Nunez commenced employment with Elite Truck Bodies on 20 February 2018. It was then required to spend considerable time training him in order to provide him with the knowledge and skills required. Ms McIntosh was also informed on several occasions that he had failed to attend at work without notifying anyone in advance. This occurred despite it having been made clear to all employees that if they were unable to attend at work for any reason, they needed to notify Elite Truck Bodies by phone. Ms McIntosh was also aware that there were issues with the quality of his work and his general failure to follow instructions.

[46] During the time that he was employed Mr Henson told Ms McIntosh that he was required to speak with Mr Nunez on a weekly basis about issues to do with his work performance, and he was often insubordinate and refused to follow directions. On 12 March 2019 he was issued with a first written warning due to poor workmanship and a failure to follow directions. On 27 March 2019 he was provided with a second written warning following a further breach of policy. Ms McIntosh attached copies of these letters to her witness statement. Both letters were signed by Mr Nunez on the basis that he had read and understood the letter and its implications. His signature was also witnessed on both occasions by Mr Aaron Henson. The first letter dated 12 March 2019 stated:

“It has been noted that your workmanship has been poor, consisting of an unsatisfactory work and bad quality workmanship. And not following instructions from your foreman.

As you are aware, company policy states that you are required to follow instructions given to you.

Please note that your workmanship and ability to follow instructions must improve and will be monitored closely. This behaviour will not continue to be tolerated. And further action will end shoe if it is not addressed immediately. 4”

[47] The second letter dated 27 March 2019 stated:

“It has been noted that you have failed to ring us and make contact regarding your sick day company policy states that you are required at contact work before the commencement of the day by phone and you failed to comply with company policy.

Please accept this as a written warning regarding your employment with this company and take note that your attendance must improve and will be monitored closely. 5”

[48] On 7 May 2019 Mr Henson informed Ms McIntosh that Mr Nunez had not attended for work on that day and told her about text messages he had received. He also told her that he believed the hospital appointment had been arranged in advance and was not an emergency situation. Ms McIntosh told him to wait and see what happened on the following day, and if he failed to provide a medical certificate or a sufficient excuse for his absence then it was up to Mr Henson to decide what should occur in response.

[49] Mr Henson called Ms McIntosh on the following day and told her that Mr Nunez had failed to bring a medical certificate. He also told her that he had met with Mr Myers and decided that Mr Nunez employment was to be terminated effective immediately. He was subsequently paid two weeks’ pay in lieu of notice, together with his accrued entitlements.

The Respondent’s Submissions

[50] Elite Truck Bodies submits that Mr Nunez has attempted to portray his dismissal as unfair because he was working on a temporary work visa and had an unblemished work record. He also claims that the sole basis for his dismissal was his absence from work on carers’ leave on 7 May 2019. However, it submits in response that his account of what occurred is not borne out by the evidence. He did not have an unblemished work record, as evidenced by the warnings he received, and his absence from work on 7 May 2019 was not the sole reason for his dismissal. The events of 7 and 8 May 2019 were instead the culmination of a pattern of conduct whereby he had demonstrated a wilful disregard for the lawful directions given to him. The “nonchalant” attitude that he demonstrated towards his employer at the time was typical of his attitude throughout the time he was employed

[51] On a number of occasions, he failed to attend work without notifying his employer, as explicitly required by its policies. A series of concerns had also been raised with him about his workmanship and his refusal to follow directions. He had received multiple verbal warnings, and two formal written warnings in relation to both his conduct and performance. This culminated in Mr Henson foreshadowing, following the incident concerning the welding of the toolbox, that Mr Nunez was “on his last legs” and needed to follow directions “to the letter” in the future.

[52] It continues to submit that it had invested a significant amount of money and time in Mr Nunez following him being recruited from the Philippines. For example, it had outlaid more than $10,000 in immigration expenses, had paid for the costs of his flight to Australia, and subsequently assisted his partner to relocate to Australia. The owners of the business had also travelled to the Philippines as part of the original recruitment processes. This does, in large part, explain why it was prepared to provide a degree of leeway to Mr Nunez. It also supports the fact that it did not take the decision to dismiss him lightly, given the efforts it had made to recruit him, and the difficulty in obtaining replacement skilled welders.

[53] Elite Truck Bodies also submits that Mr Nunez has attempted on numerous occasions to recast what actually occurred. For example, on 7 May 2019 it was only ever intended that he was going to drop his partner at the hospital and then come to work. His sister was then to look after his partner from that point. It submits that the evidence about what occurred, including the texts and emails that were exchanged, do not support the version of events that he has attempted to portray, and should not be believed.

[54] Mr Nunez also agreed that he would be at work by 9:00 a.m. on that morning but again did not attend at that time. It continues to submit that the issue involved is not about him taking carers’ leave, but is instead about his general unreliability, and his failure to follow directions. This extended to the manner in which he carried out his responsibilities at work and it points to his failure to follow directions in regard to the welding of the toolbox onto a truck as another example of this.

[55] It also submits that there is no reason to doubt Mr Henson’s evidence about his attempts to contact Mr Nunez when he was not at work on various occasions, and the verbal warnings that he gave him on a regular basis. It continues to submit that Mr Henson was a credible and reliable witness, and he had no reason to misrepresent what occurred. There is also no reason to believe that Mr Nunez did not understand what Mr Henson meant when he told him prior to him being terminated, that “you’re on your last legs” and that his performance needed to improve.

[56] It continues to submit that it had a valid reason to dismiss Mr Nunez, based on his failure to follow lawful and reasonable directions, which was sound, defensible and well founded. The final straw was his failure to attend work on 7 May 2019 after being directed and agreeing to do so, and then failing to provide a medical certificate in relation to his absence, as he had committed to do. In addition, this was not an isolated event, and he had received repeated warnings, both verbal and written, in regard to his failure to follow lawful and reasonable directions, including through his unauthorised absences from work, and his failure to provide notification when he was absent.

[57] Elite Truck Bodies continued to submit that Mr Nunez was notified of the reason for his termination and provided with an opportunity to respond in the discussions that took place on the morning of 8 May 2019. He had also been provided with both written and verbal warnings and had been put on notice that his employment was at risk.

Consideration

[58] The circumstances in which an employee’s dismissal can be considered to be “harsh, unjust or unreasonable” have been considered in a number of previous decisions. The decision in Byrne v Australian Airlines Ltd 6 is often cited in this context. The joint judgement of McHugh and Gummow JJ concluded:

“...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.” 7

[59] The decision of the Full Bench of Fair Work Australia in L. Sayer v Melsteel Pty Ltd 8 also provides guidance about the Commission’s role in regard to each of the matters in s.387 that must be taken into account in determining whether an employee’s dismissal was “harsh unjust or unreasonable.” The Full Bench concluded:

“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 9

[60] I turn now to deal with each of the considerations in s.387, and those authorities that I consider relevant to the determination of this matter.

(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)

[61] Before coming to the particular circumstances involved in this matter it is noted again that previous decisions have had regard to what is required in order to conclude that there was “a valid reason for the dismissal related to the person’s capacity or conduct.” The judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd 10 is often referred to in this context. His Honour came to the following conclusions:

“The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. This is the rationale for the onus of proof provisions contained in s 170EDA.

Section 170DE(1) refers to ‘‘a valid reason, or valid reasons’’, but the Act does not give a meaning to those phrases or the adjective ‘‘valid’’. A reference to dictionaries shows that the word ‘‘valid’’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: ‘‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’’ In the Macquarie Dictionary the relevant meaning is ‘‘sound, just, or well founded; a valid reason’’

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly…” 11

[62] In Parmalat Food Products Pty Ltd v Wililo 12 the Full Bench also concluded that:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 13

[63] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 14 (“Australian Postal Corporation”) also provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered:

“Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.” 15

[64] It is also clear that the reason must be valid when viewed objectively. It is not sufficient that the employer believed it had a valid reason for termination. This was made clear in the Full Bench decision in Rode v Burwood Mitsubishi 16 when it stated:

“…the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 17

[65] These authorities make clear that the existence of a “valid reason” is often the most important consideration of the matters in s.387 that the Commission must have regard to. It is also clear that a “valid reason” must be one that is “sound defensible and well founded” as opposed to one that is capricious, spiteful or prejudiced. It must also be valid in the context of both the employee’s capacity or conduct, and the operational requirements of the business. The test must also be applied in a practical, common sense way to ensure the parties are treated fairly in circumstances where each has rights and privileges, but duties and obligations as well. I have sought to adopt the approach of these authorities in coming to a decision in this matter.

[66] It has also been made clear that the Commission’s role in dealing with an unfair dismissal application is not to stand in the shoes of the employer, and to then decide whether the decision made by the employer was the same one that would have been made by the Commission in the same circumstances. Its role is, instead, to determine whether on the basis of the available evidence the circumstances that existed at the time can be said to have justified the decision to terminate the employee.

[67] The circumstances involved in this matter have been set out in some detail already and are not restated now. The reason for Mr Nunez’s termination centre on his failure to follow directions, most notably his failure to follow the direction given to all employees to make contact by telephone if they are not going to be at work on that day. This policy, which is displayed prominently on signs in the factory, makes clear that a text communication is not sufficient, and that a phone call is expected instead.

[68] Elite Truck Bodies emphasised in its evidence why this is important. It is a relatively small business and relies on each of its employees to get the job done. It is also critical to its customers that the vehicles being worked on are off the road for the shortest possible time. It also provided details about the difficulty that it has had in obtaining employees with welding skills, and it appeared on many occasions that Mr Nunez was the only person able to carry out this work.

[69] It also refers to Mr Nunez’s failure to follow directions at work, and states that he was spoken to on a regular basis about these concerns. It refers, in particular, to what is described as “the toolbox example” and states that Mr Nunez ignored a clear direction not to weld a metal toolbox onto a truck frame, but did so with the consequence that the tip would not open completely. The toolbox then had to be cut from the frame and a significant amount of rework carried out before the job could be signed off by the engineer.

[70] The Commission’s task in determining whether Elite Truck Bodies had a “valid reason” to dismiss Mr Nunez is made more difficult in this case by the fact that the evidence relied on by the parties is in stark contrast. For example, Mr Nunez indicated in his evidence that he was aware of the requirement to ring in when not able to be at work, and generally did so, although he was not always able to get through to Mr Henson. He also takes issue with the claims that he did not carry out work as directed, or that he had to be spoken to on regular occasions each week.

[71] Elite Truck Bodies highlights a number of examples when Mr Nunez was absent from work and did not call to explain that he would not be attending on that day. It refutes the suggestion that he called on a number of those occasions but could not get through and left a message. It points to the evidence of Mr Henson in this context, who has no record of messages being left, and states that he always returned calls when messages were left. It refers to the following occasions when no contact was received from Mr Nunez.

• 9 June 2018 – Mr Nunez not at work and no call or message received. At the 6.48 a.m. Mr Henson sent a text message to Mr Nunez asking “Where r u.” Mr Nunez finally responds at 9.34 a.m. that morning indicating that he will not be in that day. Mr Nunez again claims that he tried to call Mr Henson on that morning, but there is no record of any call, or of Mr Henson having received a message, and he appeared unaware of why Mr Nunez was not at work until he received his text. 18

• 17 November 2018 – Mr Nunez not at work and no call or message received. A Facebook message was then sent to Mr Nunez by Mr Henson which he responded to and 7.55 a.m. indicating that he would not be at work on that day. 19

• 23 February 2019 – Mr Nunez not at work. No call or message received. A text sent by Mr Henson asking where he was. Mr Nunez responds by indicating that he would not be in that day.

• 26 March 2019 – Mr Nunez not at work and no call or message received. Mr Henson sends a text message to which Mr Nunez responds at 1.30 p.m. indicating that he will not be at work on that day. 20

[72] The events of 7 May 2019 have also been dealt with in some detail already. The following text message exchange occurred at 5.54 a.m.

“Good morning Aaron I can’t come today because I need to drop off my partner to Dandenong Hospital

“What for?
You need to be at work at 7am

Emergency operation no one can drive her

Emergency operation they would keep you at hospital not ask you to come back
Do you have a picture of the referral? 21”

[73] Mr Nunez responds to this request by forwarding a photo of the instructions received by his partner from Monash Health on the previous day about the procedure to take place on the next day.

[74] A further discussion then takes place on the telephone. Mr Henson indicated in his evidence that this culminated in an agreement that Mr Nunez would come into work at 9:00 a.m. that morning after he had dropped his partner at the hospital and then taken his daughter to school. He was also asked to provide a medical certificate, but only provided the reminder update sent to his partner on the previous day. Mr Henson also recalls that he told Mr Nunez he would then be free to leave work when informed by the hospital that his partner was available to be collected.

[75] Mr Nunez provided a different account of what occurred. He states that his partner was booked into hospital for a routine procedure on Tuesday, 7 May 2019, and it had been arranged for her sister to take her to hospital. However, early in the morning her condition suddenly worsened, and Mr Nunez decided he needed to take her to hospital as a matter of urgency. He was then not able to attend work on that day because of what occurred. He acknowledges that he then sent a text to Mr Henson indicating that he would not be at work on that day, rather than telephoning. He also acknowledges that a telephone conversation subsequently took place with Mr Henson but denies that the conversation concluded with him agreeing that he would come into work at 9:00 a.m. after he had dropped his daughter at school. It is also noted that Mr Nunez was asked to provide a medical certificate to support his absence. He did provide some documentation but this did not substantiate the “emergency operation,” which he claimed was required because of what occurred on the morning of 8 May 2019.

[76] Elite Truck Bodies also points to Mr Nunez’s failure to follow directions in regard to his work. Mr Henson acknowledged in his evidence that Mr Nunez was capable of good work at times, but his attitude and willingness to cut corners meant he had to be spoken to on a regular basis about his failure to work as directed. The so-called “toolbox incident” is highlighted as a particular example of this. In that case Mr Nunez welded a toolbox onto a truck body when he had been specifically directed not to, meaning that the tip on the truck could not be fully opened. This led to a significant amount of rework and delay. Mr Nunez again denies that there were any issues associated with his failure to follow directions. However, he was provided with a warning dated 12 March 2019, which he signed as acknowledgement of it having been received. The document has been referred to already, but states as follows:

“It has been noted that your workmanship has been poor, consisting of an unsatisfactory work and bad quality workmanship. And not following instructions from your foreman.

As you are aware, company policy states that you are required to follow instructions given to you.

[77] Mr Nunez states that he did not really understand what the warning was about but felt that he had no option but to sign the document when it was given to him. However, the content of the document appears to be expressed in relatively plain and straightforward terms.

[78] As indicated, the evidence of the respective parties is, in large part, in stark contrast concerning what occurred during the relatively short period of time that Mr Nunez was employed by Elite Truck Bodies. However, he has provided little evidence in support of his position and relies primarily on a series of denials when confronted with the evidence relied on. The business has by contrast provided a series of screenshots, copies of warning letters, and other documentation in support of its position.

[79] It is also noted that Elite Truck Bodies went to considerable time and expense to recruit Mr Nunez from the Philippines when it was faced with the difficulty of employing locally based employees with welding skills. This lends weight to the view that it would not have dispensed with his services lightly, unless it was clearly of the view that it had no other option. It is also noted that a series of text messages exchanged between Mr Nunez and Mr Henson, after Mr Nunez was dismissed, which were attached to Mr Henson’s witness statement, are consistent with what Elite Truck Bodies claims occurred during the time Mr Nunez was employed. In these messages Mr Nunez pleads for his job back and asks for one last chance stating “…it will never happen again. 23” Mr Henson states in the course of that exchange, “Nothing I can do now I tried to warn you so many times we were heading this way and you refused to change.24”

[80] I am satisfied, in conclusion, that the evidence establishes Mr Nunez failed on numerous occasions to follow the reasonable directions given to him by his employer, and that he was warned about this on more than one occasion. These matters were of significance given the size and nature of Elite Truck Bodies and its reliance on Mr Nunez. I am accordingly satisfied that it had a valid reason to dismiss Mr Nunez on the basis that the reason can be said to be sound, defensible and well founded.

(b) whether the person was notified of that reason

[81] The evidence about whether Mr Nunez was notified of the reason for his dismissal, and whether he was provided with an opportunity to respond, is again at issue. Mr Nunez states that Mr Henson simply came up to him when he arrived on his final morning at work and told him that his employment was at an end, and he should pack up his belongings and leave. When he tried to speak to Mr Myers about this he was given what might politely be described as “short shift.”

[82] Mr Henson has a different version about what occurred and states that on that morning they met in Mr Myers’ office and spoke for around 15 minutes. Mr Henson went through the issues of concern to Elite Truck Bodies and asked Mr Nunez whether he wanted to say anything in response. However, he simply shrugged his shoulders, which left Mr Henson with the impression that he didn’t really care and was not likely to change his attitude or his approach.

[83] It is noted that Mr Myers was also asked about what occurred on that morning, but somewhat surprisingly was unable to provide any recollection of what occurred, despite the fact that the discussions apparently took place in his office. It would normally be expected that a witness would be able to recall the circumstances involving a meeting which occurred around six months ago where an employee’s employment was terminated. The fact that Mr Myers was unable to recall this meeting suggests that Mr Nunez’s version of what occurred on that morning is to be preferred.

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

[84] The Commission’s conclusions in regard to the above matter are again relevant in this context.

(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

[85] There is no evidence of any unreasonable refusal by Elite Truck Bodies to have a support person present in any discussions relating to Mr Nunez’s dismissal, however, there is also no suggestion of him being offered the option of having a support person present.

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

[86] This matter does not involve issues associated with unsatisfactory performance however, reference has already been made to the two written warnings provided to Mr Nunez about his failure to follow directions. Elite Truck Bodies also claims that he received verbal warnings on numerous occasions.

(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

(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

[87] It is appropriate to deal with each of the above matters together. Elite Truck Bodies is obviously a relatively small business and it does not have a person with dedicated HR skills or expertise. Ms McLean indicated that she takes some responsibility for dealing with employment related matters, and Mr Myers indicated, in his evidence, that he essentially leaves issues to do with hiring and firing to Mr Henson. The evidence indicates that Elite Truck Bodies has made some attempt to follow appropriate procedures and there are, for example, evidence of written warnings having been provided. However, it is equally evident that some aspects of what occurred could have been handled in a much better way. It is accepted that some leeway should be given to a relatively small business that does not employ someone with specialist HR skills. However, I am also of the view that this does not necessarily absolve any employer from dealing with disciplinary matters, including the termination of an employee’s employment, in a manner that is fair and reasonable.

(h) any other matters that the FWC considers relevant

[88] It is obvious that Mr Nunez was financially disadvantaged as a consequence of his employment being terminated, but this is unfortunately a regrettable but not uncommon occurrence when an employee loses their job. It was also indicated that Mr Nunez incurred some additional legal expenses in endeavouring to find other sponsorship to enable him to remain in Australia, although it is also understood that the sponsorship costs are primarily to be incurred by the sponsoring employer.

Conclusion

[89] I have had regard to all of the submissions and evidence provided in this matter, and the various matters in s.387 that the Commission is required to take into account. I am satisfied that Elite Truck Bodies had a valid reason to dismiss Mr Nunez. However, I am not satisfied that he was formally notified of that reason or provided with an appropriate opportunity to respond. While Mr Henson indicated in his evidence that a discussion took place with Mr Nunez and Mr Myers in Mr Myers’ office, prior to Mr Nunez being dismissed, Mr Nunez denies that this meeting took place, and instead when he arrived at work on the morning of 8 May he was simply told to collect his belongings and leave. Mr Myers also indicated in his evidence that he did not have any recollection of this meeting taking place in his office on that morning. I am accordingly satisfied that the evidence of Mr Nunez is to be preferred. I am also satisfied, in conclusion, that as a consequence Mr Nunez can be said to have been unfairly dismissed in that the deficiencies involved in the procedural steps in carrying out his dismissal were harsh and unreasonable.

Remedy

[90] I am now required to consider what is an appropriate remedy. The statutory framework in this context is clear. Section 390 provides that the Commission may order a person’s reinstatement, or the payment of compensation, subject to the jurisdictional conditions in s.390(1) being satisfied. However, the Commission must not order the payment of compensation to a person unless it is satisfied that reinstatement is inappropriate, and that payment of compensation is appropriate in all the circumstances, as provided for in s.390(3).

[91] I am satisfied that reinstatement is not a relevant option in all the circumstances. Mr Nunez does not seek to be reinstated, and Elite Truck Bodies is obviously opposed to reinstatement being ordered. It is also clear that there has been a significant breakdown in the relationship between Mr Nunez and his former employer. The email that was finally sent to him by Mr Myers on 20 May 2019 leaves little doubt about this. I now turn to consider whether it is appropriate to exercise the discretion available to the Commission to make an order of compensation.

[92] Section 392 of the Act states:

“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.” 25

The Submissions and Evidence

The Applicant

[93] It is submitted on behalf of Mr Nunez that he had no intention of leaving his employment during the term of his sponsorship, and if not for his dismissal he would have remained in his employment until he had completed the four-year sponsorship period. He accordingly submits that it is open to the Commission to find that the maximum amount of 26 weeks should be ordered by way of compensation. He did not provide any further evidence about any earnings since the time that he was dismissed, and a payslip provided during the course of the proceedings indicated that he was receiving an annual salary of $43,472.00, based on an hourly rate of $22 per hour, at the time his employment was terminated.

[94] Elite Truck Bodies submits in response that Mr Nunez was clearly not going to have perpetual ongoing employment with Elite Truck Bodies and he was simply seeking through his claim for compensation to recover the additional immigration expenses he had incurred.

Consideration

[95] It is evident from previous authorities that it is necessary to take into account all of the circumstances involved in a particular matter in considering any order for an amount of compensation. The Commission is also required to have a specific regard to the matters set out in s.392, and in particular subsection (2)(a) – (g) and (3). As made clear by the parties the long established approach to the assessment of compensation requires that the formula derived from the Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket 26 (Sprigg) is to be applied as well. This approach was most recently confirmed in the context of the present legislative framework by the Full Bench in Gloria Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge27 (Bowden). I have accordingly sought to determine the matter on the basis of the statutory framework and those authorities that I consider relevant.

The effect of the order on the viability of the Employer

[96] Elite Truck Bodies did not address this issue in its submissions and there is no suggestion that any order made by the Commission would be likely to impact on its viability.

The length of service

[97] Mr Nunez was employed for a period of fifteen months. This is not a substantial period of employment and provides some support for limiting the amount of compensation to be ordered.

Remuneration that would have been received, or would likely to have been received if the dismissal had not occurred

[98] One of the most important matters to be determined is what the employee would have received by way of remuneration, or would have been likely to receive, if they had not been dismissed. This was described in Bowden, citing Ellawala v Australian Postal Corporation, 28 in the following terms:

“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’. This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the ‘anticipated period of employment’ are deducted.” 29

[99] The identification of this amount obviously involves assessments about future events that will often be problematic, but as the Full Bench observed in McCulloch v Calvary Health Care Adelaide, 30 “while the task of determining an anticipated period of employment can be difficult, it must be done.”31

[100] Mr Nunez submits that he had no intention of leaving his employment at the time he was dismissed because he wanted to complete his four-year sponsorship period which was critical to him being able to remain in Australia. However, the evidence makes clear that at the time that he was dismissed he had already received two written warnings. It also makes clear that Elite Truck Bodies was becoming increasingly dissatisfied with his absences from work, and his associated failure to make contact when he was not going to be at work. Mr Henson also claims that he was repeatedly given verbal warnings on a regular basis about issues to do with his work performance. I am accordingly satisfied that it was most unlikely that Mr Nunez was going to remain in ongoing employment for a significant time period of time, regardless of what occurred on 7 and 8 May 2019. I am accordingly satisfied that it is reasonable to conclude that he would likely have remained in employment for a further period of three months if not for his unfair dismissal.

[101] Based on his annual salary $43,472.00 this amounts to a figure of $10,868.00 that he would have received, or would likely have received, if his employment had not been terminated. This figure is accordingly the starting point for any assessment of compensation.

The efforts made to mitigate the loss suffered

[102] Mr Nunez did not provide any information in his submissions about his earnings since the time his employment was terminated, or about his efforts to obtain other employment. It was obviously difficult for him to find other employment in the short-term as he needed an employer who was prepared to sponsor him in a position. However, it is noted that he received an amount equivalent to two weeks’ pay at the time he was dismissed. This amount of $1,672.00 should be deducted, leaving a figure of $9,196.00.

Contingencies

[103] The decision in Sprigg also requires that consideration be given to a percentage deduction on account of contingencies. These principles were summarised in Roos v Winnaa Pty Ltd 32. A deduction for contingencies applies a discount to an assessment of future economic loss so as to account for future unknown matters, which might adversely impact on the anticipated future earning capacity. Such a deduction is usually applied after the assessment of the period for which the employee would otherwise have remained employed. It applies to any future estimate of loss of earnings. As indicated earlier there will always be some degree of significant speculation about any future estimate of lost earnings. I accordingly consider that a reduction for contingencies should be made, and that a figure of 20% is appropriate in this case. This amount of $1,839.20 is to be deducted, leaving an amount of $7,356.80.

Taxation

[104] The amount of compensation ordered is specified as a gross amount, and it will be left to Elite Truck Bodies to deduct any amount of taxation required by law.

Misconduct

[105] The Act makes it clear that if the Commission is satisfied that the employee’s misconduct contributed to the decision to dismiss the employee then the amount that might otherwise be ordered is to be reduced. Mr Nunez’s misconduct clearly contributed to the decision by Elite Truck Bodies to terminate his employment. I am accordingly satisfied that it is appropriate to reduce the amount of compensation that might be otherwise awarded by an amount of one third on the basis of his misconduct, leaving an amount of $4,904.54.

Compensation cap

[106] This amount of $4,904.54 gross is obviously less than the compensation cap of 26 weeks’pay, and no further adjustment is required.

Conclusion

[107] I am satisfied, in conclusion, that it is appropriate for the Commission to exercise its discretion to make an order for compensation. I am also satisfied that the amount of compensation that is to be ordered is appropriate in all the circumstances of this matter. I accordingly order that a gross amount of compensation in the sum of $4,904.54 is to be paid by Elite Truck Bodies to Mr Nunez within 28 days of the date of this decision. An order giving effect to this decision is now separately issued.

eal of the Fair Work Commission with member's signature