| FWC 4077|
|FAIR WORK COMMISSION|
Fair Work Act 2009
Bollore Logistics Australia Pty Ltd
DEPUTY PRESIDENT BOYCE
SYDNEY, 11 AUGUST 2020
Application for an unfair dismissal remedy — where no valid reason for dismissal — where the Respondent failed to engage with the proceedings (beyond the filing of a Form F3 and attending the hearing) — where dismissal found to be harsh, unjust unreasonable — compensation awarded.
 On 9 February 2020, Mr Jason Abdallah (Applicant) filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). By way of his Application, the Applicant claims that he was dismissed from his employment with Bollore Logistics Australia Pty Ltd (Respondent) on 20 January 2020, and that his dismissal was “unfair” within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).
 On 26 February 2020, the Respondent filed a Form F3 with the Commission (Response). By way of that Response, the Respondent claims that the Applicant was dismissed because of unsatisfactory performance, which did not improve after several warnings were given.
 The matter was programmed for hearing, and directions were issued to the parties concerning the merits of the Application. The Applicant complied with those directions, and duly filed his material by the deadlines set. However, the Respondent did not file, nor at any time seek to rely upon, any further material in this matter except the Response (i.e. the Respondent filed no evidence in the form of witness statements, documents, or written submissions in these proceedings). That was a choice the Respondent chose to make, however, the Respondent cannot escape the consequences of that deleterious conduct when findings based upon the evidence before the Commission need to be made.
 On 19 May 2020, I held a hearing (by telephone) regarding the substantive application. The Applicant appeared for himself. Ms Suzanne Lourdes (Human Resource Manager, Bollore Logistics Australia Pty Ltd) appeared for the Respondent.
 Having considered the evidence and submissions of the parties, I have determined that the dismissal was unfair, and that compensation is an appropriate remedy in the circumstances. My reasons for this determination follow.
 In the absence of evidence from the Respondent, the Applicant’s evidence relevantly discloses the following:
(a) On 5 February 2019, the Applicant commenced employment with the Respondent. The Applicant’s role was that of a “Clerk” in the “Sea Freight” division. At that time, the Sea Freight division did not have a direct supervisor. Staff received minimal training, and there were no written procedures or manuals. The Applicant worked with two other staff members in the same role.
(b) Shortly after commencing in his role, the Applicant was informed that he had been hired on the expectation he take-up a supervisor role. However, the Applicant says that this role and its responsibilities were not discussed during interview process. Regardless, the Applicant was instructed to take on the duties of a supervisor, including managing and allocating emails from a shared inbox, and approving payment vouchers.
(c) Following completion of his six-month probationary period, the Applicant expressed his concerns about filling the supervisor role, and the relevant lack of training. The Applicant says that, since expressing those concerns, he began to be treated differently. Specifically, issues going to his performance were raised with him, and recorded in written communications as follows (collectively, Warning Letters):
(i) on 15 October 2019, the Applicant received a letter from Mr Liam Butler (NSW Operations Manager Bollore Logistics Australia Pty Ltd) (First Warning Letter). That letter discloses, inter alia, that the Applicant had a conversation with Mr Butler on the same day, whereby Mr Butler discussed “unacceptable mistakes” in the Applicant’s monitoring and communication in internal and external emails. Mr Butler cites “attention to detail” and an “understanding of what is being requested” as issues. Further, Mr Butler states that “[a]ny further complaints regarding incorrect shipping within the next calendar month will be viewed extremely seriously”;
(ii) on 20 January 2020, the Applicant received a letter from Mr Butler (Final Warning Letter). That letter discloses, inter alia, that the Applicant attended a meeting with Mr Butler on 16 December 2020. During that meeting, the Applicant was advised that “improved performance had not been achieved”. A second warning letter was issued to the Applicant to that effect (I note, however, that this letter is not before the Commission). The Final Warning Letter also discloses that Mr Butler and the Applicant met again on 20 January 2020, and that the Applicant’s performance remained “unsatisfactory”. Finally, the Final Warning Letter states (set in context):
“This is a final warning letter. If significant improvement in your performance was not achieved by 17/01/2019 your employment may be terminated. To reiterate, our expectation is that you monitor day to day import function not limited general email monitoring, phone calls, customs clearance, shipment monitoring. Along with ensuring that commercially sensitive material is not shared outside of Bollore Logistics Australia — Sydney.”
(d) On 20 January 2020, the Applicant also received a termination of employment letter from Mr Butler (Termination Letter). That letter discloses that the Respondent had “decided not to continue [the Applicant’s] employment” because of “performance and contribution to date”.
(e) In response to the performance issues raised in the Warning Letters and the Termination Letter, the Applicant says (in his evidence) the following:
(i) as to the First Warning Letter, the Applicant says that the Respondent overlooked two of his colleagues, who were also responsible for the monitoring and clearance of emails, but were not given a warning. Further, the Applicant says that the Respondent hired a supervisor (presumably so that the Applicant was no longer the person to perform that role). However, the Applicant says that the supervisor assessed the Applicant’s work with more scrutiny than he did the Applicant’s colleagues;
(ii) as to the meeting with Mr Butler on 16 December 2020, the Applicant says that he was given a warning about sending charges to a client of the Respondent (presumably when the Applicant should not have sent those charges, or sent incorrect charges). The Applicant says that the charges were sent to the client after a colleague from customer service failed to respond to the Applicant (which apparently led to an error in the charges). The Applicant further says that this issue occurred on the same day that he suffered from migraines (and had medical evidence to show that he did suffer those migraines, although I note that this medical evidence is not before the Commission);
(iii) as to the Final Warning Letter, the Applicant again says that his colleagues shared responsibility for the issues raised by Mr Butler, but were not issued with warnings regarding their performance. Shortly prior to being provided with the Final Warning Letter, the Applicant was asked if he wanted to resign (presumably instead of being dismissed); and
(iv) before receiving the Termination Letter, on 20 January 2020, the Applicant sent the following email to Mr Butler (set in context):
“In response to your final warning letter I would like to clarify a few points;
- Warning letter one – attention to detail – this was due to missing a clearance even though at that point there where three people monitoring clearances - why have none of my team mates not warned for the same thing why ONLY me?
- Second warning letter – attention to detail and sharing sensitive information outside of Bollore – This would not have happened if … customer service had responded to my numerous emails beforehand – why has he not received a warning letter for attention to detail – this also conveniently happened after I went home sick for a migraine the Friday afternoon before after being moved numerous times from desk to desk for no apparent reason.
- Final warning letter – was given after being told to resign so in fact the decision to fire me was made before receiving the final letter and my response to that final letter which I am writing now – this was again after I was away injured for two weeks.
To add further I feel I have been discriminated against due to not being able to fill a supervisor role even though when I was hired it was under the pretext of sea-freight import operator not supervisor.
Ever since the supervisor role has been filled I have been given warning after warning but before the probation period not one issue.”
 Section 385 of the Act qualifies a claim for unfair dismissal:
“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.”
 The Respondent has not raised any issue as to the Commission’s jurisdiction to determine this matter. Having regard to the evidence, I find that the Applicant’s claim is within the Commission’s unfair dismissal jurisdiction. Hence, the question I must answer in these proceedings is whether the Applicant’s dismissal was harsh, unjust or unreasonable.
 Section 387 of the Act provides what matters must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable:
“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.”
 I turn to consider these factors.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
 In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”. 1 Further, the Commission will not stand in the shoes of an employer and determine what the Commission would do if it was in the position of the employer.2
 Where a dismissal relates to an employee’s conduct, the reason for dismissal might be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur, or it did occur, but did not justify termination. 3 The question of whether alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it.4
 Where a dismissal relates to an employee’s capacity (i.e. where the reason is associated or connected with the ability of an employee to do their job), 5 and there is a dispute as to whether the employee possessed the requisite capacity to perform their job, it is for the Commission to resolve that disputed issue as a matter of fact.6
 It is not in dispute that the Applicant was issued the Warning Letters. At the very least, the Applicant’s performance was repeatedly questioned by the Respondent. However, the Applicant’s unchallenged witness evidence undermines the veracity of those Warning Letters. Whatever underperformance is alleged by the Respondent, the Applicant’s evidence (in summary) is that his conduct or alleged underperformance is (at least partially) a result of his underperforming colleagues, and/or because the Respondent did not properly train the Applicant, or otherwise apply appropriate procedures in respect of the work being performed.
 The Respondent’s manifest failure to properly engage with these proceedings, and/or file and serve evidence in accordance with the directions issued by the Commission, enables the Warning Letters and the Termination Letter to be undermined by the Applicant’s unchallenged evidence (including the purported factual content and allegations set out in these letters). The result is that I am unable to accept, on the evidence, that the purported reasons for the Applicant’s dismissal (i.e. essentially non-performance or underperformance), are “sound, defensible or well founded” reasons.
 It follows that I find that there was not a valid reason for the Applicant’s dismissal. This finding leans towards an ultimate finding that the Applicant’s dismissal was harsh, unreasonable and/or unjust.
Was the Applicant notified of the valid reason? Was the Applicant warned about unsatisfactory performance before the dismissal? Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
 If there is no valid reason for dismissal, then s.387(b), (c) and (e) have no application. Given that I am of the view that there was not a valid reason to justify the Applicant’s dismissal, these factors do not require further consideration.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
 As noted by the Full Bench of the Fair Work Commission, “[s.387(d)] is not concerned with whether or not the employee was informed that he or she could have a support person present”.7
 The Applicant submits that he did not have a support person present with him, though he also submits that he did not request to have one either. I therefore treat this as a neutral consideration in this matter.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
 In its Response, the Respondent says that it has 250 employees. An organisation of this size would be expected to afford employees procedural fairness. More specifically, such an organisation would be expected to properly take into account an employee’s response to allegations and warnings, and consider whether those responses mitigate against a decision to warn or dismiss an employee.
 The Applicant’s evidence is that he attempted to reason with his managers as to the overall unfairness of the warnings issued to him. However, this appears to have fallen on deaf ears. Indeed, the evidence does not disclose that the responses provided by the Applicant (to his managers concerning the warnings) were taken into account by the Respondent at all. As such, in the facts and circumstances of this case, I find that the size of the Respondent’s organisation, and the fact that it has dedicated human resources staff, to be a factor that leans towards an ultimate finding that the dismissal was unreasonable and harsh.
What other matters are relevant?
 The Applicant has submitted that his colleagues were not issued with warnings, or dismissed, for the same alleged issues of underperformance. I take it that the Applicant raises issues of comparative fairness.
 I treat these submissions of the Applicant with caution. The Applicant has not put forward any evidence, beyond his own subjective understanding, to support these assertions. The evidentiary burden to ground such submissions is a high bar, and the Commission must be satisfied that appropriate comparisons are being made. 8 On the evidence, I cannot be so satisfied. I therefore do not take these assertions by the Applicant into account in determining whether the Applicant has been unfairly dismissed in this matter.
 I am not aware of any other relevant matters that I might consider, nor have any such matters been brought to my attention by the parties.
 Having made my findings, and having given due weight to the matters set out under s.387 of the Act, I have determined that I am satisfied that the dismissal of the Applicant was “unfair” within the meaning of the Act.
 The Applicant does not seek reinstatement, nor do I consider it appropriate. The issue thus turns to whether compensation should be awarded and, if so, its quantum.
 Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant 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”.
 I turn to consider these factors, noting that the ‘Sprigg’ formula is to be applied to arrive at an appropriate amount of compensation,9 but if this yields a figure that is excessive or inadequate, then the considerations in s 392(2) may be revisited.
Effect of an order on the viability of the Respondent’s enterprise
 There is no evidence that a compensation order would have an adverse effect on the Respondent’s viability This criterion therefore warrants no reduction.
Length of the Applicant’s service
 The length of the Applicant’s service is eleven months. This is a short period of employment.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed
 As stated by a majority of the Full Court of the Federal Court in He v Lewin:10
“In determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination”.11
 On the evidence, I have found that the purported reason(s) for the Applicant’s dismissal do not constitute a “valid reason” for his dismissal (especially having regard to the absence of evidence from the Respondent to support the contents of the Warning Letters, and the Termination Letter). However, it is not in dispute, by reference to the meetings held with the Applicant, and the Warning Letters issued to him, that the Respondent (rightly or wrongly) took a dim view of the Applicant’s performance. When making findings, and forming a view, as to appropriate compensation to be awarded, I need to determine on the evidence how long the Applicant would have remained employed by the Respondent (but for the dismissal). In the facts and circumstances of this case, I do not consider that the Applicant would have continued in his employment with the Respondent for any longer than a further eight weeks. Despite the Applicant successfully undermining the veracity of the Warning Letters and the Termination Letter in these proceedings, the letters themselves highlight that the Respondent was very unlikely to continue the Applicant’s employment beyond the next two months.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal
 The Applicant says that since his dismissal he has applied for several jobs, and proceeded onto some interviews. However, the Applicant says that once he discloses that he was terminated because of underperformance, he does not hear back from anyone post interview. The Respondent did not contest this evidence.
 Given that the Applicant has been, and is, actively seeking further alternative employment, and is facing a deteriorating job market in the COVID-19 environment, I am satisfied that the Applicant has taken reasonable steps to mitigate his loss, and that no deduction in relation to mitigation (or lack thereof) ought be made.
Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation
 There is no evidence that the Applicant has received any income since his dismissal.
Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation
 Given the general imposition of the COVID-19 pandemic on the employment market, and the Applicant’s circumstances, in my view, the Applicant is unlikely to secure employment during the period between the making of an order for compensation, and receipt of actual compensation.
I confirm that, as required by the Act, the lost remuneration amount to be ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the Applicant by the manner of dismissal.
 As noted by the Full Bench in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries: 12
“[t]he well-established approach to the assessment of compensation under s.392 of the [Act] … is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket [(Sprigg)]. This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages”.13
 The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the Applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost);
Step 2: Deduct monies earned since termination;
Step 3: Discount the remaining amount for contingencies; and
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
 I will now consider the calculation of compensation, following the methodology in Sprigg.
 First, there is the question of the estimated remuneration that the Applicant would have received had he not been dismissed. I restate my finding that the Applicant would likely have remain employed, but for the dismissal, for a further period of eight weeks. The parties agree that the Applicant’s annual salary was $60,000.00. As such, I take the Applicant’s gross weekly earnings to be $1,150.75 per week ($60,000 / 52.14 weeks), which for eight weeks gives a total gross figure of $9,206.00 ($1,150.75 x 8).
 Second, it is necessary to deduct monies earned by the Applicant since his dismissal. However, given there is no evidence that any such monies were earned, I make no deduction in this regard.
 Third, there is the question of a percentage deduction for contingencies, and the vicissitudes of life. These principles were summarised on Roos v Winnaa Pty Ltd. 14 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 affect earning capacity. Such a deduction is usually applied after the assessment of the period for which the employee would have remained employed. It applies to any future estimate of loss of earnings. I do not consider there is a basis to make a reduction for contingencies in this matter.
 Finally, I have considered the impact of taxation on the gross amount of $9,206.00, however, I do not consider it necessary for me to specify a post-tax amount.
 If I am satisfied that any misconduct of the Applicant contributed to the employer’s decision to dismiss him, I am obliged by s.392(3) of the Act to reduce the amount I would otherwise order, by an appropriate amount on account of the misconduct.
 There is a degree of misconduct attributable to the Applicant. Despite contesting the seriousness of his underperformance, the Warning Letters and the Termination Letter do disclose at least some level of underperformance. The Full Bench of the Commission has observed that, “[s.392(3) of the Act] seems to require such consideration even if the Commission has found there was no valid reason for the person's dismissal”.15 In view of the foregoing, I consider that a reduction of 25 percent is appropriate in this case (having regard to the contents of the Warning Letters and the Termination Letter). This reduction brings the figure of $9,206.00 down to a final gross total sum of $6,904.50 (i.e. $9,206.00 – $2,301.50 (25%)).
 The total amount of gross compensation to be awarded to the Applicant is the sum of $6,904.50 (i.e. less applicable taxation as required by law).
 For the reasons stated above, I am satisfied, in the facts and circumstances of this case (on the evidence before the Commission), that a remedy should be ordered, and that reinstatement is inappropriate. I will order the compensation amount set out in paragraph  of this decision, subject to the deduction of taxation required by law, plus an amount for 9.5 percent superannuation on the gross compensation sum, to be paid by the Respondent within 14 days of the date of any order made.
 An order giving effect to this decision will be published and issued separately to this decision.
The Applicant appeared for himself.
Ms Suzanne Lourdes (Human Resource Manager) appeared for the Respondent.
A hearing was held on 19 May 2020.
Printed by authority of the Commonwealth Government Printer
1 Selvachandran v Peteron Plastics Pty Ltd  IRCA 333; (2000) IR 371 at 373.
2 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
3 Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89;  FCA 1836 at .
4 King v Freshmore (Vic) Pty Ltd Print S4213  AIRC 1019 at  to .
5 Crozier v AIRC (2000) 50 AILR 4-488;  FCA 1031 at .
6 See more broadly: Jetstar Airways Ltd v Neeteson-Lemkes  FWCFB 9075; CSL Limited v Chris Papaioannou  FWCFB 1005
7 Jurisic v ABB Australia Pty Ltd  FWCFB 5835 at .
8 Sexton v Pacific National (ACT) Pty Ltd PR931440 (AIRC, Lawler VP, 14 May 2003) at .
9 See: Ellawala v Australian Postal Corporation (AIRCFB, Print S5109, 17 April 2000) at ; and see Bowden v Ottrey Homes Cobram and District Retirement Villages Inc  FWCFB 431.
10 (2004) 137 FCR 266.
11 Ibid at .
12  FWCFB 7206 at .
13 Ibid at , citing Sprigg v Paul’s Licensed Festival Supermarket (1988) 88 IR 21 and Bowden v Ottrey Homes Cobram and District Retirement Villages  FWCFB 431.
14  FWCFB 7394, at  and .
15 Read v Gordon Square Child Care Centre Inc  FWCFB 762, .