| [2020] FWC 6975 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ian Howard
v
Pinnacle People
(U2020/13054)
DEPUTY PRESIDENT MASSON |
MELBOURNE, 30 DECEMBER 2020 |
Application for an unfair dismissal remedy.
[1] On 30 September 2020, Mr. Ian Howard (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Pinnacle People (the Respondent) on 11 September 2020. The Applicant seeks reinstatement.
[2] Conciliation of the matter before the Commission failed to achieve a resolution and consequently the matter was listed for hearing/conference before me.
[3] The Applicant filed written submissions and a witness statement with the Fair Work Commission (the Commission) on 16 November 2020. The Respondent filed its written submissions and witness statements in reply on 30 November 2020.
[4] At a Mention/Directions Hearing conducted on 2 November 2020 submissions were sought from the parties as to whether the Commission should conduct either a conference (s.398) or a hearing (s.399) in relation to the matter. Considering the number of witnesses and the parties wishes it was decided to set the matter down for a Conference on 24 December 2020.
[5] At the Conference the Applicant was self-represented and gave evidence himself while the Respondent was represented by Ms W. Mead, Managing Director of the Respondent, who also gave evidence. The following witnesses were also called by Ms Mead to give evidence;
• Flaminia Hobbs, Director of People and Culture for the Respondent; and
• Renee Luker, Cluster Support Manager of the Respondent.
Background and evidence
[6] The Respondent is a labour hire agency that specialises in the provision of “front of house” staff to the hospitality industry. Staff are typically engaged by the Respondent on a casual basis and placed on assignment with clients in a range of roles including as; wait staff, bar staff, cashiers, cleaners, baristas, hosts, porters, café attendants, receptionists, and food vendors. The Respondent commenced operations in 1991, has it head office in Melbourne and has offices in every state and territory of Australia. At its peak the Respondent employed 65 full-time employees and issued around 8000 PAYG summaries for casual employees. 1
[7] While having been previously engaged by the Respondent, the Applicant commenced his most recent period of employment as a casual employee on 31 August 2018. He was engaged as a food and beverage attendant and was covered in his employment by the Hospitality Industry (General) Award 2020 2 (the Award).
[8] Ms Mead states that during his employment the Applicant worked in various roles including; Bar Attendant, Food and Beverage Attendant (Waiter), Runner, Retail Food and Beverage Attendant, Boardroom Attendant, Supervisor, Suite Attendant and Bussie (collects glasses or goods and cleans tables). Those roles were offered or undertaken in the following businesses and venue types; catering companies, private house, consular residences, stadiums, racetracks, boardrooms, canteens, schools, education facilities, hotels, casinos, retail outlets, function venues and nursing homes. 3 The record of shifts worked by the Applicant during his most recent period of employment reveals a regular and systematic pattern of engagement with his last accepted shift being on 7 March 2020.4 According to the Applicant’s outline of argument, his earnings in the 2018/2019 financial year were $12,112.
[9] Ms Mead further states that the impact of the Covid 19 pandemic and consequent restrictions introduced were significant due to the Respondent’s exposure to the hospitality sector. Revenue initially dropped by 96% and recovered to approximately 66% of pre-Covid levels by November 2020. The Respondent’s business was confined during the Covid lockdown period to providing labour to permitted industries/activities which included; catering companies (that did charity meals), private houses, consular, residences (where allowed), canteens (in industries where allowed), hotels (where allowed), retail shops (essential only) and nursing homes. 5
[10] On introduction by the Federal Government of the JobKeeper scheme in April 2020 the Respondent wrote to its employees on 15 April 2020, including the Applicant, outlining the JobKeeper scheme and requesting that employees seeking to be enrolled; complete, sign and return the necessary declaration by 7.00pm Thursday 2020. 6 A follow up email was sent to the Applicant on 24 April 2020 requesting he complete the JobKeeper enrolment urgently and return it by 5.00pm 24 March 2020 in order to be eligible for the payment due on 30 April 2020.7
[11] On 30 April 2020 the Respondent wrote to its employees, including the Applicant, outlining employee obligations while they were in receipt of JobKeeper payments. The correspondence relevantly set out the following obligations;
“………..To satisfy your eligibility and your commitment to working with Pinnacle People, the expectations are:
1. You readily accept shifts offered to you via PinnBook.
2. If you are unable to accept a shift, you will be required to have a valid reason.
3. For business and reporting purposes, reasons are required to keep our active staff register up to date. For this reason, we will be asking you to accept the shifts that we offer you.
4. If you decline more than 3 shifts consecutively and are unwilling or unable to work, then we will need to review your employment with us and offer these shifts to alternate employees.
……………….” 8
[12] On 5 May 2020 the Respondent wrote to its employees, including the Applicant, confirming that it had submitted his details to the ATO for the purpose of JobKeeper payments and also advised him that it would continue to make payments in accordance with the scheme so long as the Applicant was eligible to participate. 9
[13] On 18 May 2020 the Respondent wrote to its employees, including the Applicant, and outlined the JobKeeper payment schedule and also the interaction of JobKeeper payments with wages earned. 10
[14] On 19 June 2020 the Respondent wrote to the Applicant reminding him of eligibility requirements for JobKeeper payments and relevantly stated as follows;
“……………..
We would like to remind you that this payment is only eligible to those employees that maintain their employment with Pinnacle People. To maintain your employment, you must be ready and able to accept the offered shifts. Employers have the right to take you off the JobKeeper allowance should you refuse the work offered to you, or to be “unavailable” to accept the work.
………………” 11
[15] On 22 July 2020 the Respondent wrote to the Applicant regarding his failure to accept any shifts since the commencement of JobKeeper payments. The correspondence relevantly stated as follows;
“…………….
Our records show that you have not accepted any shifts since the commencement of the JobKeeper payments being issued to you, either through your unavailability to accept shift offers, your unwillingness to work, or no shifts were available on offer to you.
……………….
Given your unwillingness or unavailability to accept shifts to date, you are now required to contact our office to confirm your availability for future shifts to be presented to you and to maintain your employment with Pinnacle People. Failure to contact our office within 7 days of this notice may lead to you receiving another letter notifying you of your termination of employment with Pinnacle People due to your abandonment.
……………” 12
[16] Ms Luker states in her evidence that she works closely with the Respondent’s IT and Development teams. She detailed the on-line system used by the Respondent for making shift offers to its casual staff. She states that the system which is named ‘PinnBook’, is a purpose built employee ‘app’ which employees are required to use to review shift offers, to accept and confirm bookings and obtain details relating to their shifts. The ‘app’ also facilitates timesheet uploads and allows employees to engage regarding their availability and non-availability for shifts. She further states that all client bookings are placed in ‘PSM’ and are in turn sent to employees via PinnBook. She also states that since its inception some 8 years ago, the PinnBook system of offering shifts had never failed and that she was not aware of any shift offers made to an employee that were not received by the employee.
[17] Ms Mead and Ms Luker also gave oral evidence that the PinnBook app operates as a two-step process in terms of shift offers to staff. All that is visible to the employee at the first step in respect of a shift offer is the job title, start/finish times of the proposed shift/s and the suburb in which the assignment exists. It is only when an employee moves to the second stage of the process that the full detail of the role is exposed including; the hours and duration of the assignment, the employer, the role and pay rate for the assignment. It would not, according to Ms Luker, be possible to discern at the first step of the process the nature of the employer, venue, or industry sector in which the shift offer was made.
[18] Ms Mead and Ms Luker also clarified that shift offers made to staff through PinnBook are subject to filters such that assignments would only be offered that were within an employee’s skills and prior experience, hours of work availability and within a reasonable geographic proximity to an employee’s residence. Ms Mead stated that the majority of shift offers made to Melbourne staff during the Covid lockdown period were concentrated in the Melbourne CBD area.
[19] Ms Luker states that on 25 August 2020 the Respondent ascertained by extracting data from its PSM system that in the period in which JobKeeper payments had been in place up to that date, the Applicant had been offered 23 bookings, some of which were week and month long bookings. Of those 23 shifts, the Applicant either made himself unavailable or rejected 30% of the shift offers and the remaining shift offers were left at the initial shift offer or acceptance stage. No shifts were accepted in the period. 13
[20] On 26 August 2020 Ms Hobbs wrote to the Applicant regarding his failure to accept any shifts in the past four months despite being offered shifts (the Show Cause Letter). The correspondence went on to state that no legitimate reason or excuse had been advanced by the Applicant as to why he had not accepted any offered shifts. The correspondence then went on to state as follows;
“…………….
Even taking into account your ability to refuse particular shifts as a casual employee, given all the above, we now have serious doubts about your willingness to be ready, willing and able to work. Accordingly, we consider that your conduct demonstrates that you no longer wish to be bound by your employment contract.
We hereby are providing you a final opportunity to advise why you have been unwilling and/or unable to accept shifts with Pinnacle People so that we can make a decision regarding your ongoing employment. I invite you to contact me via email on fhobbs@pinnaclepeople.com.au by no later than Friday 28th August to provide me with any relevant reasons.
……………….” 14
[21] On 27 August 2020 the Applicant responded to Ms Hobbs’ email of the previous day and stated as follows in his reply;
“………………
I’m just letting you know that I have not received any correspondence from Pinnacle People by mail or email regarding your records at all and that this is the first that I have heard of such a matter.
I’m not sure where you are based? but in Melbourne we are in the middle of a 6 week Stage 4 pandemic lockdown and curfew during this unprecedented pandemic.
Could you please indicate how many shifts that you would expect me to be doing during this time? I’m not aware what is expected? Is it one shift per week or what is the requirement?” 15
[22] Following receipt of the Applicant’s email of 27 August 2020 Ms Hobbs replied to his email in the following terms;
“Dear Ian
Thank you for your email, I too am in Melbourne and am fully aware of the restrictions we are facing. I agree its been a very difficult time for everyone.
Due to Covid we are experiencing an influx of work and we have many staff that are employed and receiving JobKeeper that are no longer accepting shifts.
Our records show that you have been offered up to 23 shift offers of which you have rejected 5, made yourself unavailable for 2 and unanswered the rest.
The expectation being a recipient of JobKeeper is that you continue to engage with Pinnacle People, make yourself available and accept work as you did pre covid. This does not seem to be the case.
Feel free to contact me if you would like to continue your employment with Pinnacle People and I will let the Melbourne team know to contact you.
………………” 16
[23] Responding to the Applicant’s claim in his 27 August 2020 email that he had not received any correspondence, Ms Mead states that the Respondent carried out a review of its records and produced a report that revealed that the Applicant had received and opened all but one of the emailed letters sent to him in the period between 15 April 2020 and 22 October 2020. 17 The only email not opened by the Applicant was the email sent to him on 22 July 2020, referred to above at [15]. The Applicant states that he did not receive that email and also claims that he has searched his computer records and has been unable to locate it.
[24] Following Ms Hobbs’ correspondence to the Applicant on 26 & 27 August 2020, the Applicant continued to be offered shifts through the PinnBook system. As of 11 September 2020, the Respondent’s records revealed that the Applicant had been offered 58 single and multi-day bookings since his last shift on 7 March 2020. Of those shift offers, the Applicant rejected or made himself unavailable for 27.59% of those offers with the balance left at the initial ‘shift offer’, ‘pending acceptance’ or ‘acceptance offer’ stages. 18
[25] Ms Luker also gave unchallenged evidence that the Applicant had at no stage moved to the second step of the process in the PinnBook app in respect of the shift offers made to him during the Covid lockdown period such that the full details of the offered roles would have been visible to him.
[26] No shift offers were accepted in the period that the Applicant was in receipt of JobKeeper payments. The Applicant agreed during his evidence that he was familiar with and had used the PinnBook app. While he was unsure of how many shift offers he had received in the relevant period he also agreed he had not accepted any shifts and was not in a position to challenge the accuracy of the Respondent’s data and reporting of the shifts he had been offered. The Applicant declined to concede during oral evidence that the size of the JobKeeper payment, which was greater than his pre-Covid average weekly earnings, acted as a disincentive to accept shifts in his case.
[27] Ms Mead states that the shift offers to the Applicant included;
• Food and beverage packer (for catering companies providing charity meals for health workers)
• Room service attendant (Hotels)
• Café attendant (at an essential services worker canteen)
• Food and beverage attendant (at private consular residence) 19
[28] The Applicant agreed during his oral evidence that he had the necessary skills to perform the roles outlined by Ms Mead above at [27]. He did however challenge both Ms Luker and Ms Mead as to the specific roles offered to him during the Covid lockdown period, his belief being that as the venues he normally worked at were closed then the only roles available were at Covid risk venue/sites. Ms Mead confirmed that only approximately 25% of the shifts offered during the Covid lockdown period were in Covid risk environments. She further stated that if an employee had health and safety concerns about working in such an environment and had a valid reason (e.g. they were immunosuppressed or had another medical condition) then that employee would not have been offered shifts in such an environment.
[29] The Applicant conceded in his evidence that while he had an apprehension of working at Covid risk sites during the Covid lockdown period, he had not raised that concern with the Respondent. Ms Mead also confirmed that there was nothing on the Applicant’s personal record to indicate that he had a medical condition that would have increased his risk of working on such a site.
[30] On 11 September 2020 the Respondent wrote to the Applicant advising him of the termination of his employment (the Letter of Termination). The correspondence referred to the earlier correspondence sent to the Applicant on 22 July & 26 August 2020 and that the Applicant had failed to accept any offered shifts in the period 7 March 2020 to 11 September 2020. The letter went on to conclude as follows;
“…………….
Your refusal to work since 7th March until now, 11th September, is a significant period of time to not have accepted any shifts or to make yourself available for other shifts, even if we take into account your ability to refuse particular shifts as a casual employee.
Your refusal to work since 7th March and your refusal to respond or answer Pinnacle Peoples repeated phone calls suggests that this is not a situation that is going to change in the near future.
Accordingly, we consider that your conduct demonstrates that you no longer wish to be an ongoing casual employee with Pinnacle People.
We hereby terminate your casual employment with Pinnacle People and your employment will end effective immediately.
……………” 20
[31] On 21 September 2020 the Applicant wrote to the Respondent and outlined various reasons why he believed he had been unfairly dismissed. He claimed in the correspondence that the venues at which he had ordinarily worked pre-Covid had all been shut down therefore there had been no work available for casual food and beverage attendants. He further claimed that he had not been informed in writing of what work was available and that at no stage since the March lockdowns (in Melbourne) had the Respondent sent a text with a shift offer or instructions for casual employees during the Covid lockdowns. He went on to refer to his having updated his police check and done the Online Covid Training. He rejected the Respondent’s statement that he no longer wished to be engaged as a casual employee by the Respondent. 21
[32] On 21 September 2020 Ms Hobbs attempted to call the Applicant following receipt of his email that day but the Applicant did not respond. She then sent him an email which detailed the repeated attempts made by the Respondent to contact him by telephone and email regarding his unavailability for shifts during the Covid lockdown period. 22
[33] Ms Mead in her evidence estimated that staff of the Respondent had attempted to contact the Applicant by telephone over 30 times during the period of his non-engagement but he had not responded to any of these calls or messages left. 23 The Applicant says in reply that he did not receive any messages, does not have message bank on his phone and that any phone calls received with no caller ID would not have been answered by him.
Has the Applicant been dismissed?
[34] A threshold issue to determine is whether the Applicant has been dismissed from his employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[35] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
Initial matters
[36] Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
[37] Section 394(2) requires an application to be made within 21 days after the dismissal took effect. It is not contested that the Applicant was dismissed on 11 September 2020 following which he filed an application for an unfair dismissal remedy on 30 September 2020. I am therefore satisfied that the application was made within the period required in subsection 394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
Minimum employment period
[38] It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.
[39] The Applicant commenced his most recent period of casual employment with the Respondent on 31 August 2018. It was also not in dispute and I find that the Applicant was a casual employee employed on a regular and systematic basis for a period in excess of 6 months and had a reasonable expectation of continuing employment with the Respondent on a regular and systematic basis.
[40] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
Modern award coverage
[41] It was not in dispute and I find that, at the time of dismissal, the Applicant was covered by an award, being the Hospitality Industry (General) Award 2020. 24
[42] I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Did the Respondent comply with the Small Business Fair Dismissal Code in relation to the dismissal?
[43] Section 388 of the Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
[44] As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis). I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the Act.
Was the dismissal a case of genuine redundancy?
[45] Under s.389 of the Act, a person’s dismissal was a case of genuine redundancy if:
(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
[46] It was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.
[47] I am therefore satisfied that the dismissal was not a case of genuine redundancy.
[48] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
[49] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[50] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 25 I set out my consideration of each below.
[51] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”26 and should not be “capricious, fanciful, spiteful or prejudiced.”27 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.28
[52] The reason relied on by the Respondent for the dismissal of the Applicant was that of the failure of the Applicant to accept any shifts offered to him over several months, and where no reasonable explanation or excuse was provided by the Applicant for his unwillingness or unavailability to work such offered shifts. While not denying that he had been offered such shifts, the gravamen of the Applicant’s response to the reason for his dismissal was that he believed that the work normally undertaken by him was not available due to the closure of venues during the Covid lockdown and that the offered shifts were in Covid risk environments.
[53] Before turning to consider the respective cases of the parties it is necessary for me to make findings in relation to certain facts relevant to consideration of whether a valid reason for the Applicant’s dismissal is established. Those findings are as follows;
• The Applicant commenced his most recent period of employment with the Respondent on 31 August 2018.
• He was engaged as a casual employee on a regular and systematic basis over the period 31 August 2018 to 7 March 2020, the latter date being his last worked shift.
• He earned $12,112 in the period 31 August 2018 to 30 June 2019, that being an average of approximately $275.00 per week.
• He registered for and received JobKeeper payments of $750.00 per week when the Respondent commenced payments to its eligible employees in April 2020.
• Following an initial decline in business of some 96% in March 2020, the Respondent’s business progressively recovered during the Covid lockdown period in Melbourne, though not to pre-Covid levels, with it successfully securing work in permitted industry sectors.
• The Applicant received and read all correspondence sent to employees in relation to JobKeeper entitlements, except the email of 22 July 2020 29 which dealt with his failure to work offered shifts. All prior and subsequent correspondence was received and read by the Applicant including the email of 30 April 202030 which set out the obligations of employees in receipt of JobKeeper payments to continue to accept offered shifts or provide reasons why unable to do so.
• In the period from 7 March 2020 to 11 September 2020 the Applicant was offered 58 separate shifts in PinnBook, which included single and multi-day bookings.
• The Applicant was familiar with and had previously routinely used the PinnBook app for the purposes of engaging in respect of offered shifts.
• The shifts offered to the Applicant in the period 7 March 2020 to 11 September 2020 and the jobs set out at [27] were roles the Applicant was competent and experienced to perform and were also in settings he had previously undertaken work in, although they did not include assignments in sporting and entertainment venues that had been closed due to Covid lockdown restrictions.
• Of the 58 shift offers made to the Applicant in the Respondent’s PinnBook app, he rejected or made himself unavailable for approximately 27% of those offered shifts and ignored the rest. The Applicant did not at any stage advance to the 2nd stage in the PinnBook app in respect of the shifts offered to him, such that he was able to obtain relevant details of the shifts including role and venue/setting information.
• At no stage did the Applicant advise the Respondent of any apprehension he held regarding working in a setting in which a higher Covid risk was present. He certainly did not advise the Respondent that he was unwilling or unavailable for work in such settings and nor did he advise the Respondent of any medical condition that would have presented a greater risk to him were he to have worked in a Covid risk environment.
• The Applicant did not advise the Respondent of any change in his days or hours of work availability during the Covid lockdown period and neither did he alter his days/hours of work availability within PinnBook.
• In addition to email correspondence sent to the Applicant, staff of the Respondent also attempted unsuccessfully to contact the Applicant by telephone on multiple occasions regarding his availability for work.
• The Applicant undertook on-line Covid training and renewed his police clearance during the period of Covid lockdown in Melbourne.
[54] It is plainly apparent, and I am satisfied that, the Applicant was offered multiple single and multi-day assignments through the Respondent’s PinnBook app during the period 7 March 2020 to the date of his dismissal on 11 September 2020. He did so while in receipt of JobKeeper payments that were substantially more than his pre-Covid average weekly earnings and after having been made aware of his obligations to accept offered shifts while in receipt of those payments.
[55] The Applicant declined or ignored all 58 offered shifts in the period in the stated belief that, because the industry sectors in which he had undertaken most of his pre-Covid shifts (i.e. sporting and entertainment venues) had been shut down due to Covid lockdown restrictions, there was no suitable work available. He also claimed that the work that was available was in Covid risk settings. On the evidence of Ms. Mead, I am satisfied that there was work available for the Applicant within his skills and experience and furthermore a substantial proportion of that work was not in Covid risk settings.
[56] Had the Applicant gone to the trouble of opening the shift offers he received he would have been better informed as to the actual work that was available. The fact that he either rejected, declared himself unavailable or simply ignored the offered shifts at the first stage of offer, says much as to his motivation, or lack of, to engage with the Respondent and meet his obligations to accept and undertake work during the period in which his ongoing employment was directly subsidized by the federal government and by extension Australian taxpayers.
[57] I find the Applicant claims that he wanted to work in the period between his last shift on 7 March 2020 and his dismissal on 11 September 2020 to be disingenuous. There is not a scintilla of evidence of any genuine interest, beyond his completion of on-line Covid training and renewal of his police clearance certificate. I am, on the evidence before me, forced to conclude that the Applicant did not wish to work during the period for reasons he failed to properly communicate to his employer. Although he was unwilling to concede this point, there was little to no incentive for the Applicant to work any shifts given that he was in receipt of JobKeeper payments that were substantially in excess of his pre-Covid earnings.
[58] The Respondent had clearly set out its expectations of its employees in receipt of JobKeeper payments on 30 April 2020. 31 It reminded employees of those obligations on 19 June 202032 and put the Applicant on notice in correspondence dated 22 July 202033 (although the Applicant did not read this email). The Respondent then sent the Applicant the Show Cause Letter on 26 August 2020 which he did read. Through the period of the Applicant’s non-engagement, the Respondent also made multiple unsuccessful attempts to contact the Applicant by telephone. Furthermore, the Respondent continued to offer the Applicant shifts after the Show Cause Letter of 26 August 2020, none of which shift offers were accepted.
[59] In the above circumstances I am satisfied that the Applicant, by his conduct of declining or ignoring all offers of work by the Respondent in the period 7 March 2020 to 11 September 2020, had demonstrated an unwillingness to be bound by his contract of employment as a casual employee with the Respondent. I consequently find that there was a valid reason for the dismissal related to the Applicant’s conduct. This weighs in favour of a finding that the dismissal was not unfair.
Notification of the valid reason - s.38 7(b)
[60] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,34 and in explicit35 and plain and clear terms.36
[61] The Respondent set out in the Show Cause Letter of 26 August 2020 37 its concerns regarding his failure to accept any shifts and that his conduct demonstrated that he no longer wished to bound by his contract of employment. The Applicant was invited to respond and was given a final opportunity to advise why he had been unwilling and/or unable to accept shifts. He was put on notice that a failure to provide an acceptable reason or excuse for his refusal to accept any shifts over an extended period may result in his termination.
[62] The Applicant in his reply claimed to have not received the earlier correspondence dated 22 July 2020 38 regarding his failure to accept any shifts during the period of Covid restrictions. He appeared in his reply to attribute his unwillingness to accept any shift offers to the Covid lockdown, then in place in Melbourne, but did go on to enquire how many shifts per week he was expected to work during this time. Ms Hobbs replied that same day, again outlining the Respondent’s expectations.
[63] While I accept that the Applicant had not read the earlier email of 22 July 2020, there was no doubt that he received the email of 26 August 2020 and could not have reasonably been in any doubt as to the Respondent’s expectation that he accept shifts that were offered to him, or provide an explanation or excuse for declining shifts, in order to maintain his employment with the Respondent. Nor could he have reasonably been in any doubt as to the consequences of continuing to refuse to accept shifts that were offered to him.
[64] It follows from the above that I am satisfied that the Applicant was notified off the valid reason for his dismissal prior to the decision being made to dismiss him. This weighs in favour of a finding that the dismissal was not unfair.
Opportunity to respond to any reason related to capacity or conduct - s.387(c)
[65] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.39
[66] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.40 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.41
[67] As stated above, the Applicant was advised in the Show Cause Letter of 26 August 2020 that his employment was at risk and was offered an opportunity to explain his refusal to accept any shifts in the period since his last shift on 7 March 2020. As well as being afforded an opportunity to explain his conduct of refusing shifts that were offered to him, he was also invited in Ms Hobbs’ correspondence of 27 August 2020 42 to contact her directly if he wished to continue his employment with the Respondent. There is no record of any contact having been made by the Applicant in response to that invitation.
[68] I am satisfied that the Applicant was afforded an opportunity to respond to the valid reason relied on by the Respondent for his dismissal prior to the decision having been taken to dismiss him. This weighs in favour of a finding that the dismissal was not unfair.
Support person – s. 387(d)
[69] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[70] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”43
[71] Communication between the Respondent and the Applicant was limited to email exchanges and unsuccessful attempts by the Respondent to contact the Applicant by telephone. In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at any discussions relating to his dismissal. This weighs in favour of a finding that the Applicant was not unfairly dismissed.
Warnings regarding unsatisfactory performance - s.387(e)
[72] The dismissal did not relate to unsatisfactory performance. This factor is therefore neutral in the circumstances.
Impact of the size of the Respondent on procedures followed - s.387(f)
[73] The Respondent’s Form F3 - Employer Response indicates that at the time of the Applicant’s dismissal it employed 311 employees. There is no evidence before me, and nor did either party contend, that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.
Impact of absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[74] The evidence in this matter indicates that the Respondent had access to the services of a human resources specialist employed by the Respondent. This factor weighs neutrally in my consideration.
Other relevant matters – s.387(h)
[75] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[76] The Applicant submitted that the Covid lockdown period, during which he had not accepted shifts offered by the Respondent, were not normal times. He also contended that he was either offered roles in workplaces that presented a high Covid risk or they were roles that he lacked experience in.
[77] The Applicant is right to say that the period from 7 March 2020 until his dismissal on 11 September 2020 were not normal times. They were extraordinary times with Melbourne for the most part having been in various stages of lockdown during that period. I am satisfied that while the onset of the pandemic had an immediate and dramatic impact on the Respondent’s business with a 96% reduction in work in March 2020, a recovery in their business of sorts occurred in subsequent months. Work was secured by the Respondent in various permitted industry settings flowing from which some 58 separate assignments were offered to the Applicant. As earlier stated, the shifts offered included roles in nursing homes, with catering companies and in roles of café attendant and food and beverage attendant in private consular residences.
[78] That at no stage did the Applicant interrogate the shift offers made to him in the PinnBook system tells firmly against his claim that all the roles offered to him were in high Covid risk environments or alternatively he did not have the skills to do the work. The simple fact is that the Applicant did not know the detail of the roles offered to him. He either rejected the shift or made himself unavailable for approximately 30% of the shifts offered at the initial stage 1 of the offer and ignored the balance of the offers. This behaviour discloses an intention to decline to accept any shifts offered regardless of the nature of the role, location, or venue.
[79] I am not persuaded as to the merit of these further matters raised by the Applicant. I am consequently satisfied that there are no other matters that are required to be taken into account.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
[80] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 44
[81] Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable because there was a valid reason for the dismissal, it was carried out in a procedurally fair manner and there are no other factors that are relevant in the circumstances.
Conclusion
[82] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act.
[83] The application is dismissed. An Order will be separately issued giving effect to my decision.
DEPUTY PRESIDENT
Appearances:
I. Howard on his own behalf
W. Mead for the Respondent
Hearing details:
2020
Thursday
24 December
Printed by authority of the Commonwealth Government Printer
<PR725736>
1 Exhibit R1, Witness Statement of Ms Wendy Mead, paras [2]-[4], [17]
3 Exhibit R1 at paras [18]-[19]
4 Exhibit R20, Record of shifts worked by Applicant between 31 August 2020 and 11 September 2020
5 Exhibit R1 at para [22]
6 Exhibit R4, JobKeeper Payment Notice of 15 April 2020
7 Exhibit R5, JobKeeper Payment Notice of 24 April 2020
8 Exhibit R6, JobKeeper Payment Revised Payment, 30 April 2020
9 Exhibit R7, JobKeeper Payment Update, 5 May 2020
10 Exhibit R9, JobKeeper Payment – Payment Schedule and Explanation, 18 May 2020
11 Exhibit R10, JobKeeper Payment – Eligibility and Commitment, 19 June 2020
12 Exhibit R13, JobKeeper Payment – Attendance Record, 22 June 2020
13 Exhibit R3, Witness Statement of Renee Luker, para [16]-[17]
14 Exhibit R15, Email from F Hobbs to Applicant, dated 26 August 2020
15 Exhibit R16, Email from Applicant to F Hobbs on 27 August 2020
16 Exhibit R19, email from F Hobbs to Applicant on 27 August 2020
17 Exhibit R1 at para [42]-[43], Exhibit R17, Respondent’s summary of emails sent to and opened by Applicant
18 Exhibit R3 at para [18]-[19]
19 Exhibit R1 at [55]
20 Exhibit R18, Employment termination letter, dated 11 September 2020
21 Exhibit R23, Email from Applicant to F Hobbs, dated 21 September 2020.
22 Exhibit R24, Email from F Hobbs to Applicant, dated 21 September 2020
23 Exhibit R1 at paras [39]-[40]
25 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith and others v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
26 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
27 Ibid.
28 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
29 Exhibit R13
30 Exhibit R6
31 Exhibit R6
32 Exhibit R12
33 Exhibit R13
34 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
35 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
36 Ibid.
37 Exhibit R15
38 Exhibit R13
39 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
40 RMIT v Asher (2010) 194 IR 1, 14-15.
41 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
42 Exhibit R19
43 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
44 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]– [7].