DECISION

Fair Work Act 2009
s.394 – Unfair dismissal

Mr Russell Hudson
v
The PJ Sourris Family Trust & James P & Christopher P Sourris T/A Aspley 10 Pin Bowl
(U2021/621)

Application for an unfair dismissal remedy.

[1] On 25 January 2021, Mr Russell Hudson made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been unfairly dismissed by his employer, The PJ Sourris Family Trust & James P & Christopher P Sourris T/A Aspley 10 Pin Bowl (Aspley 10 Pin Bowl/The Respondent).

[2] In its Form F3 – Employer Response to unfair dismissal application, Aspley 10 Pin Bowl raised a jurisdictional objection to the application on the basis that Mr Hudson was not dismissed at the employer’s initiative.

[3] Directions were issued for the jurisdictional objection and the substantive matter to be heard together. The matter was heard as a determinative conference on 13 April 2021 by Video via Microsoft Teams. Mr Hudson provided a witness statement and Mr Jim Sourris (‘Mr Sourris’) provided a witness statement for the Respondent. Other submissions and supporting documents were provided, however, Mr Hudson and Mr Sourris were the only two witnesses to give evidence.

BACKGROUND

[4] Mr Hudson commenced employment with Aspley 10 Pin Bowl on 16 August 2019. He requested a separation certificate from his employer on 6 January 2021.

[5] Mr Hudson’s evidence was that he was employed on a casual basis and worked every week, between 15 and 30 hours over a seven day period, which consisted of both day and night shifts. He said his ordinary rate of pay was $26.93 per hour, and that his Sunday rate was $38.86 per hour with average net earnings of around $700.00 per week.

[6] Mr Hudson submits he was terminated by the Respondent, after having his regular shifts reduced to one shift per week throughout the month of December 2020. He said he finally received a call on 6 January 2021 advising that his shifts were cancelled for the rest of the month and that he would be called if he was needed. Mr Hudson subsequently requested a separation certificate.

[7] The Respondent’s Form F3 said it had a total of 25 employees, although a large proportion were casual. The Respondent did not put submissions that it was covered by the Small Business Fair Dismissal Code. Therefore, I asked for some clarification from the Respondent over the nature of the engagements of its casual employees. I am inclined on the basis of the evidence that most casuals work every week, that at least 15 employees work on a regular and systematic basis and therefore the Code does not apply.

[8] The issues for determination are firstly the jurisdictional objection that there was no dismissal, and in the event that objection fails, whether the dismissal was harsh, unjust or unreasonable in accordance with the considerations under section 387 of the Act.

LEGISLATION

[9] Section 386 of the Act sets out when a person has been dismissed from their employment and states:

“Meaning of dismissed

(1) A person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.”

[10] Section 394 of the Act sets out:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[11] Sections 385 and 387 of the Act relevant provide as follows:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

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

“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.”

THE EVIDENCE

Incident with Nathan Jardine September 2019

[12] Mr Hudson claimed that after the first month of his employment, in or around September 2019, another Technician Mr Nathan Jardine, and himself were working a shift together and Mr Jardine made a range of very negative comments to Mr Hudson about his work. Mr Hudson said the matter was taken up with the Head Technician at the time who advised Mr Jardine he should apologise, however he did not. Mr Hudson claimed Mr Jardine repeatedly spoke ill of him around fellow team members.

The Warning in Late 2020

[13] Mr Hudson received a formal warning letter from Mr Sourris in either October or November of 2020. The letter itself was dated 21 November 2020, however, the letter was signed on 9 November 2020 by Mr Hudson. Both Mr Hudson and Mr Sourris indicated in their oral evidence that his must have been an error.

[14] Mr Hudson claimed all other Technicians also received a warning letter at the same time, however, Mr Sourris said only two of the five Technicians received a warning because they did not have any problem with the others. The warning included the following:

“Warning

This letter confirms details of our discussions during a meeting that took place at Aspley 10 Pin Bowl on 9-11-20. During our discussion, you were advised of my concerns regarding your failure following Rodney Ciancio directions as head tech at Aspley 10 Pin Bowl.

The specific issues of concern raised during our meeting included

•  Constantly on mobile phone listening to music. Phone’s are to be left in the managers office and not accessed unless you are on break.

•  Not completing designated tasks on day shift and night shift job shifts.

•  The computer has been removed due to being used for non-work purposes.

•  Constantly disappearing whilst on duty with other technician.

•  Constantly vaping at the rear of the bowling alley.

During our meeting you were unable to offer a satisfactory explanation for these performance issues.

The performance issues listed above are not acceptable to Aspley 10 Pin Bowl owners.

This letter is an official warning regarding your performance. I have no doubt that you will endeavour to rectify the situation. Please be assured of continued commitment by the Company and myself in assisting you in every way possible.

We have agreed to meet again within the next 2 weeks to review your progress in this matter. I feel that it is only fair to inform you that if the concerns raised in this letter are not addressed by this date, I shall have no alternative than to issue a second warning regarding this matter. Continued failure to improve your performance may lead to eventual termination of your employment with the Company.

Should you have any further questions regarding the issues outlined in this letter, please do not hesitate to let me know. To acknowledge your agreement that this letter accurately summarises the details of our discussion, please sign the enclosed copy and return it to me. A copy of this letter will be placed on your file.

Yours sincerely

Jim Sourris
Aspley 10 Pin Bowl”

[15] Mr Hudson signed the bottom of the letter to confirm that the note accurately summarised the details of the discussions. He said in his oral evidence he wanted more removed however Mr Sourris refused.

[16] On the basis of the evidence, it is common ground that Mr Hudson requested that the letter was amended to strike out two of the issues as he disputed that they should be included in the warning letter. Mr Sourris said Mr Hudson said he listened to music because he had headaches and so Mr Sourris deleted it. Mr Hudson gave evidence that he listened to music while he worked to deal with an anxiety condition. The final dot point was struck out on the basis that the vaping only occurred outside, although Mr Sourris gave evidence that Mr Hudson did got outside to vape, and he could not be supervised while outside. Mr Hudson changed his evidence to say he believed three technicians received a warning letter and not two.

Discussions between Mr Hudson and Head Technician, Rodney Ciancio, about Mr Jardine

[17] Mr Hudson said the Head Technician, Mr Rodney Ciancio, had taken medical leave from 1 December 2020. He said prior to this they had a discussion about Mr Jardine being the acting Senior Technician. Mr Hudson said he was concerned that during this time, Mr Jardine would try and find a way to fire Mr Hudson due to his personal dislike of him.

[18] Mr Hudson said Mr Ciancio assured him that Mr Jardine could not do that during his absence and that the roster for the rest of the year had been set, which meant that Mr Jardine only needed to do the January 2021 roster until his return to work. Mr Sourris gave evidence that this discussion did not come to his attention.

[19] Mr Sourris’ evidence was to the effect that he believed because Mr Hudson was older than Mr Jardine, he did not like Mr Jardine having authority over him.

Text message from Mr Jardine to Mr Hudson on 5 December 2020 regarding shifts and unsatisfactory work

[20] On Saturday 5 December 2020, Mr Hudson said he was advised by Mr Jardine as the acting Senior Technician that his shifts for the rest of the week had been cancelled. Mr Hudson said that Mr Jardine said via a text message while he was on holidays in NSW that it was because of a work performance issue. The text message exchange read as follows:

Mr Jardine to Mr Hudson:

“Hey Russel,

I attempted to call you just before and couldn’t get through. I am just letting you know that you aren’t required to work on Monday or Tuesday this week. We will discuss what’s happening after that once I return to Brisbane.

Thanks,
Nathan”

Mr Hudson to Mr Jardine:

“Sorry, I’m not available to take a call right now, but what is the problem?”

Mr Jardine to Mr Hudson:

“The problem is that you haven’t been completing the work to a satisfactory standard and therefore your presence is not required on Monday and Tuesday.”

[21] Mr Hudson said he received no further information or feedback.

Phone discussion between Mr Hudson and Mr Sourris on 7 December 2020

[22] Mr Hudson said on Monday 7 December 2020, he contacted Mr Sourris to find out what was happening with his roster and if there were any issues. Mr Hudson said Mr Sourris stated he had no idea about why his shifts had been cancelled, and would speak with Mr Jardine and get back to Mr Hudson.

[23] Mr Hudson said later on Monday 7 December 2020, he received a call back from Mr Sourris who advised that his shifts were cancelled due to business being slow and that there were not enough shifts to go around. Mr Hudson said Mr Sourris stated that Mr Hudson was the last employee hired, therefore the first to lose shifts. Mr Hudson said this contradicted what he was told via text message.

[24] Mr Hudson said he stated that he was not the last employee hired, and that he believed his shifts had been cancelled specifically because Mr Jardine had a personal issue with him. Mr Hudson said he also stated that Mr Ciancio and himself had discussed this very thing happening prior to Mr Ciancio’s medical leave.

[25] Mr Hudson said his concerns and objections raised during this call were either ignored or glossed over altogether. Mr Hudson said he discussed his options about a complaint with the Centre Manager, who suggested he put it in writing for Mr Sourris to review.

[26] In his oral evidence, Mr Sourris said he let Mr Hudson go on and on and he let Mr Hudson go for a while during the phone call on 7 December 2020, however Mr Sourris said after a while he told Mr Hudson he had heard what Mr Hudson had to say, and he finished the conversation. Mr Hudson named three Technicians Craig, Patrick and Rodney, who he said had all started after him. Mr Sourris said in his oral evidence he accepted Mr Hudson was not the last one hired, but he knew he was one of the last ones.

Further text message from Mr Jardine 9 December 2020

[27] Mr Hudson said on Tuesday 9 December 2020 he received another text message from Mr Jardine as follows:

“Hey Russel, just letting you know to ignore your shifts on the roster as of Monday (your Sunday shift is still yours). I will let you know when you’ll be working but you will have a shift later in the week. Can you also please leave your back door key on the front desk next time you are in.”

Letter of 10 December 2020 to Mr Sourris

[28] On 10 December 2020 Mr Hudson wrote to Mr Sourris as follows:

“Dear Jim,

I am writing to report a conflict that has arisen between myself and Nathan Jardine, a fellow co-worker. There have been several incident over the past 16 months that I have been working as a technician at Aspley 10 Pin Bowl.

Shortly after the first month of my employment around September 2019, Nathan and I were working a shift together. Nathan stated the following:

•  That I was a bad technician and would always be a bad technician

•  My skills in building engines and cars only meant I could build Lego and that there are no intricacies in building motor engines

•  One of the other technicians, after only a week was ‘better than me’ however no constructive criticism was provided to me

That matter was taken to the head technician at the time, who after having a word with Nathan advised him he should apologise, which he did not. As a result of the matter not being able to be resolved conclusively, we did not work any shifts together from that point on.

I have found out that Nathan has repeatedly spoken ill of me to our fellow team members since that point, including any new employees that have joined the team.

I have always maintained a professional attitude when Nathan and I have crossed paths during shift changeovers. Several times within the last 16 months I have attempted to contact Nathan when a particular breakdown has occurred that I have not had the training to be able to fix; to ask for help due to his level of experience with the machines. However, the majority of my calls and text messages went unanswered and on the few times he has returned my calls the information given to me was either incorrect or incomplete. I feel strongly this was done intentionally.

I have been actively seeking further training to fix particular issues with the machines to enable me to be a better employee, however I have continuously been advised to leave the matter and he or another team member would fix it the following day.

Recently, Nathan has been put into a position of authority due to the current Head Technician (Rodney) being away on medical leave. Prior to Rodney’s leave, he and I discussed the ongoing issues with Nathan as I was concerned about Nathan firing me due to his personal dislike of me. Rodney assured me that Nathan could not do that during his absence.

On Saturday 5 December I received a text message from Nathan informing me that my shifts for the following week had been ‘cancelled’. The reason stated was due to ‘unsatisfactory completion of work’. I was advised he would discuss what was happening with me upon his return from holidays.

I contact Jim on Monday 7 December to seek further information about my position and the reasons my shifts were cancelled. I was advised that this was due to the centre not being as busy during Christmas period and two technicians were not required for shifts. I was also advised that it was due to me being only a recent employee. However, this is incorrect as there is another team member who has been there significantly less time than myself.

On Tuesday 9 December I received another text message from Nathan informing me of the following:

Hey Russel, Just letting you know to ignore your shifts on the roster as of Monday (your Sunday shift is still yours). I will let you know when you’ll be working but you will have a shift later in the week. Can you also please leave your back door key on the front desk next time you are in.

There has been no further communication regarding why this has occurred, simply an increase in hostility. Please note I have not been in a position to answer Nathan’s last two calls due to a recent death in the family and have communicated via text message instead.

If the reason stated was due to business slowing down then other team members would have had their shifts affected also. To date I am the only one this has happened to.

If the reason is due to ‘unsatisfactory work completion’ I can only advise that the week ending the 6 December had:

•  Two breakdowns that occurred when I was not working, that had not been repaired by a more experienced technician. This greatly affected my ability to do my job during my shift on Wednesday 2 December, as the centre was unusually busy that night.

•  There was another major breakdown during my Wednesday shift that I was unable to rectify due to lack of training on how to fix ‘tables’. I advised Nathan via text message of this matter, however I did not receive any direct response.

•  On my Friday 4 December night shift, the centre was again incredibly busy and I contacted another team member for assistance when numerous breakdowns occurred. Patrick came in briefly to assist, however the two issues were very unusual and even Patrick was unable to fix one of them. By the end of the evening there was only one other small issue that due to time frames I was not able to fix before closing, however I communicated this in the workbook as per standard procedure.

Over the last 16 months, I have been a hard working employee and have always tried to increase my level of knowledge, however no further training opportunities have been provided to me by the more experienced technicians.

I feel that Nathan is using his personal dislike as well as the unusual breakdowns during the week ending 6 December to specifically bully or intimidate me into resigning. This has become evident with the request to return my work key. This along with previous behaviours of belittling by Nathan have caused me a great deal of stress. I have not been given any

further information regarding any possible issues with my work performance nor the opportunity to rectify them.

I would like to discuss the ongoing issues in person and try to reach a reasonable agreement between myself and Nathan and request that a mediation takes place with a third party present.

Thank you for your time and understanding,

Sincerely

Russell”

[29] Mr Hudson maintained he only worked two shifts in the month of December. Mr Hudson said he submitted the written complaint of 10 December 2020 by leaving it with the reception staff at the front counter, who made sure the letter went into Mr Sourris’ mail to be collected. He said to date, there has been no contact made and no action taken regarding his complaint.

[30] On the basis of the evidence, it does not appear Mr Sourris took any steps to investigate for himself the allegations Mr Hudson was making concerning Mr Jardine. Mr Sourris said in his witness statement that Mr Jardine had been employed for approximately five years and the Head Mechanic, Mr Ciancio, appointed Mr Jardine to replace him temporarily while Mr Ciancio was on sick leave for two months for a major operation.

[31] Mr Sourris accepted he received the letter and that he said Mr Jardine was in charge and Mr Hudson should have done what he was told. Mr Sourris said he was also told by the Pay Master that Mr Hudson had taken sick leave at short notice. Mr Hudson disputes that he took excessive sick leave, and he said he did not take any sick leave in the period Mr Jardine was acting in the role.

[32] Mr Sourris accepted he could give no direct evidence from his own knowledge about sick leave taken by Mr Hudson, but was relying on what he had been told. Mr Sourris said he did not get involved too much with the technicians and he left it to his Head Technician to deal with matters, however, he was off for a period at this time and Mr Jardine was acting in the role. Mr Sourris said that there was a clash of personalities between Mr Hudson and Mr Jardine and that COVID-19 has had a major impact on the business and the Respondent was closed for business for three months in 2020.

January 2021

[33] Mr Hudson said after New Year’s he went in for his single work shift and received his new roster for the month of January. He said he was still only given one shift, but noticed there was a new staff member on the roster.

[34] Subsequently, Mr Hudson said he confirmed with other staff and they advised that they had no changes made.

6 January 2021

[35] Mr Hudson’s evidence was to the effect that he received a phone call from Mr Sourris on 6 January 2021, who advised that his rostered shifts for the rest of January 2021 were now cancelled and he would get a call if needed. Mr Hudson said during this call, Mr Sourris stated it was because of ‘business being slow and there was not enough shifts to go around’. Mr Hudson said however he was the only staff member rostered for the Saturday evening shifts in question and another technician would need to be called in to replace him. Mr Hudson said he was told the Respondent no longer needed two technicians per shift. Mr Hudson said he asked why his shifts the only ones to be cut and Mr Sourris did not want to discuss the issues.

[36] Mr Hudson said Mr Sourris also stated Mr Hudson couldn’t work nights, however, Mr Hudson explained he had put this note on the whiteboard at work several months ago and it was due to medical reasons regarding a medication he takes, however he had continued to work any shift that was given to him and it had not really been discussed properly. This matter was explored during oral evidence and it is clear Mr Hudson continued to be rostered to work nights for months after he had said on the white board he did not wish to.

[37] Mr Hudson said Mr Sourris also stated the reason he was not receiving shifts was because Mr Hudson was the last person hired, which Mr Hudson said was untrue. Mr Hudson said Mr Jardine was aware that Mr Hudson was not the last employee hired, as four other technicians had been employed after himself, three of which are still currently working at the bowling alley.

[38] Mr Hudson said he believes that the written complaint he put in resulted in his already reduced shifts being cancelled altogether in January, and that he would not be contacted again to work for Aspley 10 Pin Bowl. Mr Hudson said when he enquired about a separation certificate with Mr Sourris during the phone call on 6 January 2021, Mr Sourris stated ‘we have never done that for a casual’.

[39] Mr Hudson said he made his displeasure about the matter known to Mr Sourris during this phone call, however he claimed Mr Sourris had no intention of discussing it further, nor hear his concerns.

[40] Mr Hudson said in response to Mr Sourris’ statement that he was offered one shift per week on a casual basis, the pay slips provided show he had been working an average of 20 hours per week.

[41] Mr Hudson said he had spoken to the Head Technician after the call (with Mr Sourris) and he claimed he found out Mr Jardine had told the Head Technician “I left a machine broken with no notes” which Mr Hudson said was a lie as he never did this and he said he is a stickler for leaving detailed notes as other staff, including Mr Jardine, failed to write up the log books in detail for the following shift change-overs.

[42] Mr Hudson said he went in to collect his separation certificate and drop off his keys. Mr Hudson said he had to get the Payroll Officer to change the paperwork as she had put the incorrect information with the reason stating he was not available to work the required shifts. Mr Hudson said he asked for this to be corrected because:

1. Other staff had requested availability for certain day/night and times due to second job/study commitments and they had been accommodated accordingly.

2. He never tried to enforce this, he simply put on the board for consideration when completing next roster.

[43] Mr Hudson said there were two technicians on the day he collected the paperwork. He said he had spoken with other technicians and they had not had any shifts reduced, and they had actually taken on more work to cover his usual 3-4 weekly shifts.

[44] Mr Hudson said he had no choice but to resign from his position on the 6 January 2021 because;

•  His concerns regarding his shifts being reduced on 5 December 2020 were ignored by Mr Sourris;

•  The acting Senior Technician Mr Jardine reduced his hours due to personal dislike of him;

•  Mr Hudson was told (his shifts were removed) because he was the last employee hired which is untrue;

•  Mr Hudson said he tried to mention this to Mr Sourris several times but was ignored and all of his concerns were dismissed;

•  Mr Hudson had submitted a written complaint on 10 December 2020 concerning Mr Jardine and there has been no contact made and no action taken regarding his complaint;

•  Mr Hudson’s rostered shifts for January 2021 were then cancelled by Mr Sourris on 6 January 2021, which he stated was because of ‘business being slow and there was not enough shifts to go around’, however Mr Hudson was the only staff member rostered for the Saturday evening shifts and another technician would need to be called in to replace him; and

•  Mr Hudson’s hours were reduced to zero because he had put in a formal written complaint about the acting Senior Technician Mr Jardine.

[45] Mr Sourris said Mr Hudson did not want to work nights which was not fair to other staff. Mr Hudson said he did work night shift and closures every week after the September note. Mr Sourris accepted he could not dispute this was correct.

[46] Mr Sourris said Mr Hudson did not qualify for Job Keeper which made it difficult to continue his employment as a permanent, which I took to mean a regularly rostered employee given he was a casual employee.

[47] The Respondent provided with its material a statement from Ms Janet Payne, the Payroll Officer at Aspley 10 Pin Bowl. Ms Payne was not available to give evidence. The statement provided said on 6 January 2021 she was asked to issue a Separation Certificate for Mr Hudson with the reason being he had changed his availability and was unable to work night shifts as a technician.

[48] The statement said Ms Payne phoned Mr Hudson to advise the Separation Certificate was ready for collection and asked if he could bring his technician key to the office. Mr Hudson came to see Ms Payne, opened his certificate and wasn’t happy with the reason stated for the separation and it was altered to say “due to shortage of work”.

[49] Ms Payne’s statement said Mr Hudson worked an average of less than three shifts per week over the last three months of 2020 earning a total of $7570.87 Gross and $6845.87 Net. Ms Payne’s statement said Mr Hudson did not qualify for JobKeeper, however they could not justify his employment as due to COVID-19 and border closures, Aspley 10 Pin Bowl closed for three months.

[50] Mr Sourris said Mr Hudson was not doing his job properly, however, he resigned and was not terminated. Mr Sourris said Mr Hudson probably would have got more shifts however he ‘jumped the gun’ by resigning. Mr Sourris said Mr Hudson asked him to be made permanent in November 2020 and Mr Sourris said he declined the request and ever since then Mr Hudson had been unhappy. Mr Sourris accepted there were rosters set up with Mr Hudson’s name on them for January 2021. Mr Sourris said he did not actually know why Mr Hudson was taken off the roster in January, as it was up to the Head Technician to say who they needed for the roster.

Was there a dismissal within the meaning of s.386?

[51] Having considered the evidence, I am satisfied in all of the circumstances that when Mr Sourris advised Mr Hudson on 6 January 2021 that he would not be rostered for the month of January 2021 because of “business being slow and there was not enough shifts to go around” and that he would “call you if we need you”, that his regular and systematic casual employment was effectively being brought to an end.

[52] Much of Mr Hudson’s evidence concerning his allegations against Mr Jardine was not contested. Prior to Mr Jardine taking on the role of Acting Head Technician, Mr Hudson was working in the order of three shifts per week. Immediately after Mr Jardine took over in early December, Mr Hudson only received two shifts in that month.

[53] Further, the text message exchange between Mr Jardine and Mr Hudson on 5 December 2020 makes clear that Mr Jardine had formed the view that Mr Hudson’s performance at work was not acceptable. This followed the warning given to Mr Hudson in November. Mr Sourris’ evidence was that, despite Mr Hudson complaining directly to him about Mr Jardine and Mr Hudson’s concern that Mr Jardine was acting adversely toward him for reasons unrelated to his work performance, if Mr Hudson could not get along with Mr Jardine he did not see it as an issue he needed to be involved in.

[54] Further, it was Mr Sourris’ evidence that when he advised Mr Hudson on 6 January 2021 there would be no shifts for Mr Hudson in the month of January, despite having been earlier rostered for at least some shifts in January, he did so on the basis of advice from Mr Jardine.

[55] The Respondent did not call Mr Jardine to give evidence. Mr Hudson gave evidence that despite the claims of the Respondent to the contrary he was the only employee to be affected, and it was Mr Hudson’s evidence that other Technicians he had spoken to had been called upon to cover shifts he would otherwise have worked. This specific evidence was not directly contradicted. Mr Sourris’ evidence was more general and to the effect that because of COVID-19 there had been a slowdown and therefore less shifts were required. It is notable that the three-day lockdown that occurred in Brisbane from 8 January 2021 to 11 January 2021 was after 6 January 2021, so could not be a basis for the advice given to Mr Hudson that day.

[56] During his evidence, Mr Sourris also relied on a claim that Mr Hudson had advised he was unavailable to work nights or closures, however, the unchallenged evidence of Mr Hudson was that he regularly worked at night after he had made a request in September not to be rostered at that time based on medication he was taking.

[57] Mr Sourris said Mr Hudson was not dismissed by either himself, Mr Ciancio or the Paymaster, Ms Payne. Mr Sourris said Mr Hudson “dismissed himself” by requesting a separation certificate on 6 January 2021. Mr Sourris gave evidence that in 30 years of business, the Respondent has never had to respond to a claim for unfair dismissal.

[58] The matter in dispute needs to be determined on the balance of probability. Prior to Mr Jardine assuming the role of acting head Technician, it is clear Mr Hudson was working shifts on a regular and systematic basis, week in week out earning on average somewhere in the order of $700 per week.

[59] Taking into account the significant reduction in hours throughout December, followed by the advice on 6 January 2021 that Mr Hudson would receive no hours for the following month of January, and with no clear commitment to any further hours in the future, the evidence overall supports a conclusion that Mr Sourris was terminating Mr Hudson’s casual employment on 6 January 2021. It is relevant that the casual employment arrangement had been, until the advice from Mr Jardine that his work was not at an acceptable standard on 5 December 2020, a regular and systematic casual employment relationship for approximately 18 months.

[60] On that basis, the act of Mr Hudson requesting a separation certificate was not an act of resignation as described by the Respondent. The employment relationship had already been brought to an end by the act of Mr Sourris telling Mr Hudson he would not be rostered for any shifts in January with no clear commitment to any further shifts as he would only be called if needed. It would seem Mr Sourris was of the view that despite Mr Hudson being employed on a regular and systematic basis for 18 months, because he was engaged as a casual the employer was entitled to cease to offer him work without that amounting to termination of his employment. On the particular facts of this case the significant reduction in work in December, followed by the decision to cease to offer any work in January did however amount to termination of the employment relationship. For these reasons, the jurisdictional objection is dismissed.

HARSH, UNJUST OR UNREASONABLE

[61] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the considerations under section 387 of the Act.

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

[62] The directions issued by the Commission provided for the parties to file evidence and submissions in relation to both the jurisdictional objection, and the merits of the application if the jurisdictional argument failed. The Respondent has argued that Mr Hudson resigned. Having rejected that argument, and found the termination was at the initiative of the employer, there is no other substantive evidence from the Respondent to suggest that Mr Hudson was dismissed on the basis of capacity or conduct.

[63] There was some evidence in the Respondent’s case that there was not sufficient work for Mr Hudson, however the Respondent has not argued in the alternative that this was a case of genuine redundancy and even if it had, on the basis of my earlier findings it would not have met the considerations in s.389 to establish this as a case of genuine redundancy as I am inclined to accept Mr Hudson’s evidence that there was still work for him to perform, and he was not consulted about the decision.

[64] The evidence tends more to indicate that in reality, Mr Hudson was terminated because of dissatisfaction with his performance. This is supported by the existence of the warning letter, and the subsequent text message from Mr Jardine to Mr Hudson of 5 December 2020 raising that his work performance was not to a satisfactory standard. This supports a conclusion that this was the real reason he was being removed from shifts at that time by Mr Jardine.

[65] Mr Sourris did not provide any substantive evidence that could support a finding that the Respondent had a valid reason to terminate Mr Hudson on the basis of capacity or conduct. As already intimated, I am inclined to accept that it is more likely to be the case that it was Mr Jardine’s opinion that Mr Hudson’s work was not of a satisfactory standard that is the reason Mr Hudson had most of his shifts taken off him during December, and it was the subsequent later communication of that opinion to Mr Sourris from Mr Jardine that is more likely to be the reason that all of Mr Hudson’s shifts were taken off him in January causing the ending of the employment relationship.

[66] Based on the evidence, I am not satisfied that the standard of Mr Hudson’s work provided the Respondent a valid reason for termination based on capacity or conduct and this tells in favour of a finding the dismissal was unfair.

(b) Whether the person was notified of the reason

[67] Mr Hudson was not notified of a reason for termination based on his capacity or conduct.

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

[68] Mr Hudson was not given an opportunity to respond to any reason related to his capacity or conduct.

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

[69] Mr Hudson did not request to have a support person present to assist in any discussions relating to dismissal, so it cannot be said the employer refused any request however given the facts of this case it is also apparent Mr Hudson did not have an opportunity to make such a request.

(e) Was Mr Hudson warned about unsatisfactory performance before dismissal

[70] Mr Hudson was warned in November 2020 about a number of issues in relation to his performance, however, the evidence does not establish that his performance in relation to the issues over which he was warned was unsatisfactory after receiving the warning.

(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

[71] Whilst the Respondent is not a small business within the meaning of the Fair Work Act 2009 having approximately 25 employees, the majority of employees are casual with a smaller permanent workforce and it is a family owned business. It is likely the size of the business impacted on the procedures followed.

(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

[72] The Respondent did not have a dedicated human resource management specialist or expertise in the enterprise, and this would have been likely to impact on the procedures followed in effecting the dismissal.

(h) Any other matters that the FWC considers relevant

[73] There are no other matters that I consider relevant.

Conclusion on whether Harsh, Unjust or Unreasonable

[74] Having weighed each of the consideration under s.387, I am satisfied that given there was not a valid reason for dismissal and other procedural flaws as set out above, the dismissal was harsh, unjust or unreasonable.

REMEDY

[75] Mr Hudson did not seek reinstatement and instead sought compensation. I am satisfied reinstatement is inappropriate in this case. Mr Hudson submitted he sought compensation for the lost income from his cancelled shifts in December as well as what he said he would have earned since January 2021 based on his average weekly hours over the previous 12 month period.

[76] Mr Hudson said he has relied on Centrelink benefits and has applied for several positions in different roles, however, has not been successful in these applications. He said he has undergone work experience in traffic control within the last few weeks and as at the time of the hearing, was waiting to complete his final exam for a Traffic Control certification. He said he has received a request for his resume with the company he completed work experience with, and hopes that when his application for his licence comes through in the next 2‐6 weeks, he will be successful in securing paid employment.

[77] Mr Hudson submitted he averaged approximately $750 gross per week based on 25 hours per week. Mr Hudson submitted he would still be working the same number of hours per week, if not more, as the Head Technician Mr Ciancio wanted him to work with him when he returned from medical leave for safety reasons during his recovery period.

[78] The standard rate of pay for Mr Hudson was $26.93 per hour and the Sunday rate was $38.86 per hour. Unfortunately, Ms Payne was unable to give evidence. The material provided in Ms Payne’s statement said Mr Hudson worked an average of less than three shifts per week over the last three months of 2020, earning a total of $7570.87 Gross. Mr Hudson disputed Ms Payne’s figures and said prior to December he worked three shifts a week unless he was sick or on leave of some kind.

[79] An assessment of compensation is confined to the period from termination of employment. On that basis I have not taken into account the period before 6 January 2021. I am inclined to estimate future likely earnings somewhere between the projections of Mr Hudson based on previous earnings and the figures prepared by Ms Payne’s material. I have estimated likely future earnings as being $650 per week gross.

[80] Mr Hudson had been employed as a casual employee on a regular and systematic basis for approximately 18 months. The business has had some impacts due to the COVID-19 Pandemic and there was clearly some tension in the relationship given the issue of the warning in November. There is always a degree of speculation in estimating the likely period of time the employment relationship would have lasted had Mr Hudson not been dismissed in January. Given the various factors as described, I have settled on a period of a further 10 weeks. Ten weeks multiplied by $650 amounts to $6,500.

[81] Mr Hudson had not gained other employment or earned remuneration other than Centrelink payments as at the time of the hearing. Whilst there was a prospect of Mr Hudson gaining work in the traffic control industry, even if this occurred it would be after a period of 10 weeks from the date of dismissal and therefore, is not a basis to make any deduction to the estimated income earned. For similar reasons, I do not intend to make any deduction on the basis of contingencies.

[82] There is no evidence that an order for the payment of the amount of $6,500 will affect the viability of the Respondent. I am satisfied on the basis of the evidence of Mr Hudson that he has been applying for other work and undertook training and on that basis has attempted to mitigate his loss.

[83] There was no evidence of misconduct on the part of Mr Hudson that would justify a reduction in the amount ordered. The amount of $6,500 does not exceed the compensation cap.

[84] I have concluded that The PJ Sourris Family Trust & James P & Christopher P Sourris T/A Aspley 10 Pin Bowl should pay Mr Russell Hudson the amount of $6,500 gross taxed according to law within 21 days of the date of this decision. An order to this effect with be issued separately and concurrently with this decision.

COMMISSIONER

Appearances:

Mr Russell Hudson appearing on his own behalf
Mr Jim Sourris appearing for the Respondent

Hearing details:

2021,
Brisbane by Microsoft Teams Video:
April 13

Printed by authority of the Commonwealth Government Printer

<PR728873>