1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Zlatko Devcic
v
City Motor Transport Group
(U2013/12907)
COMMISSIONER CAMBRIDGE SYDNEY, 9 MAY 2014
Unfair dismissal - jurisdictional objections - application filed more than 21 days after date of
alleged resignation - dismissal or resignation - termination on the initiative of the employer -
application filed within 21 days from date of dismissal - harsh, unjust and unreasonable
dismissal - reinstatement inappropriate - compensation Ordered.
[1] This matter involves an application for unfair dismissal remedy made pursuant to
section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 22
August 2013. The application was made by Zlatko Marijan Devcic (the applicant) and the
respondent employer is City Motor Transport Pty Ltd ABN: 73 085 240 875 (the employer).
[2] The application indicated that the date that the applicant’s dismissal took effect was 9
August 2013. Consequently, on its face the application was made within the 21 day time limit
prescribed by subsection 394 (2) of the Act. However, the employer asserted that the
applicant had resigned from employment on or about 28 June 2013.
[3] The jurisdictional objection raised by the employer was initially listed for Hearing on
6 December 2013 before Drake SDP of the Fair Work Commission (the Commission). This
Hearing did not proceed and the matter was reallocated to the Commission as constituted for
determination of both the jurisdictional objections raised by the employer and the substantive
application.
[4] The matter was the subject of unsuccessful conciliation conducted on 17 January
2014, and it has proceeded to arbitration before the Commission as constituted in a Hearing
conducted in Sydney on 2 April 2014.
[5] At the Hearing held on 2 April, Mr S Borrow, solicitor from Leana Street Consulting,
was granted permission to appear for the applicant. The applicant was the only witness called
to provide evidence in support of the claim. The Commission also granted permission for the
employer to be represented by Mr A Brown, a solicitor from Brown & Brown Lawyers. Mr
Brown called one witness who provided evidence on behalf of the employer. In addition, the
Commission admitted a witness statement of the employer’s Managing Director, Anatoly
Kushnir, into evidence despite Mr Kushnir being unable to attend the Commission and give
evidence as a witness.
[2014] FWC 3040 [Note: An appeal pursuant to s.604 (C2014/926) was
lodged against this decision - refer to Full Bench decision dated 11
September 2014 [[2014] FWCFB 6074] for result of appeal.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB6074.htm
[2014] FWC 3040
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Factual Background
[6] The applicant had worked for the employer for almost seven years. The applicant was
employed in a position described as a Rental Manager.
[7] The employer is a small business with about twelve employees. The employer
operates a motor vehicle rental company which specialises in the provision of prestige motor
vehicles as replacements in circumstances involving accident insurance claims.
[8] On 13 June 2013 the applicant’s father passed away. On the following day the
applicant advised the employer that he would need some time off work to attend to his
bereavement. The employer expressed its condolences to the applicant and indicated a
preparedness to facilitate any absence that might be associated with the applicant’s
bereavement.
[9] On Monday 17 June, the applicant attended work and spoke to Mr Kushnir about the
burial arrangements for the applicant’s father which would occur in Croatia. The applicant
advised that he would need some weeks of leave as part of the arrangements for travel to
Croatia for his father’s burial. On 20 June, the applicant sent an email to the employer
requesting annual leave to facilitate his travel to Croatia to attend his father’s burial. The
email stated, inter alia, that the applicant required four weeks and four days leave covering the
period from 1 July to 1 August. The applicant’s email indicated that he could return to work
on Friday 2 August 2013.
[10] The applicant had only two weeks of annual leave entitlement and the period of the
absence would not be covered by his accrued annual leave entitlement. There was contested
evidence as to whether the employer gave verbal approval of the request for the total period of
leave for four weeks and four days, with the period beyond the two weeks of annual leave
entitlement being unpaid.
[11] On Friday 28 June, the applicant was given two pay envelopes by Mr Kushnir’s
daughter, Ms Angela Shaw, who is the employer’s Operations Manager. One of the pay
envelopes given to the applicant contained cash for his weekly wages and the other contained
a cheque for payment of the two weeks annual leave entitlement. There was a letter included
with the cheque for annual leave which relevantly stated: “Termination Pay - Employer [sic]
Resigned (Notice By Employee)”. The applicant did not immediately raise any concern about
these words in the letter because he said that he did not look closely at it at that time.
[12] At some time during the weekend of 29 and 30 June, the applicant noticed the words
in the letter which had accompanied his payment for two weeks annual leave. On Monday 1
July, the applicant sent an email to the employer which rejected any suggestion that he had
resigned from employment and asked the employer to: “Please confirm that I’m on 2 weeks
annual leave and the remainder is on leave without pay.” The applicant did not receive any
response to this email. He attended the burial of his father in Croatia and he returned to
Australia on Thursday 1 August 2013.
[13] Shortly after he arrived back in Australia, the applicant made phone contact with the
employer and he spoke very briefly with Ms Shaw. The applicant asked Ms Shaw whether he
was required to be at work on the following day, 2 August, or if he could return on Monday 5
[2014] FWC 3040
3
August. Ms Shaw did not engage the applicant in conversation but instead she sent him a SMS
message which relevantly invited the applicant “...to apply for a position...”. The applicant
responded in an email to Ms Shaw which reiterated his rejection of any resignation from
employment and referred to his previous email of 1 July which had sought confirmation that
he was on leave, comprising part annual leave and the remainder unpaid.
[14] On Saturday 3 August, the applicant went to the workplace and spoke with Mr
Kushnir. There was some further contested evidence about this conversation. On Sunday 4
August, Mr Kushnir was admitted to hospital. The applicant attended for work on Monday 5
August and he commenced to perform tasks and other functions. Later in the morning he had
a brief conversation with Ms Shaw and he continued to attend and work at the workplace for
that day and the following four days.
[15] The applicant attended the workplace and performed work on each day of the week of
5 to 9 August. There were various discussions during this week between the applicant and Ms
Shaw regarding the employment situation of the applicant. Ms Shaw was understandably
distracted from these discussions because of the hospitalisation of her father, Mr Kushnir,
with a very serious medical affliction.
[16] Ms Shaw sent the applicant an email on Thursday 8 August, which formalised the
employer’s requests for the applicant to provide a letter from his Doctor, confirming that he
was fit and able to drive, and that he “...reapply for position with the company...” Further, the
email from Ms Shaw stated:
“If you are not able to provide such documents by 9am tomorrow please note that we
are not able to offer you any employment on the basis that such documents have not
been provided.”
[17] The following morning, Friday 9 August, the applicant sent a lengthy email to Ms
Shaw which relevantly stated that he had earlier provided a Doctor’s certificate regarding his
ability to drive motor vehicles. The email then recounted the recent events regarding his leave
to attend the burial of his father in Croatia, and he reiterated his objection to re-applying for a
position as he rejected any suggestion that he had resigned from employment.
[18] The applicant attended for work at the usual start time on Friday 9 August. At around
midday Ms Shaw spoke with the applicant and she told him that as he had not re-applied for a
position and as she considered that he had resigned, he should leave the premises
immediately. The applicant was asked to give the employer his bank account details so that
wages for that week could be paid to him by direct transfer. He provided the bank details and
left the workplace as instructed by Ms Shaw.
[19] The applicant was paid one week’s wages for the week of 5 to 9 August and no
amount in lieu of any notice. Since the termination of employment on 9 August, the applicant
has unsuccessfully sought to find alternative employment.
The Case for the Applicant
[20] Mr Borrow appeared for the applicant at the Hearing and he made verbal submissions
in addition to documentary material that had been filed earlier. Mr Borrow submitted that the
evidence established that the employer had provided broad approval for the applicant's leave
[2014] FWC 3040
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to attend to his father's burial in Croatia. Mr Borrow said that there was no discussion or even
a hint that the applicant was resigning or that the employer intended to terminate the
applicant's employment prior to the note that accompanied payment of the applicant's accrued
annual leave. Mr Borrow submitted that this note was a curious method of confirming an
alleged resignation, particularly in the absence of any evidence that the applicant ever
conveyed words of resignation at any time. Mr Borrow described the note as an artificial and
clumsy contrivance.
[21] Mr Borrow further submitted that even if the employer’s proposition regarding an
assumed resignation was accepted, such an assumed resignation would have only crystallised
after the two weeks of annual leave had been exhausted. Consequently, according to Mr
Borrow it would have been necessary for the employer to wait until at least 15 July before it
could treat the alleged resignation to have occurred.
[22] It was also submitted by Mr Borrow that the failure of the employer to respond to the
applicant's request for confirmation regarding his period of leave, supported the proposition
that the applicant was entitled to treat the period as an approved absence. Consequently, Mr
Borrow submitted that the applicant did not at any time resign from employment or take any
action to bring the employment to an end. Rather, according to the submissions of Mr
Borrow, the termination of the employment occurred at the initiative of the employer on 9
August, when Ms Shaw directed the applicant to leave the workplace.
[23] According to the submissions made by Mr Borrow, the applicant did not resign, but
was dismissed on 9 August and therefore the application for unfair dismissal remedy was
made within time, satisfying the requirements of subsection 394 (2) of the Act.
[24] Mr Borrow made further submissions which addressed the question of the operation of
the Small Business Fair Dismissal Code (the Code). In this regard, Mr Borrow said that the
respondent's treatment of the applicant, given his relatively long and loyal service, was
reprehensible in the extreme.
[25] According to Mr Borrow, there was no justification, much less any substantiation, of a
valid reason for the dismissal of the applicant and he was subjected to the indignity of
termination without notice. Further, Mr Borrow submitted that the applicant was denied
procedural fairness and his dismissal involved a palpably high degree of harshness.
[26] Mr Borrow said that the applicant sought reinstatement, together with Orders for
continuity and restoration of lost pay. However, Mr Borrow also acknowledged that the
applicant's position regarding reinstatement had shifted slightly and in the alternative he
sought compensation of an amount equivalent to 26 weeks wages. Mr Borrow stressed that
the applicant had been unsuccessful in obtaining alternative employment, despite making
multiple applications.
The Case for the Employer
[27] The employer was represented by Mr Brown who commenced his submissions by
stating that this was a case that was not a matter of termination but rather a matter of
resignation. Mr Brown made submissions which elaborated upon documentary material that
had been filed on behalf of the employer.
[2014] FWC 3040
5
[28] Mr Brown submitted that there was abundant evidence upon which to establish that the
actions of the applicant represented his resignation from employment. Mr Brown made
mention of the history associated with the employer having been very generous in terms of the
leave that it had provided to the applicant over a number of years. According to Mr Brown
there had been a number of occasions in the past when the employer had provided generous
and compassionate extension to periods of leave taken by the applicant. In this instance, the
employer had decided that the leave that was to be taken by the applicant should not extend
beyond his annual leave entitlement. The applicant did not accept this requirement and in
doing so resigned from his employment.
[29] Mr Brown made submissions which supported findings that the applicant had been
made aware that because of various operational requirements he would not be granted leave
beyond the period for which he had an annual leave entitlement. Mr Brown acknowledged
that as a small business employer there was less formality with the communications between
the parties in respect to the approval or otherwise of leave. However, according to the
submissions made by Mr Brown, the applicant's actions demonstrated that he was quite aware
that the employer had asked him to return to work at the end of his period of annual leave.
The applicant chose to reject this reasonable requirement and the employer was therefore
entitled to treat the actions of the applicant as his resignation from employment. This position
was confirmed in the letter that accompanied the payment of his annual leave. Consequently,
according to Mr Brown the effective date of the applicant's resignation was 28 June 2013.
[30] Mr Brown further submitted that the alleged dismissal of the applicant was entirely
inconsistent with the untroubled employment history and the established generosity and
compassion shown by the employer towards the applicant. Mr Brown said there was no
motive for the employer to terminate the applicant's employment. According to the
submissions of Mr Brown, the applicant simply decided to commence a period of absence as
he pleased and such action properly represented his resignation from employment effective on
28 June.
[31] Mr Brown made further submissions regarding the week of 5 to 9 August when the
applicant returned to the workplace. It was submitted that this period was not a period that
involved employment and the wages paid to the applicant for that week was a mistake made
by the inexperienced small business employer. In any event, according to Mr Brown, if this
period of the week of 5 to 9 August was a period of employment, then it was a period of
casual employment entirely separate to the previous employment of the applicant.
Consequently, if there was a dismissal of the applicant on 9 August, it was dismissal from a
period of casual employment of one week’s duration and could not be subject to a claim for
unfair dismissal remedy.
[32] In summary, Mr Brown submitted that there was no dismissal of the applicant and that
the actions of the applicant amounted to his resignation from employment which occurred
either on 28 June or in the absolute best case scenario for the applicant, on 15 July, when his
two weeks annual leave entitlement expired. Mr Brown submitted that the employer's actions
were entirely reasonable and that either the applicant had not been dismissed or if he had been
dismissed, such dismissal must have occurred more than 21 days before the claim for unfair
dismissal remedy was made. Therefore Mr Brown submitted that upon either proposition,
namely, that there was no dismissal or that the application was made out of time, the
application should be dismissed.
[2014] FWC 3040
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Consideration
[33] Section 385 of the Act establishes that the Commission must be satisfied that four
cumulative elements are met in order to establish an unfair dismissal. These elements are:
(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.
[34] In this case there was a jurisdictional objection raised in respect to that element
contained in subsection 385 (a) of the Act, specifically whether the applicant was a person
who had been dismissed. Section 386 of the Act prescribes a meaning for “dismissed.”
Relevantly sub-section 386 (1) of the Act is in the following terms:
“386 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.”
[35] The question of whether or not a person has been dismissed from employment will
usually involve mixed findings of fact and law. In this instance, the applicant had not
completed a letter of resignation, nor had he provided the employer with a verbal resignation.
Instead, the employer treated the actions of the applicant to have represented his resignation
from employment.
[36] There are circumstances which involve the actions of an employee which are
inconsistent with the continuation of the employment and an employer is entitled to treat such
actions as the repudiation of the employment. The repudiation of the employment by way of
the actions of an employee is not strictly a resignation from employment, although in many
instances it will understandably be described as a resignation.
[37] In this instance there was no written or verbal resignation given by the applicant. On
the employer's evidence, the applicant refused to accept that the employer would not agree to
his absence for any period beyond the two week period of his annual leave entitlement. The
applicant's evidence firmly denied that there was any suggestion that the employer would not
sanction the longer period of leave of four weeks and four days before the letter which
accompanied payment of the annual leave. This letter was given to the applicant on 28 June
when he was to commence his period of leave. Up until this point in time, the applicant said
that he had no reason to believe that the period of leave as requested had not been agreed to
by the employer.
[38] It would be readily conceivable that if an employee was absent from work for a period
without an entitlement for leave and against the clear instruction of an employer, then such
[2014] FWC 3040
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conduct would be likely to represent sound basis for the employer to treat the action of the
employee as a repudiation of the employment. In such circumstances, the employer could
legitimately characterise the action of the employee as a “resignation.”
[39] Consequently, if the applicant had been clearly informed that he was only permitted to
take two weeks absence covering the period of his annual leave entitlement, and he instead
absented himself for a further two weeks and four days, the employer could treat such action
as a “resignation” from employment. The applicant may also have abandoned the employment
and thus, upon either basis, the employment did not come to an end on the initiative of the
employer.
[40] However, in this case, there was strongly contested evidence as to whether the
applicant had been informed that the employer did not approve of the absence beyond the two
week period covered by the annual leave entitlement. Ms Shaw gave evidence that she told the
applicant that: “...we cannot agree to any longer leave and if you do not return as requested,
we will consider that as a resignation by you.”1
[41] The applicant flatly denied that he was told that the longer period of leave was not
granted until he read the letter which accompanied his payment for annual leave. He then
sought clarification of the issue when he sent an email to the employer before he left for
Croatia on 1 July.2 Unfortunately the employer did not provide any response to the
clarification sought by the applicant.
[42] The employer did not clarify the position of the applicant’s leave despite the request
contained in the email of 1 July. The employer decided not to respond to the applicant’s email
request for clarification regarding his leave. Instead the employer treated the email as being
insincere because it had considered the actions of the applicant to have already represented his
resignation.
[43] Ms Shaw gave somewhat unusual evidence about how she treated the alleged
discussion with the applicant when she allegedly informed him that only two weeks leave
would be granted. As a consequence of a conversation that was alleged to have occurred on
24 June, Ms Shaw said: “I was under the impression, because the applicant did not say that he
was not resigning, that he was resigning,...”3. This one small piece of evidence encapsulates
the position of the employer.
[44] The applicant strenuously denied that he had a conversation with Ms Shaw on or about
24 June, during which she allegedly told him that she would treat his failure to return to work
after two weeks as a resignation. The resolution of this direct factual conflict has been
resolved by way of the adoption for a preference of the evidence provided by the applicant
over that provided by Ms Shaw. The overall assessment of the evidence provided by Ms Shaw
has led to adverse conclusions as to her credit. At times during cross-examination, Ms Shaw
provided evasive and non-responsive answers to simple propositions. The following extract
from transcript represents an example of such evidence :
“PN746
But did he actually use words of resignation, did he say, "I'm resigning, I'm leaving
employment"?---He said that he wanted four weeks and four days' leave. We advised
that we could not grant him that. All he was due was the two weeks and anything
above that would be looked upon as a resignation.
[2014] FWC 3040
8
PN747
No, I'm asking a specific question, I'm asking you whether he actually gave you words
of resignation. Did he say, "I am resigning"?---He asked for four weeks, four days'
leave. We advised him we could not grant that. All we could grant him was
two weeks, which he was due. It would be taken as a resignation. At no time did he
say, "I am not resigning," he just said - nodded his head and that's it. He did not deny
that he was resigning or that he would not take the four weeks, four days' leave.
PN748
I'm trying to understand that. You're saying that he never at any stage said that he
was not resigning. Am I to take that corollary of that is correct and he never said that
he is resigning?---He was advised that any leave that he would take above two weeks
would be considered as a resignation. He acknowledged that and said he needed that
leave, so it was considered as his resignation. At no time did he say, "I am not
resigning."
PN749
But he did not say, "I am resigning"?---But he did not say he is not resigning.
PN750
So you agree with me he never said he was resigning?---He did not say he was not
resigning.
**** ANGELA SHAW XXN MR BURROW
PN751
I put it to you he never said he was resigning?---He never said he was not resigning.”
[45] Notwithstanding the preference adopted for the evidence of the applicant over that of
Ms Shaw, there is a fundamental difficulty attached to the prospect that reliance could be
placed upon a verbal indication that a particular action on the part of the applicant, namely a
failure to return to work after two weeks of leave, would be treated as a repudiation of the
employment, or as described, a resignation. A matter of such significance, which would bring
almost seven years of employment to an end, should have been the subject of clear written
direction by the employer.
[46] Therefore, the failure of the employer to provide any clear instruction regarding the
absence of the applicant for a period of four weeks and four days, has meant that the applicant
was entitled to treat his absence as a period of leave which did not disturb the ongoing
employment. The clumsy attempt in the termination pay letter4 to convey that the employer
had considered that the applicant had repudiated the employment because, as it has emerged,
he had not said that he was not resigning was, particularly without any further clarification as
requested by the applicant, an invalid and premature attempt to end the employment.
[47] The employment of the applicant endured the vagaries of the period of the absence and
unsurprisingly the applicant recommenced actual work on Monday 5 August 2013. During the
remainder of that week the exchanges which took place between the applicant and Ms Shaw
reflected the uncertainty that had been created by the termination pay letter of 28 June, and
[2014] FWC 3040
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the subsequent absence of any response to the applicant's request for clarification regarding
the period of his absence.
[48] Shortly after midday on Friday 9 August, the applicant was dismissed from
employment when Ms Shaw told him to leave the workplace premises immediately. The
payment of wages for that week without further payment for any notice has meant that the
applicant was summarily dismissed on the afternoon of 9 August 2013.
[49] As the summary dismissal of the applicant occurred on 9 August 2013, he was a
person dismissed from employment and the application for unfair dismissal remedy was made
within the time prescribed by subsection 394 (2) of the Act.
[50] Consequently, further consideration of the other elements contained in section 385 of
the Act has been required.
[51] There was no suggestion that the dismissal of the applicant was a case of redundancy.
The employer employed fewer than 15 employees. Therefore, further consideration has been
confined to subsections 385 (b) and (c) of the Act.
[52] Subsection 385(c) of the Act introduces consideration of the Small Business Fair
Dismissal Code (the Code). The Code is in the following terms:
“Small Business Fair Dismissal Code
Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the
employer believes on reasonable grounds that the employee’s conduct is sufficiently
serious to justify immediate dismissal. Serious misconduct includes theft, fraud,
violence and serious breaches of occupational health and safety procedures. For a
dismissal to be deemed fair it is sufficient, though not essential, that an allegation of
theft, fraud or violence be reported to the police. Of course, the employer must have
reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or
she is at risk of being dismissed. The reason must be a valid reason based on the
employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks
being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to
respond to the warning and give the employee a reasonable chance to rectify the
problem, having regard to the employee’s response. Rectifying the problem might
involve the employer providing additional training and ensuring the employee knows
the employer’s job expectations.
[2014] FWC 3040
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Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the
employee can have another person present to assist. However, the other person cannot
be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the
Code if the employee makes a claim for unfair dismissal to Fair Work Australia,
including evidence that a warning has been given (except in cases of summary
dismissal). Evidence may include a completed checklist, copies of written warning(s),
a statement of termination or signed witness statements.”
[53] The summary dismissal of the applicant implemented by Ms Shaw on the afternoon of
9 August 2013, was not based upon any belief that the applicant had committed some serious
misconduct sufficient to justify immediate dismissal. Consequently, the dismissal of the
applicant was not consistent with the Code.
[54] Further consideration of the matter has focused upon that element contained in
subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh,
unjust or unreasonable.
[55] Section 387 of the Act contains criteria that the Commission must take into account in
any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:
(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.
[2014] FWC 3040
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387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct
[56] In this case, there was no evidence that the reason that Ms Shaw decided to dismiss the
applicant on 9 August was related to the applicant's capacity or conduct.
[57] The reason for the applicant's dismissal related to his refusal to apply for a position in
circumstances where he believed that to do so would imply that he had resigned, as was
alleged by the employer. This reason for dismissal was ill-founded, capricious and in the
absence of any clarity regarding the status of the applicant's employment at the time, self
evidently unreasonable.
[58] Consequently there was not a valid reason for the dismissal of the applicant which
related to his capacity or conduct.
387 (b) - Notification of Reason for Dismissal
[59] The employer did not provide any written notification of the reason for the applicant's
dismissal. Unfortunately for the employer, the dismissal proceeded upon the fallacious basis
that the applicant had resigned from employment when on about 24 June he had not said that
he was not resigning.
387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct
[60] The reason for the applicant's dismissal was not related to his capacity or conduct.
Therefore this factor has not been relevant to the circumstances of this case.
387 (d) - Unreasonable Refusal to Allow a Support Person to Assist
[61] In the circumstances of this matter, the issue of whether the applicant was provided
with an opportunity to have a support person to assist him has not been a relevant
consideration.
387 (e) - Warning about Unsatisfactory Performance
[62] This factor has no relevance in this instance.
387 (f) - Size of Enterprise Likely to Impact on Procedures
[63] The small size of the employer’s operation has been recognised and considered. The
Code has been relevantly examined. The Commission has also been mindful of the
informality often associated with employment related communications and procedures in the
small business setting.
[64] Unfortunately for the employer, the applicant was more attentive than the employer in
ensuring that proper communication was made in written form so as to minimise potential
equivocation.
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387 (g) - Absence of Management Specialists or Expertise Likely to Impact on
Procedures
[65] The employer did not have dedicated employee relations management specialists. As
mentioned above, cognisance has been provided for the impact that any inexperience or
absence of expertise in employment related issues has in the context of a small business.
387 (h) - Other Relevant Matters
[66] There was one particular matter which has been relevant to consideration and which
should be noted. Mr Kushnir was hospitalised with a serious medical condition on Sunday 4
August 2013. Understandably, Ms Shaw would have directed her attention to the
circumstances of her father’s medical condition and her approach to the employment issues
surrounding the applicant would have been of second or lower priority.
[67] Accommodation has been made for the circumstances that Ms Shaw faced during the
week of 5 to 9 August. Any absence of some clear and decisive action accompanied by
documentation at this time would be understandable. On balance however no such
accommodation can be provided for the deficiencies associated with the letter of termination
of 28 June and the failure to provide any clarifying response to the applicant's email of 1 July.
Conclusion
[68] In this instance, the jurisdictional objections raised by the employer cannot be
sustained in circumstances where the employment continued beyond the date that the
employer asserted to be the time at which the applicant had resigned. At no time did the
applicant resign either in writing or verbally. Further, there was no basis upon which the
employer could properly consider that the actions of the applicant represented a repudiation of
the employment.
[69] The applicant was summarily dismissed on 9 August 2013. The basis for this dismissal
involved the erroneous assumption that the applicant had earlier acted in a manner which was
construed to represent his resignation. Consequently, the reason for the applicant's dismissal
cannot be held to be valid.
[70] Upon further analysis, the dismissal of the applicant was not consistent with the Small
Business Fair Dismissal Code and it was harsh, unjust and unreasonable.
Remedy
[71] The applicant has sought reinstatement as remedy for his unfair dismissal. However
during the Hearing, he acknowledged that because of the small office environment it would
probably be best that he not return to work with the employer.
[72] I have carefully considered whether it would be appropriate to make Orders for the
reinstatement of the applicant. I believe that the applicant has made a pragmatic assessment of
the practical impacts of any reinstatement notwithstanding his unsuccessful efforts to find any
alternative employment. I note that if an Order for restoration of lost pay was to be made in
conjunction with reinstatement, such an amount would exceed the compensation cap
established by subsections 392(5) and (6) of the Act.
[2014] FWC 3040
13
[73] In the circumstances I have decided that reinstatement of the applicant would be
inappropriate.
[74] I have decided that compensation would be an appropriate remedy for the applicant’s
unfair dismissal and I turn to the factors which involve the quantification of any amount of
compensation.
[75] Section 392 of the Act prescribes certain matters that deal with compensation as a
remedy for unfair dismissal. I have approached the question of compensation having regard
for the guidelines that were established in the Full Bench Decision in Sprigg v Paul’s
Licensed Festival Supermarket5 and as commented upon in the subsequent Full Bench
Decision in Smith and Ors v Moore Paragon Australia Ltd 6.
[76] Firstly, I confirm that an Order of the payment of compensation to the applicant will
be made against the employer in lieu of the reinstatement of the applicant.
[77] Secondly, in determining the amount of compensation that I Order, I have taken into
account all of the circumstances of the matter including the factors set out in paragraphs (a) to
(g) of subsection 392 (2) of the Act.
[78] There was no evidence that an Order of compensation would impact on the viability of
the employer’s enterprise.
[79] The applicant had seven years service. I reject the submission made by the employer
that the engagement of the applicant in the week of 5 to 9 August was as a casual or on a
casual basis.
[80] The applicant would have been likely to have received remuneration of $975.00 per
week, if he had not been dismissed. There was no evidence to suggest that the applicant’s
employment would not have continued for many years but for the unfair dismissal.
[81] The applicant has made considerable efforts to mitigate the loss suffered because of
the dismissal and he has been unable to find any alternative employment.
[82] Thirdly, in this instance there was no misconduct which contributed to the employer's
decision to dismiss the applicant.
[83] Fourthly, I confirm that any amount Ordered does not include a component by way of
compensation for shock, distress or humiliation, or other analogous hurt caused to the
applicant by the manner of the dismissal.
[84] There are no other relevant matters for consideration in respect to compensation.
[2014] FWC 3040
14
[85] Consequently for the reasons outlined above I have decided that an amount
approximating with 26 weeks remuneration should be Ordered as compensation to the
applicant. That amount is $25,350.00. Accordingly separate Orders [PR550399] providing for
remedy in these terms will be issued.
COMMISSIONER
Appearances:
Mr S Borrow, solicitor from Leana Street Consulting, on behalf of the applicant.
Mr A Brown, solicitor from Brown & Brown Lawyers, on behalf of the employer.
Hearing details:
2014.
Sydney:
April, 2.
Printed by authority of the Commonwealth Government Printer
Price code C, PR550400
1 Exhibit 2 @ paragraph 7.
2 Exhibit 1 - Attachment 3.
3 Transcript of proceedings 2 April 2014, PN782.
4 Exhibit 1 - Attachment 2.
5 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.
6 Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.
