1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jeremy Ryman
v
Thrash Pty Ltd trading as Wisharts Automotive Services
(U2015/33)
COMMISSIONER CAMBRIDGE SYDNEY, 12 JUNE 2015
Unfair dismissal - Small Business Fair Dismissal Code - dismissal with payment in lieu of
notice - misconduct - misconduct sufficiently serious to justify immediate dismissal - Code
applied and dismissal deemed fair - dismissal not harsh, unjust or unreasonable - application
dismissed.
[1] This matter involves an application for unfair dismissal remedy made pursuant to s.
394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 5 January
2015. The application was made by Jeremy Ryman (the applicant) and the respondent
employer is Thrash Pty Ltd trading as Wisharts Automotive Services (the employer).
[2] The application indicated that the date that the applicant’s dismissal took effect was 5
January 2015. Consequently, the application was made within the 21 day time limit
prescribed by subsection 394 (2) of the Act.
[3] The matter was not resolved at conciliation and it has proceeded to arbitration before
the Fair Work Commission (the Commission) in a Hearing conducted at Orange on 14 and 15
April 2015.
[4] At the Hearing, Mr P Boncardo, solicitor, appeared for the applicant. The applicant
and one other witness were called to provide evidence in support of the claim. The employer
was represented by Ms J A Webb, a barrister, who called a total of four witnesses who
provided evidence on behalf of the employer.
Factual Background
[5] The applicant worked for the employer for about 3 years and 7 months. The applicant
was employed as a motor mechanic. The applicant worked at the employer’s automotive
service and repair business located in the New South Wales country town of Orange. The
applicant performed a wide range of what may be described as motor mechanic duties.
[6] The employer is a small business and at the time of the applicant’s dismissal it
employed five people. The employer is a family business operated by the owners, Mr and Mrs
Wishart.
[2015] FWC 3942 [Note: An appeal pursuant to s.604 (C2015/4591) was
lodged against this decision - refer to Full Bench decision dated
18 December 2015 [[2015] FWCFB 5264] and 4 April 2016 [[2016]
FWCFB 1638]] respectively for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/decisionssigned/html/2016FWCFB1638.htm
http://www.fwc.gov.au/decisionssigned/html/2016FWCFB1638.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB5264.htm
[2015] FWC 3942
2
[7] The work performance of the applicant as a motor mechanic was not the subject of any
identified criticism and he was regarded by the employer as a competent motor mechanic.
However, during 2014 the employer observed what it described as the development of
increasingly moody behaviour of the applicant at work.
[8] In the later part of 2014, the employer had cause to speak to the applicant on two
separate occasions about the presence of friends of the applicant utilising the employer’s
workshop facilities after business hours. The employer permitted its employees, including the
applicant, to utilise the workshop facilities outside of business hours. However, this
arrangement did not extend to any sanction for the presence of friends of employees at the
workshop outside of the hours of the business operation.
[9] The allegedly increasing moody behaviour of the applicant culminated in an incident
that occurred on the afternoon of Friday 19 December 2014. The incident of 19 December
was a matter of significant evidentiary contest. However, at the very least, the December 19
incident involved the applicant having a strong disagreement with the employer, Mr Wishart.
[10] Friday 19 December was the last day of a full working week before Christmas. The
employer had arranged to hold an end of year function or what might also be described as
“Christmas drinks” to occur after an early finish, circa 3pm, on that Friday.
[11] At about 2 pm on 19 December the applicant was working on a motor vehicle when
the employer, Mrs Wishart, asked him what particular food or drinks he would like to have
the employer purchase for him to consume later at the “Christmas drinks”. The evidence of
what followed from the inquiry of the applicant made by Mrs Wishart diverges dramatically.
[12] The applicant either politely told Mrs Wishart, “Nothing thanks. I don’t think I’ll go.”1
Or alternatively the applicant responded by yelling at Mrs Wishart, “I’m not fucking going
because I’m not fucking drinking with fucking Captain Klepto!”2
[13] Upon either version of the evidence of the December 19 incident, an argument
occurred shortly following from the applicant’s response to Mrs Wishart’s inquiry as to the
applicant’s preferences for personal consumption at the “Christmas drinks” function. The
nature, detail and severity of the applicant’s conduct during the argument on 19 December
were matters of significant contest and which have become critical to the determination of the
claim for unfair dismissal remedy.
[14] The applicant continued to work for a short time after the argument had quietened on
19 December. Following the argument, the employer, Mr Wishart, first directed the other
employees who were present at the workshop to leave the premises and then he also told the
applicant to finish work and he indicated to the applicant that he could complete the task that
he was undertaking on the following Monday, 22 December.
[15] The applicant did not attend the employer’s “Christmas drinks” function nor did he
attend for work on Monday 22 December. The applicant sent an SMS message to the
employer, Mr Wishart, at 6:57am on Monday 22 December, advising that he would not be
attending for work. The SMS that the applicant sent to the employer mentioned that the
reason for the applicant’s absence from work was connected with his business interests in a
Hotel at Rankin Springs (a town approximately 300 kilometres from Orange). The employer
[2015] FWC 3942
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was aware of the applicant’s involvement in the Hotel at Rankin Springs and responded to the
SMS message with an acknowledgement and acceptance of the applicant’s absence.
[16] The employer stated that it was somewhat relieved to receive the SMS advice of the
applicant’s non-attendance on the Monday morning because over the weekend Mr and Mrs
Wishart had considered the applicant’s conduct during the Friday 19 December incident and
they were intending to dismiss the applicant on the Monday morning.
[17] The applicant did not attend for work on Tuesday 23 December and he did not
provide any advice to the employer concerning this absence. The employer’s business
commenced a scheduled Christmas/New Year closure from the close of business on 23
December until it reopened on 5 January 2015. Consequently, the applicant was not rostered
to return to work until 5 January 2015.
[18] On 24 December the employer changed the locks on the front gates of the business
premises. Consequently, when the applicant attended for work on the morning of 5 January he
was unable to unlock the gates and gain entry into the premises. Mr and Mrs Wishart arrived
at the business premises a short time after the applicant and they unlocked the gates and
entered the workshop with the applicant. Mr Wishart then told the applicant that as a result of,
inter alia, the 19 December incident, his employment was terminated. Mrs Wishart confirmed
this verbal advice to the applicant.
[19] The applicant was provided with an employment separation certificate dated 7 January
2015, which was the only written confirmation of the verbal advice of his dismissal given on
5 January. The employment separation certificate contains the following information
regarding the reason for dismissal: “serious misconduct intimidation / yelling / swearing
witnessed by customers & other staff.”
[20] The applicant was paid three week’s wages in lieu of notice. The applicant has
obtained some alternative casual employment since the dismissal.
The Case for the Applicant
[21] Mr Boncardo, who appeared for the applicant, made verbal submissions in addition to
documentary material that had been filed. Mr Boncardo submitted that the applicant had been
unfairly dismissed.
[22] The submissions made by Mr Boncardo addressed both the substantive merits issues
of the claim and issues which surrounded the operation and application of the Small Business
Fair Dismissal Code (the Code).
[23] Mr Boncardo made detailed submissions which, in summary, contended that the
employer was unable to rely upon the Code in respect to the summary dismissal components
of the Code because the employer had paid the applicant three weeks wages in lieu of notice.
Therefore, according to Mr Boncardo the dismissal of the applicant was not a summary
dismissal for the purposes of any application of the Code.
[24] Further, it was submitted by Mr Boncardo that the provisions of the Code as they
related to dismissal other than summary dismissal, had not been complied with by the
employer. Consequently, Mr Boncardo submitted that the employer could not rely upon the
[2015] FWC 3942
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summary dismissal provisions of the Code nor could the dismissal of the applicant be
established to have satisfied the relevant operative provisions of the Code in respect to other
than summary dismissal.
[25] Mr Boncardo described the employer's reliance upon the Code as an eleventh hour
manoeuvre which had not been identified by the employer in response to the application at
any time earlier than after the applicant had filed its evidence and submissions. Mr Boncardo
submitted that the employer’s belated reliance upon the Code reflected an absence of veracity
in respect of the employer's subjective belief about the applicant's alleged conduct on 19
December.
[26] The submissions of Mr Boncardo challenged that the employer genuinely believed that
the alleged serious misconduct of the applicant in respect of the 19 December incident, was of
such magnitude or gravity as it had subsequently sought to portray. Mr Boncardo mentioned
that the applicant had been permitted to continue to work after the incident on 19 December
and the employer had sanctioned the applicant's absence on both 22 and 23 December as it
treated and paid these days as annual leave.
[27] Further, according to Mr Boncardo, support to establish that the 19 December
incident could not be genuinely held to represent serious misconduct sufficient to justify
summary dismissal, was provided by the employer clearly permitting the employment to
remain on foot and taking no steps to contact the applicant between 19 December and 5
January to advise of any contrary position.
[28] Consequently, according to the submissions of Mr Boncardo, even if the employer was
able to rely upon the summary dismissal provisions of the Code, there were a variety of
factors which provided basis to successfully challenge whether the employer did believe on
reasonable grounds that the applicant's actions on 19 December were sufficiently serious
enough to justify immediate dismissal. In this regard Mr Boncardo made detailed submissions
about what he described as the absence of contemporaneity between the alleged serious
misconduct and the dismissal.
[29] In his further submissions on the issues of operation of the Code, Mr Boncardo noted
that the employer had not provided any warning to the applicant nor had he been given any
opportunity to respond to any concerns about his conduct or capacity. Therefore, Mr
Boncardo submitted that the dismissal of the applicant was not in accordance with the
requirements of the Code for a dismissal that was not summary in nature.
[30] Mr Boncardo made further submissions which were based upon the assumption that
the Commission was satisfied that the employer had not complied with the Code. In this
regard, Mr Boncardo addressed the various provisions of s. 387 of the Act.
[31] In summary, Mr Boncardo submitted that the alleged serious misconduct surrounding
the 19 December incident, did not amount to conduct inconsistent with the continuation of the
contract of employment. Therefore the dismissal was not for valid reason as the actions of the
applicant did not represent the serious misconduct relied upon by the employer.
[32] Further, Mr Boncardo criticised that the employer failed to provide the applicant with
a letter of termination and it was asserted that the applicant had not been properly notified of
the reason for his dismissal. It was also submitted that the applicant had not been afforded any
[2015] FWC 3942
5
opportunity to respond to the reasons that the employer had asserted as the basis for dismissal.
Mr Boncardo submitted that the applicant had been ambushed and verbally advised of his
dismissal without being given any opportunity to respond. In addition, the immediate verbal
advice of dismissal given to the applicant on the morning of 5 January, meant that the
applicant was not given any opportunity to have a support person present.
[33] Although Mr Boncardo made submissions which conceded that the employer was a
small business employer within the meaning of s. 23 of the Act, severe criticism was made of
the alleged absence of procedural fairness associated with the manner in which the employer
implemented the dismissal of the applicant. Mr Boncardo said that the absence of dedicated
human resource management specialists or other expertise in a small business, should not be
used as an excuse for a manifest failure to provide procedural fairness.
[34] Mr Boncardo also submitted that the dismissal of the applicant was a manifestly
disproportionate response to the actual gravity of the conduct that occurred during the incident
of 19 December. Further, Mr Boncardo submitted that the particular personal circumstances
of the applicant including that he had a young family and significant financial commitments,
were factors that should also assist the Commission to make a finding that the dismissal of the
applicant was harsh, unjust and unreasonable.
[35] In further submissions made by Mr Boncardo it was asserted that there had not been a
breakdown of trust or confidence between the applicant and the employer and the applicant
sought Orders providing for reinstatement, continuity of employment, and restoration of lost
pay.
The Case for the Employer
[36] The employer was represented by Ms Webb of counsel, who submitted that the
dismissal of the applicant was not unfair. Ms Webb made oral submissions which elaborated
upon documentary material that had been filed on behalf of the employer.
[37] Ms Webb submitted that as the employer was a small business it was entitled to rely
upon the Code and in particular, subsection 385 (c) of the Act was relevant. According to the
submissions made by Ms Webb, the dismissal of the applicant was consistent with the Code
and therefore subsection 385 (c) of the Act meant that the applicant was not unfairly
dismissed.
[38] Ms Webb made submissions which concentrated upon the 19 December incident
which she said represented serious misconduct which the employer believed on reasonable
grounds, was sufficiently serious to justify immediate dismissal. Ms Webb said that the
employer made payment in lieu of notice because it believed that it was obliged to do so and
that payment should not detract from the Commission being satisfied that the employer had
complied with the Code.
[39] Ms Webb made submissions which stressed that the misconduct of the applicant
during the 19 December incident involved aggressive use of foul language causing
intimidation and fear to Mrs and Mr Wishart. It was submitted that behaviour in the
workplace of the nature and severity exhibited by the applicant on 19 December, would be
sufficiently serious to justify the immediate dismissal of the applicant. Ms Webb said that the
[2015] FWC 3942
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employer had never had to deal with this kind of misbehaviour in the workplace before and it
was completely unfamiliar with the necessary procedures to react to such circumstances.
[40] Ms Webb also submitted that the employer had carefully considered the conduct of the
applicant on 19 December over the following weekend before it arrived at the decision to
dismiss the applicant. In this regard Ms Webb said that the employer had a proper basis to
establish that the applicant’s conduct was sufficiently serious to justify immediate dismissal.
Therefore according to the submissions of Ms Webb, the employer had complied with the
Code in respect of summary dismissal but had felt that it was duty bound to pay three weeks’
notice even though it had received advice to the contrary.
[41] The submissions made by Ms Webb acknowledged that the Commission was required
to resolve the significant factual differences in the evidence as to the nature and severity of
the 19 December incident. Ms Webb stressed that there was independent witness evidence
which verified the sort of physical aggression that the applicant directed towards Mrs Wishart
and this departed from the general level of robust swearing that would ordinarily be
considered normal in the mechanical workshop. Ms Webb submitted that the Commission
should find that the applicant's conduct was designed to intimidate Mrs and Mr Wishart and
the conduct was witnessed by customers and thereby had significant potential to have a
detrimental impact on the employer as a small local business.
[42] The primary submissions made by Ms Webb asserted that the dismissal of the
applicant was consistent with the Code. However, Ms Webb made further alternative
submissions which addressed the various factors contained in section 387 of the Act.
[43] Ms Webb submitted that the dismissal of the applicant was for a sound, well founded
reason involving the misconduct of the applicant during the 19 December incident. Further,
Ms Webb submitted that the first opportunity that the employer had to advise the applicant of
his dismissal occurred on 5 January when he returned to work. Ms Webb conceded that there
was no opportunity for the applicant to have a support person present, and some other
procedural aspects of the dismissal should be considered having regard for the very small size
of the employer's business.
[44] Ms Webb submitted that in all the circumstances the employer's actions were
reasonable and were open to it and therefore the application for unfair dismissal remedy
should be dismissed. Ms Webb stressed that the application should be dismissed primarily
because the dismissal of the applicant complied with the Code. Alternatively, Ms Webb
contended that when properly analysed and considered, the dismissal was not harsh, unjust or
unreasonable.
Consideration
[45] Section 385 of the Act stipulates 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.”
[2015] FWC 3942
7
[46] In this instance there was no dispute that the applicant had been dismissed and that the
dismissal was not a case of genuine redundancy. Consequently, only the provisions of
subsections (b) and (c) of section 385 of the Act have any relevance.
Small Business Fair Dismissal Code
[47] The employer is a small business and the provisions of subsection 385 (c) of the Act
require consideration. Specifically, it is necessary to determine whether the dismissal of the
applicant was or was not consistent with the Small Business Fair Dismissal Code (referred to
as “the Code”). Logically a determination of any application of the Code should precede any
more general contemplation of whether the dismissal was harsh, unjust or unreasonable.
[48] The Code is in the following terms:
“Small Business Fair Dismissal Code
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.
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.”
[2015] FWC 3942
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[49] In this case the applicant was dismissed for reason of serious misconduct and that part
of the Code relating to summary dismissal has required examination and application to the
particular circumstances surrounding the dismissal of the applicant. The first sentence of the
Code is particularly relevant and is repeated: “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.”
[50] In this instance the employer paid the applicant an amount equivalent to three weeks
notice. However, apart from this payment, the dismissal contains all of the elements usually
associated with a summary dismissal. In particular, the reason for the dismissal involved
serious misconduct and the implementation of the dismissal although it was delayed because
of the absence of the applicant from the workplace, was summary in nature. That is, the
applicant was verbally advised of his dismissal without there being any contemplation of
explanation or defence.
[51] The applicant’s solicitor argued that because there had been payment of a period of
notice, the dismissal was not a summary dismissal and should not be assessed against those
terms of the Code that are relevant to summary dismissal. In my view this proposition would
impose an unrealistic and unintended rigidity on any application of the Code.
[52] A dismissal which is for reason of serious misconduct and which might appropriately
justify termination without notice or warning, should still be properly assessed as a summary
dismissal notwithstanding that an employer, for whatever reason, decided to make payment of
an amount in respect to notice. Broadly speaking, the Code establishes requirements for
dismissal without notice or warning which represent a less stringent evidentiary basis upon
which any serious misconduct is established when compared to the evidentiary basis that
applies for a medium/large business. Similarly, the Code sets out less stringent requirements
for other dismissals than those which apply to a medium/large business.
[53] That part of the Code which deals with summary dismissal is concerned with the
evidentiary basis upon which a small business employer establishes serious misconduct.
While the other dismissals part of the Code introduces a less stringent set of procedural
requirements than applies to a medium/large business. The requirements that are mentioned in
the Code as being relevant to cases of other than summary dismissal will invariably have little
or no relevance to circumstances where a dismissal is made without notice or warning and is
based upon serious misconduct. It would be contrary to the spirit and intent of the Code if,
when a small business employer decided to pay an amount in lieu of notice in respect to a
dismissal for serious misconduct, it was required to satisfy the procedural requirements of the
other dismissals part of the Code.
[54] Therefore, although the dismissal of the applicant was not strictly a summary
dismissal because an amount was paid in lieu of notice, in all other respects the dismissal was
manifestly in the character of a summary dismissal. In particular the dismissal was, in the
employer’s view, for reason of serious misconduct justifying the immediate termination of
employment at the soonest practical opportunity. Consequently, it is appropriate to apply that
part of the Code which relates to summary dismissal to the circumstances of the dismissal of
the applicant.
[55] There are three primary operative components contained in the first sentence of the
summary dismissal part of the Code, which if in combination are satisfied, have the effect of
[2015] FWC 3942
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rendering any summary dismissal to be fair. The first component involves the existence of a
belief on the part of the employer. The second component requires that the belief of the
employer was made on reasonable grounds. The third component requires that the employer’s
belief be that the conduct was sufficiently serious to justify immediate dismissal.
Existence of Belief
[56] The first component, the existence of a belief, represents a conscious acceptance on
the part of the employer of a fact to be true. In most instances it would be unlikely that there
would be great contest about the existence of the belief in the mind of the employer. Unless
there was evidence to suggest that there was some reason for dismissal other than that stated
by the employer, it would seem that the existence of the belief would usually be easily
established.
[57] In this case the employment separation certificate which the employer provided to the
applicant relevantly described the misconduct of the applicant as “... serious misconduct
intimidation / yelling / swearing witnessed by customers & other staff.” The basis of the
dismissal of the applicant involved the misconduct that the employer witnessed. Indeed, the
conduct of the applicant was directed at Mrs and Mr Wishart.
[58] Consequently, the evidence confirms that the employer did genuinely and honestly
hold the belief that the applicant had engaged in misconduct during the 19 December incident
which involved yelling and swearing in a manner intended to intimidate Mrs and Mr Wishart
and which would recklessly or intentionally be inimical to the commercial interests of the
employer.
Belief Made on Reasonable Grounds
[59] The second component identified in the first sentence of the Code is that aspect
involving whether the belief of the employer was made on reasonable grounds. This particular
component of the Code is an issue which in other instances has led to significant contest and
argument and has occupied the substantial amount of consideration in various decided cases.
[60] Importantly, the Full Bench Decision in the case of John Pinawin T/A
RoseVi.Hair.Face.Body v Edwin Domingo [2012] FWAFB 13593 (Pinawin) articulated that
there was a distinction to be made between the application of the Code and a determination of
whether summary dismissal was warranted. The Full Bench at [29], endorsed the “approach
and observations” made in two other Decisions, one of Bartel DP in Narong Khammaneechan
v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Caf 4 and the other of
McCarthy DP in Harley v Rosecrest Asset Pty Ltd T/A Can Do International5.
[61] I am of course obliged to follow the authority established by the Full Bench
determination made in Pinawin. Consequently, the approach to assessment as to whether the
employer’s belief was established on reasonable grounds does not involve a requirement to be
satisfied that the employer had properly established grounds to justify summary dismissal.
[62] It seems to me that the Code, as interpreted by the authority established in Pinawin,
provides small business employers with significantly less stringent requirements in respect to
the basis and procedure upon which to implement a summary dismissal than would otherwise
apply. In Pinawin the Full Bench stated: “It is not necessary to determine whether the
[2015] FWC 3942
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employer was correct in the belief that it held.”6 The corollary of these less stringent
requirements leads to the prospect that a small business employer could have arrived at an
incorrect belief, but if it held that belief on reasonable grounds the decision to dismiss would
be consistent with the Code and rendered to be fair.
[63] In the circumstances of this case, the employer did not need to conduct an
investigation into the incident of misconduct as they were direct witnesses to the event. In
addition, the evidence has established that Mrs and Mr Wishart considered and discussed the
19 December incident over the following weekend and they formed the view that the
applicant’s conduct during the incident was serious misconduct.
[64] Consequently, in this instance where the employer witnessed the misconduct there can
be little alternative other than to conclude that for the purposes of the Code, the belief of the
employer as to the serious misconduct of the applicant was established upon reasonable
grounds.
Sufficiently Serious to Justify Immediate Dismissal
[65] The third component that I have identified in the application of the Code in instances
of summary dismissal involves the question of whether the employer believed that the
conduct of the applicant was sufficiently serious to justify immediate dismissal. It is important
to recognise that the wording of the Code is directed towards the belief that the employer had,
as opposed to any independent, objective assessment about whether the particular conduct
was sufficiently serious to justify immediate dismissal. The Code would have little practical
purpose if its operation was subject to the Commission's assessment as to whether the nature
of the misconduct was sufficiently serious to justify summary dismissal. That assessment
would occur as part of the routine processing of an unfair dismissal claim for circumstances
other than small business.
[66] In this instance it was argued that the employer did not genuinely hold a belief about
the nature and severity of the applicant’s misconduct during the 19 December incident. In
particular it was asserted that the delay between the occurrence of the misconduct and the
dismissal reflected an absence of genuine belief on the part of the employer as to the severity
of the misconduct. The continuation of the employment of the applicant for a period of some
17 days after the 19 December incident, without any suspension from duty, was a matter
which might ordinarily deprive an employer from capacity to subsequently treat the conduct
as serious and wilful misconduct inconsistent with the continuation of the employment.
[67] However, the evidence has established that the employer’s initial delay in reacting to
the 19 December incident can be attributed to shock, distress and bewilderment of Mrs and
Mr Wishart. Over the weekend that followed the employer formed a view that the applicant’s
misconduct during the 19 December incident was serious misconduct sufficiently serious to
justify immediate dismissal. This approach should be recognised as the employer acting with
commendable caution against any hasty, immediate reaction at the time that the 19 December
incident occurred.
[68] The applicant did not attend for work on 22 or 23 December and if the employer had
received appropriate advice at that time it should have suspended the applicant from duty and
advised him accordingly rather than acceding to the SMS advice of his absence for 22
December. Instead, regrettably, the employer openly permitted the employment to continue
[2015] FWC 3942
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without alerting the applicant to the seriousness with which it had determined the 19
December incident.
[69] It should be recognised that as a small business employer, being justifiably unfamiliar
with the most appropriate approach to dealing with an event such as the 19 December
incident, it is understandable that Mrs and Mr Wishart felt some relief that they might avoid a
difficult and unpleasant dismissal of an employee just before Christmas. However,
importantly, the conviction to dismiss and the genuineness with which the employer held this
view were reflected by evidence of the employer changing the locks on the gates to the
business premises on 24 December.
[70] The subsequent delay until the dismissal was implemented on 5 January 2015 can be
properly attributed to the applicant's scheduled absence from the workplace.
[71] The delay between the occurrence of the misconduct on 19 December and the
dismissal on 5 January is attributable to reasonable and acceptable factors and significantly
included the absence of the applicant from the workplace rather than any lack of conviction in
the mind of the employer as to the seriousness of the applicant's misbehaviour.
[72] Further, although the failure to suspend the applicant from work at an early time
consistent with the seriousness of the alleged misconduct might ordinarily provide basis to
impeach any subsequent summary dismissal, such considerations do not arise with the test
relevant to the operation of the Code.
[73] Consequently, the third component relevant to compliance with the Code requires that
the Commission be satisfied that the employer did genuinely believe that the employee's
conduct was sufficiently serious to justify immediate dismissal. Whether or not the
Commission would endorse that belief is irrelevant for purposes of compliance with the Code.
[74] Consequently, I am satisfied that when the employer made the decision to dismiss the
applicant, it genuinely believed, on reasonable grounds, that the applicant had committed
misconduct that was sufficiently serious to justify immediate dismissal. The payment of an
amount in lieu of notice and the delay before the dismissal was implemented, have not
operated to impeach that decision.
[75] Although a primary finding that the dismissal of the applicant was consistent with the
Code must follow, I have decided that for abundant caution and completeness I shall also
resolve the factual contests surrounding the 19 December incident.
The 19 December Incident
[76] Any broader determination as to whether the dismissal of the applicant was or was
not unfair would logically focus upon the resolution of the significant factual contests
surrounding the nature and detail of the applicant's conduct during the 19 December incident.
The evidence provided by the applicant portrayed the incident as a regrettable disagreement
not capable of representing serious misconduct. On the other hand, the evidence of the
employer characterised the incident as an unprompted, aggressive, insulting and intimidating
outburst directed at the employer and sustained in a manner which would be likely to damage
the commercial interests of the employer's business operation.
[2015] FWC 3942
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[77] Understandably, the evidence that each of the respective Parties provided sought to
assist their particular version of the 19 December incident. A consideration of the totality of
the evidence provided in respect to the 19 December incident, displays significantly different
versions of the incident such that these differences are not reconcilable by way of natural
human deficiencies in recollection of the event, coupled with the natural tendency to provide
personally supportive evidence. Unfortunately the nature and extent of the factual contests
means that one version must be broadly accurate and the other a deliberate misrepresentation
of the true position.
[78] Each of the respective versions of the 19 December incident contains identifiable
inconsistencies and incongruities. For example, Mr Wishart said that the applicant did not
make mention about some countries using particular methods of torture7 while Mr Penrose
said that he heard the applicant say something about the noise of the pressure washer being a
means of torture.8 These different recollections about the detail of what the applicant said
during the 19 December incident represent what might be described as natural evidentiary
defects. Clearly, people will invariably have different recollections of aspects of detail of what
was at the very least, an uncomfortable incident.
[79] In contrast however, certain deficiencies with the evidence provided by the applicant
are unable to be attributed to natural human imperfections. For example, the applicant
maintained that he used no swearing or profanities during the “conversation” that he had with
the Wisharts on 19 December9. An examination of the applicant's witness statement10 reads as
if the applicant conversed in a manner displaying the courtesy and diplomacy of a Sunday
school teacher. Frankly, the applicant's version of his level of cordiality during the 19
December incident is so unrealistic as to be fanciful.
[80] In addition, the nature of certain inconsistencies in the applicant's evidence was
troubling. For instance, the applicant's witness statement said that he remained at the Hotel in
Rankin Springs on 23 December11. Strangely however the applicant provided evidence during
the Hearing which established that he drove back to Orange on the late evening of 22
December and was in Orange to see his solicitor on 23 December12.
[81] The evidence of the applicant can also be contrasted with the evidence of Mr Swain, a
customer of the employer, but a person who could be generally regarded as an independent
witness. Relevantly, paragraph 24 of Exhibit 1, the applicant's version of his response to Ms
Wishart's inquiry, can be compared with both paragraph 10 of exhibit 4 and paragraph 4 of
Exhibit 5. In summary, an examination of the applicant's evidence in totality leads me to
regretfully conclude that it was unreliable and must be rejected accordingly.
[82] Consequently, I have determined the factual contests surrounding the 19 December
incident in favour of the employer's version of that event. Therefore, that incident would
represent serious and wilful misconduct sufficient to justify the summary dismissal of the
applicant. Further, although the dismissal of the applicant involved some procedural
deficiencies those matters would not operate to militate against the valid reason for dismissal
so as to render it unfair.
Conclusion
[83] This unfair dismissal claim has involved consideration of the application of the Small
Business Fair Dismissal Code (the Code). Although the applicant was paid an amount in lieu
[2015] FWC 3942
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of notice, all other aspects of the dismissal characterise it as a summary dismissal made on the
basis of serious misconduct.
[84] In such circumstances I have determined that the summary dismissal provisions of the
Code are applicable. The Code declares that it is fair for an employer to summarily dismiss if,
it believes on reasonable grounds, that the employee’s conduct was sufficiently serious to
justify immediate dismissal.
[85] I have examined the specific requirements which arise from the wording contained in
the Code. Further, I have approached consideration of the circumstances in this case with due
regard for the Full Bench authority establish by the Decision in Pinawin.
[86] In this instance, upon careful examination of the evidence, I have found that; (a) the
employer genuinely held a belief which represented the basis for the dismissal, (b) the belief
of the employer was established upon reasonable grounds, and (c), the employer genuinely
believed that the conduct of the applicant was sufficiently serious to justify immediate
dismissal.
[87] Consequently, in view of the findings that I have made, the dismissal of the applicant
must be held to have been consistent with the Code. Therefore the dismissal of the applicant
is rendered by the Code to have been fair and the application for unfair dismissal remedy must
be dismissed.
[88] If, in the alternative, the Code was not applicable, an examination and consideration of
the various criteria contained in s. 387 of the Act would result in a determination that the
dismissal of the applicant was not harsh, unjust or unreasonable.
[2015] FWC 3942
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[89] Therefore upon either basis, the application for unfair dismissal remedy must be
dismissed and an Order to that effect will be issued accordingly.
COMMISSIONER
Appearances:
Mr P Boncardo, solicitor appeared for the applicant.
Ms J A Webb of counsel, appeared for the employer.
Hearing details:
2015.
Orange:
April 14, 15.
Printed by authority of the Commonwealth Government Printer
Price code C, PR568251
1 Exhibit 1 @ paragraph 24.
2 Exhibit 4 @ paragraph 10.
3 John Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo [2012] FWAFB 1359.
4 Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Café [2010] FWA 7891.
5 Harley v Rosecrest Asset Pty Ltd T/A Can Do International [2011] FWA 3922.
6 John Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo [2012] FWAFB 1359 @ Para [29].
7 Transcript @ PN1103.
8 Transcript @ PN1859.
9 Transcript @ PN1793.
10 Exhibit 1.
11 Exhibit 1 @ paragraph 36.
12 Transcript @ PN515 - PN518.
