[2016] FWC 4161
The attached document replaces the document previously issued with the above code on 24
June 2016.
The previous version did not include text in paragraph [48] under the heading of Remedy.
Associate to Commissioner Ryan
Dated: 27 June 2016
1
Fair Work Act 2009
s.394—Unfair dismissal
Robert Goodwin
v
Shanaya Pty Ltd T/A Domino’s Pizza
(U2016/6282)
COMMISSIONER RYAN MELBOURNE, 24 JUNE 2016
Application for relief from unfair dismissal - Applicant forced to resign –dismissal unfair –
compensation ordered.
[1] The Applicant filed an unfair dismissal application on 18 April 2016 alleging that he
was dismissed by the Respondent on 12 April 2016 in that he resigned from his employment
but was forced to do so because of conduct engaged in by the Respondent.
[2] The Applicant commenced employment with the Respondent on 5 October 2015 and
had just over six months employment as at the date of dismissal.
[3] The Respondent in its Form F3 raised three jurisdictional objections to the application:
that the Applicant was not dismissed; that the Applicant had not met the minimum
employment period; and that the Respondent was a small business and the dismissal was
consistent with the Small Business Fair Dismissal Code.
[4] The latter two jurisdictional objections were determined by the Commission in earlier
proceedings and decision1 in this matter.
[5] The Applicant and Respondent both indicated to the Commission that they were
content for the remaining issues to be decided in this matter to be decided on the papers as
each had filed with the Commission all that they sought to rely on.
[6] Before considering the merits of the Applicant’s unfair dismissal application the
Commission is required by s.396 to decide certain matters. S.396 provides as follows:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order
under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in
subsection 394(2);
[2016] FWC 4161
DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 4161
2
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair
Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[7] The Commission is satisfied and so finds that the application was made within the 21
day time limit specified by s.394(2)(a).
[8] The Commission is satisfied and so finds that the dismissal was not a case of a genuine
redundancy.
[9] The Commission has previously decided that the Small Business fair Dismissal Code
does not apply in this matter.
[10] Section 382 spells out when a person is protected from unfair dismissal.
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment
with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the
employment;
(iii) the sum of the person’s annual rate of earnings, and such other
amounts (if any) worked out in relation to the person in accordance with
the regulations, is less than the high income threshold.”
[11] In the present matter the Commission is satisfied that the Applicant has served the
minimum employment period and that the Applicant is either covered by the Fast Food
Industry Award or that the enterprise agreement applying to some of the Domino’s Pizza
franchisees applies to the Applicant.
[12] A key issue that arises for determination in the present matter is whether the Applicant
was dismissed within the meaning of s.386(1) which provides as follows:
“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
[2016] FWC 4161
3
(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.”
[13] The Applicant contends that the course of conduct engaged in by the Respondent
which forced the Applicant to resign his employment commenced on Tuesday 2 March 2016
when the Applicant sought to alter his rostered hours of work for Friday 5 March 2016 by
cutting his shift short and finishing at 7pm because of a personal problem and ended when the
Applicant resigned because of low hours being given to him. The Applicant relied on a series
of emails between himself and Domino’s Pizza Enterprises Ltd the franchisor of the
Respondent’s franchise operation.
[14] The Applicant emailed Mr VanSchnyde, Manager – Employee Relations and OHS at
Domino’s Pizza Enterprises Ltd on Wednesday 3 March 2016 and described events as
follows:
From: Rob Goodwin
Sent: Thursday, 3 March 2016 9:47 PM
To: Tim Van Schyndel
Subject: threatening to be fired
My names Robert Goodwin,
I currently work for the domino's swan hill store as a casual driver.
i would like to find out where i actually stand on a matter to do with having my
employment threatened or being fired because i informed management i can not work
passed a certain time.
the following has happened to me with the threat of loosing my job and i would like to
know what i can or can not do about it as i do not take kindly to having myself or my
job threatened.
wednesday I informed the on duty manager Caity, and then tonight informed
tomorrows on duty manager Jasman, that i could work this friday the 4th of march, but
would have to cut my shift short to 7pm due to already having plans, so that they can
work something out.
I received a call from Caity tonight's on duty manager after tonights shift, and was
informed that Jasman tomorrows on duty manager had been in contact with Pankaj the
franchisee, and Caity informed me he was complaining about me not being able to
work passed 7pm and he said straight out i would be fired for not giving notice.
Caity got onto the phone, and talked Pankaj into not firing me because its a personal
problem that has come up. and i now was not working till i get a call from Jasman to
work, who is not even actually a manager. the only manager is ricky. and also the store
has been informed that anyone who does not give 2 weeks notice of requiring a day off
will be fired on the spot.
[2016] FWC 4161
4
and i know Jasman has a major problem with me but i have no idea why he has a
problem with me. and as far as i know he's good friends with the franchisee, and I am
in the firing line because of it.
as far as I'm aware i gave more then the required notice for a change in shift, as i was
not taking a day off just asking to leave 1 hour early on a shift i would normally do,
because of personal reasons.
i do not believe this is right in any way,
thank you for your time,.
Robert Goodwin”
[15] The Applicant in his material filed with the Commission did not identify the time that
he was expected to finish on Friday 5 March 2016 nor did he identify what was the personal
problem that necessitated him cutting his shift early on that night.
[16] It is very obvious from the material filed by both the Applicant and the Respondent
that the Respondent withdrew from the Applicant the rostered shift for Friday 5 March 2016
and that the Respondent did not roster the Applicant for any work on Saturday 6 March 2016
or Sunday 7 March 2016 or any day in the following week.
[17] On Friday 4 March 2016 Mr VanSchnyde replied to the Applicant requesting that the
Applicant call Mr VanSchnyde to “run through the situation.” It is not known when the
Applicant called Mr VanSchnyde but it is clear that he did so and that he spoke to Mr
VanSchnyde about more than the Applicant’s hours of work.
[18] On 20 March 2016 the Applicant sent another email to Mr VanSchnyde and the
relevant part of the email is as follows:
“hi tim,
thought i would give you an update for me getting shifts.
i've been given 9.5 hours this week, being told that i will get my roster for next week
on monday if they need me. and still being talked to as if i'm not actually wanted
anymore.
ricky is treating me like i'm the problem with the store, not speaking to me until he has
something to do for me yet will treat everyone else like nothing is going on. and when
another staff member asked me how much of my dotti training i have done, i answered
with i've done all the training but now my accounts been made inactive. and ricky had
a go at me saying that what do i think they can do to get my dotti re-activated and
really laying in on me about it
i was told that everyone while in store has to put their phone in a container on the
managers desk, yet mine is the only phone that ends up in the container, as i'm being
singled out.
[2016] FWC 4161
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during 2 of my shifts this week i've asked when i will get access to dotti again, and i've
been given excuses like he needs the franchisee's password as he's the only one who is
able to do it as ricky is no longer manager (yet still logs in as a manager and is still
being the manager), or he will get onto pankaj to unlock it. and never does, yet the 2
new employee's have their dotti straight away.
the franchisee relations manager contacted me saying he's trying to have a meeting
between me and pankaj for last monday, but that was the last i heard from him.
i do believe they are really wanting to get rid of me, and now they are using the tactic
of pressuring me to quit.
and when you told me a big change would be happening, seems things are still going
the same as they were before hand.”
[19] Mr VanSchnyde replied on the same day as follows:
“Morning Robert
Thank you for the update!
I have passed on your email to the relevant persons dealing with each specific issue.
I believe the franchise consultant is attending the store (unannounced) this week to see
what has been happening. The franchisee wants to leave the system ASAP and is
therefore being very uncooperative as you can imagine. Hopefully some of these
issues will be resolved after the visit this week.
I’ll keep you updated.
Regards
Tim”
[20] On 4 April 2016 the Applicant again emailed Mr VanSchnyde and another person and
the relevant part of that email is as follows:
“this email is to both tim and nitin. so there is a double record of it.
as it stands i'm still being targeted with low hours from what i was originally getting
before any complaints were made,
as nitin had confirmed for me, the franchisee's knew it was me who submitted all of
the complaints, if they figured it out when i made the complaint as myself on the
"fired" section when i revealed to tim i was the person who put the main complaint in
as the anon persona, and they were told to put me back on the roster, or they were told
by someone in head office who it was.
doesnt matter which or how they found out. as of by the time you are reading this i
have been employed by the franchisee Shanaya PTY LTD for exactly 6 months which
[2016] FWC 4161
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brings me into the eligibility for unfair dismissal if i were to be fired or if i quit over
this. so i really dont care if they get given this email. because i'm legally covered.
i remember tim telling me that a big change was going to happen and things would be
better for me and it would be beneficial for me if i was mister anon.
well if its happened then i havent seen it and my stand point things have gotten worse.
as over the past few weeks since ricky has come back i've recieved under 10 hours per
week. and a steady decline in hours per following week.
being as follows
15/02/2016 to 21/02/2016 = 35 hours (most i've ever worked)
22/02/2016 to 28/02/2016 = 24 hours (normal amount of hours)
29/02/2016 to 6/03/2016 = 13.5 (where i was fired on the thursday night then put onto
permanent standby/suspension)
7/03/2016 to 13/03/2016 = 0 (well no need to say anything.)
14/03/2016 to 20/03/2016 = 9.5 (first week back)
21/03/2016 to 27/03/2016 = 5.25 (second week back)
28/03/2016 to 3/04/2016 = 7 (believe i got 7 or around that)
4/04/2016 to 10/04/2016 = 6 (rostered on for only 6 hours)
and before the 15/02/2016 i was getting around the 22 to 24 hour mark. so i maybe
getting hours but that plus how i'm being treated by ricky, including that when i started
complaining about not getting any hours/being fired/and that the moment ricky got off
the phone from nitin or who ever, he was straight on the phone to me abusing me
verbally for contacting head office. which i did tell nitin about, but guess nothings
been done about it. but this doesnt show an improvement though it does show a
decline.
it does seem to me that he's trying to push me to quit since he's given me the
impression that he's been told he can not fire me.”
[21] The email then dealt with issues which were not specific to the Applicant and
concluded with the following:
“now i know tim has been doing what ever he could to get this stuff sorted, so i'm not
going to hold domino's accountable for what a franchisee or manager has done but i
just dont know what i'm to do anymore. guess you could say im emailing this to you as
a record of the crap i've been put under because of a franchisee and manager doing the
wrong things.
would be nice to have something sorted out before i quit, but everyone is going to try
and cover their own asses and its going to be mine that is left out in the wind.
Robert Goodwin.”
[22] On Tuesday 5 April 2016 Mr VanSchnyde replied to the Applicant and the relevant
part of that email is as follows:
[2016] FWC 4161
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“Thanks Robert for the update.
We are doing what we can to get your shifts back to their average.
(redacted)
Nitin will be contacting the franchisee again to request again for your hours to be
returned to normal.
Please keep me up to date.
Regards
Tim”
[23] On 12 April 2016 the Applicant again emailed Mr VanSchnyde and another person as
follows:
“i hate to be the bearer of bad news, but again i have only been given 6.5 hours for the
week. as i can not continue to work for these low hours when my average hours were
over 20 hours per week prior to the reports, and as i can not afford upkeep on my
vehicles to drive 120km per shift just to work 3 hours on average per shift. which
makes 240km per week to drive for 6 hours on average i have no choice but to quit.
so my reason to quit is as follows
after reporting dominos swan hill for breaches in health and safety, work place safety,
payroll, and other breaches in policy that i have a record of in emails i have sent to
head office.
i was fired then un-fired then put onto permanent standby, then after reporting this
given a lot less then my average ongoing hours of 22 per week. treated like a criminal
by the store manager ricky (saravpreet) threatened with being fired, singled out to
loose hours because of the reports. receiving abusive phone calls from ricky after each
contact with tim about my hours and keeping employment. talked down to, and
generally treated worse then i was treated prior to the reports being sent. with nitin
confirming that the franchisee knew it was me who sent the original reports
i have been bullied into leaving a job that i enjoy and wanted to make a career out of, i
hold no ill will to domino's as a whole and believe dominos has done everything that
they can to return me to what i was getting before the reports. i hold shanaya pty ltd
accountable for my treatment and the abuse i have received.
thank you tim and nitin for your assistance.”
[24] The Respondent’s case includes the following contentions.
[25] Firstly, that the Applicant was employed as a casual and that there was no agreement
between the Respondent and the Applicant as to guaranteed hours of work. Therefore the
Respondent was entitled to alter the hours of work offered to the Applicant. As the
Respondent put it “Shanaya Pty Ltd is not bound with Mr Goodwin to provide desirable
hours.”
[2016] FWC 4161
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[26] Secondly, the Respondent contended as follows:
“Mr Robert Goodwin claim that he need more hours even company have no enough
work because our store trading hours 3.30 pm to 10 pm every day along with Robert I
have another 13 employees which I need to accommodate within that hour. Mr
Goodwin claims that he left job because Company forced him, company never
forced him to quit as he quit work with his own wish.” [emphasis not added]
[27] Thirdly, the Respondent contended that it did not reduce the Applicant’s working
hours because of any complaint made by the Applicant to Domino’s Head Office. As the
Respondent put it, they could have simply terminated the Applicant in the 23rd week of
employment (the week commencing 7 March 2016) and this would have denied the Applicant
any right to make an unfair dismissal claim The Respondent contended that after the 23rd
week the Respondent continued to offer hours to the Applicant and the Applicant continued to
accept those hours.
[28] Fourthly, the Respondent contended that it did know about any issue that the
Applicant raised with Domino’s Head Office. As the Respondent put it:
“Mr Goodwin Claim that on F3 Form he communicated with Domino's Head Office
Regarding this issue where as Shanaya Pty Ltd didn't know about any issue. First of
all if Mr Goodwin have any issue they Should have inform to (Mr Pankaj Monga)
Director of the Shanaya Pty ltd Even Mr Goodwin didn't communicate with Mr pankaj
Monga about any issue he just communicate with head office as he mention and
provide all proof to Fair Work Commission.”
[29] A number of comments need to be made as to the Respondent’s contentions.
[30] The Respondent’s contentions as to the hours worked and the changes to those hours
must be considered in light of the pattern of hours worked by the Applicant. The Respondent
in its written submissions of 19 June 2016 provided a table which identified the hours worked
or to be worked by the Applicant over a 28 week period.
Week Period Total hours Days of the week worked
1 5/10/15 - 11/10/15 6.0 Thur, Sat
2 12/10/15 -18/10/15 22.25 Mon, Tue, Thur, Fri, Sat
3 19/10/15 - 25/10/15 22.75 Tue, Wed, Thur, Fri, Sat
4 26/10/15 - 1/11/15 11.75 Tue, Wed, Thur
5 2/11/15 - 8/11/15 16.75 Tue, Wed, Fri, Sat
6 9/11/15 - 15/11/15 15.75 Tue, Thur, Fri, Sat
7 16/11/15 - 22/11/15 19.75 Tue, Thur, Fri, Sat
8 23/11/15 - 29/11/15 19.75 Tue, Thur, Fri, Sat
9 30/11/15 - 6/12/15 15.0 Mon, Tue, Thur, Sat
10 7/12/15 - 13/12/15 19.25 Mon, Tue, Thur, Fri, Sat
11 14/12/15 - 20/12/15 20.5 Mon, Tue, Wed, Thur, Sat, Sun
12 21/12/15 - 27/12/15 21.52 Mon, Tue, Wed, Thur, Sat
13 28/12/15 - 3/1/16 18.5 Tue, Wed, Thur, Fri
[2016] FWC 4161
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14 4/1/16 - 10/1/16 12.5 Thur, Fri, Sat
15 11/1/16 - 17/1/16 22.5 Mon, Tue, Thur, Fri, Sat
16 18/1/16 - 24/1/16 20.75 Mon, Tue, Thur, Fri, Sat
17 25/1/16 - 31/1/16 23.5 Mon, Tue, Thur, Fri, Sat
18 1/2/16 - 7/2/16 20.5 Mon, Tue, Thur, Fri, Sat
19 8/2/16 - 14/2/16 22.5 Mon, Tue, Thur, Fri, Sat, Sun
20 15/2/16 - 21/2/16 35 Mon, Tue, Thur, Fri, Sat, Sun
21 22/2/16 - 28/2/16 24 Mon, Tue, Thur, Fri, Sat, Sun
22 29/2/16 - 6/3/16 13.5 Tues, Wed, Thur
23 7/3/16 - 13/3/16 0
24 14/3/16 - 20/3/16 9.5 Mon, Fri, Sat
25 21/3/16 - 27/3/16 5.25 Fri, Sat
26 28/3/16 - 3/4/16 6.75 Mon, Thur
27 4/4/16 - 10/4/16 6.0 Mon, Fri
28 11/04/16-17/04/16 6.5 Supposed to work on Tuesday, Friday
[31] The Commission notes that when the Respondent first responded to the Applicant’s
unfair dismissal application the Respondent contended that the Applicant had not served the
minimum employment period of 12 months given that the Respondent was a small business.
It was not until after the first hearing in relation to this application that the Respondent
conceded that it was not a small business given that the Respondent had associated entities
which meant that the total number of employees of the Respondent and its associated entities
was more than 15. The Respondent’s most recent contention that it could have prevented the
Applicant from pursuing an unfair dismissal remedy if it had dismissed him in week 23
appears to be a recent invention as it is clear from the Respondent’s Form F3 that the
Respondent considered in April 2016 that the Applicant did not have any entitlement to
pursue an unfair dismissal application because he had not been employed for a year.
[32] The Respondent’s contentions that it “didn’t know about any issue” having been raised
by the Applicant with Domino’s Head Office is only believable if the Commission accepts
that the email chain produced by the Applicant is a fabrication. Given that the Respondent has
had access to the emails since the Applicant filed them with the Commission on 19 May 2016
the Commission would have expected more than a mere denial from the Respondent that it
was unaware of the Applicant’s complaints to Domino’s Head Office. In absence of any
material from the Respondent which contradicts the email chain the Commission is prepared
to accept that the Respondent knew of the Applicant’s complaints to Domino’s Head Office.
[33] The fact that the email chain identifies the views of the Applicant at times which are
contemporaneous to the events occurring lends weight to the Applicant’s case. The fact that
the pattern of hours of work of the Applicant identified by both the Applicant and the
Respondent are consistent with the events as described in the email chain lends weight to the
Applicant’s case.
[34] The emails allege specific conduct by specific managers of the Respondent yet at no
stage has the Respondent denied the specifics of the allegations.
[35] The Explanatory Memorandum to the Fair Work Bill 2008 explains s.386(1)(b) as
follows:
[2016] FWC 4161
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“1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned
from their employment but were forced to do so because of conduct, or a course of
conduct, engaged in by their employer. Conduct includes both an act and a failure to
act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of
constructive dismissal, and allow for a finding that an employee was dismissed in the
following situations:
where the employee is effectively instructed to resign by the employer in the face
of a threatened or impending dismissal; or
where the employee quits their job in response to conduct by the employer which
gives them no reasonable choice but to resign.”
[36] As the language of s.386(1)(b) makes clear the concept that an employee has been
forced to resign requires consideration of the alternatives available to the employee other than
to resign. As the Explanatory Memorandum makes clear it is necessary to consider whether
the employee had no reasonable choice other than to resign.
[37] In the present matter the Respondent contends that the Applicant had ongoing work
available and that when the Applicant sent his resignation text message on 12 April 2016 the
Applicant had already been offered work for 3 ½ hours on Tuesday 12 April 2016 and 3 hours
on Friday 15 April 2016. The Respondent contends that the resignation by the Applicant was
voluntary. The Respondent contended that the Applicant should have communicated any
concerns directly with Mr Pankaj Monga the Director and owner of the Respondent.
[38] The Applicant contends that he had no option other than to resign since he had raised
the issue of his hours of work with Domino’s Head Office after being effectively removed
from any hours of work and that the small number of hours that the Respondent was prepared
to offer the Applicant was meant to force the Applicant to resign.
[39] When considered in light of the actual hours worked by the Applicant, the Applicant’s
conduct in contacting Domino’s Head Office when the Respondent ceased providing him with
hours of work after interactions between the Applicant and the Respondents managers on 2nd
and 3rd March 2016 was a reasonable response to being threatened with being fired. The
Applicant’s continued contact with Domino’s Head Office to obtain their assistance in
resolving the Applicant’s concerns was a reasonable response to the Respondent’s actions in
only offering limited hours of work to the Applicant.
[40] The Applicant’s resignation from his employment followed a period of 5 weeks in
which his hours had been reduced to zero then maintained at a number significantly lower
than the average for the previous 20 weeks. In that 5 week period the Applicant had tried to
have issues resolved with the assistance of Domino’s Head Office but without success. In
these circumstances it was a reasonable response to the conduct of the Respondent for the
Applicant to resign.
[41] It is very clear that at the time of his resignation the Applicant did not want to leave
his employment and wanted to continue working for the Respondent. It was the Respondent’s
[2016] FWC 4161
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conduct over a period of 6 weeks that forced the Applicant into the position where he had no
reasonable option to respond to the Respondent’s conduct other than to resign. There is
nothing in the material relied on by the Respondent which would disclose that the Applicant
had any other reasonable choice of action other than resignation in order to respond to the
course of conduct undertaken by the Respondent.
[42] The Commission is satisfied that the Applicant was dismissed in that the Applicant
resigned from his employment, but was forced to do so because of a course of conduct
engaged in by the Respondent.
Was the Dismissal Harsh, Unjust or Unreasonable
[43] Having determined that the Applicant was dismissed and having determined the initial
matters required by s.396 the Commission must now consider whether the dismissal was
harsh, unjust or unreasonable. S.387 provides as follows:
“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.”
[44] In the circumstances of the present matter where the Respondent has at all times
denied dismissing the Applicant then it follows that the Respondent has never contended that
it had a valid reason for the dismissal related to the Applicant’s capacity or conduct. Given
[2016] FWC 4161
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this then the criteria specified in s.387(a), (b), (c), (d) and (e) are not relevant in the present
matter.
[45] The criteria in s.387(f) and (g) are always relevant as they require the Commission to
have regard to the degree to which both the size of the Respondent’s enterprise and the
absence of dedicated HRM specialists in the enterprise impacts on the procedures followed in
effecting the dismissal. In the present matter the Respondent appears to have a very
unsophisticated HR system and this would suggest that some allowance be made in favour of
the Respondent concerning the procedures followed in effecting the dismissal. However, it is
also clear that as a franchisee of the Domino’s Pizza franchise system that the Respondent had
access to a high degree of HRM specialist advice from the franchisor. It would appear that
there was some tension between the Respondent and the Domino’s Head Office especially in
relation to resolving issues concerning the Applicant. In all of the circumstances of the present
matter I am prepared to treat the two criteria under s.387(f) and (g) as being of neutral value.
[46] I do consider, under s.387(h), that the circumstances which led the Applicant to resign
from his employment are matters that the Commission considers relevant for the
determination as to whether the dismissal was harsh, unjust or unreasonable.
[47] Having considered each of the relevant criteria under s.387 the Commission is
satisfied that the dismissal of the Applicant was unreasonable.
Remedy
[48] The Commission is not prepared at this point to consider whether any remedy should
be granted to the Applicant and, if so, what that remedy should be. The Commission notes
that the Applicant is not seeking reinstatement and is seeking compensation. Neither of the
parties have addressed the issue of remedy in their written material filed with the
Commission. The Commission will issue directions to the parties to file any submissions and
any other material they seek to rely on in relation to whether or not a remedy should be
granted and if so what that remedy should be.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Price code A, PR582045
1 [2016] FWC 3539.
THE FAIR WORK COMMISSION HE SEALO
