1
Fair Work Act 2009
s.394—Unfair dismissal
Orry Thompson
v
Zadlea Pty Ltd T/A Atlas Steel
(U2018/7070)
COMMISSIONER GREGORY MELBOURNE, 15 MARCH 2019
Application for an unfair dismissal remedy.
Introduction
[1] Mr Orry Thompson is a Canadian national who was employed by Zadlea Pty Ltd T/A
Atlas Steel (“Atlas Steel”) in June 2017 as a welder/metal fabricator. He originally came to
Australia on a temporary working holiday visa, which expired in April 2018. He then entered
into an employment contract with Atlas Steel whereby it agreed to be his approved nominee
for a Temporary Skill Shortage Visa. However, he claims Atlas Steel subsequently withdrew
its nomination, effectively terminating his employment.
[2] Atlas Steel rejects these submissions and claims instead that Mr Thompson abandoned
his employment. It only proceeded to withdraw the visa nomination after this occurred, and
did so in order to regain the nomination fee it had previously paid to the Immigration
Department on his behalf.
[3] Ms T. Duthie from Gadens Lawyers was given permission to appear on behalf of Mr
Thompson under s.596(2)(a) of the Fair Work Act 2009 (Cth) (“the Act”) as the matter
involved a degree of complexity, particularly given the jurisdictional objection, and her
involvement might enable it to be dealt with more efficiently. Mr M. Galvin, a Director of
Atlas Steel, appeared on its behalf.
The Issue to be Determined
[4] Section 386 deals with the “Meaning of dismissed.” It states in part:
(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
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DECISION
E AUSTRALIA FairWork Commission
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(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.”
[5] Section 385 continues to provide that a person has been unfairly dismissed if the
Commission is satisfied that “the dismissal was harsh, unjust or unreasonable.” Section 387
also requires that the Commission must take into account the following considerations in
determining whether a dismissal was harsh, unjust or unreasonable. It states:
“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.”1
[6] The Commission is accordingly required to first determine whether Mr Thompson was
“dismissed” “as provided for by s.386, or whether he abandoned his employment as claimed
by Atlas Steel.
[7] If the Commission finds that he has abandoned his employment then it is likely that
he has not been “dismissed,” and his application must also be dismissed. However, if the
Commission finds he was “dismissed” then it is required to determine whether his dismissal
was “harsh, unjust or unreasonable” taking into account the various matters in s.387 it must
have regard to.
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The Applicant’s Evidence and Submissions
Mr Orry Thompson
[8] Mr Thompson is a Canadian citizen who came to Australia on a Working Holiday
(Temporary) Visa which expired on 12 April 2018. He was employed by Atlas Steel as a
welder/metal fabricator and commenced work in June 2017. In April 2018 he applied for a
Temporary Skill Shortage (Medium-Term) (sub class 482) visa in order to enable him to
continue working in Australia. One of the required criteria to be able to obtain this visa is to
have an approved employer nominee.
[9] Mr Thompson entered into an employment contract with Atlas Steel in March 2018
whereby it agreed to be his approved nominee for the Temporary Skill Shortage Visa, and he
was placed on a bridging visa by the Department of Home Affairs while his visa application
was processed.
[10] During the time that he was employed by Atlas Steel he had two periods off work on
medical grounds. In April 2018 he sustained a hand injury at work that required him to be off
work for a period of one week. He was then off work for a further period of approximately 5
weeks due to issues associated with anxiety and depression. He returned to work on 25 May
2018.
[11] On 21 June 2018 Mr Thompson was involved in what he described as “a verbal and
physical altercation”2 with another work colleague, Mr Athol Robertson, at a job site in
Kilmore East. The incident began with a disagreement about the construction of the steel
framework on site. Mr Thompson said Mr Robertson began verbally abusing him and
threatening to have him deported. He then pushed him and later threw stones at him. Mr
Thompson subsequently spoke to Mr Matthew Leury, one of the Directors of Atlas Steel and
told him he did not feel safe remaining on the site. He subsequently left the site and travelled
back to the factory by train. He wanted to discuss the incident with the Directors but neither
of them were at the factory at the time. He then left and went to the Brunswick Police Station
where he made a report against Mr Robertson regarding what he described as “the physical
assault.”3 He then received a phone call from Mr Leury who asked him to return to the
factory. He then assured him that Mr Robertson would no longer be working on site.
[12] However, on 22 June 2018 he arrived at the factory and saw Mr Robertson standing
outside the front door. He then went to Mr Leury’s office and said that he made threatening
remarks about his visa and his employment, and made reference to the possibility of his visa
being revoked. Mr Thompson indicated that the effect of the nomination being withdrawn
would mean that he would lose his right to continue to work in Australia.
[13] Mr Thompson said that he was suffering from stress and anxiety as a consequence of
what had occurred and made an appointment with his General Practitioner later that day. He
was subsequently advised to take a period of two weeks’ stress leave and not return to work
until 9 July. However, on 26 June 2018 he received a phone call from Mr Leury asking when
he would be returning to work as there was a lot of work to be carried out. Mr Thompson
indicated in response that he would not be back until after the two-week period of leave. He
also indicated that he lodged a WorkCover claim on the previous day but this was initially
rejected. However, he then appealed against the original decision and his claim was accepted
following a conciliation conference on 27 August. He also indicated that he was contacted by
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phone by a WorkCover representative at one point and it was indicated to him in passing that
WorkCover understood his visa nomination had been withdrawn.
[14] However, on 5 July he was then informed that his temporary skill shortage visa had
been denied and on the following day he received a letter from the Department of Home
Affairs indicating in part “your prospective employer, Zadlea Pty Ltd, does not have an
approved nomination for you at this time. As a result, your visa application cannot be
approved.”4 He then sent Mr Leury a text message asking why Atlas Steel had withdrawn its
nomination but did not receive a response. He also rejected its claims that his visa had been
denied because he had not provided relevant documentation and states instead that he had
provided all relevant documents to the Department of Home Affairs. He also indicated in his
examination in chief that the Department of Home Affairs had never indicated at any stage
that he had not provided all necessary documentation. He stated in conclusion that Atlas
Steel’s conduct “was consistent with its intention of terminating my employment.”5
[15] He also indicated in cross examination that he recalled that his WorkCover claim was
“lodged on the Monday following the incident which occurred on the Thursday prior after not
receiving any contact from my employer.”6 He also denied in cross examination that he had
not forwarded any required documentation to the Department of Home Affairs and had
instead completed all documentation provided to him by the Department and by the business.
[16] He also rejected the suggestion that he had not made contact with the business after
the incident that occurred on 21 June, and indicated instead that his records indicated that he
spoke with Mr Leury on 26 June, although he was unsure about whether Mr Leury had called
him from his mobile phone or from a landline.
The Applicant’s Submissions
[17] Mr Thompson submits that his employment was terminated at the Respondent’s
initiative, and further that his dismissal was harsh, unjust and unfair.
[18] He relies on the fact that Atlas Steel concedes that it withdrew his visa nomination,
which meant he could not continue to work for the business. If it had not taken this action
then he would have returned to work at the conclusion of his period of medical leave. It was
also premature for Atlas Steel to have decided that he had abandoned his employment after
only three working days had elapsed. In addition, the business had not even attempted to
make contact with him to find out what was going on during that time.
[19] Mr Thompson submits instead that his version of events is to be preferred and that he
sent the certificate of capacity to Atlas Steel on 22 June 2018, indicating that he was going to
be off work for a period of two weeks until 9 July, and it was received by the business shortly
after that date. The business was accordingly aware that he was off work on leave due to
stress and anxiety. This was also consistent with his earlier periods of leave due to mental
health issues. The full details of his WorkCover claim were forwarded to the business on a
later date. However, he submits that Atlas Steel then decided, after discovering that he was
taking a further period of medical leave, to withdraw his visa nomination and his employment
was effectively brought to an end. As a consequence the reasons for his termination were
never put to him and due process cannot be said to have been followed.
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[20] He continues to submit that the outcome of the WorkCover investigation is irrelevant
in all the circumstances because that outcome was only made known around twenty days after
the visa nomination had been withdrawn, and accordingly could not have been influential in
determining the decision by Atlas Steel to withdraw its nomination.
[21] Mr Thompson also submits that Atlas Steel conducted no formal investigation into the
incident between him and Mr Robertson, despite the fact that Mr Thompson considered it to
be significant enough to attend the Brunswick Police Station on the night of the incident to
lodge a report about Mr Robertson’s behaviour.
[22] He also submits that at the time his employment was terminated he had an approved
nomination, which that he intended to continue to be employed for a significant period of
time. In addition, the fact that he had been required to take time off work due to mental health
issues should not have affected his ongoing employment in any way, and he should again be
considered to be a person who was likely to be employed for a significant period of time.
The Respondent’s Submissions and Evidence
Mr Mark Galvin
[23] Mr Galvin is a Director of Atlas Steel. He did not provide a witness statement in
advance of the proceedings, but did provide some sworn evidence.
[24] He indicated that a review of Mr Matthew Leury’s phone records do not indicate that
Mr Leury used his mobile phone to ring Mr Thompson in the period between 26 June and 6
July last year. He also stated that Mr Thompson had not provided the business with further
police checks by 28 June, which were required in support of his immigration claim. He also
stated that the business had no communication from him during the period from 22 June until
5 July when Mr Thompson contacted Mr Leury to ask why he had withdrawn the visa. The
business accordingly concluded that he had abandoned his employment.
[25] Mr Galvin also indicated that he was aware Mr Thompson was on a temporary skills
shortage visa which required an approved employer nomination. He also understood that if
the business withdrew that nomination Mr Thompson could not continue working for Atlas
Steel. However, he continued to indicate that at the time the business withdrew the
nomination it had concluded that Mr Thompson was no longer working for the business
because he had abandoned his employment. It was also concerned because it had paid fees to
the Immigration Department on behalf of Mr Thompson, and it was concerned about getting
its money back after it concluded that he had abandoned his employment.
[26] He also acknowledged that Atlas Steel had indicated in its outline of argument dated
15 October 2018 that it had concluded that Mr Thompson had abandoned his employment,
given his absence from work for a continuous period of more than three days, and
consequently it decided to withdraw its nomination. He also confirmed that the business did
not attempt to contact Mr Thompson after he had not turned up for a period of three days, and
it did not believe there was any requirement for it to do so. He also stated that Atlas Steel did
not receive his certificate of capacity until 6 July. Mr Thompson had also been absent from
work on 41 days previously during the course of his employment with the business,
apparently due to mental health issues.
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[27] Mr Galvin also denied that the business had simply decided to get rid of Mr
Thompson, rather than doing a proper investigation, because of the incident that occurred
between him and Mr Athol Robertson. He also stated that the business had no reason to get
rid of Mr Thompson because there was plenty of work available at the time.
Mr Matthew Leury
[28] Mr Leury is the Manager at Atlas Steel and is also a Director of the business. He
prepared a statement dated 12 July 2018 for the purpose of a WorkCover investigation into
the incident involving Mr Thompson and Mr Robertson. He indicated that this statement was
also a true and correct record of the evidence he sought to rely upon in regard to this
application.
[29] Mr Leury indicated in the witness statement that he prepared for the WorkCover
investigation that prior to 21 June 2018 he was not aware of any issues between Mr Robertson
and Mr Thompson. However, on 21 June he was talking on the phone with the Site Foreman
at a site in Kilmore East when the Site Foreman told him that Mr Thompson and Mr
Robertson were arguing. The argument became increasingly intense and Mr Robertson
apparently tried to kick Mr Thompson.
[30] Mr Leury then spoke to Mr Thompson on the phone, who told him that he could not
work with Mr Robertson. Mr Thompson then left the site and came back to the depot after
having gone to the police. Mr Thompson was then meant to be at work on Friday, 22 June
after being told that he and Mr Robertson would be separated until Mr Leury had time to carry
out a proper assessment into what had occurred.
[31] However, when Mr Thompson arrived on the morning of 22 June he saw Mr
Robertson and became very upset and agitated. Mr Leury said he tried to talk to him calmly
but he remained aggravated, and Mr Leury then explained that he would not do anything until
he had assessed both sides of what had occurred. Mr Thompson then refused to remain at
work.
[32] Mr Leury indicated in conclusion that since leaving work on 22 June Mr Thompson
had texted him on two occasions accusing him of revoking his visa, but he had chosen not to
reply. He also stated that the business had not terminated Mr Thompson’s employment
because he had a WorkCover claim pending, but it did not believe that it could take him back
as an employee because he does not hold a current work visa.
[33] Mr Leury denied in cross examination that Mr Thompson told him on 22 June that he
could not return to work because he was suffering from stress and anxiety. However, he did
say that he could not come back to work because he could not be in the same building as Mr
Thompson and he then walked out. Mr Leury said this was the last time he had heard from
him and he had not been involved in a subsequent phone call with Mr Thompson. He also
understood that as a consequence of him leaving his employment his visa would be
withdrawn.
The Respondent’s Submissions
[34] Atlas Steel submits at the outset that it did not want Mr Thompson to leave his
employment as he was a skilled worker and it had a significant amount of work on at the time.
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However, it did not dismiss him and he instead decided to abandon his employment. This
occurred in circumstances where he was absent from work for more than three days without
approval, and without Atlas Steel being provided with any advice from him about his
whereabouts.
[35] It acknowledges in its submissions that Mr Thompson was involved in a dispute with
another employee on a worksite on 21 June 2018. He then came to work on the following day
and again encountered the other employee. He then demanded in an aggressive manner that
the other employee be dismissed, but was told that this was not going to happen, and no
further action would be taken until it had been determined who was at fault in regard to the
incident on the previous day. It submits that Mr Thompson then packed his gear and left, and
nothing further was then heard from him until a text was received on 5 July complaining that
the business had withdrawn his visa nomination.
[36] Atlas Steel continues to submit that, “Given his absence from work for a continuous
period of more than 3 days without our consent and without having received any notification
we considred [sic] that sufficient evidence that Mr Thompson had abandoned his
employment.”7
[37] Atlas Steel also submits that it had previously paid the $3,000 sponsorship fee amount
on behalf of Mr Thompson to the Department of Immigration and then decided, after he had
abandoned his employment, that it was appropriate to try and recover that amount. It therefore
withdrew its support for his visa nomination. It had also been required to pay a further amount
of $500 on its own behalf as part of the sponsorship arrangements.
[38] It also submits that it decided to pay out Mr Thompson’s WorkCover claim on the
recommendation of its WorkCover agent as a matter of economic expediency after Mr
Thompson appealed the rejection of the claim at first instance, and it subsequently paid an
amount equivalent to 4 weeks’ salary to Mr Thompson.
[39] Atlas Steel also denies that any discussion took place between Mr Thompson and Mr
Leury on 26 June, and that this was confirmed by an examination of Mr Leury’s mobile
phone records. It also submits that it has no record of having received a copy of Mr
Thompson’s WorkCover claim prior to its receipt by the business on 6 July 2018. It continues
to submit that the claim was subsequently rejected at first instance by WorkCover, and its
investigation concluded that Mr Thompson was the aggressor in the incident that occurred on
21 June.
Consideration
[40] As indicated at the outset in dealing with this application the Commission is first
required to determine whether Mr Thompson was dismissed in accordance with the definition
contained in s.386 of the Act, or whether he can be said to have abandoned his employment as
claimed by Atlas Steel.
[41] There was initially some uncertainty about when Atlas Steel came to the conclusion
that Mr Thompson had abandoned his employment. However, in the outline of argument it
provided to the Commission on 15 October last year it stated:
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“Given his absence from work for a continuous period of more than 3 days without our
consent and without having received any notification we considred [sic] that sufficient
evidence that Mr Thompson had abandoned his employment.
Consequently, we decided to withdraw his nomination as we wanted to ensure we got
our money back from the immigration department. Note we’d paid the $3,000 odd fee
on Mr Thompsons [sic] behalf for this nomination.”
[42] Mr Galvin was also referred to these extracts in cross examination, and when asked
whether he now agreed that Atlas Steel reached the conclusion that Mr Thompson had
abandoned his employment after three days he responded by indicating, “I guess so.”8 He also
confirmed that no attempt was made to contact Mr Thompson during that three-day period,
and there was not seen to be any need to attempt to make contact with him.
[43] The evidence also indicates that on 21 June 2018 Mr Thompson was involved in what
was at least an aggressive verbal altercation with another employee at a worksite in Kilmore
East. He subsequently told his Manager that he could not continue to work with that
employee. He also considered the incident significant enough to make a report to the police at
the Brunswick Police Station later on the same day. However, when he turned up at work on
the following day he again encountered the same employee and, as a consequence, became
very upset and agitated and left the workplace.
[44] He then obtained an appointment with his General Practitioner later that day and a
certificate of capacity was subsequently forwarded to Atlas Steel, although it claims it was not
received until 6 July. Mr Thompson also made a WorkCover claim which was the subject of a
subsequent investigation. The results of that investigation were not made known until
sometime later in July. Mr Thompson also claims that he received a phone call from Mr Leury
on 26 June 2018 asking when he would be returning to work, however, Mr Leury denies that
this call was ever made.
[45] The Commission was only taken in a limited way in the parties’ submissions to what
is required to come to a conclusion that an employee has abandoned their employment. The
submissions provided on behalf of Mr Thompson made reference to the decision of then
Commissioner Asbury in the matter of Sharpe v MCG Group Pty Ltd.9 He submits that the
Commission found in that matter that where an employee had notified their employer that
they would be unable to attend work due to medical reasons, and the person was then
terminated, that they were found to have been terminated at the initiative of the employer. An
argument that the employee had abandoned their employment by not attending at work as
directed was rejected. Specific reference was made to the following passage from the
decision:
“The concept of abandonment of employment is not new to employment law. It is a
term that is often loosely used, or used without consideration of the effect of the
abandonment upon the employment relationship or the contract of employment.
Generally, abandonment arises in circumstances where an employee is absent from the
workplace without reasonable excuse, or has failed to communicate with the employer
to provide an excuse for being absent.”10
[46] Issues associated with abandonment of employment were also more recently
considered as part of the 4 yearly review of modern awards. A Full Bench of the Commission
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handed down a decision in January 2018, which specifically considered these issues in the
context of provisions in a number of Awards, including the Manufacturing and Associated
Industries and Occupations Award 2010 (“the Manufacturing Award”). That Award is
presumably relevant to the employment of Mr Thompson, given the nature of his work as a
welder/metal fabricator. The relevant provision in the Manufacturing Award state as follows:
“21. Abandonment of employment
21.1 The absence of an employee from work for a continuous period exceeding three
working days without the consent of the employer and without notification to the
employer is primer face the evidence that the employee has abandoned their
employment.
21.2 If within a period of 14 days from their last attendance at work or the date of their
last absence in respect of which notification has been given or consent is being granted
an employee has not established to the satisfaction of their employer that they were
absent for reasonable cause, the employee is deemed to have abandoned their
employment.
21.3 Termination of employment by abandonment in accordance with clause 21 –
Abandonment of employment operates as from the date of the last attendance at work
or the last days absence in respect of which consent was granted, or the date of the last
absence in respect of which notification was given to the employer, whichever is the
later.”
[47] The Full Bench in its decision usefully continued to give consideration to the meaning
of the expression “abandonment of employment,” and to its relevance in the context of an
unfair dismissal application. It also had regard to the relevance of the above Award provision,
which has subsequently been deleted from the Modern Award.
[48] The Full Bench stated as follows (references omitted):
“[21] “Abandonment of employment” is an expression sometimes used to describe a
situation where an employee ceases to attend his or her place of employment without
proper excuse or explanation and thereby evinces an unwillingness or inability to
substantially perform his or her obligations under the employment contract. This may
be termed a renunciation of the employment contract. The test is whether the
employee’s conduct is such as to convey to a reasonable person in the situation of the
employer a renunciation of the employment contract as a whole or the employee’s
fundamental obligations under it. Renunciation is a species of repudiation which
entitles the employer to terminate the employment contract. Although it is the action of
the employer in that situation which terminates the employment contract, the
employment relationship is ended by the employee’s renunciation of the employment
obligations.
[22] Where this occurs, it may have various consequences in terms of the application
of provisions of the FW Act. To give three examples, first, because the employer has
not terminated the employee’s employment, the NES requirement in s 117 for the
provision of notice by the employer, or payment in lieu of notice, will not be
applicable. Second, if a modern Award or enterprise agreement provision made
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pursuant to s 118 requiring an employee to give notice of the termination of his or her
employment applies, a question may arise about compliance with such a provision.
Third, if the employee lodges an unfair dismissal application, then the application is
liable to be struck out on the ground that there was no termination of the employment
relationship at the initiative of the employer and thus no dismissal within the meaning
of s 386(1)(a) (unless there is some distinguishing factual circumstance in the matter
or the employee can argue that there was a forced resignation under s 386(1)(b)).
[23] Against this background, what purpose does clause 21 of the Manufacturing
Award seek to achieve? As discussed in Iplex, while clause 21.1 renders a certain
factual situation involving an absence from work to be prima facie evidence of
abandonment of employment, and clause 21.2 purports to deem another factual
situation involving a longer absence from work to be an abandonment of employment,
neither provision operates to automatically terminate the employment. Nor do we
consider that clause 21.2 was intended to, or could, “deem” there to be a renunciation
of the employment contract by the employee for the purpose of s 117, any Award or
agreement provision made pursuant to s 118, s 386(1) or any other relevant provision
of the FW Act. We are inclined to the view, along the lines of the submission put by
the AMWU, that what clauses 21.1 and 21.2 seek to achieve is to establish a minimal
process by which an employer may proceed to dismiss an employee in response to an
absence from work without consent. Clause 21.2 in particular requires the employer to
determine whether the employee has established to the employer’s satisfaction that
there was reasonable cause for the absence prior to the termination of the employee by
the employer, which implies some measure of consultation or attempted consultation
with the employee. The function of clause 21.1 in the process is less clear, but it may
be that an absence of over three days calls for an explanation from the employee as to
why he or she should not be regarded as having abandoned the employment, with
again the implication being that the employer will attempt to consult with the
employee, as a prerequisite to the operation of clause 21.2.
[24] Based on the approach taken in Iplex, clause 21.3 is to be read as operating so that
when an employer terminates the employment for an absence from work after the
conditions in clause 21.2 are satisfied, the termination operates retrospectively from
the date of the last attendance at work, or the date of the last absence from work which
was consented to by the employer or for which notification was given. That is, it is
concerned with the date of operation of a dismissal under clause 21.2. Clause 21.3
would effect a modification to the common law principle that a termination of
employment cannot take effect unless it is first communicated to the employee, subject
only to the possible exception that a contract of employment might contain an express
provision to the contrary.”11
[49] Three of the conclusions contained in these extracts from the Full Bench decision are
of particular relevance to the present matter. Firstly, the Full Bench has set out the test to be
applied in considering whether an employee can be said to have abandoned their employment.
In its words, “The test is whether the employee’s conduct is such as to convey to a reasonable
person in the situation of the employer a renunciation of the employment contract as a whole
or the employee’s fundamental obligations under it.”12 Secondly, the Full Bench has indicated
that if an employee is found to have abandoned their employment, and an application
claiming unfair dismissal is subsequently lodged, then the application might well be struck
out on the grounds that there was no termination of the employment relationship at the
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initiative of the employer, and therefore no dismissal within the meaning of the Fair Work
Act. Finally, the Full Bench has emphasised that it will normally be expected that the
employer will have consulted, or attempted to consult, with the employee as part of the
process of establishing the cause of the employee’s absence. While the Full Bench made these
comments in the context of the Manufacturing Award I am also satisfied that such processes
would normally be expected to be a part of what could reasonably be expected in the context
of an employer coming to a conclusion that an employee has renounced their employment
contract by abandoning their employment.
[50] Applying the approach adopted by the Full Bench I am not satisfied that it can be
concluded that Mr Thompson has abandoned his employment on the basis that he has ceased
to attend his place of employment without proper excuse or explanation. I am also satisfied
that before being able to legitimately come to this conclusion Atlas Steel must have contacted
or attempted to make contact with Mr Thompson in order to obtain an explanation from him
about what was occurring.
[51] If it had done so it would have found that a different scenario was unfolding. Mr
Thompson was apparently anxious and upset about what occurred at work on 21 and 22 June
last year. After leaving work on 22 June he managed to obtain an appointment with his
General Practitioner at the Brunswick Central Medical Centre, who provided him with a
certificate of capacity regarding a work-related injury/condition, which indicated that it was
necessary for him to be off work until 5 July 2018. Mr Thompson claims that this certificate
was forwarded immediately to Atlas Steel, although it claims it was not received until 6 July.
Mr Thompson subsequently lodged a WorkCover claim on 25 June, but again the business
claims it was not notified of this until sometime later. However, I am satisfied that the
evidence indicates that rather than acting as someone who was abandoning their employment
Mr Thompson’s actions were instead consistent with someone who was suffering at the time
from work-related stress and anxiety, and required a period of leave from work as a
consequence.
[52] As indicated, I am also not satisfied that Atlas Steel was entitled to conclude in all the
circumstances that after a period of only three days absence from work that Mr Thompson had
abandoned his employment. There are some obvious steps that could be expected of it before
coming to this conclusion. Firstly, it could be expected that it would have carried out some
form of investigation into the issue that arose at the worksite on 21 June between Mr
Thompson and Mr Robertson. It appears that this incident had the potential to escalate, and in
the interests of the health and safety of all of its employees it could be expected that Atlas
Steel would have made immediate and urgent attempts to understand what had occurred on
that day, and to ensure that there was no repetition of that kind of behaviour.
[53] Secondly, and perhaps most evidently it could be expected that Atlas Steel would have
attempted to make contact with Mr Thompson to ascertain why he was not at work before
coming to the seemingly premature conclusion that he had abandoned his employment. This
would be a minimum expectation of any reasonable employer in the circumstances. It is
unclear why it did not do so, apart from the indications in its witness evidence that it saw no
need to attempt to make contact with him. The evidence of Mr Leury is that he also decided
not to respond to Mr Thompson after he sought to make contact with him to get an
explanation about why his visa nomination had been withdrawn. It is possible to speculate
why Atlas Steel simply decided to come to the conclusion at this point that Mr Thompson had
abandoned his employment, but such speculation at this point is perhaps unnecessary. I am
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satisfied instead that it is sufficient to conclude that there is no evidence to substantiate the
decision that Atlas Steel came to at the time that Mr Thompson had abandoned his
employment. Having come to this conclusion I now turn to consider whether Mr Thompson
was unfairly dismissed.
[54] In determining whether Mr Thompson’s dismissal was “harsh, unjust or unreasonable”
it is necessary to take into account the various considerations in s.387. The nature of the
circumstances which might be considered to be “harsh, unjust or unreasonable” has been
considered in various previous decisions. For example, in the often quoted decision in Byrne v
Australian Airlines Ltd13 McHugh and Gummow JJ concluded that:
“...It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its
consequences for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted.”14
[55] The decision of the Full Bench of Fair Work Australia in L. Sayer v Melsteel Pty Ltd15
also provides guidance about the Commission’s role in regard to each of the considerations in
s.387. It concluded:
“Where the applicant does present a case, in the ordinary course each of the criteria in
s.387 which is capable of being relevant on the facts emerging at the hearing must be
taken into account.”16
[56] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited17 (Rose)
restated the above proposition, and also added (references omitted):
“In my view whether there has been a `fair go all round’ is a matter which I think is
relevant and hence I am to have regard to it determining whether the termination was
harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be
taken into account.”18
[57] I now turn to consider whether Mr Thompson’s dismissal can be said to be “harsh,
unjust or unreasonable” taking into account each of the considerations in s.387.
(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)
[58] Previous authorities have again considered what is required in order to conclude that
there was “a valid reason for the dismissal related to the person’s capacity or conduct.” The
judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd19 is often referred to in
this context. His Honour came to the following conclusions:
“The reasons of an employer for terminating the employment of an employee are solely
within the knowledge of the employer. The employer may state a reason but that
[2019] FWC 1687
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reason need not be the actual reason nor need it be the only reason. This is the rationale
for the onus of proof provisions contained in s 170EDA.
Section 170DE(1) refers to ‘‘a valid reason, or valid reasons’’, but the Act does not
give a meaning to those phrases or the adjective ‘‘valid’’. A reference to dictionaries
shows that the word ‘‘valid’’ has a number of different meanings depending on the
context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning
given is: ‘‘2. Of an argument, assertion, objection, etc; well founded and applicable,
sound, defensible: Effective, having some force, pertinency, or value.’’ In the
Macquarie Dictionary the relevant meaning is ‘‘sound, just, or well founded; a valid
reason’’
In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of
sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or
prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same
time the reason must be valid in the context of the employee’s capacity or conduct or
based upon the operational requirements of the employer’s business. Further, in
considering whether a reason is valid, it must be remembered that the requirement
applies in the practical sphere of the relationship between an employer and an
employee where each has rights and privileges and duties and obligations conferred
and imposed on them. The provisions must ‘be applied in a practical, commonsense
way to ensure that’ the employer and employee are each treated fairly…”20
[59] In Parmalat Food Products Pty Ltd v Wililo21 the Full Bench also concluded that:
“The existence of a valid reason is a very important consideration in any unfair
dismissal case. The absence of a valid reason will almost invariably render the
termination unfair. The finding of a valid reason is a very important consideration in
establishing the fairness of a termination. Having found a valid reason for termination
amounting to serious misconduct and compliance with the statutory requirements for
procedural fairness it would only be if significant mitigating factors are present that a
conclusion of harshness is open.”22
[60] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia
Post23 (“Australian Postal Corporation”) also provides a useful summary of the approach to
be taken by the Commission in weighing the various factors to be considered:
“Reaching an overall determination of whether a given dismissal was “harsh, unjust or
unreasonable” notwithstanding the existence of a “valid reason” involves a weighing
process. The Commission is required to consider all of the circumstances of the case,
having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of
the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly
be brought to account as weighing against a finding that dismissal was a fair
and proportionate response to the particular misconduct.”24
[2019] FWC 1687
14
[61] It is also clear that the reason must be valid when viewed objectively. It is not
sufficient that the Employer believed it had a valid reason for termination. This was made
clear in the Full Bench decision in Rode v Burwood Mitsubishi25 at paragraph 19 when it
stated:
“…the reason for termination must be defensible or justifiable on an objective analysis
of the relevant facts. It is not sufficient for an employer to simply show that he or she
acted in the belief that the termination was for a valid reason.”26
[62] As indicated, Atlas Steel is of the view that Mr Thompson abandoned his employment
and was not dismissed. However, the Commission has concluded that he cannot be said to
have abandoned his employment based on the evidence now before it. However, as a
consequence of coming to the conclusion that Mr Thompson had abandoned his employment,
Atlas Steel also decided to withdraw its nomination of him as an approved nominee for a
temporary skill shortage visa. The withdrawal of this nomination effectively acted to
terminate his employment. It is not possible to conclude in these circumstances that Atlas
Steel had a valid reason to terminate Mr Thompson’s employment by taking the action that it
did.
[63] The remaining matters in s.387 that the Commission is required to have regard to have
been set out at an earlier point in this decision and it is not necessary to restate them now.
They are of limited relevance in the context of the present matter, given that Atlas Steel
maintains that it did not act to dismiss Mr Thompson. It follows as a consequence that it did
not have regard to the various matters set out in paragraphs (b) to (h) of s.387 in coming to its
decision that he had abandoned his employment.
Conclusion
[64] The circumstances involved in this matter have been set out in some detail already and
it is not necessary to restate them now. I have already concluded, based on the available
evidence now before the Commission, that Mr Thompson cannot be said to have abandoned
his employment. I am also satisfied that by withdrawing its visa nomination Atlas Steel
effectively acted to terminate his employment. I am satisfied that its actions in doing so were
at the very least harsh and unreasonable, and as a consequence Mr Thompson can be said to
have been unfairly dismissed. I now turn to consider what remedy is appropriate.
Remedy
[65] I am satisfied at the outset that any consideration about Mr Thompson being reinstated
is out of the question, given the degree of antipathy demonstrated by the participants in the
proceedings, and the fact that Atlas Steel is a relatively small organisation. In addition, Mr
Thompson does not seek to be reinstated to his position. It is also unclear whether that option
is even possible given that his visa nomination has been withdrawn by the business. I
accordingly now turn to consider whether it is appropriate to make an order for compensation.
[66] Section 392 of the Act states:
“Compensation
[2019] FWC 1687
15
(1) An order for the payment of compensation to a person must be an order that the
person’s employer at the time of the dismissal pay compensation to the person in lieu
of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the
FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been
likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person
because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or
other work during the period between the dismissal and the making of the
order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person
during the period between the making of the order for compensation and
the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s
decision to dismiss the person, the FWC must reduce the amount it would otherwise
order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must
not include a component by way of compensation for shock, distress or humiliation, or
other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1 must
not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the
dismissal.
[2019] FWC 1687
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(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer
during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so
employed during any part of that period – the amount of remuneration taken to
have been received by the employee for the period of leave in accordance with
the regulations.”27
[67] In relation to the amount of any compensation that might be awarded previous
Commission decisions have made clear that it is necessary to take into account all of the
circumstances of the case, including the specific matters identified in s.392(2)(a) to (g), and to
consider the other relevant requirements in s.392. The long established approach to the
assessment of compensation is to apply the formula derived from the Full Bench decision in
Sprigg v Paul’s Licensed Festival Supermarket (“Sprigg”).28 This approach was most recently
confirmed in the context of the present legislative framework by the Full Bench in Bowden v
Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge (“Bowden”).29
The first, and perhaps most important step to be taken, is to determine what the employee
would have received by way of remuneration, or would have been likely to receive, if they
had not been dismissed. This was described in Bowden, citing Ellawala v Australian Postal
Corporation,30 in the following terms:
“[33] The first step in this process - the assessment of remuneration lost - is a necessary
element in determining an amount to be ordered in lieu of reinstatement. Such an
assessment is often difficult, but it must be done. As the Full Bench observed in
Sprigg:
‘... we acknowledge that there is a speculative element involved in all such
assessments. We believe it is a necessary step by virtue of the requirement of
s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to
most assessments of compensation or damages in courts of law.’
[34] Lost remuneration is usually calculated by estimating how long the employee
would have remained in the relevant employment but for the termination of their
employment. We refer to this period as the ‘anticipated period of employment’. This
amount is then reduced by deducting monies earned since termination. Only monies
earned during the period from termination until the end of the ‘anticipated period of
employment’ are deducted.”31
[68] Once this assessment has been made various adjustments are then required, including
for the amount of income earned since the time of dismissal, any amount on account of
contingencies, any reduction on account of the employee’s misconduct, and the application of
the statutory salary cap. This approach is, however, subject to the overarching requirement to
[2019] FWC 1687
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ensure that the level of compensation is an amount that is considered appropriate having
regard to all of the circumstances.
[69] I now turn to deal with the matters in s.392 in the order in which they appear. I am not
aware of any evidence to suggest, firstly, that there is any issue concerning the effect of any
order of compensation on the viability of Atlas Steel. While it is obviously a relatively small
business it indicated in its submissions that it has nineteen employees, and there was nothing
put to suggest that any order of compensation was likely to impact on the ongoing viability of
the business.
[70] Secondly, Mr Thompson was only employed by the business from July 2017 until
June last year. This is obviously not a long period of employment.
[71] The Commission is next required to consider what remuneration Mr Thompson would
have earned if he had not been dismissed. This is inevitably a matter that is difficult to come
to a definitive conclusion about, and essentially involves making an estimate about how long
he might have remained in employment had his employment not been brought to an end.
[72] I am satisfied that there are a number of matters that are relevant in this context.
Firstly, Atlas Steel indicated in its witness evidence that Mr Thompson had taken around 41
what it described as “unauthorised” days off in the time that he had been employed. It appears
that this was related to leave associated with a mental health condition that Mr Thompson was
suffering from. The Commission has no reason at this point to question the validity of this
leave that was taken. However, it is evident from the nature of the evidence provided in the
proceedings that these absences from work were a frustration for the business. Secondly, Mr
Leury indicated in the witness statement that he provided as part of the WorkCover
investigation that while Mr Thompson had initially appeared to have been an even-tempered
person, he described his attendance and behaviour in more recent times as being volatile and
unpredictable. Atlas Steel also indicated in its submissions that the subsequent WorkCover
investigation apparently concluded that he was the aggressor and the cause of the incident that
occurred at the worksite in Kilmore East on 21 June. All of this would suggest that the
employment relationship was becoming increasingly tenuous and that Mr Thompson was
unlikely to remain in long-term employment at Atlas Steel.
[73] However, it is also noted that he wanted to continue working for the sake of enhancing
his ability to gain permanent resident status in Australia, and it appears that he had skills that
were in demand, and that there was plenty of ongoing work available at the time.
[74] However, I am satisfied on balance that the above circumstances suggest that it was
unlikely that Mr Thompson would have continued to have been employed by Atlas Steel for
an extended period of time if his employment had not effectively been brought to an end.
Again, while it is impossible to be precise about how long that period might have been I am
satisfied that it is reasonable to conclude that in all the circumstances he would not have
remained in employment for a period of more than six months.
[75] Mr Thompson provided no information or other materials about his attempts to obtain
other employment, but presumably he had little opportunity to do so following the withdrawal
of his visa nomination. It would seem that he was accordingly unlikely to earn other income
in the relevant period. However, it is noted that despite the apparent rejection of his
WorkCover claim Mr Thompson was paid an additional amount equivalent to 4 weeks’ pay
[2019] FWC 1687
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by Atlas Steel. This payment was apparently made as an agreed outcome from a conciliation
conference held on 27 August 2018, based on advice received by its WorkCover agent.
[76] The legislation also makes clear that if the Commission is satisfied that the employee’s
misconduct contributed to the decision to dismiss the employee then the amount that might
otherwise be ordered by way of compensation is to be reduced. Atlas Steel makes reference to
various matters that might be considered in this context. It was concerned at various times that
Mr Thompson was not providing relevant documentation required by the Department of
Immigration, including relevant police checks. It also submits that on various occasions he
did not turn up for work and did not provide an explanation for his absence. On 22 June last
year he was accused of having sworn at one of the Directors of the business. Atlas Steel also
points to the outcome from the WorkCover enquiry which apparently concluded that his
injuries were caused as a result of his own misconduct. I am accordingly satisfied in all the
circumstances that it is appropriate to reduce the amount of compensation that might
otherwise be awarded to Mr Thompson by an amount of 20 percent.
[77] The decision in Sprigg also makes reference to the requirement to consider the impact
of contingencies, and whether they should have any impact on the amount to be awarded. It
also makes clear that this applies, in particular, to the estimate being made about the
anticipated period of future employment. Given all of these uncertainties in this matter I am
satisfied that it is appropriate to make a further deduction of 20 percent from the total amount
of compensation awarded.
[78] The compensation cap is then referred to in s.392(5), and provides that the amount
ordered by the Commission must not exceed the lesser of the total amount of remuneration
either received by the person, or to which the person is entitled for any period of employment
with the employer during the 26 weeks immediately before the dismissal, and half the amount
of the high income threshold immediately before the dismissal. That amount was $145,400.00
immediately before the time of Mr Thompson’s dismissal. The amount of compensation
currently under consideration in this matter is clearly well below the compensation cap.
Conclusion as to Remedy
[79] The amount of compensation that the Commission has accordingly arrived at has been
calculated on the following basis:
Step 1: lost remuneration (4 months) – $20,064.00
Step 2: deduct additional payment already made (4 weeks) – $5,016.00
Step 3: deduction for contingencies (20%) – $4,012.80
Step 4: deduction for misconduct (20 %) – $4,012.80
= $7,022.40
[80] The final amount of compensation to be ordered is therefore $7,022.40, less deduction
of any tax as required by law. I am satisfied that this amount of compensation is an
appropriate amount in all the circumstances. In accordance with s.392(1) the amount of the
order does not include any payment by way of compensation for shock, distress, humiliation,
or other analogous hurt caused to Mr Thompson by the manner of his dismissal.
[2019] FWC 1687
19
[81] The Commission accordingly orders that Atlas Steel pay Mr Thompson the sum of
$7,022.40, less deduction of any tax as required by law, within 21 days of the date of this
decision. An Order to this effect is issued in conjunction with this decision in PR705860.
COMMISSIONER
Appearances:
T Duthie of Gadens Lawyers for the Applicant.
M Galvin for the Respondent.
Hearing details:
2018.
Melbourne:
October 26.
Printed by authority of the Commonwealth Government Printer
PR705859
1 Fair Work Act 2009 (Cth) s 387.
2 Witness Statement of Orry Thompson dated 5 October 2018 at [10].
3 Ibid at [21].
4 Ibid at [36].
5 Ibid at [39].
6 Transcript at PN64.
7 Respondent’s Outline of argument: merits dated 15 October 2018 at question 3c.
8 Transcript at PN181.
9 [2010] FWA 2357.
10 Ibid at [29].
11 [2018] FWCFB 139 at [21]-[24].
12 Ibid at [21].
13 (1995) 185 CLR 410.
14 Ibid at 465.
15 [2011] FWAFB 7498.
16 Ibid at [20].
17 Print Q9292 (AIRC, Ross VP, 4 December 1998).
18 Ibid.
19 (1995) 62 IR 371.
THE FAIR WORK COMMISSION SEAL THE
[2019] FWC 1687
20
20 Ibid at 373.
21 [2011] FWAFB 1166.
22 Ibid at [24].
23 [2013] FWCFB 6191.
24 Ibid at [58].
25 Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999).
26 Ibid at [19].
27 Fair Work Act 2009 (Cth) s 392.
28 Print R0235 (AIRCFB, Munro J, Duncan DP, Jones C, 24 December 1998) [(1998) 88 IR 21].
29 [2013] FWCFB 431.
30 Print S5109.
31 Ibid.
