1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr George Park
v
LOTW Indro Pty Ltd t/a Lord of the Wings Indooroopilly
(U2019/6072)
DEPUTY PRESIDENT ASBURY BRISBANE, 18 FEBRUARY 2020
Application for an unfair dismissal remedy – Whether termination at the initiative of the
employer – s. 386(1) – Casual employment – Finding that Applicant was dismissed –
Dismissal was unfair – Compensation award.
[1] Mr George Park (the Applicant) applies under s.394 of the Fair Work Act 2009 (the
Act) for an unfair dismissal remedy in respect of his dismissal by LOTW Indro Pty Ltd t/a
Lord of the Wings Indooroopilly (the Respondent). The Applicant was employed by the
Respondent as a Cook and commenced his employment on 20 March 2018. The Applicant
asserts that he was dismissed on 12 May 2019 when his supervisor indicated that he would
not be rostered for any further casual shifts as a result of the Applicant leaving the workplace
on 26 April 2019 due to an illness.
[2] The Respondent contends that the Applicant was not dismissed on a number of
grounds including that: the Applicant remained active on its rostering system after 12 May
2019; the Supervisor lacked the authority to dismiss employees; the Applicant had no right to
be rostered every week; the Applicant “prematurely” ended his own employment in
circumstances where the supervisor had not made any statement to the Applicant on 12 May
2019 which indicated that the Applicant would not be offered any further shifts; and the
Applicant had failed to advise of his availability to work shifts after 12 May 2019.
[3] The Respondent does not dispute that the Applicant is a person protected from unfair
dismissal consistent with s. 382 of the Act and has completed a period of employment of at
least the minimum period defined in s. 383 of the Act. It is also not in dispute that the
Applicant’s employment as a casual employee was on a regular and systematic basis and that
he had a reasonable expectation of continuing employment. The Applicant is covered by a
modern award. The Respondent is not a small business employer and the dismissal was not a
case of genuine redundancy. The issue for determination is whether the Applicant was
dismissed. If the Applicant was dismissed, it will be necessary to determine whether the
dismissal was unfair, and if so, the remedy (if any) that should be granted.
[4] Directions were issued set for the filing of material and the matter was dealt with by
way of hearing on the basis that there were disputed facts and I considered that a hearing was
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DECISION
E AUSTRALIA FairWork Commission
[2020] FWC 858
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the most appropriate way to deal with the matter. The Applicant was self-represented and the
Respondent was represented by Ms Elisha Nicolas, its Human Resources Manager.
EVIDENCE
[5] The Applicant gave evidence on his own behalf and a document entitled “Outline of
submission” was tendered as the Applicant’s witness statement1. Evidence for the Respondent
was given by Mr Sunil Shrestha (Kitchen Manager)2 and Ms Elisha Nicolas (Human
Resources Manager)3. The Applicant’s evidence was that he had been an employee of the
Respondent for over 12 months and had worked on a regular and systematic basis from the
commencement of his employment on 20 March 2018, other than for a period when he was
absent from work between November 2018 and January 2019, due to sustaining a workplace
injury. The Applicant said that he worked an average of 15 – 28 hours per week and his base
hourly rate of pay was $25.28 plus weekend and late-night penalties, where applicable.
[6] The Respondent tendered a payroll summary indicating that in the period from 1
November 2018 to 8 May 2019, the Applicant earned a gross amount of $10,698.05. The
Applicant maintained that this was not a fair representation of his earnings given that he had a
period of absence between November 2018 and January 2019 where he had no earnings. The
Applicant said that he earned between $900.00 and $1300.00 per fortnight net and that this is
the figure that should be used to calculate compensation.
[7] The events which brought about the ending of the Applicant’s employment
commenced on 26 April 2019. The Applicant said that on that date, an hour after he started
his shift, he started to experience severe pain in his left testicle. The Applicant informed his
supervisor Mr Shrestha that he needed to go home as he was unwell but did not inform Mr
Shrestha of the precise details of his pain, as he was uncomfortable about the location of the
pain in a private area.
[8] Upon receiving a roster for the week commencing 28 April 2019, the Applicant noted
that he had not been given any shifts. The Applicant attempted to contact Mr Shrestha and to
email a medical certificate. The Applicant tendered his telephone records to establish that he
telephoned a number that he asserted to be the mobile telephone number of Mr Shrestha at
3.28 pm on 2 May 2019, 12.37 and 12.38 pm on 4 May 2019 and sent text message to that
number at 3.29 pm on 2 May 2019 and 10.45 am on 5 May 2019. The Applicant states that
he was not able to speak to Mr Shrestha until “that weekend” and was informed that Mr
Shrestha would see if he could put the Applicant on the roster for the following week. Upon
receiving the roster for the following week, the Applicant noted that again he had not been
rostered to work any shifts. The Applicant states that he again contacted Mr Shrestha and was
told the same thing.
[9] The Applicant decided to go to the restaurant on Monday 12 May 2019 to speak to Mr
Shrestha face to face. The Applicant recorded the conversation on his mobile telephone
without Mr Shrestha’s knowledge. The recording was played during the hearing and the
Respondent also tendered a transcript of the conversation which the Applicant accepted was
accurate.4 While I accept that it is not unlawful in the State of Queensland for a person to
record a conversation to which they are a party in the manner used by the Applicant, I have
had regard to the fact that the Applicant knew that the conversation was being recorded and
Mr Shrestha did not giving the Applicant the advantage of being able to plan what he was
going to say.
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[10] During the conversation the following statements were made. The Applicant asked
what was going on with his hours as it had been two weeks since he had been rostered to
work. Mr Shrestha responded by saying that he was trying to figure that out and that he had
already chatted with the Applicant a couple of times about “reliability problems”. Mr Shrestha
also stated that another employee had not been attending work and that he was looking for
new employees. The Applicant asserted that Mr Shrestha had cut his hours because he was
sick and Mr Shestha said in response: “Nah it’s not about that”.
[11] Mr Shrestha asked the Applicant about what had happened on Friday 26 April 2019
and the Applicant said in response that it was a private medical condition that he did not wish
to discuss. Mr Shrestha then stated that the Applicant had previously left work before
completing his shift. The Applicant responded stating that the previous times had been
because of his girlfriend and that the incident on Friday 26 April 2019 was the first time the
Applicant had left work because of his own illness and he had provided a medical certificate.
Mr Shrestha also told the Applicant that if he could give exact days when he could work:
“we’ll be fine”.
[12] Later in the conversation, the Applicant and Mr Shrestha had the following exchange
after which the discussion concluded:
“Sunil: …So let me have a think after that like because we've been like busy couple of days and I didn't
like have like things where when I put you on there and I'm, I'm still thinking about that, you know, so
that's why
George: Well I need to know now.
Sunil: Now?
George: I need to know now- am I going to be on the roster?
Sunil: Nah, I don't think so. Cause if you say it now, you know,
George: So you're not promising me any hours in the future.
Sunil: I'm trying to say to you because let me have a think now.
George: Well, I am trying to say ... Are you going to guarantee me hours in the future.
Sunil: Nah, I can't guarantee bro.
George: Yeah, so essentially I’m not working here anymore.
Sunil: Look I might like tell give you some times. That's what I'm saying like.
George: Nah I need to know as of now. Am I still working here or not?
Sunil: No, no, no. That's what I'm saying. If you say it like that then I have to say like that you have to
give me like some times to put you on the roster.
George: Yeah but you know, I I, I couldn't even afford rent this week. I can barely afford food. You're
forcing me out of this job.
Sunil: Nah, Nah. I'm not forcing you.
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George: You are forcing me to find other work by excluding me from the roster for over two weeks.
This will be the third week.
Sunil: Yeah. Yeah.
George: You are forcing me out of this job.
Sunil: Nah, I'm not forcing you. That's what I'm saying because.
George: Your actions are forcing me out of this job.
Sunil: No, because what I'm saying is ...
George: I've got to eat. I've got to pay rent. Then that means I need to find other work. Unless you can
guarantee me hours this week.
Sunil: All right. All right. Like, let's, uh, let me think, like tonight, maybe next week I'll give you some
hours and after that, like I will, uh, let me think one week after that, I'll tell you like, what I'm gonna do.
I might like, you can continue, or I will say you like, you know, so because I'm, I’m telling you before
also, one week before, one month before I said you like, um, looking for people here, but I need some
time isn’t it? So what I do, uh let me think today and I’ll let you know by this evening. Yeah. Okay
George: Mmm hmm.”5
[13] The Applicant said that Mr Shrestha did not contact him as he had undertaken to do.
As a result, the Applicant formed the view that he was no longer employed by the Respondent
and that he had been dismissed. The Applicant waited for 20 days and when no contact was
made by Mr Shrestha the Applicant filed his application for an unfair dismissal remedy. The
Applicant maintained that during his discussion with Mr Shrestha, it was stated that Mr
Shrestha was looking for new staff, another staff member had not been able to work his shifts
and that the restaurant had been busy. The Applicant said that these matters all indicated that
there was no reason why he should not have been rostered to work further reinforcing his
view that he had been dismissed.
[14] The Applicant forwarded a medical certificate to Mr Shrestha on 5 May 2019. The
delay in forwarding the certificate was said by the Applicant to have been occasioned by the
fact that Mr Shrestha had not responded to messages from the Applicant requesting a contact
email address. It was not in dispute that Mr Shrestha received the medical certificate and that
he forwarded it to Ms Nicolas, the Respondent’s human resource management staff. Although
his evidence about when this occurred was not clear. The medical certificate states that the
Applicant was receiving medical treatment for the period of “Tuesday 30 April 2019 to
Tuesday 30 April 2019” and will be unfit to continue his usual occupation. The certificate
further indicates that the Applicant states that he was unfit from 26 April 2019 for the same
reason.
[15] The Applicant also tendered other medical reports which indicate that he was seen at
the Royal Brisbane & Women’s Hospital Emergency Department on 30 April 2019 for lower
abdominal pain and was prescribed a treatment regime for pain management. There is also
documentation indicating that the Applicant was still seeking treatment for his pain in July
2019. The Applicant stated that he had applied for some sixty positions from June 2019 to the
date his application was heard and that he had applied for positions prior to June but had no
record of those applications because he did not receive Centrelink payments until that time.
[16] The Applicant agreed that Mr Shrestha had given him a verbal warning about lack of
reliability in attending for shifts. The Applicant said that he had left work on three occasions
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in the three month period prior to his dismissal because his girlfriend had sustained an injury
and he needed to assist her. The Applicant said that he had explained the circumstances to Mr
Shrestha on each occasion but had been given the verbal warning on the third such occasion,
notwithstanding that Mr Shrestha stated that he understood that these things happen. The
Applicant also said that after getting the verbal warning, he made sure that he did not leave
work again for any personal emergencies and that the next time he left work was on 26 April
2019 as a result of his medical condition. The Applicant maintained that he has every right to
leave work if he is medically unfit for his duties and his previous incidents of unreliability are
not relevant in the present case. Further, the Applicant said that in January 2019 when he
returned from an absence following a workplace injury, Mr Shesthra asked him whether he
had plans to find another job and that he wanted to build a strong consistent team. This gave
the Applicant reason to believe that he could expect to be provided with ongoing work.
[17] Under cross-examination the Applicant was asked whether he had attempted to contact
the Store Manager or HR after the discussion with Mr Shrestha on 12 May 2019. The
Applicant said that he tried to contact the Store Manager, however that person left
employment a few weeks after the Applicant and he did not know the new manager. The
Applicant also said he did not have a contact telephone number for HR. In response to the
proposition that he could have logged a complaint on-line, the Applicant said that he only
used the Respondent’s on-line process to check his roster.
[18] The Applicant agreed that he had a discussion with Ms Nicolas after he made his
unfair dismissal application and was offered hours. The Applicant said that he rejected that
proposal because Mr Shrestha could have given him hours on 12 May 2019 and did not
contact the Applicant when he said he would. The Applicant maintained that Mr Shrestha did
not contact him at any time after his injury or after 12 May 2019 and pointed to the fact that
Mr Shrethsa did not produce his telephone records to corroborate his assertion that he had
contacted the Applicant.
[19] The Applicant said that he did not seek reinstatement or accept offers of hours
because:
He believed that the only reason he was offered hours was that he filed an unfair
dismissal application;
The Respondent was not guaranteeing hours;
The Respondent’s representatives lied when they asserted in conciliation that Mr
Shrestha had attempted to contact the Applicant when this was not the case;
The Applicant feared he would be mistreated if he returned to work as Mr Shrestha
could be unreasonable with employees he dislikes; and
The reaction of the Respondent to the Applicant’s illness was “appalling”.
[20] Mr Shrestha’s evidence is that he was the Applicant’s Supervisor and is responsible
for rostering staff within the Respondent’s kitchen. Mr Shrestha said that he considered that
the Applicant was a good performer but had concerns about his reliability and limited
availability for rosters. Mr Shrestha said that he was also concerned about the Applicant
starting late, requesting early finish times and cancelling shifts. According to Mr Shrestha,
the Applicant informed him 1.5 hours into his shift on 26 April 2019 that he needed to go
home. Mr Shrestha said that the Applicant told him that he was unwell and had some personal
issues which he did not feel he needed to disclose details of. Mr Shrestha said that he told the
Applicant to go home if he was feeling unwell.
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[21] Mr Shrestha said that he tried to call the Applicant the next day to check his
availability for the roster week commencing 29 April 2019, but the Applicant did not answer
or return his call. On or about 6 May, the Applicant sent Mr Shrestha a text message asking
Mr Shrestha to call him and then sent a copy of a medical certificate for 26 April 2019. Mr
Shrestha said he had not requested that the Applicant send him a medical certificate. Mr
Shrestha said that the next contact he had with the Applicant was the 12 May 2019 discussion
which was recorded by the Applicant. Mr Shrestha said that in response to the Applicant’s
questions about why he had not been given any hours, he told the Applicant he was
unreliable. Mr Shrestha also said that he denied the Applicant’s assertion during that
conversation that he an issue with the Applicant being ill and noted that the previous issues
related to the Applicant’s girlfriend. Mr Shrestha maintained that he asked the Applicant to
give him times when he would be available to work and told him that he would look at the
roster and call the Applicant.
[22] Mr Shrestha said that on 12 June 2019, he was informed that the Applicant had made
an unfair dismissal application and alleged that he was dismissed because he was ill. At that
point, Mr Shrestha had not considered that the Applicant’s employment was terminated and
had not enacted any of the termination procedures with payroll that he would be expected to
have taken if the Applicant’s employment had been terminated. Mr Shrestha also said that he
was hoping that with time, the Applicant would sort out the personal issues he kept referring
to in discussions with Mr Shrestha. Further, Mr Shrestha said that the Applicant’s employee
profile and system logins were all active as at 12 June 2019 and that he was happy for the
Applicant to return to work if he was willing to improve his reliability.
[23] In his oral evidence, Mr Shretha maintained that he did not dismiss the Applicant and
had no future plans to terminate him or reduce his hours. In response to a question about why
he had not rostered the Applicant after 26 April 2019, Mr Shesthra said that the Applicant had
a history of being unreliable and he wanted to give him a break to fix the issues which caused
this. Mr Shesthra maintained that he tried to contact the Applicant once or twice after 12 May
2019 but then put the matter to the side because he was busy and the Applicant did not return
his calls. Mr Shesthra did not produce telephone records to substantiate this assertion and
said that he changes his mobile phone every month. Mr Shesthra also said that he knew that
the Applicant was angry following the meeting of 12 May 2019 and he was waiting for the
Applicant to make contact with him.
[24] Under cross-examination, Mr Shrestha said that he could not remember the Applicant
advising that he was fit for work from 5 February 2019. In response to the proposition that the
Applicant had addressed his reliability issues after being given a verbal warning, Mr Shrestha
said that on 24 April 2019, the Applicant worked part of a shift during the day and then
contacted Mr Shestha who was taking a day off, and advised that he could not work that
evening. The Applicant requested Mr Shrestha to find a replacement. Mr Shrestha attempted
unsuccessfully to find a replacement and the Applicant worked the shift. Although the
Applicant worked the shift, Mr Shrestha said that this disrupted his day off.
[25] Mr Shrestha said that when the Applicant asked to be rostered on 2 May 2019, the
rosters had already been set and he intended to provide the Applicant with shifts in the
subsequent roster. Mr Shrestha agreed that he did not tell the Applicant that he would be
provided with shifts in the next roster and said that he should have told the Applicant that this
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was the case. Mr Shrestha also agreed that he did not tell the Applicant that he not being
rostered because he was just being given a break.
[26] Ms Nicolas said that on 12 June 2019 when she received his unfair dismissal
application the Applicant was still active in the Respondent’s system and was considered to
be still employed on a casual basis. On or around 15 June 2019, Ms Nicolas telephoned the
Applicant and discussed a number of matters. During that discussion, Ms Nicolas informed
the Applicant that the Respondent was happy for him to continue working noting that his
supervisor had stated that the Applicant was a good performer but needed to be more reliable
with his attendance. The Applicant informed Ms Nicolas that he did not want to return and
would be seeking compensation.
[27] Ms Nicolas also said that the Applicant told her that he had a recording demonstrating
that he had been dismissed. Ms Nicolas said that the recording of the conversation between
the Applicant and Mr Shrestha tendered by the Applicant does not indicate that the Applicant
was dismissed and in any event, Mr Shrestha had no authority to terminate the employment of
any person without the written approval of the Respondent’s Directors, which was not given
at any time. Ms Nicolas conceded that Mr Shrestha’s communication with the Applicant on 2
May 2019 was unclear.
CONSIDERATION
Was the Applicant dismissed?
[28] By virtue of s. 386(1) of the Act, a person has been dismissed if:
(a) The person’s employment with his or her employer has been terminated on the employer’s initiative;
or
(b) The person has resigned from his or her employment, but was forced to do so because of conduct, or
a course of conduct, engaged in by his or her employer.
[29] It is not contended by either party that the Applicant resigned his employment. Rather
the Respondent contends that the Applicant ended his own employment by not making
contact with the Respondent to advise his availability to work and then making an unfair
dismissal application. The Applicant contends that Mr Shrestha’s conduct forced him out of
his job with effect from 12 May 2019. I have therefore considered both limbs of s. 386(1) to
determine whether the Applicant was dismissed.
[30] The first limb of s. 386(1)(a) is directed at the question of whether the relevant
person’s employment has been terminated at the employer’s initiative. Much of the case law
in relation to whether termination is at the initiative of the employer deals with circumstances
where an employee has resigned his or her employment (either orally or in writing) and
asserts that the resignation was forced. There are also cases dealing with conduct by an
employee which is accepted by the employer as a resignation and is later either disavowed by
the employee or sought to be withdrawn.
[31] In Mohazeb v Dick Smith Electronics (No. 2)6 the Industrial Relations Court of
Australia was considering a case where the employee seeking a remedy for termination of his
employment ostensibly resigned his employment by signing a letter of resignation prepared
by the employer following discussions during which he was accused of dishonesty. The
legislative regime under which the application relevantly applied where there was
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“termination [of employment] at the initiative of the employer”. Relevantly the Court
observed:
“It is distracting in our opinion, to treat the question posed in the present case to be whether the applicant
resigned or had his employment terminated by the respondent. A question framed in those or similar
terms assumes that a resignation is not or could not be a termination at the initiative of the employer.
The present task is to construe the expression ‘termination at the initiative of the employer’ as it appears
in the Convention and to determine whether there has been such a termination in relation to the
employment of the Applicant.”7
[32] The Court went on observe that the term “initiative” should be given its ordinary
meaning and the expression “termination at the initiative of the employer” is a reference to a
termination that is brought about by an employer and is not agreed by the employee.8 Later
the Court said:
“…a termination of employment at the initiative of the employer may be treated as a termination in which
the action of the employer is the principal contributing factor which leads to the termination of the
employment relationship. We proceed on the basis that the termination of the employment relationship
is what is comprehended by the expression ‘termination of employment…”9
[33] Further the Court held that:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive
description of what is termination at the initiative of the employer but plainly an important feature is that
the act of the employer results directly or consequentially in the termination of the employment and the
employment relationship is not voluntarily left by the employee. That is, had the employer not taken the
action that it did, the employee would have remained in the employment relationship.”10
[34] The Court also cited with approval the judgement of Wilcox CJ in APESMA v David
Graphics Pty Ltd11 where his Honour said:
“I agree with the proposition that termination may involve more than action. But I think it is
necessary to ask oneself what was the critical action, or what were the critical actions, that
constituted a termination of the employment.”12
[35] The expression “termination at the initiative of the employer” has a well-established
meaning and in my view the expression “terminated on the employer’s initiative” in s.
386(1)(a) of the Act should be given the same or substantially the same meaning. The
reference to forced resignation in s. 386(1)(b) also reinforces that s. 386(1)(a) is not confined
to circumstances where an employee ostensibly resigns employment. I also note that this
distinction was made by a Full Bench of the Commission in City of Sydney RSL & Community
Club Limited v Balgowan.13 Further, I note that consistent with the view of the Court in
Mohazeb v Dick Smith Electronics (No. 2) a Full Bench of the Commission in Saeid Khayam
v Navitas English Pty Ltd t/a Navitas English14 held that the analysis of whether there has
been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be
conducted by reference to termination of the employment relationship, not by reference to the
termination of the contract of employment operative immediately before the cessation of the
employment.15
[36] Applying these principles in the present case, I am of the view that the Applicant was
dismissed within the meaning in s. 386(1)(a). It is well established that a reduction in hours
or pay for a casual employee can constitute termination of employment at the initiative of the
employer. In the present case, Mr Shrestha had responsibility for rostering casual employees
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in the Respondent’s kitchen and authority to determine whether to offer shifts to casual
employees. Mr Shrestha also had authority to decide to hire or at least give shifts to new
employees instead of offering shifts to existing employees, as is apparent from his discussion
with the Applicant on 12 May 2019 during which Mr Shrestha said that he was looking for
other staff. The evidence establishes that the Applicant had worked hours in accordance with
a roster each week from the commencement to the cessation of his employment, other than
when he was absent between November 2018 and January 2019, due to a workplace injury.
[37] The Applicant left the workplace approximately 1.5 hours into his rostered shift on 26
April 2019 after informing Mr Shrestha that he was unwell. Mr Shrestha states – and I accept
– that he told the Applicant that he should go home if he was unwell. I am satisfied that the
Applicant was suffering from a medical condition when he left the workplace that manifested
in pain in his testicles and that it was reasonable for him to leave. Further, I am satisfied that
the Applicant was incapacitated for the period 26 to 30 April 2019.
[38] I accept the Applicant’s evidence that upon finding that he had not been provided with
any rostered hours, he made a number of attempts between 2 and 5 April 2019 to contact Mr
Shrestha by telephoning him and sending text messages and that Mr Shrestha did not respond.
In this regard, I note that the Applicant provided telephone records to confirm contact with Mr
Shrestha and despite asserting that he telephoned the Applicant, Mr Shrestha did not provide
his telephone records. Mr Shrestha’s explanation for his lack of records was not convincing.
[39] The evidence establishes that the Applicant also sought medical treatment for his
condition and provided Mr Shrestha with a medical certificate covering an absence from 26 to
30 April 2019. When he was not provided with rostered hours and did not receive a response
to his telephone calls and text messages, the Applicant attended at the workplace to attempt to
have a discussion with Mr Shrestha.
[40] During that discussion, Mr Shrestha said that he did not think that he was going to put
the Applicant on the roster and that he could not guarantee him any hours in the future. Even
making allowances for the fact that the Applicant was secretly recording the conversation and
had an opportunity to plan what he would say to Mr Shrestha while the latter did not, it is
clear from the discussion that when the Applicant put to Mr Shrestha that his actions in not
giving him hours were forcing the Applicant out of his job, Mr Shrestha told the Applicant
that he would think about it and let the Applicant know that evening – ie. 12 May 2019.
[41] I accept the Applicant’s evidence that Mr Shrestha did not contact him on 12 May
2019 or at any point thereafter. This is notwithstanding the fact that the Applicant had
provided a medical certificate to Mr Shrestha on or around 6 May 2019, that at least provided
some explanation as to why he left the workplace on 26 April and that he was able to work
after 30 April 2019. While it is true that Mr Shrestha stated during the discussion on 12 May
that the Applicant should give him times to put him on the roster, it is equally the case that the
Applicant was clearly stating to Mr Shrestha that he wanted to work that week and that if Mr
Shrestha did not offer him hours he would be forcing him out of his job. The Applicant also
made clear to Mr Shrestha that he needed to work that week in order to pay rent and to feed
himself. Mr Shrestha’s response was that he would think about putting the Applicant back on
the roster and get back to the Applicant that evening.
[42] When the discussion on 12 May 2019 ended, the ball was in Mr Shrestha’s court and I
do not accept that the Applicant ended his own employment by failing to advise of days or
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times when he would be available to work. It was the actions of Mr Shrestha in not rostering
the Applicant to work any hours after 26 April 2019 and failing to contact the Applicant after
12 May 2019 as he had undertaken to do, that that were the principle contributing factor and
resulted directly in the termination of the Applicant’s employment. It is also clear that the
Applicant did not leave his employment voluntarily. I am also of the view that if the conduct
of the Applicant was in effect a resignation of his employment, then the Applicant was forced
to resign by the conduct of Mr Shrestha.
[43] It is relevant but not determinative that Mr Shrestha did not have actual authority to
terminate the Applicant’s employment. Mr Shrestha was the Applicant’s supervisor. He had
the capacity to determine whether the Applicant would be offered any shifts and to remove
hours allocated to the Applicant completely. Mr Shrestha also had – at least – the authority to
decide to allocate hours to new employees. In short Mr Shrestha has authority to engage in
conduct that can bring the employment of casual employees to an end and in the case of the
Applicant’s employment, that is what Mr Shrestha did.
[44] It is also not determinative that none of the Respondent’s processes for dismissing an
employee were followed in the Applicant’s case or that the Applicant remained active on the
Respondent’s system. Casual employees who meet the criteria in s. 384(2)(a) may make an
application for an unfair dismissal remedy. Where an employer gives authority to a manager
to reduce or remove hours of work from a casual employee who is eligible to make an unfair
dismissal application, it cannot be a defence to an unfair dismissal application that the
manager who engaged in the relevant conduct did not have authority to terminate the
employee’s employment. Further, I do not accept that the Respondent is entitled to rely on the
fact that the Applicant did not contact its Human Resource Management staff to make a
complaint about the fact that he had not been allocated any shifts. The Applicant took
reasonable steps to raise his concerns with his supervisor Mr Shrestha to no avail. The
Applicant also states that he contacted the then store manager in relation to the matter but his
call was not returned and that manager ceased to be employed by the Respondent. The
Respondent cannot excuse its treatment of the Applicant on the basis of this matter.
[45] Section 386(1)(b) is directed to circumstances where the employee resigns but is
forced to do so due to conduct or a course of conduct engaged in by the employer. The
Applicant in the present case did not tender a resignation either orally or in writing. If his
conduct in making an unfair dismissal application constitutes resignation (and I do not
necessarily accept that it does) then the resignation was forced due to the conduct of Mr
Shrestha in failing to provide the Applicant with shifts and/or to contact the Applicant as he
undertook to do, to inform him as to whether he would be offered shifts in the future. In short
the conduct of Mr Shrestha was the principal contributing factor to, and resulted directly in,
the termination of the employment relationship between the Applicant and the Respondent.
For these reasons I find that the Applicant was dismissed and I turn now to consider whether
the dismissal was unfair, applying the criteria in s. 387 of the Act.
Was the Applicant’s dismissal unfair?
[46] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or
unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as
follows:
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(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.”
[47] The matters in s.387 go to both substantive and procedural fairness and it is necessary
to weigh each of those matters in any given case, and decide whether on balance, a dismissal
is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or
because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from
the material before the employer.16
[48] In relation to s. 387(a), the decision made by Mr Shrestha to no longer offer shifts or
hours to the Applicant was based – at least in part – on his view that there were “reliability”
issues with the Applicant’s attendance, culminating in the Applicant leaving work before the
end of his shift on 26 April 2019. This was a conduct related issue and it resulted in the
Applicant being dismissed. In my view it was not a valid reason for dismissal in that it was
not sound, defensible or well founded, and the conduct was not sufficiently serious to justify
dismissal. The Applicant suffered an illness and on Mr Shrestha’s own evidence he told the
Applicant to go home if he was feeling unwell. The Applicant did so and on that occasion was
not unreliable with respect to his attendance notwithstanding that he may have been unreliable
on earlier occasions.
[49] The Applicant subsequently produced medical certificates to establish that he was
suffering from a medical condition that made it necessary for him to leave work before the
end of his rostered shift on 26 April 2019. The Applicant forwarded a medical certificate to
Mr Shrestha on 5 May 2019 which should have put Mr Shrestha on notice that there was a
legitimate reason for him leaving the workplace on 26 April 2019.
[50] In relation to s. 387(b) of the Act, the failure of Mr Shrestha to communicate with the
Applicant either before or after 12 May 2019 meant that he was not notified of the reason for
his dismissal insofar as it related to Mr Shrestha’s views about his reliability. This was an
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issue related to conduct. Had Mr Shrestha notified the Applicant of his views about the
Applicant leaving work on 26 May 2019, and held a discussion with him prior to deciding not
to allocate the Applicant any rostered hours, the Applicant would have had an opportunity to
inform Mr Shrestha about the reason for leaving the workplace on 26 April 2019 and to
provide him with medical evidence directly. This failure led to a situation where the Applicant
was not given an opportunity to respond to the reason related to his conduct which resulted in
his dismissal and this is relevant for the purposes of s. 387(c). The criteria in s. 387(d) is
therefore not a relevant consideration in the present matter.
[51] With respect to s. 387(e), I note that the Applicant had previously been warned about
the fact that he was not reliable in relation to his attendance. However in circumstances where
he was ill and had a legitimate reason to leave the workplace, this does not outweigh other
criteria in s. 387. The Respondent is a large employer with dedicated human resource
management specialists and these matters do not mitigate the manner in which the
Respondent dealt with the applicant. To the contrary, it is to be expected that the Respondent
would have dealt more appropriately with what should have been a simple matter, before it
developed into the present situation.
[52] Mr Shrestha states that he forwarded the medical certificate to the Respondent’s
Human Resource Management staff. This should have resulted in an inquiry about what had
occurred and thereby avoided the Applicant’s dismissal (s. 387(f) and (g)). There are no other
relevant matters.
[53] The dismissal was harsh because of its personal and economic consequences for the
Applicant. The Applicant had no other source of income and it caused him financial loss at a
time when he was suffering from a medical condition. The dismissal was unreasonable
because the actions of Mr Shrestha in not rostering the Applicant to work and failing to
communicate with the Applicant were based on inferences which could not reasonably have
been drawn from the material before him including the Applicant advising that he was unwell
on 26 April 2019 and subsequently providing a medical certificate in relation to that illness. It
is also clear that the Applicant could have provided further medical evidence if it had been
requested by Mr Shrestha or the Respondent’s Human Resource Management staff.
REMEDY
[54] Having determined that the Applicant’s dismissal was unfair, it is necessary to
consider the question of remedy. As required by s. 390 of the Act, I am satisfied that the
Applicant was protected from unfair dismissal and that he was unfairly dismissed. I am also
of the view that the Applicant should have a remedy for his unfair dismissal.
[55] The Applicant does not seek reinstatement and maintains that he has lost trust in Mr
Shrestha who would continue to be his supervisor. I therefore conclude that reinstatement is
not an appropriate remedy. I have made the necessary findings that are prerequisite to
awarding compensation.
[56] In relation to the assessment of compensation, s. 392 of the Act provides as follows:
“392 Remedy—compensation
Compensation
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(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.
(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
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(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.”
[57] I turn now to the particular criteria I am required to consider in deciding the amount of
compensation to be awarded to the Applicant for his unfair dismissal.
The effect of the order on the viability of the Respondent – s. 392(2)(a)
[58] There is no evidence that the order I propose to make will have an effect on the
viability of the Respondent.
Length of the Applicant’s service – s. 392(2)(b)
[59] The Applicant had been employed by the Respondent for a little more than one year
and had been absent for a significant period of two months due to a work place injury, just 1
year 11 months and two weeks at the point his hours were reduced and he was removed from
the roster.
Remuneration the Applicant would have or would likely have received – s. 392(2)(c)
[60] The Applicant had been warned about his lack of reliability. There was evidence from
Mr Shrestha, which I accept, that on 24 April 2019 the Applicant contacted Mr Shrestha
during his shift and advised that he could not work into the evening. Mr Shrestha was on a
day off at the time and had to attempt to find a replacement for the Applicant. When Mr
Shrestha could not find a replacement the Applicant worked the shift as required. However,
these events occurred on the day before a public holiday and caused inconvenience to Mr
Shrestha on his day off. This was a matter about which Mr Shrestha was entitled to take a dim
view.
[61] In all of the circumstances, I conclude that the Applicant would have remained in
employment for no more than a further 12 weeks from the date of his dismissal. The
Applicant states that he worked between 15 and 28 hours per week and the Respondent states
that the Applicant worked an average of 20 hours per week. In light of the Applicant’s
evidence that the Respondent’s figures do not have regard to the fact that he was absent for
two months due to a workplace injury, I accept the Applicant’s evidence and find that on
average he would have worked 21.5 hours per week for the three month period from 26 April
2019. In that period the Applicant was incapacitated from 26 April to 30 April. As a casual
employee he would not have been entitled to sick leave and would not have been paid for that
week. From the wages records provided I determine that the Applicant’s ordinary hourly rate
was 25.27 per hour.
[62] Accordingly, in the 12 week period commencing on 26 April 2019 the Applicant
would have earned an amount of $5,976.80.
The Applicant’s efforts to mitigate loss – s. 392(2)(d)
[63] Notwithstanding his stated difficulty in obtaining alternative employment, the
Applicant rejected offers from the Respondent to resume work. Those offers were made
following the filing of his unfair dismissal application on 1 June 2019. Notwithstanding the
Applicant’s views about Mr Shrestha I have had regard to his refusal to countenance the
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offers of work and I have determined that an amount of 25% should be deducted from
compensation due to failure by the Applicant to mitigate his loss.
The amount of any remuneration earned since dismissal – s. 392(2)(e)
[64] The Applicant has earned no remuneration since his dismissal and no deduction is
made in relation to this matter.
The amount of any income reasonably likely to be earned during the period between the
making of the order for compensation and the actual compensation – s. 392(2)(f)
[65] Given the period over which I have assessed compensation, based on my view about
the likely period that the Applicant would have remained in employment, this matter is not
relevant to the calculation of compensation.
Any other matter that the FWC considers relevant – s. 392(2)(g)
[66] There are no other matters that I consider to be relevant to the calculation of
compensation.
Deduction for misconduct
[67] The Applicant did not engage in misconduct and I make no deduction in this regard.
ORDERS
[68] I conclude as follows:
1. An order for the payment of compensation in the amount below would not affect the
viability of the Respondent’s business.
2. The period of the Applicant’s employment was just over twelve months and no
deduction from compensation should be made on this basis.
3. But for the dismissal, the Applicant would likely have earned an amount of $5,976.80.
4. Given the length of the period over which I have assessed compensation on the basis
of how long the Applicant would have remained in employment and the other
deductions I have made, I make no deduction for contingencies.
5. I have decided to make a deduction of 25% ($1,494.20) for failure of the Applicant to
mitigate loss.
6. The Applicant had no earnings from other sources during period over which I have
assessed compensation and I make no deduction on this basis. I make no deduction
for income likely to be earned during the period between the making of my order and
the actual compensation.
7. I have decided to make no deductions in relation to misconduct.
8. The amount of compensation is less than the compensation cap calculated in
accordance with s. 392(5) and s. 392(6).
[69] In all of the circumstances of this case I consider that it is appropriate that I make an
Order for compensation. The Order will issue with this Decision and will require the
Respondent to pay compensation to the Applicant in lieu of reinstatement of a gross amount
[2020] FWC 858
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of $4,482.60 to be taxed according to law. The order will require the payment to be made
within 14 days of the date of this Decision.
DEPUTY PRESIDENT
Appearances:
Mr G Park on his own behalf.
Ms N Nicolas on behalf of the Respondent.
Hearing details:
2019.
10 October 2019.
Brisbane.
Printed by authority of the Commonwealth Government Printer
PR716816
1 Exhibit A1.
2 Witness Statement Exhibit R1.
3 Witness Statement Exhibit R3.
4 Exhibit R2 Transcript of recorded conversation between Applicant and Mr Shrestha.
5 Exhibit R2 Transcript of recorded conversation between Applicant and Mr Shrestha.
6 (1995) 62 IR 200.
7 Ibid at 203.
8 Ibid at 205.
9 Ibid at 205.
10 Ibid at 205.
11 Unreported, Industrial Relations Court of Australia, 12 July 1995.
12 Ibid at p. 5.
13 [2018] FWCFB 5 at [30].
14 [2017] FWCFB 5162.
15 Ibid at [75].
16 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines
(1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
OF THE F THE SEAL AIR WORK COM WORK NOISSI 0
