1
Fair Work Act
2009
s.394 - Application for unfair dismissal remedy
Ms ZA
v
GDI Pty Ltd
(U2020/13167)
COMMISSIONER HUNT BRISBANE, 3 JUNE 2021
Application for an unfair dismissal remedy – respondent failure to comply with s.590(2) order
requiring person to attend – matter determined per s.600 in the absence of respondent –
respondent’s conduct well short of that expected of employers – dismissal harsh, unjust and
unreasonable – maximum compensation awarded.
[1] On 2 October 2020, Ms ZA (the Applicant) made an application for unfair dismissal
remedy under s.394 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the
Commission) alleging she had been dismissed from employment with GDI Pty Ltd (the
Respondent / GDI) on 2 October 2020, and that the dismissal was harsh, unjust or unreasonable.
[2] Ms ZA is the sister of Mr Hikaru Okamoto, Director of GDI, and daughter of Mrs Keiko
Okamoto. Mrs Okamoto is also known as Ms Keiko Sato and “Coco”. It is understood Mrs
Okamoto is considered to be a shadow director and the effective controller of GDI. Mrs
Okamoto’s husband incorporated GDI. Ms ZA does not share the last name of her family
members.
Confidentially order
[3] I have made a confidentiality Order [PR730423] in respect of the Applicant and her
partner. I consider it necessary to protect their identity in these proceedings because of the
operation of the temporary protection order described at paragraph [47] below. Throughout
this decision the individuals will be referred to as Ms ZA (or the Applicant) and Mr XY.
Background
Date of dismissal
[4] Ms ZA nominated the date of termination as 2 October 2020 in her initial Form F2 filed
in the Commission. Ms ZA’s application included a letter from GDI of 4 September 2020
standing down her employment, produced in part below.
“NOTICE OF SUSPENSION
[2021] FWC 3193
DECISION
AUSTRALIA FairWork Commission
[2021] FWC 3193
2
To:
[Ms ZA]
You are hereby suspended from duty, with immediate effect.
…..
We have decided to suspend your duty as an employee of GDI Pty Ltd whilst we
investigate your suspected involvement with the conduct of its former director of GDI,
[Mr XY]. Until further notice, please do not contact or have any dealings of any kind
with [Mr XY].
…..
If you fail to comply with this direction, it will constitute a serious breach of your
employment obligations to GDI Pty Ltd.
Hikaru Okamoto
Director
GDI Pty Ltd
4 September 2020”
[5] Ms ZA’s application included two letters composed by her and sent to GDI dated 22
September 2020 and 25 September 2020, reproduced in part below:
“22 September 2020
GDI Pty Ltd
[address]
Dear Mr Hikaru Okamoto,
…..
I received the Notice of Suspension on 6 September 2020.
…..
As requested, I will not contact or have dealings with [Mr XY] during my usual work
hours.
…..
However, I note that I have not received my wages this month, payable on the 5th and
20th of every month. I received the notice on the 6th (Sunday) so I had expected my
wages to arrive on the 7th (Monday). I was expecting my salary to arrive to my usual
bank account yesterday, 21st (Monday), but it still has not been deposited.
…..
I believe you have failed to comply with your obligations as an employer by failing to
pay me my salary. Also, you have issued me with a notice of suspension with immediate
effect without any prior explanation or notice period.
…..
Therefore, please give me an explanation of exactly what I am being alleged to have
done. Particularly, please explain how have I been involved with [Mr XY]’s conduct,
which is being investigated.
Please pay my wages in arrears in the amount of $1,419.00 x 2 = $2,838.00 by 5:00 PM
[2021] FWC 3193
3
tomorrow, 23 September 2020. This short period is because my wages are in arrears
for over two weeks already.
My bank account details are:
…..
If I do not receive my salary by the deadline, I will understand that I am under
constructive dismissal.
Yours sincerely,
…..”
And:
“25 September 2020
GDI Pty Ltd
[address]
Dear Mr Hikaru Okamoto,
…..
I have not received my wages on 23 September 2020, which was requested on 22
September 2020.
…..
Also, please give me an explanation of exactly what I am being alleged to have done.
Particularly, please explain how have I been involved with [Mr XY]’s conduct, which is
being investigated.
…..
Please pay my wages in arrears in the amount of $1,419.00 x 2 = $2,838.00 within 7
days by 2 October 2020.
My bank account details are:
…..
If I do not receive my salary by the deadline, I will understand that I am under
constructive dismissal.
Yours sincerely,
…..”
[6] On 27 October 2020, GDI filed a Form F3 Employer Response to the application. GDI
was legally represented by Ellem Warren Lawyers at that time. In its Form F3, GDI raised a
jurisdictional objection to the application that Ms ZA had not been dismissed. GDI provided a
copy of a letter, on Ellem Warren Lawyers’ letterhead, dated 21 October 2020, that states:
“21 October 2020
By email: [email address redacted]
[2021] FWC 3193
4
Dear [Ms ZA]
We act for GDI Pty Ltd.
We are instructed that on 4 September 2020, our client suspended you from duty without
pay. Our client did so whilst our client undertook an investigation into your suspected
involvement with the conduct of its former director of GDI Pty Ltd, [Mr XY] ….. You
were directed at the time to not contact or have any dealings of any kind with [Mr XY]
until further notice, however our client notes that this direction extends only during
business hours.
You have since filed an application with the Fair Work Commission claiming unfair
dismissal of your employment.
You have not been dismissed by our client. Our client has suspended you from duty
whilst they conduct an investigation into your involvement with [Mr XY]. You were
employed by GDI Pty Ltd and had access to, and control of, its financial information
and resources, including its bank accounts. You were suspended from duty to enable
our client to investigate all the circumstances that led to [Mr XY] being removed as a
director of GDI Pty Ltd by its shareholder, Chris White on 10 August 2020, including
reviewing company records and financial information. This investigation is ongoing.
Our client is taking relevant actions against [Mr XY], including reporting him to Police.
You were also suspended from duty, in part, because you ceased to perform your duties
for GDI Pty Ltd since July 2020 and after [Mr XY] was removed as a director of GDI
Pty Ltd on 10 August 2020. This reasoning should have been obvious to you when you
received the notice of suspension. You were and remain bound by your obligations as
an employee to continue to perform your duties as required by GDI Pty Ltd. Since July
2020, you have failed to conduct or perform your duties, and have in effect, abandoned
your employment.
We understand that after you initially ended your relationship with [Mr XY], your
relationship has subsequently resumed shortly after you left your former residence in
early August 2020, breaching the direction provided to you not to have dealings with
[Mr XY].
When you decided to cease performing your duties, you were not subject to any
approved leave, and failed to perform your duties without our client’s consent.
Despite our client’s direction to you not to have any dealings of any kind with [Mr XY],
our client understands that you have resumed your relationship with him. Our client is
of course unable to direct you not to have any intimate relationship of any kind with
[Mr XY], but whilst you remain in such relationship, there was and remains a risk of
significant harm that [Mr XY] could cause to GDI Pty Ltd. Given that you had access
to our client’s financial information, and knew all access codes to its bank accounts,
our client was unable to permit you to remain on duty until such time as it has completed
its investigation, including any investigation conducted by any relevant authority
regarding [Mr XY]. We understand that these investigations are ongoing.
[2021] FWC 3193
5
You remain an employee of GDI Pty Ltd. You owe fiduciary duties to our client to co-
operate with our client’s investigation. Our client requests that you provide your written
response to the following questions by return email by no later than 4pm on Tuesday,
27 October 2020:
1. Were you instructed, or otherwise requested, by [Mr XY]to withdraw $5,000.00 from
our client’s bank account on or before 4 August 2020?
2. If so, what did you do?
3. Were you aware that [Mr XY] intended to withdraw $5,000.00 from our client’s bank
account prior to 4 August 2020?
4. Are you aware of what happened to the withdrawn $5,000.00?
5. Have you given [Mr XY], or has [Mr XY] acquired any other monies (in any form)
from any account linked to GDI Pty Ltd? If so, please state:
a. the dates,
b. the amounts,
c. the purpose;
d. the method of transfer;
e. your correspondence or interaction with [Mr XY] on each occasion (including the
need for receiving the money);
f. how these monies have been utilised.
6. Although you have not performed any work for our client since July 2020, are you
willing and able to return to duty, and honestly and faithfully perform your duties
without any pressure, control or interference by [Mr XY]?
Subject to receiving your full and frank explanation of the above questions, our client
will consider lifting your suspension and allowing your return to work. Our client
otherwise reserves all its rights.
We await your response.
Yours faithfully,
ELLEM WARREN LAWYERS”
[7] Following allocation to my chambers, on 10 November 2020 I issued directions for the
parties to file materials in preparation for hearing of the application on 2 February 2021. In
accordance with my directions, the application was listed for preliminary mention and
conference by telephone on 19 November 2020. I advised the parties that at the conference
GDI would be expected to address me on how it had lawfully suspended Ms ZA without pay.
[8] On 18 November 2020, one day prior to the scheduled teleconference, Ellem Warren
Lawyers on behalf of GDI wrote to my chambers by email, as below:
“We refer to the above matter and the upcoming Conference tomorrow.
[2021] FWC 3193
6
At the Conference tomorrow on 19 November 2020, we understand that the Respondent
will be expected to address the Commissioner on as to how it is the Respondent has
lawfully suspended the Applicant without pay.
To assist the Commissioner to address this issue, please see attached correspondence
sent by our firm on behalf of our client to the Applicant on 21 Oct, 9 Nov, 16 Nov and
18 Nov 2020.
Our client has today terminated the Applicant’s employment upon provision of
reasonable notice period of 5 weeks. As you will see in our correspondence to the
Applicant dated 18 November 2020, our client has lifted the suspension and asked the
Applicant to return to work on Friday, 20 November 2020 until the termination date of
24 December 2020 (5 weeks away), and our client will be back paying the applicant’s
remuneration (wages and superannuation) from the date of suspension on 4 September
2020, until tomorrow, 19 November 2020. The back payment will be made to the
Applicant by Friday, 20 November 2020.
We would otherwise address the Commissioner on the circumstances that led to the
suspension without pay at the conference tomorrow.”
[9] Ellem Warren Lawyers’ correspondence on behalf of GDI attached letters sent to Ms
ZA on 9 November 2020 and 16 November 2020, to which I have had regard. The
correspondence also attached a termination letter dated 18 November 2020, as below:
“18 November 2020
…..
Dear [Ms ZA],
We refer to our letter dated 16 November 2020.
Despite our client’s repeated attempts to obtain your response, you have not provided
any response.
Our client considers that it has exhausted all avenues to bring the suspension to an end.
Our client has now decided to terminate your employment with GDI Pty Ltd for the
following reasons:
1. You have ceased to perform any duty since July 2020 until you were suspended from
duty on 4 September 2020;
2. You have failed to co-operate with our client’s investigation by failing to provide any
response to our client’s inquiry;
3. You have failed to provide your response to show cause why you should not be
terminated;
4. You have abandoned your employment with GDI Pty Ltd since July 2020 until you
were suspended from duty; and
5. Given your conduct with [Mr XY]by unlawfully selling the black Porsche that was
owned by Suite Pole for you or [Mr XY]’s benefit without Suite Pole’s knowledge or
consent, GDI of our client has lost trust in your ability to work faithfully and honestly
for GDI Pty Ltd.
[2021] FWC 3193
7
In these circumstances, our client hereby provides reasonable notice period of five (5)
weeks to bring your existing employment contract with GDI at an end. Whilst all of our
client’s rights remain reserved, upon provision of reasonable notice period of five (5)
weeks from the date of this letter (with the effective termination date of 24 December
2020):
1. Our client requires and directs you to return to work from Friday, 20 November 2020
and perform your duties as reasonably directed by our client until the termination date
of 24 December 2020. Our client will of course pay your normal remuneration (wages
and superannuation) until 24 December 2020 in return for your services as an
employee; and
2. Our client will back pay your remuneration (wages and superannuation) from the
date of suspension on 4 September 2020 until tomorrow, 19 November 2020. The back
payment will be made to you by Friday, 20 November 2020.
Given that you have failed to perform your duties and otherwise abandoned your
employment since July 2020, even though you have continued to receive your last
payment until 20 August 2020 (a copy of your last pay slip in August 2020 showing the
period from 1 August to 15 August 2020 is attached), our client will not pay you from
15 August 2020 until you were suspended from duty on 4 September 2020. Our client
considers that during this period, you have acted contrary to your obligations by failing
to perform any work without our client’s approval.
Please note that this decision does not in any way relieve your obligations to compensate
our client for any loss and damage that it has suffered, including the loss and damage
that it has suffered as a consequence of your alleged dealings with the former director
[Mr XY], and the loss and damage that Suite Pole has suffered as a consequence of your
conduct by unlawfully selling and converting the black Porsche into cash for you or Mr
[Mr XY]’s benefit without its knowledge or approval.
Please contact Hikaru Okamoto, Director of GDI at your earliest convenient to arrange
your return to work from Friday, 20 November 2020 until the termination date of 24
December 2020.
Yours faithfully,
ELLEM WARREN LAWYERS”
[10] It is undisputed, therefore, in consideration of the letter of 18 November 2020, that Ms
ZA was notified of her dismissal from GDI on 18 November 2020, taking effect from 24
December 2020. The consequence of such being that the making of her unfair dismissal
application filed 2 October 2020 was premature. Accordingly, I must consider whether the
application was validly made, complying with the conditions for the making of an application
pursuant to s.394(1) of the Act.
[11] The Full Bench of the Commission considered the proper characterisation of
prematurely filed applications in Peter Mihajlovic v Lifeline Macarthur,1 saying at [42]:
[2021] FWC 3193
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“[42] Section 394(1) is, we consider, a procedural provision which identifies who may
make an application, similar to the statutory provision considered in Emanuele v
Australian Securities Commission. It does not go to the jurisdiction of the Commission
to grant an unfair dismissal remedy under Part 3-2 of the Act. An application which was
filed prematurely is properly to be characterised as one which was not made in
accordance with s.394(1) of the Act. We do not consider that the Act evinces a purpose
to render any such application automatically invalid and of no effect. Rather, the
Commission is conferred with a discretionary power to dismiss such an application
under s.587(1)(a), either on its own initiative or upon application. The Commission also
has a discretion under s.586(b) to waive any irregularity in the form or manner in which
an application is made. We consider that Mr Mihajlovic’s premature filing of his
application constituted an irregularity in the manner in which he made his application
capable of waiver under s.586(b).”
[12] Section s.586 of the Act provides:
“Correcting and amending applications and documents etc.
FWA may:
(a) allow a correction or amendment of any application, or other document relating to
a matter before FWA, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to
FWA.”
[13] In the particular circumstances, namely the chronology of events between 4 September
2020 to 18 November 2020 and GDI’s engagement/correspondence seemingly prompted by its
involvement in these Commission proceedings, in adopting the Full Bench in Peter Mihajlovic
v Lifeline Macarthur I consider the discretion in s.586(b) should be exercised in Ms ZA’s
favour.
[14] I waive the irregularity in the manner in which Ms ZA made her application for an unfair
dismissal remedy. There is no doubt that Ms ZA is, and has been since at least 18 November
2020, a person who has been dismissed within the meaning of s.386 of the Act. To not exercise
my discretion may result in significant injustice to Ms ZA where the Commission would
otherwise be able to hear and determine her claim for unfair dismissal remedy.
[15] There are no other threshold jurisdictional issues present other than the size of the
Respondent. Ms ZA confirmed at hearing that GDI employs only seven to eight employees,
and accordingly it is necessary to determine if the Respondent complied with the Small
Business Fair Dismissal Code in dismissing Ms ZA. Ms ZA has met the minimum employment
period, and her annual rate of earnings was less than the high-income threshold.
Participation of GDI
[16] At the teleconference of 19 November 2020, Mr Yuko Araki of Counsel appeared for
GDI, instructed by Mr Jason Remeikis of Ellem Warren Lawyers. Mr Okamoto of GDI was
also in attendance. Ms ZA was in attendance, representing herself. A Japanese interpreter was
also present.
[2021] FWC 3193
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[17] Following the teleconference, I reissued directions for the filing of materials, keeping a
hearing date of 2 February 2021, and setting the below timetable:
(a) Ms ZA’s materials to be filed by 8 December 2020;
(b) GDI’s materials to be filed by 15 January 2021; and
(c) Ms ZA to file any materials in reply by 22 January 2021.
[18] On 8 December 2020, Ms ZA filed materials in compliance with my directions. At
around 8:00am on 11 January 2021, Ms ZA copied my chambers into email correspondence
sent to Ellem Warren Lawyers, that said:
“Dear Mr Remeikis,
According to previous conversation with Mr Araki, I was told I will be paid my
termination payment on 24 December 2020. But I still did not receive this. Could you
make the payment to my account provided previously.
Yours sincerely,
[Ms ZA]”
[19] At around 3:00pm on 11 January 2021, Mr Remeikis filed a Form F54 notifying the
Commission that Ellem Warren Lawyers had ceased to act for GDI. The Form F54 provided
an additional ‘care of’ postal address of GDI, being NAC Australia Consultancy.
[20] GDI did not file any materials in preparation for hearing by 15 January 2021, failing to
comply with my direction. Consequently, having not received any correspondence from GDI,
I caused the below correspondence to be sent to the parties, issuing an Order to attend pursuant
to s.590(2)(a) on Mr Hikaru Okamoto and Mrs Okamoto for hearing, as below:
“Dear parties,
GDI Pty Ltd non-compliance with Commissioner’s directions
Reference is made to the attached directions and notice of listing issued by
Commissioner Hunt in proceedings U2020/13167. GDI Pty Ltd has not filed any
materials in compliance with direction [2], nor sought an extension of time or
adjournment.
The Commissioner has decided that the matter will proceed to hearing as listed on 2
February 2021, irrespective of whether the Respondent, GDI Pty Ltd, files any evidence
or submissions.
Order to attend the Commission
As the Commission has not received any correspondence from Mr or Mrs Okamoto of
the Respondent, the Commissioner ORDERS them to attend the Commission at
10:00am AEST Tuesday, 2 February 2021. The ORDER issued by Commissioner
Hunt is attached.
[2021] FWC 3193
10
The Applicant, [Ms ZA] is also to be in attendance, and can have any other persons
attend with her, such as a support person.
A Japanese interpreter will be arranged.
Service
This correspondence has also been posted to the Respondent at [address]. GDI Pty
Ltd’s former legal representatives have advised the Commission that GDI Pty Ltd’s
postal address for service is c/- NAC Australia Consultancy [address]. As such, a copy
has also been posted to NAC Australia Consultancy.”
[21] The email correspondence above was sent to Mr Okamoto’s known email address. The
Order was also sent by post to the address of GDI as presented on Ms ZA’s pay advices, and
the c/o address provided by Ellem Warren Lawyers in its Form F54.
[22] On 7 May 2021, I obtained a ‘Current & Historical Company Extract’ search of GDI
Pty Ltd from the Australian Securities & Investments Commission (ASIC). The extract
confirms NAC Australia Consultancy as the registered address of GDI, and that GDI’s principal
place of business address is the address presented on Ms ZA’s pay advices. The Order was
therefore sent by post to the two proper addresses of GDI.
Hearing
[23] This matter was heard before me in Brisbane on 2 February 2021. Ms ZA attended the
hearing, together with her support person and witness, Mr XY. Neither Mr Okamoto nor Mrs
Okamoto attended the hearing, failing to comply with my Order issued pursuant to s.590(2)(a)
of the Act. No other representative of GDI attended the hearing.
[24] From the point in time when GDI’s representatives informed the Commission they were
no longer instructed to represent GDI, the Respondent has been unable or unwilling to defend
the application.
[25] I am satisfied that GDI, particularly Mr Okamoto of GDI, was aware of the proceedings,
the direction to file materials, and the Commission’s expectation for Mr and Mrs Okamoto,
and/or an appropriate representative of GDI to attend and participate in the hearing. GDI was
legally represented at the time I issued directions and set down the hearing date and time, and
Mr Okamoto was present at the teleconference before me on 19 November 2020. I am further
satisfied service of the correspondence set out above at [20], together with the Order pursuant
to s.590(2)(a) of the Act was properly effected on the known email and postal addresses of GDI.
[26] Section 600 of the Act allows the Commission to determine a matter before it in the
absence of a person who has been required to attend before it. Section 577 of the Act also
requires the Commission to perform its functions and exercise its powers in a manner which is
fair, just and quick, entitling Ms ZA, and GDI, to be given a “fair go.”
[27] For the reasons above at [25] and as allowed by s.600 of the Act, I decided to conduct
the hearing in the absence of GDI.
Applicant’s evidence
[2021] FWC 3193
11
Ms ZA
[28] Ms ZA gave the below evidence to the Commission:
She started working with GDI on 1 October 2018 as a Director’s Assistant;
She worked part-time, Monday to Friday, 9:00am to 2:30pm;
Her rate of pay was $31.8526 per hour;
On 6 August 2020, Mrs Keiko Okamoto also known as “Coco,” being Ms ZA’s mother
told her that she did not need to work;
She worked until 14 August 2020;
On 14 August 2020 her mother stopped her from working by taking away her laptop;
Since 14 August 2020, she was “confined” by her mother in her home;
Her mother is effectively the controller of the Respondent, since she removed Ms ZA’s
partner, Mr XY from his directorship by ordering it to the shareholder;
On 3 September 2020, she fled her confinement and reported the incident to the police.
Her mother was named a respondent in a domestic violence order in May 2019, and
now the police are currently investigating a breach of the order;
On 6 September 2020, she received an email with a suspension notice dated 4
September 2020, saying that she was suspended. Ms ZA tried to contact her mother
and brother for an explanation, but they did not answer their phones or respond on
social media;
On 22 September 2020, Ms ZA sent a letter to the employer notifying them of the
constructive dismissal;
On 25 September 2020, she sent another letter to the employer and gave them 7 days’
notice, which was at the advice of the Fair Work Ombudsman;
On 13 October 2020, Ms ZA sold her car, which her mother has reported to the police.
On 24 November 2020, the police informed Ms ZA that there are no rational grounds
to the complaint and that the complaint had been finalised;
After making the unfair dismissal claim, on 18 November 2020, the employer
informed Ms ZA of her dismissal to take effect from 24 December 2020. However,
Ms ZA says the reasons given are unfounded and oppressive. The employer cannot
dictate how she lives her life, but her mother is using the employer as a tool to
manipulate Ms ZA as she wishes;
Since the dismissal she has applied for executive assistant roles, manager roles and
accounts officer roles at various job openings; and
Ms ZA is still searching for a job to this date.
Evidence given during the hearing
[29] In oral evidence given at the hearing, Ms ZA stated that she last saw Mr Okamoto in
late August 2020. She last saw her mother on 3 December 2020 at the Southport Court House
where Ms ZA was an applicant to a domestic protection order against her mother.
[30] Ms ZA described various living arrangements at various properties throughout August
and September 2020. She stated that she was living with her mother in Paradise Point until 5
August 2020. Between 6 August 2020 and 14 August 2020, she resided with her mother at a
motel or other property. Between 14 August 2020 and 3 September 2020, she stated that she
was housed at a different property, confined by her mother.
[2021] FWC 3193
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[31] Ms ZA stated that the last time she was paid was 28 August 2020. Following the
conference convened by the Commission, on 20 November 2020 she was paid $6,997.11 to
cover the period 4 September 2020 to 18 November 2020.
[32] She stated that she did not work out the notice period 20 November 2020 to 24
December 2020 as she did not accept that she was terminated on 18 November 2020, and
considered the termination to have taken effect earlier.
[33] Ms ZA stated that she has a black Porsche registered in her name. She purchased the
car in September 2017, paying $15,000 in cash and transferring $40,000 from a Japanese
company, Suite Pole she is a shareholder of. Ms ZA described being a shareholder of Suite
Pole by virtue of the fact that upon turning 19, she was adopted by a man unrelated to her. This
man was known to Ms ZA’s mother. Ms ZA left her mother’s family register in Japan and from
that point on became registered on this man’s family register. I understand that the adoption of
adult persons in Japan has been occurring for centuries.
[34] On being adopted, Ms ZA was issued with an almost 50% shareholding of Suite Pole.
Ms ZA described the relationship between GDI and Suite Pole as GDI consults to Suite Pole.
Ms ZA stated that her mother has no relationship with Suite Pole, but she is aware that her
mother agreed with Ms ZA’s purchase of the vehicle at the time.
[35] Ms ZA stated that while she had her driver’s licence, she didn’t drive the vehicle. She
allowed her brother, mother and Mr XY to drive the vehicle.
[36] Ms ZA stated that following the letter issued to her declaring she had been terminated,
she did not receive the five weeks’ notice as promised, nor has she been paid her accrued annual
leave. She was in receipt of JobSeeker payments since October 2020.
[37] I questioned Ms ZA as to how long the employment would have continued, but for the
dismissal? Ms ZA stated that her mother is not a shareholder of GDI, nor is she a director or
an employee. Before all of the family issues emerged, Ms ZA performed the work required of
her at the house, which contains an office. Mrs Okamoto has now leased other places to live.
[38] Ms ZA stated that her brother could run the business without their mother’s
involvement. She stated that there is no reason for her mother to come to the office as her
mother has several homes.
Mr XY
[39] Mr XY made a witness statement in these proceedings. He is a former director of GDI.
He gave evidence supporting Ms ZA’s statement, to which I have had regard to the extent it is
relevant to her unfair dismissal claim.
[40] Mr XY stated, amongst other things, that Mrs Okamoto used the Respondent entity to
control Ms ZA’s conduct, specifically regarding attempting to sabotage the intimate
relationship between Ms ZA and Mr XY. He gave evidence that Mrs Okamoto is the
‘controlling mind’ of GDI. Further, he stated that Mrs Okamoto stopped paying wages to Ms
ZA, suspended her from duties, and has failed to return her belongings including a phone,
laptop, passport, drivers licence, clothes, shoes, personal debit card and personal credit cards.
[2021] FWC 3193
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Ms Tetsu Watanbe
[41] Ms Watanbe made a witness statement in these proceedings. She is a former director
and accountant of GDI. She gave evidence that GDI is acting on Mrs Okamoto’s instructions.
She stated that her own employment has been suspended without pay for no reason.
Applicant’s submissions
[42] Responding to the five reasons for dismissal set out in the termination letter of 18
November 2020, Ms ZA submitted:
(a) She continued to work until 14 August 2020. Her suspension was communicated
by email on 6 September 2020, but the letter was dated 4 September 2020. On 6
August 2020, Mrs Okamoto, as informal controller of the employer, told her it’s ok
not to work. On 14 August 2020, Mrs Okamoto told her not to work. She understood
the instruction was not to work. This instruction was in place until communicated
of suspension on 6 September 2020.
(b) The investigation relates to Ms ZA’s conduct of selling her own car (registered in
her name). More importantly, she sold her car on 13 October 2020, but the employer
is using this as an excuse for suspension without reason on 6 September 2020.
(c) Ms ZA noted and conveyed to the employer that it had either terminated her or
forcibly led her to resign because the employer was not paying any wages. She was
under the knowledge that she was already terminated because the employer failed
to pay her even though she was told she was not terminated.
(d) As explained above at (a), Ms ZA worked until 14 August 2020 and the employer
released her from work until the time of suspension.
(e) As mentioned above, Ms ZA sold her own car. She had lost trust in the employer
(and her mother) after Mr XY was terminated from holding his office of director.
She was confined until 3 September 2020 when she fled the confinement and then
reported this matter to the police.
[43] Ms ZA submitted the dismissal was unfair because:
(a) GDI first suspended her from her duties without any valid reason and did not pay
her during the suspension;
(b) GDI did not provide any reasons to her at that time;
(c) GDI did not give her an opportunity to respond to any valid reason before
suspension. GDI then ignored her until she made this unfair dismissal claim.
Therefore, she was not given any opportunity to respond to the reasons for the
dismissal;
(d) GDI is making unreasonable excuses trying to control Ms ZA’s private relationship
with her partner, Mr XY;
[2021] FWC 3193
14
(e) GDI did not allow her to seek any assistance or help, or even contact her partner for
support; and
(f) GDI, effectively Mrs Okamoto, tried to use the employer and her authority to try
to remove Ms ZA’s partner from the family.
[44] Regarding remedy, Ms ZA submitted reinstatement would not be appropriate because
of the terribly broken-down relationships in these circumstances.
[45] Ms ZA seeks financial compensation of six months wages; as her annual income was
$37,000 she confirmed she is seeking an award of $18,500.
[46] Ms ZA believes she would have been employed for six more months if not for the
termination, until she earned enough money to go out on her own to find work or return to
Japan.
[47] She submitted she has applied for a number of jobs, and has an employment and
recruitment agency assisting her. However, her poor English skills are creating a barrier to her
promptly finding alternative work. Ms ZA’s materials included evidence of job applications to
which she has applied. Following the hearing, Ms ZA provided to the Commission bank
records for the relevant periods.
Temporary Protection Order
[48] The temporary protection order names Ms Keiko Sato (Mrs Okamoto) as the
Respondent, Mr XY as the aggrieved and Ms ZA as a person protected by the order being a
relative of the aggrieved. The order dated 30 November 2020 states:
(1) The respondent must be of good behaviour towards the aggrieved and not commit
domestic violence against the aggrieved [Mr XY].
(2) The respondent must be of good behaviour towards the named person and must
not commit associated domestic violence against the named person [Ms ZA].
(3) The respondent is prohibited from entering, attempting to enter or approaching to
within 100 meters of the premises where the aggrieved or named person [Mr XY
and Ms ZA] lives, or works.
(4) The respondent is prohibited from following or remaining or approaching to
within 100 metres of the aggrieved or named person [Mr XY and Ms ZA] when
the aggrieved or named person are at any place. Except when appearing
personally before a court or tribunal.
(5) The respondent is prohibited from contacting or attempting to contact or asking
someone else to contact the aggrieved or named person [Mr XY and Ms ZA] by
any means whatsoever including telephone, text or internet. Except when
appearing personally before a court or tribunal.
[49] The order suspends a previous order made by the Magistrates Court on 29 May 2019.
[2021] FWC 3193
15
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[50] Section 388 of the Act provides that a person’s dismissal was consistent with the Small
Business Fair Dismissal Code (the Code) if:
(a) immediately before the time of the dismissal or at the time the person was given
notice of the dismissal (whichever happened first), the person’s employer was a
small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to
the dismissal.
[51] The Code was declared by the Minister for Employment and Workplace Relations on
24 June 2009, and states:
“Small Business Fair Dismissal Code
Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the
employer believes on reasonable grounds that the employee’s conduct is sufficiently
serious to justify immediate dismissal. Serious misconduct includes theft, fraud,
violence and serious breaches of occupational health and safety procedures. For a
dismissal to be deemed fair it is sufficient, though not essential, that an allegation of
theft, fraud or violence be reported to the police. Of course, the employer must have
reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or
she is at risk of being dismissed. The reason must be a valid reason based on the
employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks
being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond
to the warning and give the employee a reasonable chance to rectify the problem, having
regard to the employee’s response. Rectifying the problem might involve the employer
providing additional training and ensuring the employee knows the employer’s job
expectations.
Procedural Matters
[2021] FWC 3193
16
In discussions with an employee in circumstances where dismissal is possible, the
employee can have another person present to assist. However, the other person cannot
be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the
Code if the employee makes a claim for unfair dismissal to Fair Work Australia,
including evidence that a warning has been given (except in cases of summary
dismissal). Evidence may include a completed checklist, copies of written warning(s),
a statement of termination or signed witness statements.”
[52] As mentioned above, I find that the Respondent was a small business employer within
the meaning of s.23 of the Act at the relevant time, having fewer than 15 employees (including
casual employees employed on a regular and systematic basis).
[53] It is therefore necessary to consider whether the Respondent complied with the Code in
relation to the dismissal. If I find that it did comply with the Code, the application will be
dismissed. If I determine that Ms ZA’s dismissal was not in accordance with the Code, it is
necessary for me to consider if the dismissal was harsh, unjust or unreasonable pursuant to
s.387 of the Act.
Determination of whether dismissal was in accordance with the Code
[54] In Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services2 the Full Bench considered
the proper application of the ‘Summary Dismissal’ section of the Code. The Full Bench’s
conclusions were as follows:
“[38] We therefore consider that the “Summary dismissal” section of the Code applies to
dismissals without notice on the ground of serious misconduct as defined in reg.1.07.
[39] To be clear, nothing stated above is to be taken as suggesting that in relation to such
a dismissal it is necessary for the Commission to be satisfied that the serious misconduct
which is the basis for the dismissal actually occurred in order for the dismissal not to be
unfair. As was explained in Pinawin T/A RoseVi.Hair.Face.Body v Domingo:
“[29] … There are two steps in the process of determining whether this aspect
of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a
consideration whether, at the time of dismissal, the employer held a belief that
the employee’s conduct was sufficiently serious to justify immediate dismissal.
Secondly it is necessary to consider whether that belief was based on reasonable
grounds. The second element incorporates the concept that the employer has
carried out a reasonable investigation into the matter. It is not necessary to
determine whether the employer was correct in the belief that it held.”
[40] Whether the employer had “reasonable grounds” for the relevant belief is of course
to be determined objectively.
[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we
consider that the “Summary dismissal” section of the Code operates in the following
way:
[2021] FWC 3193
17
(1) If a small business employer has dismissed an employee without notice - that
is, with immediate effect - on the ground that the employee has committed
serious misconduct that falls within the definition in reg.1.07, then it is necessary
for the Commission to consider whether the dismissal was consistent with the
“Summary dismissal” section of the Code. All other types of dismissals by small
business employers are to be considered under the “Other dismissal” section of
the Code.
(2) In assessing whether the “Summary dismissal” section of the Code was
complied with, it is necessary to determine first whether the employer genuinely
held a belief that the employee’s conduct was sufficiently serious to justify
immediate dismissal, and second whether the employer’s belief was, objectively
speaking, based on reasonable grounds. Whether the employer has carried out a
reasonable investigation into the matter will be relevant to the second element.”
[55] Regulation 1.07 of the Fair Work Regulations 2009 states:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious
misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the
following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the
continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
the health or safety of a person; or
the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the
following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that
is consistent with the employee’s contract of employment.”
Was Ms ZA summarily dismissed?
[56] The termination letter dated 18 November 2020 does not purport to terminate Ms ZA
by way of immediate dismissal. She was informed that she would need to attend for work for
[2021] FWC 3193
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five weeks and was expected to perform work. Her evidence is that she already considered her
employment to have come to an end.
[57] I am not satisfied, given the letter of 18 November 2020, that Ms ZA was summarily
dismissed. Accordingly, it is necessary to determine if the Respondent complied with the Code
relevant to “Other dismissal”.
[58] If, however, I am incorrect about Ms ZA and a summary dismissal, I would not be
satisfied that the employer believed on reasonable grounds that Ms ZA’s conduct is sufficiently
serious to justify immediate dismissal. The Respondent’s grounds for the dismissal are, in my
view, fabricated, capricious and spiteful.
Other dismissal
[59] The suspension notice of 4 September 2020 informed Ms ZA that she was suspended
while the Respondent investigated her suspected involvement with the conduct of Mr XY. She
was told that until she received further notice, she was not to have contact or any dealings of
any kind with Mr XY. Clearly this is a direction of an employer well beyond the authority of
an employer. It required her to not to have any dealings at all with Mr XY.
[60] Ms ZA communicated in writing on two occasions asking why she was not being paid
while she was suspended. The Respondent did not reply.
[61] Only after Ms ZA commenced these proceedings did the Respondent communicate
through its lawyers to Ms ZA, informing her that she had not been dismissed, told her she was
not to associate with Mr XY (this time during business hours), and asked her a number of
questions about her dealings with Mr XY. At no time did the Respondent address its failure to
pay to Mr ZA her wages while she was suspended. In fact, it said that it had suspended her
without pay.
[62] Having regard to the Code, all of the correspondence sent by the Respondent at this time
was a cynical attempt to cover its tracks. It was facing the defence of an unfair dismissal claim,
and while ignoring Ms ZA for a substantial period of time, was now trying to challenge her on
a number of issues, including what it knew to be her relationship with Mr XY.
[63] There was no genuine or real opportunity provided to Ms ZA to return to work to
improve her performance or rectify the problem the Respondent had with her. It wished to exert
control over her relationship with Mr XY. It was failing to pay her while she was suspended
from her employment. No effort at all was made to pay monies to Ms ZA until such time as
the Commission’s inquiry to the Respondent on this issue was made on 10 November 2020.
The Respondent then advised, eight days later that it was going to backpay the monies to Ms
ZA, it had dismissed her, and required her to attend for work for five weeks. It was, in effect,
trying to unscramble the egg.
[64] I am not satisfied that prior to dismissing her, the Respondent gave Ms ZA any
opportunity to improve relevant to any deficiency in performance the Respondent considered
Ms ZA had. Quite simply, it appeared to be a dispute between the parties intertwined with
family matters and attempts to exercise control over Ms ZA’s relationship with Mr XY.
[2021] FWC 3193
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[65] For the above reasons I am not satisfied the Respondent complied with the Code in
dismissing Ms ZA. The jurisdictional issue is dismissed.
Criteria in considering if the dismissal is unfair
[66] Section 387 of the Act details what must be considered in determining if a person has
been unfairly dismissed:
“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.”
Consideration
[67] A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by
having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian
Airlines Ltd:3
“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
[2021] FWC 3193
20
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.”
[68] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining
this matter.4
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)
[69] When considering whether there is a valid reason for termination, the decision of North
J in Selvachandran v Peterson Plastics Pty5 provides guidance as to what the Commission must
consider:
“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 reasons 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, common-sense way to ensure
that the employer and employee are treated fairly.”
[70] However, the Commission will not stand in the shoes of the employer and determine
what the Commission would do if it was in the position of the employer.6
[71] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied
that the conduct occurred and justified termination.7 The question of whether the alleged
conduct took place and what it involved is to be determined by the Commission on the basis of
the evidence in the proceedings before it. The test is not whether the employer believed, on
reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which
resulted in termination.8
[72] Having regard to the termination letter issued to Ms ZA on 18 November 2020, much
ado was made about Ms ZA’s failure to respond to the Respondent. No mention was made of
the Respondent’s failure to respond to Ms ZA’s request to be paid during the period of
suspension.
[73] I am not satisfied that Ms ZA unlawfully sold the black Porsche. Her evidence is that it
is registered in her name. No contrary evidence has been provided to the Commission despite
all opportunities available to the Respondent, including attending the Commission as per the
Commission’s Order.
[74] I consider the reasons for the termination within the termination letter constitute a farce.
Ms ZA’s evidence is that she resided with her mother, the ‘mastermind’ of the Respondent for
the period July 2020 until 4 September 2020. If she did not perform any duties it was because
she was either directed not to do so, or she was not permitted to do so by her mother. It is
ridiculous for the Respondent to suggest that she had abandoned her employment with the very
[2021] FWC 3193
21
person she was living with and who I accept exerted an extraordinary amount of control over
an adult child.
[75] Further, the letter of 21 October 2020 to Ms ZA suggests that she was not permitted to
reside with Mr XY. Typically, employers do not have much say in the choice employees make
as to who shares their home. Some exceptions to this would apply in the case, for example, of
national security.
[76] Where Ms ZA concluded that she had been dismissed on 2 October 2020 (rightly or
wrongly), had commenced these proceedings, and was not in receipt of payment of wages, I
accept that she was within her rights not to respond to the Respondent’s letter of 21 October
2020 where it made a number of demands upon her.
[77] I am not satisfied that there was a valid reason for the dismissal related to Ms ZA’s
capacity or conduct.
s.387(b) - Whether the person was notified of that reason
[78] Notification of a valid reason for termination must be given to an employee protected
from unfair dismissal before the decision is made to terminate their employment,9 and in
explicit10 and plain and clear terms.11
[79] The decision to dismiss Ms ZA was made on or about 18 November 2020, well after Ms
ZA had made this application and after the Commission had inquired about the purported
suspension of employment without payment.
[80] In its correspondence of 21 October 2020, the Respondent inquired if Ms ZA was
prepared to return to work under certain conditions. It did not address if she might be
compensated for the period she had been suspended. The correspondence denied Ms ZA had
been dismissed and did not threaten dismissal.
[81] Ms ZA was notified of the reasons for the dismissal in the termination letter dated 18
November 2020.
s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity
or conduct of the person
[82] Ms ZA concluded (rightly or wrongly) that she had been dismissed on 2 October 2020
when the Respondent refused to respond to her correspondence of 22 and 25 September 2020.
She informed the Respondent she would conclude by 2 October 2020 that she had been
constructively dismissed if she was not paid by 2 October 2020. The Respondent ignored the
correspondence at its peril.
[83] The next correspondence received by Ms ZA was the letter dated 21 October 2020. Ms
ZA was asked to respond to questions put by the Respondent, however she concluded by this
time that she was not an employee, and not under any obligation to respond to the
communication.
s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to the dismissal
[2021] FWC 3193
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[84] Ms ZA was dismissed by way of email. Accordingly, there was no discussion relating
to the dismissal. There was no unreasonable refusal by the Respondent to allow Ms ZA a
support person because no meeting occurred.
s.387(e) - Was there a warning of unsatisfactory work performance before dismissal
[85] The communication between the parties prior to the dismissal does not address
unsatisfactory work performance; rather, it is centred around Ms ZA’s relationship with Mr
XY, together with issues around the vehicle and other inquiries the Respondent was making.
s.387(f) - Whether the respondent’s size impacted on the procedures followed and s.387(g) -
Whether the absence of a dedicated human resource management specialist impacted on the
procedures followed
[86] The Respondent is a family-run business. I accept the size of the Respondent’s business
impacted on the procedures followed. There was an absence of a dedicated human resource
management specialist, which I accept impacted on the procedures followed.
s.387(h) Other matters
[87] Ms ZA had two years’ service at the time of the dismissal. She speaks Japanese and her
English language skills are not strong.
Conclusion
[88] I have determined that there was not a valid reason for the dismissal.
[89] I consider the Respondent’s conduct in dealing with Ms ZA fell well short of that
expected of an employer, even allowing for the family dynamics at play.
[90] I find that Ms ZA’s dismissal was harsh, unjust and unreasonable.
Remedy
[91] Section 390 of the Act reads as follows:
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the
payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal
(see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under
section 394.
[2021] FWC 3193
23
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate;
and
(b) the FWC considers an order for payment of compensation is appropriate
in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[92] Ms ZA is a person protected from unfair dismissal for the Act’s purposes and is a person
who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to
whether she can be reinstated.
[93] Having regard to the relationship between the parties, I am satisfied that reinstatement
of Ms ZA is inappropriate.
Compensation
[94] Section 392 of the Act provides:
“392 Remedy—compensation
Compensation
(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
[2021] FWC 3193
24
(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
(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.”
Authorities
[95] The approach to the calculation of compensation is set out in a decision of a Full Bench
of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival
Supermarket.12 That approach, with some refinement, has subsequently been endorsed and
[2021] FWC 3193
25
adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District
Retirement Villages inc T/A Ottrey;13 Jetstar Airways Pty Ltd v Neeteson-Lemkes14 and
McCulloch v Calvary Health Care (McCulloch).15
The effect of the order on the viability of the respondent
[96] No evidence has been provided by the Respondent that an order of compensation would
adversely impact on the viability of the Respondent.
The length of Ms ZA’s service
[97] Ms ZA had two years’ service with the Respondent.
The remuneration that Ms ZA would have received, or would have been likely to receive, if
she had not been dismissed
[98] While the temporary protection order prevents Mrs Okamoto from having any dealings
with Ms ZA, including in the workplace, there is no evidence before the Commission that the
Respondent requires Mrs Okamoto to have any ongoing dealings with Ms ZA in the workplace.
The Respondent chose not to give evidence before the Commission on this issue, or any issue.
[99] I conclude that there would have been nothing preventing Ms ZA continuing to work
for the Respondent where Mr Okamoto provided all instructions and directions. In coming to
this conclusion, I have had regard to Ms ZA’s evidence relevant to the various residences she
says that her mother owns. There is no evidence to suggest that Mrs Okamoto would need to
attend on the particular workplace, in breach of the temporary protection order.
[100] Accordingly, I conclude that Ms ZA would have continued for at least six months in her
employment, reporting solely to Mr Okamoto. She would have received $18,500 for her part-
time work.
The efforts of Ms ZA (if any) to mitigate the loss suffered because of the dismissal
[101] Ms ZA has made attempts to find alternative work. Having regard to her English
language difficulties, it is not surprising she has been unable to find work. I am satisfied she
has made appropriate attempts to mitigate her loss.
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
[102] Ms ZA has not earned any remuneration from employment or other work.
The amount of any income reasonably likely to be so earned by Ms ZA during the period
between the making of the order for compensation and the actual compensation
[103] This factor is not relevant in the circumstances of this matter.
Other relevant matters
[2021] FWC 3193
26
[104] I do not consider that there are any other relevant matters to consider that I have not
already addressed above
Misconduct reduces amount
[105] Section 392(3) of the Act requires that if the Commission is satisfied that the misconduct
of a person contributed to the employer’s decision to dismiss the person then the Commission
must reduce the amount it would otherwise order by an appropriate amount on account of the
misconduct.
[106] The section requires that consideration be given by the Commission, amongst other
things, as to whether a person’s misconduct contributed to the decision to dismiss an employee
even if the Commission has found that there was no valid reason for the person’s dismissal.
However, if there was no valid reason for the dismissal that may be relevant to the
Commission’s decision as to the appropriate amount by which the amount of compensation
should be reduced.16
[107] I do not find that Ms ZA engaged in any misconduct that would reduce the amount to
be awarded to her.
Shock, distress etc. disregarded
[108] I confirm that any amount ordered does not include a component by way of
compensation for shock, distress or humiliation, or other analogous hurt caused to Ms ZA by
the manner of the dismissal.
Compensation Cap
[109] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the
total amount of remuneration received by the applicant, or to which the applicant was entitled,
for any period of employment with the employer during the 26 weeks immediately before the
dismissal, or the high income threshold immediately prior to the dismissal.
[110] The high income threshold immediately prior to the dismissal was $153,600, and the
amount for 26 weeks was $76,800. The amount of compensation the Commission will order
does not exceed the compensation cap.
Payment by instalments
[111] No submissions have been made by the Respondent to make an order of compensation
by way of instalments. On the information before me I do not consider it appropriate to make
such an order.
Order of compensation
[112] I have determined that the Respondent is to pay to Ms ZA the amount of six months’
pay being an amount of $18,500 gross, subject to taxation. In addition, the Respondent is to
pay superannuation into Ms ZA’s superannuation account in the amount of $1,757.50
representing 9.5% of the amount of compensation ordered. The two payments are to made
within 14 days of this decision.
[2021] FWC 3193
27
[113] An Order of compensation [PR730424] will be issued concurrently with this decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
PR730418
1 [2014] FWCFB 1070.
2 [2016] FWCFB 1638.
3 (1995) 185 CLR 410, [465].
4 Sayer v Melsteel [2011] FWAFB 7498 at [20].
5 Ltd (1995) 62 IR 371 at 373.
6 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
7 Edwards v Justice Giudice [1999] FCA 1836, [7].
8 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
9 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
10 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
11 Ibid.
12 (1998) 88 IR 21.
13 [2013] FWCFB 431.
14 [2014] FWCFB 8683.
15 [2015] FWCFB 2267.
16 Crawford v BHP Coal Pty Ltd [2017] FWC 154, [345] – [346]; Read v Gordon Square Child Care Centre Inc. [2013]
FWCFB 762, [83].
OF THE THE DORS THE SEAL COMMISSION
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/Walton_v_Mermaid_Dry_Cleaners.pdf
