1
Fair Work Act 2009
s.394—Unfair dismissal
Christopher Taylor
v
Quick Plumbing Group Pty Ltd
(U2022/12208)
DEPUTY PRESIDENT EASTON SYDNEY, 16 JUNE 2023
Application for an unfair dismissal remedy – resignation with notice – employment ended
early during the notice period – termination at the initiative of the employer – the applicant
was unfairly dismissed – remedy – compensation for lost wages for the balance of the notice
period reduced by scheduled leave – orders made.
[1] to December 2022. On 8 December 2022 Mr Taylor gave written notice to resign his
employment, indicating that his employment would end on 6 January 2023. The written notice
included an assurance that "I would like to do anything I can to help with the transition. If I can
be of assistance during this time, please let me know."
[2] On 13 December 2022, being the third working day into the notice period, a meeting
took place between Mr Taylor, Mr Ramsay Hajaj (Construction Manager) and Ms Kerrie
McDermott (Finance Manager).
[3] The employment relationship ended at the meeting on 13 December 2022.
[4] Mr Taylor argued that he was dismissed at the meeting. Quick Plumbing Group argued
that Mr Taylor was not dismissed but that he agreed to immediately end his employment early.
Did the Respondent dismiss Mr Taylor?
[5] Mr Taylor’s account of the conversation on 13 December 2022 included the following:
(a) he was called into a meeting with Mr Hajaj and Ms McDermott;
(b) a number of alleged workplace conduct issues were raised against him without prior
notice;
[2023] FWC 1423
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 1423
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(c) Mr Hajaj said:
“I’ve called you into this meeting to discuss your conduct during your notice period and
frankly for a long period of time. Probably the last six months. It’s clear that you do not
want to be here and that you’ve been looking for other work. I think we should just finish
your employment today”;
(d) Mr Taylor responded:
“Well I have been looking for other work because I’ve got another job. That’s why I
resigned last week, but I’m fine. I’m doing my job like I always have. I told you on
Friday that I was keen to help handover my projects”;
(e) Mr Hajaj replied:
“You are not. You have been outside on your phone making extended personal calls this
morning, you are not working your required hours, you are not producing enough work.
You never really have. You are in deliberate breech of your contract”;
(f) a discussion then ensued about long phone calls during work time (business and
personal). Mr Hajaj then said:
“You were on the phone for one hour this morning, and I was told you were making
personal calls over the last couple of days also. Show me your phone to prove it was a
work call and I’ll be proved wrong”;
(g) Mr Taylor declined to show Mr Hajaj his phone, saying “no, I am okay thanks";
(h) after further discussion about telephone calls Mr Hajaj then said:
“You are in your notice period therefore a warning is not required. You are in deliberate
breech of your contract, Chris … You will finish work today and be paid up to and
including today”; and
(i) further administrative arrangements were made to facilitate the end of his employment.
[6] Quick Plumbing Group said it had concerns about Mr Taylor’s work performance for
some time which, to put their case in the best possible light, crystallised after he gave his notice
to resign. Quick Plumbing Group said that after Mr Taylor had given notice to resign he then
spent unacceptably long periods of time on personal calls. It seems that both Ms McDermott
and Mr Mario Martinovic (Maintenance Manager) noticed Mr Taylor making long personal
calls and both managers, apparently without any prompting, took it upon themselves to raise a
concern with Mr Hajaj. Neither Ms McDermott nor Mr Martinovic worked closely with Mr
Taylor on a day-to-day basis.
[2023] FWC 1423
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[7] Mr Hajaj said that when he called Mr Taylor into a meeting on 13 December 2022 and
when he raised the company’s preference that Mr Taylor finish his employment early, Mr
Taylor very quickly agreed. Mr Hajaj said that the rest of the conversation on 13 December
2022 was only about the money - meaning how much of the balance of the notice period Mr
Taylor would be paid.
[8] Mr Hajaj’s and Ms McDermott’s account of the meeting both record Mr Hajaj raising
allegations of misconduct with Mr Taylor - specifically "most recent attitude, lack of work
being produced, extended time spent away on … numerous 30-40 minute personal phone calls
during work time". Mr Taylor was told that Quick Plumbing Group regarded this conduct as "a
deliberate breach of his employment contract", and also that a warning was not warranted
"given it was during an employee notice period and his conduct was a deliberate breach".
[9] After the meeting on 13 December 2022 Ms McDermott sent Mr Taylor a letter that
included the following:
“On 13/12/22 you met with Ramsay Hajaj and Myself. In that meeting it was agreed by
you that your employment would end at the end of this pay week 13/12/2022 and you
would paid to the end of the pay week 13/12/2022. Your employment will end
immediately. You will also be paid your accrued entitlements, up to and including your
last day of employment."
[10] Mr Taylor did not reply to this letter.
[11] The next day Ms McDermott sent a follow up email:
"I would just like to follow up to confirm that you have received the letter sent yesterday.
In addition, prior to the payment of your ETP, [Quick Plumbing Group] will require the
return of the Surface Dock you currently have in your possession and for you to confirm
the agreement."
[12] Ms McDermott's email drew the following reply from Mr Taylor:
"I don't agree to those terms and I'm currently seeking legal advice on an application for
unfair dismissal.
The dock is in the post. The tracking number is …”
[13] A few days later on 19 December 2022 Ms McDermott followed up Mr Taylor again,
spelling out in plain terms Mr Taylor's options;
"Please take tomorrow to consider your options and advise in writing, of your agreement
to the terms which you verbally agreed to on the 13.12.2022 in my presence and outlined
in the termination letter.
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Should we not receive a response from you by 3pm tomorrow, we will process your
termination as being for misconduct and make the required adjustments to the
employment termination payout."
[14] Mr Taylor does not appear to have responded to this email. As foreshadowed, on 20
December 2022 Quick Plumbing Group sent Mr Taylor a letter in the following terms:
"Termination of your employment
I am writing to you about the termination of your employment with Quick Plumbing
Group Pty Ltd.
I refer to our meeting on 13/12/2022 which was attended by you and Ramsey Hajaj and
Kerrie McDermott. During the meeting we discussed lack of work being produced,
extended time spent away on numerous personal phone calls and conduct during your
resignation notice period.
Withstanding the fact that on the 13.12.2022 you agreed verbally to the terms mentioned
in the termination later. Your termination will now be classified as termination for
serious misconduct:
• deliberate breach of employment contract clauses 3 & 7, specifically:
1. arrive at work approx. 8am and depart before 4pm. During this time: have coffee
breaks, numerous extended personal phone calls away from your desk, leave the
office for 60-105mins around lunch time.
2. complete minimal work during the minimal hours that you choose to work EG time
take to compile the FFE schedule for Griffith hospital, this task could be done in a
few hours, you worked on it for days, and failed to complete it correctly.
• This was deliberate conduct in the course of your employment, and in the
circumstances your continued employment during a notice period would be
unreasonable.
We consider that your actions constitute serious misconduct warranting summary
dismissal.
We have reviewed the activity logs in your CPUs user profile, and they illustrate your
failure to comply with clause 3 of your employment contract, and an adjustment for
previously paid but unworked wages will be deducted from your Termination pay. You
will also be paid your balance of accrued entitlements and any outstanding pay up to
and including your last day of employment and superannuation.
You may wish to seek information about minimum terms and conditions of employment
from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or
visit their website at www.fairwork.gov.au.
http://www.fairwork.gov.au/
[2023] FWC 1423
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Some termination payments may give rise to waiting periods for any applicable
Centrelink payments. If you need to lodge a claim for payment you should contact
Centrelink immediately to find out if there is a waiting period.
Yours sincerely,
Ramsey Hajaj
Construction Manager”
[15] On Mr Taylor’s version of the conversation on 13 December 2022, he had no option but
to agree to his employment ending straight away. On balance I accept this to be the case.
[16] It is clear that Mr Hajaj decided by day three of the notice period that Mr Taylor’s
employment had to finish earlier than the end of the notice period. By the words used by Mr
Hajaj, if Mr Taylor did not agree at that moment to his employment ending by "mutual
agreement" he would have been dismissed.
[17] As such, I am satisfied that Mr Taylor's employment was terminated “on the employer's
initiative” (per s.386(1)(a)) on that day.
[18] I am fortified in this view by the terms of Ms McDermott's email of 19 December 2022,
specifically the express ultimatum given by Quick Plumbing Group that if Mr Taylor did not
respond and "advise in writing of [his] agreement" then Quick Plumbing Group "will process
[his] termination as being for misconduct".
[19] In my view this ultimatum issued after the meeting was no different to the "choice"
offered to Mr Taylor in the meeting on 13 December 2022.
[20] As such I find that Mr Taylor was dismissed on 13 December 2022.
Did the Respondent dismiss Mr Taylor unfairly?
[21] Section 387 of the FW Act requires me to take into account the following matters in
determining whether Mr Taylor’s dismissal was harsh, unjust or unreasonable:
(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
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(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.
[22] I am required to consider each of these criteria, to the extent they are relevant to the
factual circumstances before me. I set out my consideration of each below.
Fairness consideration: Valid Reason (s.387(a))
[23] To be a valid reason, the reason for the dismissal should be sound, defensible or well
founded and should not be capricious, fanciful, spiteful or prejudiced. However, in assessing
the validity of the reason(s) for dismissal the Commission will not stand in the shoes of the
employer and determine what the Commission would do in the same position.
[24] The test is whether, on the evidence before the Commission, there was a valid reason
for dismissal connected with the employee’s capacity or conduct.
[25] The reasons for dismissal relied on by Quick Plumbing Group were recorded in its letter
dated 20 December 2022 (see paragraph [14] above), viz:
“… Your termination will now be classified as termination for serious misconduct:
• deliberate breach of employment contract clauses 3 & 7, specifically:
1. arrive at work approx. 8am and depart before 4pm. During this time: have coffee
breaks, numerous extended personal phone calls away from your desk, leave the office
for 60-105mins around lunch time.
2. complete minimal work during the minimal hours that you choose to work EG
time take to compile the FFE schedule for Griffith hospital, this task could be done in a
few hours, you worked on it for days, and failed to complete it correctly.
• This was deliberate conduct in the course of your employment, and in the
circumstances your continued employment during a notice period would be
unreasonable.”
[26] None of the stated matters were serious misconduct. Each of the matters are concerns
that Quick Plumbing Group could have raised with Mr Taylor and, if they have a legitimate
connection to Mr Taylor’s capacity or conduct, been the subject of a formal warning and could
have been valid reasons for dismissal at a later time.
[27] I find that there was no valid reason for dismissal on 13 December 2022.
Fairness consideration: Notification of valid reason (s.387(b))
[2023] FWC 1423
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[28] Because I am not satisfied that there was a valid reason related to dismissal, this factor
is not relevant to the present circumstances (per Read v Cordon Square Child Care Centre
[2013] FWCFB 762 at [46]-[49]).
Fairness consideration: Opportunity to Respond (s.387(c))
[29] This factor is similarly not strictly relevant to the present circumstances because I have
not found that there was a valid reason related to dismissal.
[30] I do note that Mr Taylor was given a proper opportunity to respond to the allegation that
he had spent a long time on a personal call during work time on the morning of 13 December
2022.
Fairness consideration: Support Person (s.387(d))
[31] This factor is not a relevant consideration in this matter.
Fairness consideration: Warnings about unsatisfactory performance (s.387(e))
[32] Mr Taylor was not warned at all about his allegedly unsatisfactory performance.
Fairness consideration: size of the Respondent’s enterprise (s.387(f))
[33] Neither party submitted that the size of Quick Plumbing Group’s enterprise was likely
to impact on the procedures followed in effecting the dismissal, and I find that the size of Quick
Plumbing Group’s enterprise had no such impact.
Fairness consideration: absence of dedicated HR expertise (s.387(g))
[34] In this matter the absence of dedicated human resource management specialists or
expertise in Quick Plumbing Group’s enterprise did impact on the procedures followed by
Quick Plumbing Group in dismissing Mr Taylor.
[35] Quick Plumbing Group operated under the erroneous assumption that it was not required
to issue warnings during a notice period. Had Quick Plumbing Group obtained proper advice it
would have approached things significantly better.
Fairness consideration: other matters (s.387(h))
[36] Section 387(h) requires the Commission to take into account any other matters that the
Commission considers relevant.
[37] Mr Taylor commenced employment in April 2021 and was promoted to the position of
Plumbing Project Manager in October 2021. Mr Taylor’s salary was over $140,000. As such
there should have been some flexibility about working hours and the like and flexibility in
taking personal calls in business hours and taking business calls outside of business hours.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or
unreasonable?
[38] I have made findings in relation to each matter specified in section 387 as relevant. I
must consider and give due weight to each as a fundamental element in determining whether
the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
[39] I find that the dismissal of Mr Taylor was harsh, unjust and unreasonable.
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb762.htm
[2023] FWC 1423
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[40] Mr Taylor was called in to a meeting and dismissed without any prior discussion about
the issues relied on by Quick Plumbing Group. If Mr Taylor’s timekeeping and phone calls
were so significant that his employment was at risk, then Quick Plumbing Group should have
made it clear to Mr Taylor in no uncertain terms what its expectations were before dismissing
him.
[41] It is likely that once Mr Taylor gave notice of his resignation that Quick Plumbing Group
decided to accelerate Mr Taylor’s exit from the business. It also seems likely that Mr Taylor’s
minor annoyances (such as eating breakfast at his desk in work time) became major shortfalls
once he gave notice of resignation.
[42] As a result, the dismissal of Mr Taylor without any prior warning was unfair.
Remedy
[43] Being satisfied that Mr Taylor made an application for an order granting a remedy under
section 394, was a person protected from unfair dismissal and was unfairly dismissed within
the meaning of section 385 of the FW Act, I may order Mr Taylor’s reinstatement, or the
payment of compensation to Mr Taylor, subject to the FW Act.
[44] Mr Taylor did not seek reinstatement and reinstatement would not be appropriate given
that Mr Taylor had given notice to resign prior to his dismissal.
[45] Having found that reinstatement is inappropriate, it does not automatically follow that a
payment for compensation is appropriate. The question whether to order a remedy remains a
discretionary one (per Nguyen v Vietnamese Community in Australia t/a Vietnamese
Community Ethnic School South Australia Chapter [2014] FWCFB 7198 at [9]).
[46] Where an applicant has suffered financial loss as a result of the dismissal, this may be a
relevant consideration in the exercise of this discretion (per Vennix v Mayfield Childcare Ltd
[2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171 at [5]-[7]).
[47] Despite giving four weeks’ notice Mr Taylor would have worked 8 or perhaps 9 days of
the notice period because he was due to take approved annual leave (8 days) and three public
holidays fell in the notice period.
[48] Mr Taylor was paid his untaken leave upon termination and so was paid the 8 days of
annual leave he would otherwise have taken if he had not been dismissed.
[49] Mr Taylor was due to commence annual leave on Wednesday 21 December 2022,
although there a contest in the evidence about whether Mr Taylor would have taken 22
December 2022 as annual leave because, he says, he planned to attend the staff Christmas lunch.
Quick Plumbing Group’s staff worked on the morning of 22 December 2022 then attended the
lunch and were paid for the whole day.
[50] I am satisfied that if Mr Taylor had not been dismissed on Tuesday 13 December 2022
he would have worked on December 14, 15, 16, 19 and 20 and the morning of December 22.
Importantly he would have received 6 full days’ pay for that work.
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb7198.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb550.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb4171.htm
[2023] FWC 1423
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[51] Mr Taylor suffered a loss arising from his unfair dismissal and I am satisfied that it is
appropriate to make an order for compensation.
[52] Considering the factors listed in s.392(2), I am satisfied that if Mr Taylor had not been
unfairly dismissed he would have worked and received payment for 6 full days. Mr Taylor’s
weekly wage was $2,723.80.
[53] I have made an order under s.392(2) of the Fair Work Act 2009 (PR763146) that Quick
Plumbing Group pay to Mr Taylor 6 days compensation plus superannuation.
DEPUTY PRESIDENT
Appearances:
Mr C Taylor, Applicant
Mr R Hajaj and Mr T Quick for the Respondent
Hearing details:
2023.
Sydney (By Video using Microsoft Teams)
May 15.
Printed by authority of the Commonwealth Government Printer
PR763145
OF THE THE SEAL WORK COMMISSION
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr763146.pdf
