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Fair Work Act 2009
s.394—Unfair dismissal
Michael Dowd
v
Shane Wooffiden
(U2024/1601)
DEPUTY PRESIDENT SLEVIN SYDNEY, 17 APRIL 2024
Application for an unfair dismissal remedy – Compensation awarded.
[1] Mr Michael Dowd has applied under section 394 of the Fair Work Act 2009 (the Act)
for an unfair dismissal remedy. The Respondent Shane Wooffidin T/A Brickology
(Brickology), opposes the application. Mr Wooffidin is a sole trader. He traded as Brickology
and Mr Dowd worked for him as an apprentice brick layer.
[2] The application was heard by way of conference and Mr Dowd represented himself. I
granted Brickology permission to be legally represented as Brickology submitted that it wished
to raise a jurisdictional objection involving some complexity and legal representation would
allow the matter to be dealt with more efficiently.
[3] I find that Mr Dowd was unfairly dismissed. I have awarded Mr Dowd compensation in
the sum of $2,500. My reasons follow.
When can the Commission order a remedy for unfair dismissal?
[4] Section 390 provides that the Commission may order a person’s reinstatement, or the
payment of compensation to a person if satisfied that the person was protected from unfair
dismissal and the person has been unfairly dismissed. Section 382 provides that a person is
protected from unfair dismissal if the person is an employee who has completed a period of
employment of at least the minimum employment period and the person is covered by a modern
award, an enterprise agreement applies to the person, or the person earns less than the high-
income threshold. Section 385 relevantly provides that a person has been unfairly dismissed if
the Commission is satisfied of four things: the person has been dismissed; the dismissal was
harsh, unjust or unreasonable; the dismissal was not consistent with the Small Business Fair
Dismissal Code, and the dismissal was not a case of genuine redundancy.
[5] Brickology initially raised the jurisdictional objection that Mr Dowd had not been
dismissed. It argued that he had been on a period of unpaid leave. During the conference it
became clear that on 22 January 2024 Brickology applied to Training Services NSW to cancel
Mr Dowd’s apprenticeship. Mr Dowd received notice of the application from Training Services
[2024] FWC 1001
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 1001
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on 25 January 2023 with the result being the apprenticeship was cancelled. Once this became
clear the Brickology accepted that there had been a dismissal. I am satisfied that the initiative
taken by Brickology to have the apprenticeship cancelled resulted in Mr Dowd’s employment
as an apprentice being terminated.
[6] There was no contest, that Mr Dowd was otherwise protected from unfair dismissal. The
questions for determination under s.385 in this case are whether the dismissal was harsh, unjust
or unreasonable and if so whether a remedy should be ordered.
Background
[7] In July 2023 Mr Wooffidin told Mr Dowd that he was going to have to close the business
to attend to personal health issues. There was some contest in the evidence about what was said
about the length of the close down. Mr Dowd’s recollection was that the closure was to be for
two months, Mr Wooffidin is certain he said it would be for 3 months. That issue is not material.
It took some time for Mr Wooffidin to arrange treatment and the closure did not commence
until 28 September 2023. The arrangement during the closure was that Mr Dowd would
continue to be employed by the business but that there would be no work for him to do and no
payment made. Mr Wooffidin undertook to assist Mr Dowd in finding work with others during
the closure. Mr Wooffidin did assist in finding work during October and November 2023 and
Mr Dowd performed work during that period.
[8] In December 2023 Mr Dowd contacted Mr Wooffidin about returning to work with
Brickology. He did so by text message. Some of those messages were to Mr Wooffidin, others
included Mr Wooffidin’s father and to Mr Wooffidin’s de facto partner, Ms Milojevic. The text
exchanges were in strident language and in many respects unprofessional. The tenor of the
communications was that Mr Dowd wanted to return to work. The replies were to the effect that
Mr Wooffidin was still unwell and unable to recommence the business. Mr Dowd was unable
to find work in December 2023 or January 2024. The text exchanges continued through January
2024.
[9] On 22 January 2024 Brickology took steps to cancel the apprenticeship. This was done
without Mr Dowd’s knowledge. An application was made to cancel the apprenticeship. I was
provided with the form. The form purports to be an agreement between Mr Dowd and Mr
Wooffidin to cancel the apprenticeship with effect from 28 September 2023. No reason for
cancellation is provided. The form is signed on behalf of Mr Wooffiden by Ms Milojevic and
is dated 22 January 2024.
[10] On 25 January 2024 Training Service NSW wrote to Mr Dowd informing him of the
application to terminate his apprenticeship. The letter said Mr Dowd should contact Training
Services NSW if he did not want his apprenticeship cancelled, and that if he failed to do so
within 21 days of the date of the letter days his apprenticeship would be cancelled. The letter
also informed him that if he had received any financial assistance or scholarship payments
associated with the apprenticeship they would be suspended. It also said that he could continue
his apprenticeship with another employer.
[11] In the days that followed Mr Dowd contacted Mr Wooffidin in a series of text messages.
In those messages Mr Dowd made various threats of legal and other action in response to the
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termination of his employment. The first of those messages Mr Dowd stated that he believed
Mr Wooffidin to be in breach of his contract and he had not resigned and had not been given
notice of termination. In a latter message Mr Dowd complains about the backdating of his
termination and ask that he be paid what he is entitled. In the last text message, sent on 2
February 2024, he asked that he be provided with written confirmation of termination. There
was no response from Mr Wooffidin to any of these text messages.
[12] Mr Dowd did not respond to the letter from Training Services NSW. The consequence
of not doing so as stated in the letter was that the apprenticeship was cancelled.
[13] Mr Wooffidin filed an application his unfair dismissal application on 14 February 2024.
Mr Dowd identified in his form that he was notified of his dismissal when he received the letter
of cancellation on 26 January 2024. He also identified that date as the effective date of
dismissal.
[14] A response to the unfair dismissal application was filed on 23 February 2024. The
response set out the circumstances of the employment and asserted that Mr Dowd had not been
dismissed but was a period of unpaid leave whilst the respondent’s business was closed down.
No mention was made in the response of the actions taken by the Respondent to cancel Mr
Dowd’s apprenticeship. At the conference in these proceedings, after the circumstances of the
application to cancel the apprenticeship were discussed, the Respondent accepted that it was
open to find that the employment had terminated at the initiative of the employer. I find that the
employment terminated at the initiative of the Respondent. That initiative was the application
made by to cancel Mr Dowd’s apprenticeship.
Was the dismissal harsh unjust or unreasonable?
[15] The next question is whether the dismissal harsh, unjust or unreasonable. In considering
that question I must take into account the matters set out in s.387 of the Act.
[16] The Respondent effected Mr Dowd’s dismissal by having his apprenticeship cancelled.
No reason was given for doing so. Mr Dowd was unaware of the steps taken by the Respondent
to cancel his apprenticeship until he was notified by Services Training NSW. He was not
provided with a letter of termination. Consequently, s.387(a) which directs my attention to
whether there was a valid reason for the dismissal related to capacity or conduct is not relevant.
Similarly, s.387(b) which goes to whether the employee was notified of the valid reason related
to capacity or conduct is not relevant. Section 387(c) and (d) going to whether the employee
was given an opportunity to respond to the reason and was permitted to have a support person
are also not relevant. Section 387(e) goes to warning about unsatisfactory performance. There
was no allegation of unsatisfactory performance, so this consideration is not relevant here.
Sections 387 (f) goes to the size of the enterprise. Brickology is a business run by a sole trader,
Mr Wooffidin. I do not consider this a relevant factor in determining whether the dismissal was
unfair.
[17] Section 387(g) goes to whether dedicated human resource management specialists or
expertise would likely impact on the procedures followed in effecting the dismissal. Brickology
did not have dedicated human resource specialists. If it did have, I expect it would not have
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taken the steps it did to cancel the apprenticeship. I do not however find this to be a factor
relevant to the consideration that the dismissal was harsh, unjust or unreasonable.
[18] Section 386(h) requires that I consider other relevant matters. I believe two matters are
relevant. The first is that steps were taken to cancel Mr Dowd’s apprenticeship without his
knowledge and second that those steps included providing a form to Training Services NSW
that purported to record an agreement with Mr Dowd that the apprenticeship be cancelled.
[19] As to the first matter, Mr Dowd had been engaged as an apprentice in the Respondent’s
business. The business closed for a number of months from October 2023 and Mr Dowd was
forced to take leave without pay. He initially expected that leave to be for two months. Although
Mr Wooffidin asserts that the period was to be for three months and that is what Mr Dowd was
told. It is not material, but I prefer Mr Dowd’s evidence that he was told it would be for two
months. This explains his text messages in December seeking advice as to when work would
be available again. In the event the closure continued into a fourth month in January 2024. I
was told that the business has still not re-opened.
[20] I was taken to Mr Dowd’s text messages in December 2023 and January 2024. Those
messages were at times abusive and threatening. The abuse and threats no doubt arose at Mr
Dowd’s frustration at having no work. That is no excuse for the tone of the messages. During
the conference Mr Dowd expressed regret at the language used. The Respondent stated that it
did not act at the time the texts were sent to discipline Mr Dowd for sending the language used
in those messages. The steps taken on 22 January 2024 to cancel the apprenticeship were taken
against the backdrop of the text messages.
[21] The Respondent sought to explain those steps as simply reporting what had occurred
with the apprenticeship. The form being a means of letting the relevant training body know that
the business was closed, and Mr Dowd had not performed paid work since September 2023. I
do not accept this explanation. The email messages associated with the filling in of the form
suggest there was some confusion about what the date of the cancellation date should be, but it
is clear that the form that was being provided was a form that would lead to the cancellation Mr
Dowd’s apprenticeship. I find that the Respondent took steps to cancel the apprenticeship as a
means of dismissing him. It was motivated by the text messages it had received from Mr Dowd
and it took those steps without his knowledge because had it informed him Mr Dowd would
not react well. I consider this to be unreasonable conduct. Regardless of how the Respondent
anticipated Mr Dowd would react, it should have informed him that it was taking steps to cancel
his apprenticeship.
[22] As to the second matter, the form itself purports to represent an agreement between Mr
Dowd and Mr Woofidin that the apprenticeship be cancelled. This is clear both on the face of
the form, which is headed Cancellation of an apprenticeship or traineeship by consent. The
instructions attached to the form also state “Applications for cancellation should be made on
this form and submitted to Training Services NSW as soon as practicable after the parties have
agreed …”. Those instructions go on to make it clear that the cancellation be by consent. An
application can be made by one party if the other is not available to sign the form or does not
consent, but the reason for the refusal to consent must be recorded. The form advises that if one
party does not agree contact should be made to Training Services NSW for assistance.
[2024] FWC 1001
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[23] When the form was completed, there was no agreement from Mr Dowd to cancel his
apprenticeship. He was not given an opportunity to agree or disagree. He was simply not told
that the Respondent was taking steps to cancel the apprenticeship. Instead, the form was
forwarded to Training Services NSW without indication that Mr Dowd had not consented. I
find it was unreasonable for the Respondent to do so.
[24] In those circumstances, I find that the dismissal was unreasonable, and I am satisfied
that Mr Dowd was unfairly dismissed within the meaning of s.385 of the FW Act.
Remedy
[25] Mr Dowd did not seek reinstatement. I find that in any event the relationship has broken
down and reinstatement is inappropriate. Ms Dowd seeks compensation. I am satisfied that it is
appropriate to make an order for payment of compensation in lieu of reinstatement.
[26] Section 392(2) of the Act requires all the circumstances of the case be taken into account
when determining an amount to be paid as compensation in lieu of reinstatement. I find the
following circumstances relevant to an order for compensation. Mr Dowd was dismissed
because his apprenticeship was cancelled at the initiative of the respondent. He was not
consulted about and did not consent to the cancellation of his apprenticeship.
[27] Section 392(2) also requires me to consider the matters listed in s.392 (a) to (g). In
relation to paragraph (a), it is clear that an order for compensation will have an impact on the
financial situation of the business given that Mr Wooffidin is a sole trader and has not been able
to work in the business due to ill health. I was told that Mr Wooffidin intends to recommence
the business when able. For the purposes of paragraph (b) I note that Mr Dowd had only worked
for Mr Wooffidin since July 2022 and that he had not performed paid work since September
2023. In relation to paragraph (c), Mr Dowd wished to complete his apprenticeship in the
business and had 18 months to go to do so. There is some uncertainty associated about how
long he may have remained with the business, given the health of Mr Wooffidin, its impact on
the business and the apparent falling out between the two over the text messages sent by Mr
Dowd in December 2023 and January 2024. However, Mr Dowd was paid $1,328 per week and
had he finished his apprenticeship with the respondent he would have earned $103,591.80. As
to mitigation mentioned in 392(2)(d), Mr Dowd has found alternative employment as a
labourer. He commenced that work in March 2024. And has received some earnings in that
period which are relevant to paragraphs (e) and (f).
[28] Paragraph 392(2)(h) requires me to consider any other matter considered relevant. In
this case it is relevant that at the time of the dismissal Mr Dowd was not earning wages. He was
witing for Mr Wooffidin to re-open the business. His dismissal however occurred without
warning. He was not paid any termination pay and he was not given notice. I consider these
factors to be relevant in assessing compensation.
[29] The well-established approach1 to the assessment of the quantum of compensation under
s.392 of the Act is to apply the “Sprigg formula” derived from the Australian Industrial
Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket.2
It involves estimating the remuneration the employee would have received but for the dismissal,
[2024] FWC 1001
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deducting monies earned since termination, discounting that amount for contingencies and
assessing the tax implications to ensure no adverse impact on the employee.
[30] The unusual circumstances of this case, which involve dismissal from a business that
was in a hiatus at a time when no earnings were being made, do not lend themselves easily to
the usual approach. Mr Dowd was not receiving an income when he was dismissed. There was
some uncertainty as to when he would recommence. The relationship with Mr Wooffidin had
clearly broken down. These factors suggest that Mr Dowd was unlikely to be willing nor be
able to afford to continue to wait for work to recommence. This makes it difficult to make any
estimate in relation to earnings lost as a consequence of the dismissal. I find that there has been
none. Mr Dowd has suffered some loss though in that he was not paid annual leave accrued and
notice when dismissed. Those entitlements amount to around 2 weeks’ pay. I will order an
amount of compensation in lieu of reinstatement that equates to around two weeks’ pay.
[31] I was encouraged by the Respondent to take into account under s.292(3) Mr Dowd’s
misconduct in sending inappropriate text messages in December 2023 and January 2024. I do
not propose to do so. There is no reason to reduce the amount of compensation on account of
that conduct.
Conclusion
[32] For the reasons outlined I consider that Mr Dowd was unfairly dismissed and will order
that the Respondent pay Mr Dowd an amount of $2,500 compensation in lieu of reinstatement.
[33] An order requiring payment in this amount will issue separately.
DEPUTY PRESIDENT
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