| [2017] FWC 1966 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Colby Somogyi
v
LED Technologies Pty Ltd
(U2016/11018)
COMMISSIONER GREGORY |
MELBOURNE, 6 APRIL 2017 |
Application for relief from unfair dismissal.
[1] Mr Colby Somogyi worked with LED Technologies Pty Ltd (“LED Technologies”) for just over 13 months from 13 July 2015, when he was first employed, until 24 August last year when he was summarily dismissed on grounds of serious misconduct as a consequence of a statement he posted on his personal Facebook page. He had been employed as a merchandiser/company representative and was regularly on the road visiting customers. He subsequently filed an unfair dismissal application following his termination. The matter was previously dealt with in conference but was not able to be resolved.
[2] The application was heard in Melbourne on 20 January 2017. Mr Somogyi appeared on his own behalf. Mr Tony Ottobre, the Managing Director of LED Technologies, appeared on its behalf.
[3] Section 385 of the Fair Work Act 2009 (Cth) (“the Act”) provides that a person has been unfairly dismissed if the Commission is satisfied that “the dismissal was harsh, unjust or unreasonable.” Section 387 continues to require that the Commission must take into account the following considerations in determining whether a dismissal was harsh, unjust or unreasonable. It states:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.” 1
[4] The Commission is therefore now required to determine whether Mr Somogyi’s dismissal was harsh, unjust or unreasonable taking into account the various matters in s.387.
[5] Mr Somogyi filed three documents in support of his application. They were variously headed “Outline of argument,” “Responses to Tony Ottobre,” and “Unfairly dismissal statement.” He indicated under oath that the content of these documents comprised the submissions and evidence he sought to rely upon in support of his application.
[6] Mr Somogyi said he was in Berwick on the afternoon of 24 August last year when he received a phone call from Mr Ottobre. It was unusual to be contacted directly by Mr Ottobre as he had recently indicated he was taking a step back from his role as the Managing Director of the business.
[7] Mr Somogyi said it was a relatively brief call lasting around a minute, but in essence he was told to “return all company property to the office,” 2 and when he asked why he was told by Mr Ottobre “it doesn’t matter, you’re fired,”3 and the call was ended.
[8] Mr Somogyi said he was not provided with any explanation in that phone call about why he was being dismissed, and only became aware of the reason when the Form F3 – Employer Response Form was filed by LED Technologies in response to his unfair dismissal application. That document states at 3.1 under the heading, “What were the reasons for the dismissal?”:
“Reasons for Dismissal – Using social media during working hours. The Social Media Post on August 24th was at 2:15pm, attached is a copy of the post.
This is against company policy and after reviewing his performance and having already received 5 written warnings his employment with LED was terminated.” 4
[9] A screenshot of the Facebook post was also attached to the Employer Response document. It indicates it was posted by Colby Somogyi and states, “I don’t have time for people’s arrogance. And your not always right! your position is useless, you don’t do anything all day how much of the bosses cock did you suck to get were you are?” 5
[10] Mr Somogyi also made reference to the policy documents provided by LED Technologies in its response to his application. He acknowledges he did receive the confidentiality agreement which contains his signature in acknowledgement of having read and understood the document. It indicates it was signed on 14 July 2015. However, he denies having ever been provided with the other policy documents referred to by LED Technologies. The extracts of what purports to be a policy manual also contain an employee acknowledgement, however, in this case the acknowledgement has not been signed and dated.
[11] It is noted that the document contains a heading “Social Media” and states:
“Social Media
[12] Mr Somogyi also states he has no knowledge of having received any of the warnings LED Technologies makes reference to in its submissions. He also notes he received a pay increase 2 days after the date the last warning was apparently given to him.
[13] LED Technologies submits, in response, that “Somogyi was summarily dismissed for posting the following quotation on Facebook.” 7 It then sets out the Facebook post referred to previously.
[14] It submits the post was seen by several of its employees who then told Mr Ottobre’s personal assistant, Ms Maree Lowen, about its content. She then sent a screenshot of the post to Mr Ottobre’s mobile phone and, after viewing the screenshot he decided Mr Somogyi should be dismissed on grounds of serious misconduct, with effect immediately.
[15] Mr Ottobre acknowledged in his oral evidence that he did not provide Mr Somogyi with any real opportunity to provide an explanation for his behaviour in that conversation, and he was not particularly interested in discussing the matter further, in any case, because he believed Mr Somogyi, “was lying.” 8
[16] It also points to the fact that the post was taken down shortly afterwards and replaced with other wording. It submits this was an acknowledgement by Mr Somogyi that he had done the wrong thing in the first place by posting the original statement. The wording of the second post was as follows:
“Let’s Reword my last status so there is no miss-understanding...
My Poor mum;
Her arrogant boss is bullying her and miss treating her everyday at work he is trying to push her out of the company, because there is a new girl and she is sucking/fucking the boss. this new girl has got into my mums position by being a whore. She comes home most nights upset and a few night she is crying her eyes out.
She needs to speak to someone or fair work i think but she won’t listen to me.
I am sick of pathetic people’s arrogance and all the bullshit that people do to others for no reason.” 9
[17] An explanation about the nature of conduct or behaviour that might be encompassed within the phrase “harsh, unjust or unreasonable” is contained in the decision in Byrne & Frew v Australian Airlines Ltd 10 when McHugh and Gummow JJ stated as follows:
“…It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 11
[18] The decision of the Full Bench of Fair Work Australia in L. Sayer v Melsteel Pty Ltd 12 also provides guidance about the Commission’s role in regard to each of the considerations in s.387. It concluded:
“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 13
[19] I now turn to deal with the application having regard to these authorities and each of the considerations in s.387 that the Commission must take account of.
[20] The existence or not of a “valid reason” is invariably an important issue in any unfair dismissal application, and is often determinative. For example, in the often cited decision of Parmalat Food Products Pty Ltd v Kasian Wililo 14 a Full Bench of the Commission made the following statement about the importance of “valid reason”:
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination.” 15
[21] It is also clear that the reason must be objectively valid. It is not sufficient that the employer believes it had a valid reason for termination. This was made clear in the Full Bench decision handed down in Rode v Burwood Mitsubishi 16 at paragraph 19 where it concluded:
“...the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 17
[22] The decision in Selvachandran v Peterson Plastics Pty Ltd 18 also makes clear that the reason should also be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”19
[23] LED Technologies submits it had a valid reason to dismiss Mr Somogyi given the offensive nature of the Facebook post, and the fact it was posted while he was at work. In its submission it was directed at the business, or one of its employees, and this was clearly inappropriate. It submits, “We value our employees and feel they should be able to work in a safe environment far removed from harassment, victimisation or any kind of sexual abuse. Mr Somogyi has overstepped those boundaries when he posted on Facebook those derogatory comments which would seem completely related to the staff at LED on the morning of 24 August.” 20 It believes the post was concerning for its staff. It also points to the fact it was taken down shortly after it was posted and replaced with something less offensive. It submits this supports the view that Mr Somogyi realised the original post was offensive and should be removed.
[24] Mr Somogyi submits in response that the post had nothing to do with LED Technologies, or anyone associated with the business. He submits instead that it involved his mother, and the fact that at the time he was concerned her employment was being threatened by another employee, who had been employed more recently and appeared to be trying to take over his mother’s role.
[25] He also submits he replaced the post shortly after it was first put up because it “was unclear,” 21 and he wanted its meaning to be clarified to better try and assist his mother. He indicated in cross-examination it was taken down and reworded approximately 5 minutes after first being posted.
[26] He also submits the original post was posted on his Facebook page while he was on a break at work, and was only discovered by LED Technologies because other staff at the business were viewing his Facebook page, and had passed on the post to the Managing Director’s Executive Assistant.
[27] Mr Somogyi also denied any suggestion he had been previously informed about a policy at LED Technologies concerning the use of, or access to, social media while at work, and the only policy he had been made aware of was one to do with confidentiality. He submits in response that he has not breached any policies that the business had in place that he had been made aware of.
[28] It is difficult to conclude on the basis of the limited submissions and evidence before the Commission that LED Technologies had a valid reason to dismiss Mr Somogyi. His Facebook post was undoubtedly crude and immature. It used references that are offensive and vulgar despite the fact that, regrettably, they are increasingly part of the common vernacular. The post was also made to his Facebook page while he was at work. However, his working hours were flexible in his role as a travelling representative and it may well have been posted during a break he was entitled to take. There is no clear evidence to suggest whether this was the case or not. There is also no evidence that confirms Mr Somogyi was provided with the social media policy LED Technologies refers to.
[29] In addition, leaving aside the offensive nature of the post, there is nothing in the submissions and evidence of LED Technologies that provides confirmation or even suggests the post was directed at the business or any of its employees. Mr Somogyi’s submissions and evidence indicate instead it was posted in an attempt to provide support for his mother at her workplace, because of his concerns another employee was trying to have her removed from her position. While it is difficult to see how such a crude and offensive post could ever assist in achieving this objective this explanation about why it was posted appears to be the only plausible explanation that exists, based on the submissions and evidence now before the Commission. While its content was undoubtedly crude and immature the fact it was not directed at LED Technologies, or any of its employees, makes it harder to understand why it can be said to have provided a valid reason for Mr Somogyi’s dismissal.
[30] The concerns about the robust language in the post are also tempered by the fact that similar language appears to have been used in the workplace at various times. In all of these circumstances it is difficult to conclude that LED Technologies had a valid reason to dismiss Mr Somogyi, or if a valid reason did exist it had not been properly established given the lack of any investigation before the decision to terminate his employment was made.
[31] Mr Somogyi submits he was contacted by phone by Mr Ottobre on the afternoon of 24 August last year. He was in Berwick at the time visiting customers. He stated that in a brief telephone call lasting less than a minute Mr Ottobre told him to return all company property to the office. When he asked for an explanation he was simply told he had been “fired” and the call was ended. Mr Somogyi denied in cross-examination that Mr Ottobre told him the decision had been taken because of the content of the Facebook post, and said he only became aware of the reason for his termination when the Form F3 Employer’s Response document was filed in the Commission after he lodged his unfair dismissal application.
[32] Mr Ottobre stated in response to a question from the Commission that he did tell Mr Somogyi in the phone call that he was “fired” because of the Facebook post. He said he also told him it was disgusting to be writing such things. However, he also acknowledged that he didn’t give him “much of a chance to respond, but he was mumbling about his mother, and it's not related to work, but I wasn't paying any attention to that,” 22 in what was only a short one minute phone conversation. He also said it was “basically one-way traffic,”23 and he was not interested in discussing the matter any further at the time because he believed Mr Somogyi “was lying.”24
[33] The circumstances referred to above and the evidence of Mr Ottobre indicate that Mr Somogyi was given little opportunity to provide any explanation or response to the reasons why his employment was being terminated.
[34] There was clearly no refusal by LED Technologies to allow Mr Somogyi to have a support person present in any discussions relating to his dismissal, however, as indicated already there was no real discussion about why he was dismissed.
[35] This consideration is not relevant as the evidence makes clear the reason for the decision to dismiss Mr Somogyi was because of the Facebook post, rather than anything to do with his work performance.
[36] LED Technologies is a relatively small business with less than 20 employees. It submits its relatively small size had nothing to do with the circumstances involved in the dismissal, however, the fact it lacks specialised expertise suggests this impacted on the processes followed in carrying out the termination.
[37] LED Technologies does not employ a dedicated human resource specialist, and does not have dedicated expertise in this area. This undoubtedly impacted on the processes involved in carrying out the dismissal.
[38] The parties did not direct the Commission’s attention to anything that should be considered in this context.
[39] I have already indicated that Mr Somogyi’s original Facebook post was crude and immature. If it was intended as a gesture of support for his mother, as it seems it was, it is difficult to see how it could assist in this regard. Nevertheless, it does appear that this was what was intended, and the post was not directed at LED Technologies or anyone employed by the business.
[40] LED Technologies also submits Mr Somogyi should not have been making Facebook posts during work hours. However, he was regularly on the road visiting customers in his role. He was obviously entitled to breaks during these times. I am not satisfied there is any evidence to establish that he had been informed of, or made aware about, a policy banning the use of social media at work. It follows, in conclusion, that in all the circumstances I am not satisfied LED Technologies had a valid reason for his dismissal.
[41] There are also obvious issues about how his dismissal was carried out. Mr Somogyi was not given any real opportunity to provide an explanation or response to the reason for the decision to dismiss him. It also appears those reasons were not even a provided to him at the time. It is acknowledged that as a relatively small business LED Technologies had limited HR expertise. However, an employee faced with the possibility of dismissal has a reasonable expectation of being provided with the reasons for that decision, and then being provided with an opportunity to respond before any decision is confirmed. That did not happen in this case. I am satisfied, in conclusion, that in all the circumstances Mr Somogyi’s dismissal was at least harsh and unreasonable.
[42] Having determined that Mr Somogyi was unfairly dismissed, I now turn to consider what is appropriate by way of remedy. Section 390 of the Act provides:
“(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.
(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.” 25
[43] Mr Somogyi does not seek to be reinstated and LED Technologies rejects this possible option. It is a relatively small business and the Managing Director, Mr Ottobre, was directly involved in the circumstances surrounding the dismissal. His opinion of Mr Somogyi has also been made clear. I am not satisfied in all these circumstances that a proper working relationship could ever be re-established and, therefore, reinstatement is not a realistic option by way of remedy, given the breakdown in trust and confidence between the parties.
[44] Section 392 of the Act continues to state:
“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
(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.” 26
[45] In deciding what, if any, compensation should be ordered I have had regard to each of the matters in s.392 and the evidence that is relevant in this context. It is also clear from the established authorities that orders in regard to compensation are designed to compensate in lieu of reinstatement for losses reasonably attributable to the dismissal.
[46] I have also had regard to the approach adopted by the Full Bench in the decision of Sprigg v Paul’s Licensed Festival Supermarkets (Sprigg). 27 In summary, it requires that an estimate is firstly made of the remuneration the employee would have received if he/she had not been dismissed. This requires that an assessment be made about the anticipated period of future employment. Secondly, any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment is deducted. Thirdly, an amount for contingencies should be deducted. This generally involves deduction of an amount attributable to potential changes in earnings or earning capacity. This amount should next be adjusted for the impact of taxation. Finally, it should be assessed against the compensation cap. If the amount is more than the cap then it should be reduced to that level.
[47] LED Technologies is not a large organisation with around 20 employees. However, there is no evidence to suggest an order for compensation in favour of Mr Somogyi would impact on its viability.
[48] It is always difficult to anticipate with any certainty how much longer a person is likely to remain in their current employment if not for the fact of their dismissal. Mr Somogyi had only been employed for a period of just over 13 months at the time he was dismissed, which is not a long period of employment. The submissions and evidence diverge about his work performance during this time. Mr Somogyi submits there were no issues of any significance concerning his work performance. He points to the fact he also received a pay rise during the time he was employed. However, LED Technologies claims he was warned about his work performance on various occasions. It also makes reference to issues about communication with his team that were detailed in an exchange of emails between him and the Sales Coordinator just prior to his dismissal. It also submits he deleted information from the mobile phone provided to him after being told he had been dismissed; a claim Mr Somogyi denies.
[49] As indicated, it is always difficult to conclude with any certainty about how long a person might have remained in employment, if not for their dismissal. While Mr Somogyi had been in his current role for just over 13 months there do appear to have been some concerns about his work performance in that time, although it is unclear whether these were made known to him. I have decided on balance that it is reasonable to conclude that he would have remained in employment at LED Technologies for a further period of at least 6 months, if not for his dismissal.
[50] Mr Somogyi was able to find other employment almost immediately after being terminated, and was only off work for a period of one week. However, he submits that in his new role he is earning a gross amount of $3,203.00 per month which is significantly less than what he was earning when employed by LED Technologies.
[51] A wages summary document provided by LED Technologies indicates Mr Somogyi was paid an hourly rate of $24.0384 for a 40 hour week, which amounts to $961.53 per week. He also received a car allowance as reimbursement for his vehicle expenses, although this is not relevant in the present context as he is no longer incurring that expense in the course of his employment. It therefore appears that he was earning a gross amount of approximately $4,200.00 per month while employed by LED Technologies compared with the amount of $3,203.00 per month he now earns; a difference of approximately $995.00 gross per month. Mr Somogyi was also off work for a week prior to obtaining further employment.
[52] The loss of earnings in his new role, compared to what he would have earned had he remained with LED Technologies, over a period of 6 months amounts to approximately $5,970.00. In addition, Mr Somogyi was off work for a period of one week before obtaining further employment and incurred a further loss of $961.00 in that week as a consequence, which amounts to a total of $6,931.00. It is also appropriate to deduct an amount of 10% in respect of contingencies, given possible changes in earning capacity, leaving an amount of $6,238.00. This amount must be taxed according to law.
[53] I therefore determine that an amount of $6,238.00 should be awarded to Mr Somogyi, less taxation. This amount is to be paid within 30 days of this decision. An order to this effect is issued in conjunction with this decision.
COMMISSIONER
Appearances:
C Somogyi on his own behalf.
T Ottobre on for the Respondent.
Hearing details:
2017.
Melbourne:
January 20.
1 Fair Work Act 2009 (Cth) s 387.
2 Applicant’s submissions, ‘Unfairly dismissed statement’, received 28 November 2016 at page 1.
3 Ibid.
4 Form F3 – Employer Response Form, received 20 October 2016, at question 3.1.
5 Attachment to Form F3 – Employer Response Form, received 20 October 2016.
6 Respondent’s submissions, “LED Technologies Policy Manual”, received 23 December 2016 at page 16.
7 Witness statement of Respondent, received 23 December 2016.
8 Transcript at PN818.
9 Applicant’s submissions, received 28 November 2016 at Attachment 23.
10 (1995) 185 CLR 410.
11 Ibid at 465.
13 Ibid at [20].
15 Ibid at [24].
16 Print R4471, 11 May 1999, Ross VP , Polites SDP , Foggo C.
17 Ibid at [19].
18 (1995) 62 IR 371.
19 Ibid at 373.
20 Transcript at PN848.
21 Transcript at PN578.
22 Transcript at PN817.
23 Ibid.
24 Transcript at PN818.
25 Fair Work Act 2009 (Cth) s 390.
26 Ibid at s 392.
27 (1998) 88 IR 21.
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