[2018] FWC 3996
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Mr Minas Trialonas
v
Steric Solutions Pty Ltd
(U2016/15558)

DEPUTY PRESIDENT SAMS

SYDNEY, 19 JULY 2018

Application for an unfair dismissal remedy – remittal from Full Bench for re-hearing – Small Business Fair Dismissal Code – incident involving foul language seemingly resolved – manager directed to dismiss applicant three days later – whether compliance with the Code – no valid reason for dismissal – no procedural fairness – no compliance with the Code – dismissal harsh, unjust and unreasonable – reinstatement inappropriate – compensation ordered.

BACKGROUND

[1] In a decision of Commissioner Johns on 29 September 2017, Mr M Trialonas was found to have been unfairly dismissed by Steric Solutions Pty Ltd (‘Steric Solutions’ or the ‘respondent’) on 9 December 2016; see: Trialonas v Steric Solutions Pty Ltd [2017] FWC 5068. The Commissioner ordered that the respondent pay $25,765.22 as compensation for Mr Trialonas’s unfair dismissal. The decision and order were made under the relevant provisions of Part 3-2 of the Fair Work Act 2009 (the ‘Act’). Steric Solutions appealed that decision and order. A Full Bench of the Fair Work Commission (the ‘Commission’), on 24 January 2018, upheld the appeal and quashed the Commissioner’s decision and order; see: Steric Solutions Pty Ltd v Trialonas [2018] FWCFB 479. At paragraphs [45]-[47], the Full Bench said:


‘[45] We are satisfied that Steric Solutions was denied procedural fairness when Mr Trialonas was permitted to give evidence about the dismissal at the first hearing in circumstances where Steric Solutions was not on notice that this evidence would be given. It was advised that the hearing was held to determine the identity of the employer. 

[46] We are satisfied that Steric Solutions was denied procedural fairness as it was denied the opportunity to cross-examine Mr Trialonas at that hearing as Ms Docherty, who was the representative of Steric Solutions, was excluded from the hearing during his evidence.

[47] Further we are satisfied that Steric Solutions was denied procedural fairness as Ms Docherty was questioned about the dismissal of Mr Trialonas without being provided with the opportunity to lead evidence about the events in circumstances where she had been called by the Commission to give evidence only about the identity of the employer. The Commissioner then made findings of fact about the dismissal which were relied upon in his second decision.’

[2] As a consequence, the Full Bench remitted the re-determination of the matter to me. In accordance with my usual practice, I listed a conference of the parties in an attempt to settle the application. As no settlement could be reached on 28 February 2018, I issued directions for the re-hearing of the matter and listed the arbitration on 26 March 2018. Final written submissions were filed on 26 April 2018.

[3] At the hearing, Mr A Jenshel of Counsel with Mr A Kelemen, Paid Agent, appeared with permission granted for the applicant to be represented by a lawyer, pursuant to s 596 of the Act . Ms L Docherty, with Mr D Docherty appeared for Steric Solutions.

THE EVIDENCE

[4] Statements were tendered from Mr Trialonas and Ms Docherty and both of them were required for cross examination. Ms Docherty tendered the transcript of the proceedings before Johns C on 5 May and 28 July 2017. To the extent the transcript deals with matters not relevant to the re-determination of the merits of the case, it will be unnecessary for me to refer to it in any great detail.

Mr Mina Trialonas

[5] Mr Trialonas relied on his statement tendered in the earlier proceedings. To the extent his evidence dealt with the correct the identity of the employer (not an issue challenged on appeal), I do not refer to it.

[6] The applicant commenced employment as a yard hand in June 2006, having been approached for the job by Mr R Docherty, the father of Ms L Docherty. Throughout his employment, he reported to Ms Docherty. The applicant said he has only ten percent vision in his left eye (from an injury sustained in 2014) and also requires hearing aids due to workplace hearing loss.

[7] The applicant’s employment appeared to be uneventful from 2006 until an incident occurred on 6 December 2016, when he said he spoke to Ms Docherty about machinery obstructing the pathway where he worked in the factory. After Ms Docherty said it was ‘not a big deal’ and he should just move it, he explained to her that when he enters the factory after being outside, his eyes need time to adjust to the new lighting conditions. He also reminded her that he had stumbled over machinery before, and had injured himself. It was the applicant’s evidence that they then had an argument in which Ms Docherty told him to ‘pull his head out of his fucking arse’ and he responded by calling her a ‘back-stabbing cunt’. She then directed him to go home; which he did.

[8] The applicant claimed that this type of language was common in the workplace. He had heard Ms Docherty call her cousin, Dave (also employed in the business), a ‘cunt’ and other profanities. Dave would also speak about crude sex acts in vulgar detail.

[9] The next day, the applicant sent Ms Docherty an SMS apologising for his language. She invited him to her home that evening to talk. He apologised to her again. The issue was laughed off and he believed any disagreement had been resolved; so much so that he returned to work the next day and interacted normally with Ms Docherty and there was no further discussion of their disagreement.

[10] The applicant claimed that on 9 December 2016, he had heard Ms Docherty and her Uncle, Mr James Docherty having a loud disagreement. He understood Mr James Docherty was the business owner of Steric Solutions and the ultimate decision maker. A short time later, Ms Docherty came to him, and with tears in her eyes, told him her Uncle had directed her to dismiss him. When he asked why, she simply said because ‘you do not listen’.

[11] On 14 December 2016, Ms Docherty called the applicant and they agreed to meet at a local pub. They spent a few hours there drinking and talking. Ms Docherty apologised to him for putting him in such a position just before Christmas and said that James forced her to dismiss him against her will. They hugged and left. It was the applicant’s earlier evidence that he had received $300 from some casual work in the six months after his dismissal.

[12] In cross examination by Mr David Docherty, the applicant said he was not dismissed by Ms Docherty on 6 December 2016; rather he was dismissed on 9 December following Mr James Docherty’s direction to her to dismiss him. She had told him he was dismissed for ‘not listening’.

[13] Nevertheless, the applicant agreed he had used foul language towards Ms Docherty on 6 December 2016. He had often complained about things being put in his way, which meant he could not perform his work safely. He believed she was not doing enough to help him. While acknowledging his language was inappropriate, he claimed that everyone used bad language in the workplace. He accepted there was no excuse for it, especially to a woman. He conceded he was not provoked; he just believed no one was helping him.

[14] The applicant agreed he had worn music ear phones while he worked so he could take phone calls when working mostly by himself. He denied it adversely affected his work or his safety. He claimed he was never told to wear hearing protection and he had never asked for it. He agreed he was told not to hose the factory floor (making it slippery and unsafe), but he continued to do so despite being warned he would be dismissed. He denied ever leaving his forklift in an unsafe manner.

[15] The applicant explained that on 6 December 2016, an earlier order came late and he had to pull things (cabinets, welders, trailers) out of the way to get the job out. This was why he reacted as he did, particularly given his poor eyesight. The applicant was queried as to his capacity to drive a motor vehicle, considering his complaint about moving from outside to inside twice in order for his eyes to adjust. He claimed his driving sight was ‘not bad’, but he struggled going into a dark building with artificial lighting.

[16] In re-examination, the applicant said that there were three main things blocking his path on 6 December 2016 – large machinery on the right hand side, a big brake press and timber shelving and cabinets. It was not moved then and is probably still in the same spot.

[17] In respect to hosing the factory floor, Ms Docherty had told him that the fire hydrant is only for fires, and if he hosed the floor again, he would be dismissed. He continued doing it, because when he saw James Docherty doing the same thing he said ‘I’d like to see her sack me’. This was a discussion about one and a half to two years ago. There were no further issues about hosing the floor, because everyone was doing it. The applicant said that he had used the same method of ‘strapping’ a forklift since he worked for the respondent because his eye injury had happened before then. It had hit him in the eye when he cut the strapping.

Ms Leanne Docherty

[18] Appreciating Ms Docherty was unrepresented, her statement of 7 March 2018 was a mixture of opinions, general allegations without dates, submissions and commentary. As the ‘statement’ is relatively short, I set it out in full below:

Minas Trialonas was dismissed for serious misconduct including but not limited to language, intimidation, bullying, and serious safety breaches.

Language

Consistently calling me a ‘bitch’, ‘cocksucker’ and numerous times telling me to ‘go fuck myself’.

He called me a ‘back stabbing cunt’ and was instantly dismissed.

Intimidation

Consistently making me feel intimidated. Minas would not listen and completely ignore me. He would put his head down and not acknowledge me at all when I spoke with him. If I was giving him paperwork he would snatch it from my hand. He would often just go against a direct instruction. Minas made me feel horrible on a regular basis, and I would dread going in to work as I suffered serious anxiety (this was noted to Minas) I had spoken to him about the way he made me feel and he continued to behave this way.

Serious Safety Breaches

Strapping the boards the same way that caused his eye injury after he was repeatedly asked not to do it this way.

Ignoring me while driving the forklift, he would continue to drive and not stop even when I was directly beside him.

Repeatedly told not to use the fire hose to hose the factory floor or wash down the gear as it made the factory very slippery.

Refused to wear hearing protection.

Majority of the time would have his headphones in.

The statement below is fair work’s definition of serious misconduct

Serious misconduct includes when an employee causes serious and immediate risk to the health or safety of a person, or the reputation, viability or profitability of the business; or deliberately behaves in a way that is inconsistent with continuing their employment.

Leading up to the day of the incident Minas was very angry, hostile and extremely argumentative. We had numerous heated discussions and he just continued to behave this way.

On the morning of the incident around 11.30am Minas had brought to my attention in a very negative and aggressive way that an item was blocking access to the lock up cupboard we have. It was on wheels and I simply pushed it out of the way. This infuriated Minas has he could have simply done this himself but chose not to and wanted to have an argument about it instead.

On the afternoon of the primary incident at 3.15pm I was trying to explain something to Minas regarding an order he was pulling. He completely misinterpreted what I was saying which was very common for him and raised his voice and became very agitated, he then said what he said ‘backstabbing cunt’

I asked him to leave, he completely ignored me and refused a direct instruction. I felt very intimidated in this situation as I had not seen Minas this angry before, I then lent over to retrieve the forklift key so he could no longer drive the forklift in the angry state he was in and asked to him to leave again and to not return. He then asked if I was serious and I replied with yes very serious.

Deputy President Sams I apologise if this is not the correct procedure for a submission statement but I have no legal knowledge and no means to be represented. The main reason this case is still continuing is the fact that I was denied procedural fairness and wasn’t allowed to elaborate on my evidence.

Furthermore this statement it gives me the opportunity to speak freely without being intimidated in the hearing by Mr Trialonas’s representatives.

I am the victim in this situation, I was treated badly and inappropriately in my working environment. I stood up for myself and now I’m on trial and am expected to pay and reward bad behavior.

Minas by no means was dismissed unfairly, he had received numerous verbal warnings about his behavior, attitude and safety breaches.

I allowed Minas to return to work on a trial basis as I felt sorry for him, I then realized I had made a mistake, his behavior, bad attitude and safety breaches continued. I realized I could no longer continue a working relationship with him. I would also be putting my other workers at risk by continuing Mr Trialonas’s employment in the factory. At this time I was also informed by my client that Mr Trialonas would no longer be allowed on the premises due to his continued breaches of safety protocol, which put all persons on site at serious risk of injury. My client said this risk was totally unacceptable.

[I do not include Ms Docherty’s criticisms of Mr Kelemen’s conduct, which are not relevant for present purposes]

[19] In cross examination, Ms Docherty agreed the allegations under the heading ‘Language’ had not been raised with the applicant before and do not identify times or dates on which these incidents were said to have occurred. Nevertheless, she insisted it was the truth. Ms Docherty agreed that none of the four alleged comments were put to the applicant in cross-examination; although he was asked about the use of profane language.

[20] Ms Docherty conceded that the applicant had never been given the opportunity to comment on the allegations of intimidating her, ignoring her, snatching paperwork or making her feel horrible on a regular basis. She had not produced any medical evidence of her claim of suffering from anxiety. However, she claimed all of these incidents occurred over the last two to three years. Ms Docherty denied ‘pretending’ a long history of intimidation by the applicant.

[21] Ms Docherty acknowledged that her allegations under the heading, ‘Serious Safety Breaches’, do not give any details or dates. She accepted she had not seen the applicant hosing the factory floor, after she had directed him not to. She claimed to have told him to wear hearing protection on numerous occasions.

[22] As to having ‘numerous heated discussions’, Ms Docherty could not identify when, or what was said and there was no written record of any earlier incidents or the incident on 6 December 2016. She believed a witness, (‘Aunty Betty’) could corroborate what had occurred, because she was there on the day. However, ‘Aunty Betty’ was not available to give evidence as she was in France. No statement had been obtained from her. Ms Docherty stated that the applicant was ‘very angry’ in the morning of 6 December 2016, before their argument in the afternoon. However, she could provide no details he had complained about the welder blocking his way, when it was, in fact, on wheels and she had just pushed it away. She added that the applicant knew how to move the welder, which is on wheels. He was ‘just trying to make a point, angry hostile point’. Ms Docherty denied the applicant just left the factory when she directed him to. She agreed it was never put to the applicant that he was allowed to return to work on a ‘trial basis’.

[23] Ms Docherty accepted that the argument with her Uncle on 9 December 2016 was loud and that she was crying. She was informed by her major client, 3D Scaffolding, that the applicant was no longer allowed on the premises, due to his continued breaches of safety protocols. She denied that had it not been for Mr James Docherty’s involvement on 9 December 2016, the applicant would have remained in employment. She denied her evidence was different in May 2017. Her present evidence was elaborated on because she had not been previously allowed to give evidence. Mr James Docherty owns the premises and 3D Scaffolding.

[24] In re-examination, Ms Docherty agreed that she gets all her work from 3D Scaffolding. Ms Docherty claimed that the language the applicant used on 6 December 2016 had not been used by him towards her before. Ms Docherty agreed that the applicant had not been given any written warnings, but he had received numerous verbal warnings. She had not observed all of the safety breaches of the applicant; some had been reported to her by others, and some not reported at all. Ms Docherty said the applicant had been instructed how to strap the boards, but continued to do it his own way. She stressed that no one else does it that way.

[25] Ms Docherty said no other employee had ever refused hearing protection. It is easily accessible, as it is just outside the office. Ms Docherty had no regrets about dismissing the applicant and would not re-employ him.

FURTHER SUBMISSIONS

For the applicant

[26] Mr Kelemen relied on the applicant’s submissions and evidence in the earlier proceedings. I have reviewed this material and have taken it into account where relevant.

[27] In final submissions, Mr Kelemen observed that the applicant was dismissed on 9 December 2016 when Ms Docherty told him she had been directed by Mr James Docherty to dismiss him. He was dismissed because ‘he didn’t listen’. He received no termination letter or statement setting out the reasons for his dismissal. It was not until the respondent filed their response to the unfair dismissal application that it had ever been articulated as to other reasons for his dismissal. He was never provided with any particulars of these reasons.

[28] Mr Kelemen put that to the extent any reliance was had on the 6 December 2016 incident, the applicant’s swearing was:

(a) in the heat of the moment;

(b) his language was non-threatening only ‘name calling’;

(c) his swearing was a single retort, rather than an extended diatribe or pattern; and

(d) the swearing was not said in the presence of anyone else and therefore did not undermine Mr Docherty’s authority.

[29] It will also be accepted that the applicant promptly apologised and his apology was accepted. Mr Kelemen addressed each of the criteria under section 387 of the Act as follows:

‘s 387 (a) Having regard to the matters described in paragraphs 2.2 and 2.3, the applicant’s swearing on 6 December was not sufficiently serious, in all the circumstances, to warrant dismissal.

(Alternatively) There was no other (valid) reason. Although the respondent gave evidence of numerous but largely unspecified safety breaches, these are spectacularly unconvincing as reasons for dismissal. In particular the applicant has never been able to give any details of the dates or substance of the breaches and has been remarkably dilatory in asserting them. Most of the allegations were never put to [the applicant] in cross-examination.

(Alternatively) In that part of his decision which was not overturned, Commissioner Johns said:

From all of the above it seems that, more likely than not, the reason for the termination of Mr Trialonas’ employment was not the vulgar language that he directed at Ms Docherty on 6 December 2016, but a direction given by James Docherty to his niece. It seems that the reason for the termination was that the part owner of Ms Docherty’s only customer wanted Mr Trialonas gone. This put her in a difficult position, but she obliged.

That conclusion remains compelling, having regard to the unguarded admissions made by [Ms Docherty].

If that is indeed the real reason for the dismissal, it cannot be said to be a valid reason. As already explained in separate submissions, the employer cannot ‘delegate’ the requirement to dismiss for a valid reason. If a powerful client tells an employer to dismiss an employee because, for example, he has blue eyes, the dismissal will not be ‘fair’ simply because the client demanded it.

s 387(b) The applicant was not notified of the reason.

s 387(c) The applicant was not given any opportunity to respond. To the extent that he was dismissed for his language, he apologised promptly and that apology appeared to be accepted.

s 387(d) N/A - The applicant was summarily dismissed.

a 387(e) N/A

s 387(f) N/A or neutral

s 387(g) N/A - The applicant was summarily dismissed and the justification for that dismissal is maintained by the respondent.

(h) The applicant repeats the matters in paragraphs 8 and 9 and refers to:

(i) the applicant’s length of service – in excess of 10 years; see: Camilleri v IBM Australia [2014] FWC 5894, [53]

(ii) The absence of a prior warning or any prior incident. The applicant had

never before been warned as to any other matter of conduct.

Although [Ms Docherty] gave evidence of prior verbal warnings, these were unconvincing. No specific warning was ever the subject of evidence and no specific warning was ever suggested to [the applicant] in cross-examination.’

Mr Kelemen reaffirmed that reinstatement is not a realistic option in this case. The applicant was earning $990.97 per week gross and since his dismissal has been unemployed.

For the respondent

[30] Ms Docherty submitted a short written statement which I set out in full below.

On the 6 December 2016, Mr Trialonas was dismissed from his long term employment for serious misconduct which includes when an employee causes serious and immediate risk to the health or safety of a person, or the reputation, viability or profitability of the business; or deliberately behaves in a way that is inconsistent with continuing their employment. Mr Trialonas used vulgar language without provocation as admitted to on 5 May 2017.

Mr Trialonas had also received numerous verbal warnings about misconduct in the form of safety breaches prior to this day, including, but not limited to:

Mr Trialonas was re-employed on a ‘trial basis’ on 8 December 2016 after a discussion on the evening of 7 December. On the morning of 9 December 2016 it was brought to my attention Mr Trialonas had returned to his unsafe work practices. Due to his safety breaches the decision had been made to end Mr Trialonas's ‘trial’ employment as he had not listened to one warning he had been given about safety during our meeting on 7 December, 2016.

Compounding this decision was the fact my major client and the owner of the premises I'm contracted to use, informed me Mr Trialonas would no longer be allowed on site, due to his unsafe work practices and if I continued to have him on site, I would be asked to leave and my contract terminated.

It has never been questioned that the vulgar language was enough to dismiss Mr Trialonas, even Commissioner Johns and Mr Jensel agreed on 5 May 2017.

Mr TriaIonas character and willingness to say what he feels necessary to get his way is evident from the below:

CONSIDERATION

Statutory provisions

[31] An unfair dismissal is defined at s 385 of the Act. That section is to be read in conjunction with s 396. The sections read:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[32] Specifically, I find as follows:

The Small Business Fair Dismissal Code and the relevant principles

[33] Plainly, this case falls for determination as to an objection of the respondent to the applicant’s unfair dismissal application, on the basis it had complied with the Code when it dismissed him on 9 December 2016. The terms of the Code are:

The Code

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

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.

[34] The seminal case – indeed the first Full Bench Decision which considered the Code – was Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 (‘Pinawin’). After setting out a number of passages from two earlier single Member decisions concerning the application of the Code, the Full Bench of Fair Work Australia (‘FWA’, as the Commission was then styled), said at paras [29]-[31]:

[29] We believe that the approach and observations in these two decisions are correct. 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.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.

[31] The question we need to consider in this case is whether Mr and Mrs Pinawin believed on reasonable grounds that Mr Domingo’s conduct was sufficiently serious to justify immediate dismissal.’ (my emphasis)

[35] Continuing, the Full Bench said at [38]:

‘[38] Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee. We are concerned in this case that no discussions took place about the implications of Mr Domingo’s conduct for his future employment. However this is a very unusual case. The employer was very small. The owners knew Mr Domingo well. They directly observed his behaviour. They believed that he had made lifestyle choices that involved drug-taking and this directly related to his capacity to perform his work. His work involved close personal dealings with clients. At the time they made their decision, Mr Domingo was hospitalised. They were conscientious in considering the grounds for summary dismissal in regulatory material available on the internet. In these unusual circumstances we are of the view that the employer, when considering Mr Domingo’s recent erratic and unusual behaviour, formed the belief that Mr Domingo had engaged in conduct that justified immediate dismissal on reasonable grounds. Our conclusion should not be seen as one that would necessarily be reached in all cases of out of hours misconduct or drug-taking.’ (my emphasis)

[36] Pinawin continues to be cited with approval in decisions of the Commission involving the Code. Pinawin is authority for the proposition that when the Code applies to a small business, as defined, the Commission is not required to find that serious misconduct occurred, or that allegations of serious misconduct against the dismissed employee had been proven. Under the Code, the tests are only that:

•  the employer held a reasonable belief that the employee’s conduct was sufficiently serious to justify immediate dismissal; and

•  that belief was based on reasonable grounds, after a reasonable investigation.

Self-evidently, both of these tests do not require findings of unfairness, in a statutory sense, within the meaning of s 387 of the Act, unless the Code had not been complied with.

[37] The Full Bench of the Commission had further occasion to consider the Code and the conclusions in Pinawin. In Ryman v Thrash Pty Ltd [2015] FWCFB 5264 (‘Ryman’), the Full Bench, after expressing a view that the summary dismissal section of the Code is ‘very poorly drafted’ (with which I respectfully agree), because it uses discordant expressions such as ‘without notice or warning’, ‘immediate dismissal’ and ‘summary dismissal’ synonymously, went on to say at paras [37]-[41]:

[37] Notwithstanding that the Code, and its accompanying checklist, were apparently designed to be read as “stand alone” documents by small business employers, we prefer the view that the reference to “serious misconduct” is to be read as bearing the meaning in reg.1.07. The types of conduct expressly referred to in the Code as constituting serious misconduct are all encompassed by the reg.1.07 definition, so no direct inconsistency is apparent. The fact that the checklist invites inclusion of “some other form of serious misconduct” suggests that the identified types of conduct were not meant to be exhaustive, and it is otherwise difficult to conclude that they were meant to be exhaustive given that they do not include other types of behaviour which may well constitute misconduct justifying summary dismissal, such as sexual harassment, bullying or significant non-compliance with a lawful and reasonable direction. And, as earlier discussed, the lack of any recognised meaning at law of the expression “serious misconduct” means that the definition in reg.1.07 is necessary to give the expression a clear content.

[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:

(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.’ (my emphasis, endnotes omitted)

See also: Hart v Forex 1 Pty Ltd ATF Trading Rental Trust [2018] FWC 942.

[38] It is clear that the applicant was dismissed on 9 December 2016, because Ms Docherty was directed to do so by Mr James Docherty. However, it was said that he was dismissed for serious misconduct. This term is defined in the Act’s Regulations. Regulation 1.07 sets out the definition as follows:

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:
                              (i)  the health or safety of a person; or
                                  (ii)  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.
             (4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
             (5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.

Was the Code complied with?

[39] There is no dispute that the respondent is a small business, as defined, and the Small Business Fair Dismissal Code is relevant to this application. From the factual matrix in this case, it is tolerably clear that the applicant was not dismissed on 9 December 2016 because of the verbal argument he had with Ms Docherty on 6 December 2016. It is not contested that Ms Docherty accepted the applicant’s apology for his conduct of 6 December 2016 when he attended her home on the evening of 7 December 2016. While it is not entirely clear whether Ms Docherty offered him his job back, during the course of the evening, it is perfectly clear that he had not been dismissed at all by this time. The highest the evidence got was that Ms Docherty sent him home on 6 December 2016. There was no evidence she told him not to return, or that she expressly had said ‘you are dismissed’ (or words to that effect). In fact, the uncontested evidence points to the applicant and Ms Docherty having resolved their disagreement, and he apologised for his foul language. He returned to work next day and they both interacted as normal. In other words, there was no dismissal, and certainly no dismissal based on the applicant’s conduct on 6 December 2016.

[40] It follows that the only basis for the applicant’s dismissal on 9 December 2016 was Mr James Docherty’s direction to Ms Docherty to dismiss him for alleged serious safety breaches. As her Uncle’s business, 3D scaffolding, was her only client, Ms Docherty felt obliged to comply with her Uncle’s direction, despite any reservations she might have had (which she appears to have had). It is abundantly obvious that Ms Docherty had not been told by her Uncle what these alleged safety breaches were, and it is reasonable to assume she did not ask. The only reasons she gave to the applicant was that her Uncle directed her to dismiss him and when he asked why she said ‘because you don’t listen’. In other words, there is a complete disconnect between what Mr James Docherty claimed to be the reason for the dismissal and what the applicant was told. Putting aside the extraordinary and hopeless denial of procedural fairness (which I will come to shortly), it could not possibly be fairly said, or at all, that Ms Docherty had a reasonably held belief, on reasonable grounds, for the applicant’s conduct being sufficiently serious to justify his dismissal. There was obviously no investigation of the allegations, either of the alleged serious safety breaches, or that the applicant ‘does not listen’. Accordingly, I have no hesitation in concluding the Code had not been complied with, as I cannot be satisfied Ms Docherty had a reasonable belief, on reasonable grounds that the applicant’s conduct was sufficiently serious to justify immediate (summary) dismissal.

[41] I turn to consideration of whether the applicant’s dismissal was unfair, pursuant to s 387 of the Act.

Meaning of ‘harsh, unjust and unreasonable’

[42] The matters required to be taken into account by the Commission, under s 387 of the Act are:

(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.

Whether there was a valid reason for the applicant’s dismissal (s 387 (a))

[43] The meaning of valid reason in s 387(a) is drawn from the judgement of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’). This meaning has been considered and applied by members of the Commission and its predecessors for many years. For example, in Rode v Burwood Mitsubishi Print R4471, a Full Bench of the then Australian Industrial Relations Commission (‘AIRC’) discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and by citing Selvachandran. The following is an extract from the Full Bench’s decision at para [17]-[19]:

‘[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. 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 reason 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, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) 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.’

See also: Nettleford v Kym Smoker Pty Ltd (1996) 69 IR 370.

[44] In my view, there can be no room to doubt that the reasons for the dismissal were not only ‘capricious’ and ‘fanciful’, but were contradictory (serious safety breaches vis-a-vis ‘does not listen’). Despite these alleged safety breaches being raised in Ms Docherty’s statement; see: para [30] above, the respondent has not provided any evidence or details of the allegations. Moreover, I cannot be satisfied that these issues were the same safety breaches Mr James Docherty had in his mind when he directed Ms Docherty dismiss the applicant on 9 December 2016. There was no evidence to this effect and I am led to a conclusion that these issues were ‘cobbled together’ after the event, when it became clear that Mr James Docherty’s desire to have the applicant gone, without any explanation, would not sustain, even a cursory examination, as to its validity.

[45] Accordingly, I am satisfied that there was no valid reason for the applicant’s dismissal. This weighs in favour of a finding of unfairness.

Further matters to be considered under s 387 of the Act

[46] Subsections (b)-(e) of s 387 are generally grouped under the rubric of ‘procedural fairness’ or ‘natural justice’ issues. To highlight the importance of procedural fairness issues, I cite four authorities on the subject in unfair dismissal cases. In Crozier v Palazzo Corporation Pty Limited t/as Noble Storage and Transport (2000) 98 IR 137 (‘Crozier v Palazzo’), a Full Bench of the AIRC said at para [73]:

‘As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment.’

[47] In Wadey v YMCA Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations concerning an employee’s conduct. His Honour said:

‘In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.’

[48] Nevertheless, procedural fairness steps should be applied in a common-sense and practical way. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1 (‘Gibson’), Wilcox CJ said at 7:

‘Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.’

[49] It goes without saying that any issue/s of procedural unfairness may not be of such significance as to outweigh the substantive reason/s for an employee’s dismissal, particularly in cases of misconduct where the proven misconduct is of such gravity as to outweigh any other considerations in respect to harshness, such as age, length of service, employment record, contrition or personal and family circumstances. In Bostik Australia Pty Ltd v Gorgevski (No 1) [1992] FCA 271; 36 FCR 20, the Federal Court of Australia Industrial Division said at 37:

‘Harsh, unjust and unreasonable

37. These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee’s misconduct.’

Whether the person was notified of that reason (s 387(b))

[50] The applicant was notified of the reasons for his dismissal (Mr James Docherty’s direction) on 9 December 2016. As I have found this was not a valid reason related to the applicant’s capacity or conduct, axiomatically, he could not have been notified of the reason for his dismissal, in accordance with s 387(b). This factor tells in favour of a finding of unfairness.

Whether the person was given an opportunity to respond to any reasons related to the conduct of the person (s 387(c))

[51] Similarly, the applicant could not have responded to an invalid reason for his dismissal. Significantly, he was not given any opportunity to respond at all to what was said to be the two conflicting reasons for his dismissal. He was never warned that the meeting with Ms Docherty was to terminate his employment. In my view, the respondent adopted a hopelessly unfair process to dismiss the applicant, without any valid reason.

[52] As I said earlier, it was breath-taking in its complete disregard for any modicum of natural justice, particularly given the applicant’s considerable period of service. This factor tells in favour of a finding of unfairness.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal (s 387(d))

[53] Given the applicant was given no warning of his dismissal by Ms Docherty, he could not have requested a support person, and consequently he was not denied an opportunity to have a support person present. This is a neutral factor in this case.

If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal (s 387(e))

[54] Despite Ms Docherty’s evidence of numerous verbal warnings given to the applicant about safety breaches, his poor attitude and his swearing, no specific dates or times were identified by her in cross-examination. There were no formal written warnings or contemporaneous notes put into evidence. No corroborating witnesses were brought by the respondent to support the respondent’s claims in this respect.

[55] Given Ms Docherty had:

it is unbelievable and implausible that Ms Docherty’s concerns were of such import as to constitute any reasonable basis for his dismissal by her on 9 December 2016. It was not until the respondent’s submissions in this case, that there was any mention of the applicant being reemployed on a ‘trial’ basis on 8 December 2016. There is no evidence that such a ‘trial’ was ever discussed and I reject it as a clumsy afterthought.

Notwithstanding these observations, I am prepared to find that this is a neutral factor in this case.

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 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 (ss 387(f) and (g))

[56] Although I accept the respondent is a small business and has no dedicated human resource management expertise about procedures to be followed when effecting an employee’s dismissal, it must be bluntly said that no employer with any sense of common decency, would have affected a dismissal in the hopeless manner admitted to in this case. It was disgraceful and grossly unfair. The respondent’s approach in denying the applicant proper and fair procedures cannot be put down to naivety or ignorance. It was deliberate and calculated. The size of the employer’s business and lack of industrial relations expertise, simply does not ‘wash’ as any excuse for the lack of any fair procedure in this case.

Conclusion as to unfairness

[57] It will come as no surprise to the objective observer that, having taken account of all the matters under s 387 of the Act, I am well satisfied the applicant’s dismissal on 9 December 2016, was ‘harsh, unjust and unreasonable’, both substantively and procedurally.

Appropriate remedy

[58] Section 390 of the Act sets out the circumstances in which the Commission may make an order for reinstatement or compensation. The applicant does not seek reinstatement. Given the degree of animus that I observed in the proceedings and the fact that the applicant was dismissed over 18 months ago, I do not consider that reinstatement is appropriate in this case. This finding leads to a consideration of compensation.

[59] Section 392 of the Act sets out the matters the Commission must have regard to when determining:

[60] Section 392 reads as follows:

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.

[61] The methodology to be adopted by the Commission in calculating compensation, having regard for each of the matters set out in s 392 of the Act, (often referred to as the Sprigg formula), was considered by a Full Bench of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. t/a Ottrey Lodge [2013] FWCFB 431 (‘Ottrey’); see also: Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 and Ellawala v Australian Postal Corporation [1999] AIRC 1250. A recent Full Bench said in Balaclava Pastoral Co Pty Ltd ATF O’Connor-Fifoot Family Trust v Nurcombe [2017] FWCFB 429 at [42]-[43]:

‘[42] The correct approach to the assessment of compensation was summarised by the Full Bench in the recent decision in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Alan Humphries as follows (footnotes omitted):

“[16] The well-established approach to the assessment of compensation under s.392 of the FW Act, taking into account the matters specified in s.392(2), is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c) - that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:

‘[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...’

[17] The identification of this starting point amount “necessarily involves assessments as to future events that will often be problematic” . Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.”

[43] We would add to this that in quantifying compensation, it is necessary to set out with some precision the way in which the various matters required to be taken into account under s.392(2) (and s.392(3) if relevant), and the steps in the Sprigg formula, have been assessed and quantified. That is to say, the way in which a final compensation amount has been arrived at should be readily apparent and explicable from the reasons of the decision-maker.’ (footnotes omitted) `

I turn now to each of the matters required to be taken into account under s 392(2) of the Act.

The effect of the order on the viability of the employer’s enterprise s 392(2)(a)

[62] I have no evidence as to the effect of any order of compensation on the viability of the respondent’s enterprise. In any event, I do not consider the order I intend to make will adversely effect, or impact on the viability of Steric Solutions.

The length of the person’s service with the employer s 392(2)(b)

[63] The applicant had over 10 years service with the employer. This is not an insignificant period of time. I have taken his length of service into account.

The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed s 392(2)(c)

[64] In my view, this factor is answered, in part, by the applicant’s evidence that he was not provoked by Ms Docherty in their argument on 6 December 2016, but had reacted in frustration to facing obstructions in his way when working and Ms Docherty had not done enough to help him. In other words, his reaction was not one of calmly and properly dealing with alleged ongoing issues he had, but to ‘snap’ when things appeared to be not going his own way. I am also conscious of the evidence as to his determination to do things his own way such as ‘strapping’, and not using hearing protection and hosing the factory floor when told not to. (He did stop hosing after being told not to). This evidence and the conclusions I draw from it, leads me to determine that I doubt the applicant would have remained in employment for more than a few months longer, before he had further cause for emotionally reacting to a work situation, which he perceived as frustrating or that no one appreciated his disabilities and no one helped him. Accordingly, I find the applicant would not have remained employed beyond a further period of three months from 9 December 2016.

[65] At the time of dismissal the applicant’s remuneration was $51,530.40 per annum. Three months of further employment equates to $12,882.60.

The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal s 392(2)(d)

[66] I have no evidence of attempts by the applicant to mitigate his loss since his dismissal, apart from some casual work in the first half of 2017. In any event, I do not intend to give any weight to this matter, given the passage of time since the applicant’s dismissal (18 months).

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 s 392(2)(e)

[67] There was evidence, in the proceedings before the Commissioner, that the applicant had earnt $300 from casual employment in May 2017. I have no evidence of the remuneration earned in the 18 months since his dismissal. These proceedings have been understandably delayed due to the respondent’s appeal and the remittance of the matter to me for redetermination. I do not believe it is appropriate for the Commission to take account of remuneration earned by a dismissed employee beyond a reasonable period before the making of an order of compensation. To do so could result in distorted or unjust outcomes. In this case, I assess that period as six months. Accordingly, I take into account the $300 of remuneration previously identified during that period. This results in an amount of $12,882.60 - $300 = $12,582.60.

[68] Section 392(2)(f) is a neutral consideration in this case.

Any other matter that the FWC considers relevant s 392(2)(g)

[69] Notwithstanding that the 6 December 2016 argument with Ms Docherty was not the reason for the applicant’s dismissal, in my view, it would be unrealistic to ignore this incident in which the applicant used vulgar profanities towards Ms Docherty. As just said, I accept that this incident was not the reason for the applicant’s dismissal; in fact, Ms Docherty appeared to have accepted his apology and allowed him to return to work without sanction, or any further repercussions. However, given Ms Docherty now seems to have had a ‘change of heart’ and that the 6 December 2016 incident forms part of the rubric of circumstances that was a significant feature of this case, I intend to take it into account under s 392(g) of the Act.

[70] The applicant’s evidence was that it was common for such foul language to be used in the workplace; but even accepting this might be the case in the ordinary workplace discourse between employees (which, to my mind, is also entirely inappropriate), it should not be forgotten the applicant accepted his appalling language was used in an entirely different context; namely, an argument in which there was an exchange between them because he was frustrated and annoyed that equipment and machinery was blocking the pathway. He claimed Ms Docherty had not been doing enough to help him. He conceded he had not been provoked. In other words, his appalling language was not said in the day-to-day discourse between employees in the factory environment.

[71] Putting aside that the language was so grossly vulgar to have been inappropriate in any circumstances, the fact it was directed to a woman - and the applicant’s manager no less - is utterly inexplicable and unacceptable. In other circumstances, it would be sufficient grounds for summary dismissal. But that was not to be and the applicant’s employment continued for a further three days, until he was dismissed for an entirely different and invalid reason on 9 December 2016.

[72] Accordingly, pursuant to s 392(g) of the Act (‘any other matter that the Commission considers relevant’), I intend to discount the amount of compensation I would have otherwise ordered by 15%. This results in an amount of $10,695.20 being $12,582.60 -15%.

[73] Other matters I have taken into account are that presumably the applicant was not paid any notice when he was dismissed. Further, given that he had over 10 years’ service he was entitled to be paid any outstanding accrued long service leave. If this has not been paid, it should be. But that is a matter I am constrained from dealing with.

[74] There was no misconduct by the applicant which contributed to his actual dismissal on 9 December 2016. No deduction is made on that score.

Shock, distress etc. disregarded s 392(4)

[75] No amount is included in the calculation of compensation for shock, humiliation, distress or other analogous hurt.

Compensation cap s 392(5)

[76] The amount of compensation I propose to order does not exceed the high income threshold ($69,450 at the relevant time) or the amount paid to the applicant in the 26 weeks prior to his dismissal ($25,765.20).

[77] In consideration of all the matters I am required to take into account under section 392 of the Act and according to the methodology set out in Sprigg, I determine an amount of compensation for unfair dismissal be paid to the applicant of $10,695.20.

[78] Section 381(2) of the Act sets out the overarching objective in the Commission’s unfair dismissal jurisdiction. to ensure ‘a fair go all round’. The section reads as follows:

381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(a) to establish procedures for dealing with unfair dismissal that

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(b) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

CONCLUSION

[79] The Commission finds that the dismissal of Mr Minas Trialonas by Steric Solutions Pty Ltd on 9 December 2016 was ‘harsh, unjust and unreasonable’, within the meaning of s 387 of the Act. Reinstatement of Mr Trialonas is inappropriate. I determine the alternative remedy of an order of compensation for Mr Trialonas’s unfair dismissal of $10,695.20. I consider this amount reflects the statutory object of ensuring a ‘fair go all round’. The amount so ordered is to be paid within 21 days of today. An order to this effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Mr A Jenshel of Counsel with Mr A Kelemen for the applicant.

Ms L Docherty with Mr D Docherty for the respondent.

Hearing details:

2018.

March:

26.

Final written submissions:

2018.

April:

26.

Printed by authority of the Commonwealth Government Printer

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