| [2018] FWC 969 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Thomas Lynch
v
Reward Supply Pty Ltd T/A Reward Hospitality
(U2017/11916)
COMMISSIONER BISSETT |
MELBOURNE, 22 FEBRUARY 2018 |
Application for an unfair dismissal remedy – dismissal harsh, unjust or unreasonable – applicant unfairly dismissed – remedy – satisfied applicant could return to position occupied prior to dismissal – no conditions placed on reinstatement - reinstatement ordered.
[1] Mr Thomas Lynch (Applicant) has made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal. Mr Lynch was employed by Reward Supply Pty Ltd T/A Reward Hospitality (Respondent) as a storeperson/driver in Darwin. His employment was terminated effective from 31 October 2017.
[2] On 1 May 2017 the Applicant was arrested and held in custody until 10 July 2017. The reason for the Applicant’s arrest is not related to his employment.
[3] On 2 May 2017 Ms Tanya Larsen-Smith, the Applicant’s partner, telephoned the Respondent to advise it that the Applicant would not be able to attend work for personal reasons and she was not able to say when he would return. Either then or within the next week Ms Larsen-Smith spoke to Mr Stephen (Steve) Skinner, Director Sales NT and Nth QLD, of the Respondent and advised him of the Applicant’s whereabouts, that a court date had been set for late June 2017 and more would be known then. There was some dispute whether Ms Larsen-Smith spoke to Mr Skinner the day after the Applicant was arrested but it is agreed that she did speak to someone at the company on 2 May 2017. The resolution of that matter is not critical to the determination of the application.
[4] On 8 May 2017, in response to a query by Ms Larsen-Smith, Mr Skinner sent an email to Ms Larsen-Smith that said:
Hi Tanya, from the company perspective for Thomas to be paid any outstanding amounts such as annual leave he would need to provide the company a letter of resignation.
If you could forward that to me when available I will get it to HR for finalising…
In the meantime he has been put on leave without pay. 1
[5] While in jail the Applicant was visited by his direct manager, Mr Denis Criddle, Warehouse Manager, who told the Applicant that he could return to work when he got bail.
[6] The Applicant was granted bail on 10 July 2017. He attended the workplace and advised Mr Skinner that he was ready to return to work. He also advised Mr Skinner, to the extent he was permitted to do so, the circumstances of his arrest and his intention to defend the charges. He showed relevant paperwork to Mr Skinner. The Applicant told Mr Skinner he did not know when his court case would be.
[7] Following the Applicant coming to see him Mr Skinner discussed the issue of his return to work with other senior staff of the Respondent. He then wrote to the Applicant on 15 July 2017. That letter said:
I wish to confirm that your employment has been suspended on leave without pay pending the outcome of the extremely serious criminal charges made against you by the NT police.
Once the Court finding is known please advise us and we can review your employment with Reward Hospitality. If the Court finds you guilty of the offences you have been charged with then the Company will terminate your employment due to Serious Misconduct: being in breach of the Company’s Code of Conduct.
Whilst you are suspended pending the Court’s decision you may use any annual leave you have accrued by emailing [email protected] and requesting this. 2
[8] On 18 October 2017 Mr Skinner again wrote to the Applicant. That letter said:
As you have now been absent from work on unpaid leave for over five months, we have reached a point whereby the Company cannot continue to cover you long-term vacancy at work. Therefore, it is with regret that we advise you of the Company’s intention to terminate your employment as Storeperson/Driver – Darwin effective from the 31st October 2017.
Please advise me prior to this date if there is any reason why the Company should not proceed with the termination of your role.
If you have any questions please contact the HR team… 3
[9] The letter was posted on 19 October 2017 and emailed the same day to the Applicant’s email address.
[10] The Applicant said that he did not receive the letter until 6 November 2017 when Ms Larsen-Smith took it out of the letter box with a bundle of other mail. The Applicant says that when he received the letter and read it he immediately checked his emails.
[11] In doing so he saw an email from “Hannah Gaskain” dated 19 October 2017. He says the sender details did not include the company name and he did not know who Ms Gaskain was so was not aware she worked for the Respondent. On seeing the subject line (“Termination of Employment Letter”) the Applicant assumed the email was from N.T.F.S. for whom he had done some casual work. He had been told that he would not be offered any more work by N.T.F.S. because of damage he had caused whilst working for it and he assumed the email was confirmation of this. On 6 November 2017 the Applicant responded to Ms Gaskain’s email in this vein. 4 The email commenced “Sorry for the late reply…”
[12] The Applicant said that he does not regularly check his emails as he receives a lot of “junk” email. Many of these relate to on-line chess he plays where every move he makes is separately emailed to him such that his email in-box gets full of not particularly relevant or important information. He says he checks his emails for bank statements or if he knows he might be expecting material that he needs to consider.
[13] Ms Gaskain, WHS/HR & Training Co-ordinator, of the Respondent had both posted and emailed the letter of termination to the Applicant on 19 October 2018. The Respondent produced a receipt for the email which indicated it had been “delivered” to the Applicant on 19 October 2017. 5
[14] The Applicant accepts that the email containing the letter was sent to him on 19 October 2017 but says he did not see or read it until 6 November 2017 and even then assumed it was from N.T.F.S.
[15] The mailed letter was sent by ordinary post 6 and there is no record of when it was sent or delivered. Whilst the letter was franked there is no visible date of when this occurred.
[16] Ms Larsen-Smith said that she and the Applicant have a Post Office Box (PO Box) and that 99% of their mail is sent to the PO Box. She said that the only mail addressed to the street address tends to be mail for old flatmates or for relatives for whom she is collecting mail. For this reason she said she did not check the street letter box every day but only when her attention is drawn to it by the catalogues sticking out of it. She therefore she could not say how long the mail was in the letter box but it may have been a couple of days.
[17] The Applicant contacted Australia Post about the delay in receiving the letter from the Respondent. Australia Post investigated the matter and in an email to the Applicant on 8 November 2017 said:
As we discussed, I’ve looked up the estimated delivery time from YATALA QLD 4207 to ANULA NT 0812, our postage calculator states 2-6 business days. If this was posted on 18/10 this should have arrived well before you actually received it.
Unfortunately standard post does not come with a guaranteed delivery time frame however and if an item is time sensitive I’d always recommend getting those types of items sent via express post.
This also sadly means I cannot confirm the lodgement date due to the lack of a tracking option which brings me to our next discussed point.
There is a potential this was not lodged on the stated date, again without the tracking information a registered letter would provide, I really cannot confirm when/where it was actually lodged. 7
[18] The Applicant said that when he did not respond to the letter or email sent on 19 October 2017 it would have been appropriate for the Respondent to contact Ms Larsen-Smith. He said the Respondent had her details from the contact she had with them in May and again in June 2017.
[19] The Respondent said that it did not follow up the lack of response from the Applicant to the letter with the Applicant or with Ms Larsen-Smith. Mr Skinner said that, whilst it was appropriate to communicate with Ms Larsen-Smith with respect to the Applicant whilst the Applicant was incarcerated, once he was released it was inappropriate to do so.
[20] The court date for hearing the charges against the Applicant is August 2018.
[21] The Applicant has had casual work since he was stood down without pay by the Respondent and, of late, on-going employment. As he indicated he could not afford to sit at home with no income and there was nothing in the correspondence from the Respondent that suggested he could not take alternative employment.
[22] The Applicant indicated that he wants to be reinstated to his job with the Respondent.
[23] Mr Skinner said that the Respondent would not be comfortable with the Applicant being reinstated. He said that the Respondent has a duty of care to all employees and the nature of the charges against the Applicant is of concern to the Respondent and its employees.
[24] I am satisfied, on the basis of the evidence before me that:
• The Applicant was arrested on 1 May 2017 and held in custody until 10 July 2017;
• The reason for the Applicant’s arrest does not relate to his employment;
• The Respondent was advised by Ms Larsen-Smith on 2 May 2017 that the Applicant would be absent from work for personal reasons for some time;
• On or about 8 May 2017 Mr Skinner of the Respondent was advised of the Applicant’s situation. Mr Skinner emailed the Applicant’s partner and advised that the Applicant had been placed on leave without pay;
• On 15 July 2017 the Applicant was advised that he had been suspended without pay pending the outcome of the charges against him;
• The letter of 15 July 2017 provided no instructions that the Applicant should otherwise stay in regular contact with the Respondent;
• The letter of 18 October 2017 was sent by regular post and there is no way of knowing when it was delivered to the Applicant;
• The letter of 18 October 2017 was sent to, and received by, the Applicant by email on 19 October 2017 but there is no evidence that it was read by him on that day;
• Neither the posted letter nor the emailed letter was seen by the Applicant until 6 November 2017. I reach this conclusion because of the Applicant’s immediate response to the email of “Sorry for the late reply…” and because no other date of receipt or reason for not reading the letter or email was put to the Applicant;
• I am satisfied that there was no attempt to contact the Applicant when he had not been heard from by 31 October 2017.
• There are only three people employed by the Respondent in Darwin who are aware of the full nature of the charges against the Applicant – these are Mr Skinner, his sister Ms Maryann Criddle, Customer Service and Administration Manager, and her husband Mr Criddle.
[25] Section 382 of the Fair Work Act 2009 (FW Act) states:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[26] Section 392 of the FW Act sets out those matters that must be considered prior to considering the merits of the Applicant’s claim. Section 396 states:
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.
[27] Having determined the initial matters, s.385 of the FW Act sets out what an unfair dismissal is as follows:
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.
[28] Section 387 sets out the relevant criteria for considering if a dismissal is harsh, unjust or unreasonable as follows:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
Consideration
[29] I am satisfied that the Applicant was dismissed and is protected from unfair dismissal. He has been employed by the Respondent for over 12 months.
[30] Further, I am satisfied that the application for unfair dismissal was made within the timeframe specified in s.394 of the FW Act; that the Respondent is not a small business such that the Small Business Fair Dismissal Code does not apply and the dismissal was not a redundancy.
[31] Being satisfied of these things I must determine if the Applicant’s dismissal was harsh, unjust or unreasonable. I have therefore considered each of the matters in s.387 of the FW Act.
Section 387(a) - a valid reason for dismissal
[32] The Applicant was dismissed because he had been “absent from work on unpaid leave for over five months”.
[33] In this case the Applicant’s absence was caused directly by the actions of the Respondent in standing the Applicant down without pay “pending the outcome” of the court proceedings. The Applicant was asked to contact the Respondent “[o]nce the Court finding is known…”
[34] Despite this direction the Applicant says he remained ready, willing and able to resume work when given permission to do so by the Respondent.
[35] In circumstances where the Applicant’s absence was caused as a direct result of a direction given by the Respondent and that the Applicant did not refuse to resume work or meet any other requirement of the Respondent, it is difficult to see that this absence could cause a valid reason for dismissal.
[36] Whilst I appreciate that the Respondent may have held some concerns as to the well-being of other employees there was no evidence that:
(a) this concern of other employees exists because they were aware of the charges against the Applicant;
(b) the concern, if it did exist, was justified; or
(c) the concern, if it did exist, was put to the Applicant such that he might respond to it. In any event I accept that employees of the Respondent who might have raised a concern no longer work for the Respondent and, further, worked in a different location to the Applicant’s worksite such that they could have remained separated if necessary.
[37] For these reasons I am satisfied that there was no valid reason for the dismissal of the Applicant.
Section 387(b) - whether the person was notified of that reason
[38] The notification relates to the valid reason for dismissal. 8 In this case there was no valid reason for the dismissal so the Applicant could not have been notified of that reason.
[39] A letter dated 18 October 2018 was sent by ordinary post and email to the Applicant on 19 October 2017. It sought from him any reason as to why his employment should not be terminated. Given the importance of that letter and the drastic consequences that flowed from it, it would have been prudent to have sent the letter by registered mail. Such a course of action would ensure that there was no doubt of its receipt.
Section 387(c) - whether the person was given an opportunity to respond
[40] Given the changes to the postal system I am not convinced that the Respondent, in any event, provided adequate time for the Applicant to respond. The letter was posted on 19 October 2107. Australia Post would expect it to be delivered within two to six business days. Six business days from 19 October 2017 is 31 October 2017 – the date by which the Applicant was required to respond.
[41] During the hearing Mr Skinner said that he had still not heard from the Applicant as to why his employment should not be terminated but the letter of 18 October 2017 was self-executing. The Applicant’s employment would terminate on 31 October 2017 unless he convinced the Respondent otherwise. There was hardly much purpose in pleading his case with Mr Skinner after his employment had been terminated.
[42] I am not convinced that the letter provided the Applicant an opportunity to respond to the reason for his dismissal, primarily because it did not provide adequate time for him to respond, given the postal delays.
Section 387(d) - unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[43] As there was no discussion with the Applicant there was no unreasonable refusal to allow the Applicant to have a support person.
Section 387(e) - if the dismissal related to unsatisfactory performance
[44] This is not a relevant consideration
Section 387(f) & (g) - the size of the employer’s business and absence of dedicated human resource management specialists or expertise
[45] No submissions were made on these issues. I have therefore not considered them in reaching my decision.
Section 387(h) - any other matters
[46] Mr Skinner said that the reason the Respondent decided to stand down the Applicant in June 2017 pending the outcome of his court case was because of concerns expressed by other staff to having the Applicant in the workplace. This was not put as a reason for dismissal although the Respondent suggests that the need to provide a safe workplace and for employees to feel safe at work is a reason as to why reinstatement should not be considered.
[47] The evidence of Ms Criddle suggested that it was the “girls” in the retail store who were concerned at having the Applicant at work. It was established however that the current staff in the retail area are not aware of the reasons the Applicant was arrested. In these circumstances it is difficult, except for some broad, perhaps uniformed, assumptions about someone who has been arrested, to understand where this concern comes from.
[48] Ms Criddle is aware of the reasons for the Applicant’s arrest. She says she feels “uncomfortable and intimidated” by that reason. She is the only person to have given such evidence.
[49] As I said above, the Applicant has been very honest with the Respondent of the reasons of his arrest. I accept the Applicant’s uncontested evidence that the retail outlet is not co-located with his worksite such that he has no need to go there except to socialise. He indicated he is willing to stay away from that site.
[50] The Respondent also said that the Applicant’s criminal record history has created issues with where the Applicant can deliver. I note however that the Respondent has had that history since mid-2016 9 and the Applicant gave uncontested evidence that he has been open about his history and it had not been a barrier to him carrying out his work.
[51] The determination of whether a dismissal is harsh, unjust or unreasonable requires a consideration of all of the factors set out in s.387 of the FW Act. In this case there was no valid reason for the dismissal of the Applicant.
[52] Even if I did find that a valid reason existed I am not satisfied that, through the process engaged in by the Respondent, provided procedural fairness to the Applicant.
[53] A letter of such importance as one requiring a person to “show cause” as to why their employment should not be terminated should not be left to the vagaries of the basic postal service. Not only was the letter sent with no tracking facility (by express post or, more preferably registered post) it was sent as regular mail with not even the benefit of priority postage.
[54] There was no evidence before the Commission of any history of communication between the Applicant and the Respondent by email such that he might expect to be contacted this way but, in any event, he was under advice to get in touch with the Respondent once his court case was heard. He had no reason to believe that there was any time limit on his stand-down such that he should think to check his emails for advice on his future employment.
[55] Not having heard from the Applicant by the due date the Respondent did nothing to try and get in touch with him. They were aware of his partner’s details having been in touch with her during the period prior to the Applicant being released on bail. Having not received any reply from the Applicant the Respondent could, at least, have attempted a welfare check through his partner.
[56] For these reasons I consider the decision to dismiss the Applicant was harsh, it was unjustified given he was absent at the express direction of the Respondent and it was unreasonable given the circumstances of the Applicant’s stand-down.
[57] I am therefore satisfied that the Applicant was unfairly dismissed.
[58] Having found that the Applicant was unfairly dismissed the matter of remedy must be considered.
[59] In this case the Applicant seeks reinstatement. The Respondent argues against such a course of action.
[60] Section 390 of the FW Act states:
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
[61] I am not satisfied that reinstatement is inappropriate.
[62] There is no question that the matters associated with Applicant’s pending court appearance have any relationship to work. The matters that the court case raises were not such that the Respondent thought they warranted dismissal of the Applicant at the time he was bailed. The Respondent was content to have the Applicant stood down pending his court appearance. I do not consider it the role of this Commission to pass any judgement on the court matter.
[63] Whilst Mr Skinner now says there are problems with the Applicant’s police check I note this has not been an issue for the Respondent from mid-2016 when the police check was done until it dismissed the Applicant on 31 October 2017.
[64] Further, Mr Criddle, the Applicant’s immediate supervisor, has not indicated any issues that would arise from having the Applicant return to work. His uncontested evidence is that he would be happy to have the Applicant return to work.
[65] I am satisfied that the Respondent has totally within its control the capacity to ensure that the Applicant does not have any dealings with Ms Criddle nor attends to the retail centre in any way. These however are issues for the Respondent to deal with and the order I shall make shall not deal with them. This is because the powers of the Commission are limited to an order for reinstatement. The Commission does not have powers to put conditions on that reinstatement (unless such matters are properly incidental to the order to reinstate).
[66] The provisions in relation to an order to reinstate the Applicant are set out in s.391 of the FW Act. Section 391 states:
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) 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 reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
[67] I shall issue an order that the Applicant be reinstated to the position he occupied prior to his dismissal (s.391(1)(a) of the FW Act). I will also order that continuity of employment of the Applicant be maintained (s.391(2)(a)) and that the Applicant’s period of continuous service be maintained (s.391(2)(b)).
[68] I do not intend to make an order to restore lost pay. At the time he was dismissed the Applicant had been stood down without pay pending the outcome of a court case. That case has not yet been heard and it is therefore likely the Applicant would have remained stood down without pay. The Applicant has therefore not lost any pay such that no order to restore lost pay could have meaning (s.391(3)).
[69] I am aware that the Applicant had been stood down without pay at the time his employment was terminated. Whether this should continue is a matter for the Respondent and the Applicant to discuss and determine. It is not a matter on which the Commission will make any order.
[70] An Order 10 reflecting the above will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
T. Lynch on his own behalf.
K. Mannion and S. Skinner for Reward Supply Pty Ltd T/A T/A Reward Hospitality.
Hearing details:
2018.
Darwin
February 8.
Printed by authority of the Commonwealth Government Printer
<PR600403>
1 Exhibit A1.
2 Exhibit A2.
3 Exhibit A3.
4 Respondent document 12, page 2.
5 Respondent document 5.
6 Respondent document 6.
7 Respondent document 8.
8 Chubb Security Australia Pty Ltd v Thomas Print S2679.
9 Respondent document 17.