| [2020] FWC 2926 [Note: An appeal pursuant to s.604 (C2020/4807) was lodged against this decision - refer to Full Bench decision dated 24 November 2020 [[2020] FWCFB 6117] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joao Miguel Ferreira Caldas da Costa
v
EIM Training Pty Ltd
(U2019/10069)
COMMISSIONER SIMPSON |
BRISBANE, 10 JUNE 2020 |
Application for unfair dismissal - Summary dismissal – Whether applicant engaged in misconduct by making a complaint to a regulatory authority and fraudulently claimed unauthorised TOIL – Applicant did not make the complaint – Genuine misunderstanding regarding TOIL arrangement – No valid reason for dismissal – Applicant denied procedural fairness – Dismissal unfair – Compensation ordered.
[1] On 9 September 2019, Mr Joao Miguel Ferreira Caldas da Costa (Mr da Costa) made an application to the Fair Work Commission (the Commission) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against EIM Training Pty Ltd (EIM).
[2] The matter did not proceed to conciliation and was allocated to Commissioner Spencer and listed for hearing on 18, 19 and 20 December 2019 however was adjourned on the basis of concerns regarding the material submitted by EIM. A series of member assisted conferences were held before Deputy President Asbury on 17 December 2019, 24 January 2020 and 3 April 2020 in an attempt to settle the application.
[3] The matter was reallocated to me on 15 April 2020 and was listed for directions 22 April 2020. I was advised that Mr Nick Bottrall, the Director and owner of EIM who was to have given evidence for the Respondent, had suffered a serious injury and would be unable to give evidence for the foreseeable future. Ms Michelle Bottrall, the General Manager of EIM and wife of Mr Bottrall advised the Commission that EIM preferred to have the matter proceed to final determination despite Mr Bottrall being unable to give evidence rather than have the matter further delayed. Mr da Costa also wanted the matter to proceed to final hearing. It was settled that the matter would be heard on 30 April 2020.
[4] On 30 April Mr da Costa appeared on his own behalf and Ms Bottrall appeared on behalf of EIM. It was agreed that the matter would proceed as a determinative conference.
[5] EIM is a registered training provider, providing certificate and diploma level courses in Queensland. EIM is governed by the Australian Skill Quality Authority (ASQA).
[6] Mr da Costa commenced employment as a Trainer and Assessor - Electro Technology on 3 June 2013. The contract term was for a “full time salaried position” and specified “an annual salary of $65,000 will be paid per annum.” 1
[7] The contract also specified Mr da Costa’s hours of work as follows:
“The electro technology department at EIM Training generally operates two standard shifts with a standard 38 hour week. The day shift comprises of a commencement time of 8:30am and a finish time of 5.00pm Monday to Friday, and a 60 minute lunch break each day.
The night shift comprises of a commencement time of 12:30pm and a finish time of 9:00pm Monday to Friday, and a 60 minute lunch break each day. On occasions and at peak times, your hours may need to be extended or adjusted to cope with your workflow.” 2
[8] At this time, Mr da Costa was a 457 Visa Holder and EIM submitted that it paid all the legal fees associated with the Visa so that Mr da Costa, his wife Mrs Sofia Moniz and his daughter were able to emigrate from Portugal to Australia. 3
[9] Although Mr da Costa’s academic qualification in Portugal was in line with needs of EIM, EIM submitted that there was a transition period that required Mr da Costa to complete the relevant vocational qualification and specific units of competencies to ensure he was a registered training organisation (TRO) trainer compliant with ASQA. 4 To be a qualified trainer at EIM, the incumbent is required to have the following qualifications:
• Certificate IV in Electrical Instrumentation, Control units of competencies
• Certificate III in Instrumentation and control qualification
• Diploma of Electrical and Instrumentation units of competencies (optional)
• Certificate IV in TAE Training and Assessment
[10] EIM submitted that Mr da Costa, and his wife who later commenced employment with EIM in 2014, were managed through the transition period at the expense of EIM of approximately $20,000 in training. 5 Ms Sofia Moniz provided a witness statement in support of her husband. Ms Moniz said she started working for EIM Training on May 2014 as a “Contract Trainer and Assessor” and later on moved into a permanent position working 30.4 hours per week.6
[11] Mr da Costa submitted that in late 2013, he raised concerns with EIM that he was being underpaid compared to other trainers employed by EIM, who were receiving an annual salary of between $95,000 to $100,000. 7 Following these discussions, Mr da Costa was offered a second contract for the position of Training Program Coordinator. The contract was stated “this is a full-time salaried position” and specified “annual 12 month salary of $85,000 will be paid per annum.”
[12] The hours of work specified in the contract of employment for the Training Program Coordinator position remained the same as the hours of work specific in the contract of employment for the Trainer and Assessor position.
[13] On 10 March 2014, Mr da Costa attended a meeting with EIM. Mr da Costa submitted that during the meeting, he raised concerns that he was being asked to perform duties outside of his assigned working hours without financial compensation. Following the meeting, he sought clarification from his employer and requested that amendments be made to the document recording the meeting, to which Mrs Michelle Bottrall agreed. Mr da Costa submitted that the document tendered by EIM in these proceedings do not contain the amendment as requested.
[14] On or around 12 May 2014, Mr da Costa was offered a third contract for the position of Electrotechnology Manager. This contract stated under the heading Term that “this is a full-time position” and specified “an annual 12 month salary of $105,000 will be paid per annum.”
[15] The hours of work remained the same under this new employment contract. In November 2014, Mr da Costa was granted permanent residency in Australia.
[16] EIM submitted that in 2016, it suffered considerable financial difficulties as a result of a Queensland government funding program for Certificate IV in Electrical Instrumentation and Control. EIM submitted that some competitors were paid approximately $3,000 in government funding per student. As EIM did not receive the incentive, this led to severe financial difficulties. 8
[17] As a result of these financial difficulties, Mr da Costa’s position as Electrotechnology Manager had been made redundant, however, he agreed to continue to work as a Trainer & Assessor with a reduction of salary from $110,000 per year to $100,000 per year.
[18] Subsequently, on 4 April 2016, a fourth contract for the position of Electro-technology Trainer & Assessor was offered to Mr da Costa, reflecting the change in salary. This contract stated under the heading Term that “this is a full-time position” and specified “annual salary: $100,000.” Unlike the previous contracts, the Hours of Work section read “Monday to Friday, 8.30am to 5.00pm, with one hour unpaid lunch hour.” 9
[19] None of the four contracts Mr da Costa worked under make any reference to any TOIL arrangements.
[20] Mr da Costa gave evidence that in May 2019, most of EIM’s employees were asked to sign new contracts of employment.
[21] Mr da Costa was sent a new contract titled EIM Employment Contract - Full Time Salaried Employees. The contract relevantly specified the following in relation to hours of work and remuneration:
“4. Hours
4.1 Your ordinary hours of work will be 38.0 hours per week.
4.2 Ordinary hours are generally worked between the hours of 8.30am - 5.00pm, Monday Friday, unless directed otherwise by the Employer.
4.3 The Employer may also require you to work reasonable additional hours from time to time, including on weekends and public holidays. You agree, having regard to the Employer’s operational requirements, the nature of your position and the salary paid to you under this contract, that all additional hours are reasonable.
5. Remuneration
5.1 You will receive a gross annual salary of $100000.00 (less applicable tax).
5.2 You may also receive other payments, or higher hourly rates of pay for work performed at particular times.
5.3 All payments made to you by the Employer throughout your employment (regardless of whether they are expressly referred to or guaranteed by this contract) compensate for and set-off to the fullest extent possible all combined benefits or entitlements you have under any applicable industrial instrument or law. This includes, without limitation, payment for all hours worked, any minimum salary, payment for minimum periods of engagement, overtime, penalty rates for weekend work or public holiday work, shift and overtime allowances, meal allowances, annual leave loading and any other allowances and loadings to which you may otherwise be entitled.” 10
[22] Mr da Costa stated that the contract he was given was non-compliant with the Educational Services (Post-Secondary Education) Award 2010 as it did not include his classification. Mr da Costa also stated that he considered new clauses in the contract were “very detrimental to [his] employment conditions”, in particular:
“a. the terms of the award are not incorporated into the contract nor is there any intention to give them any contractual effect”;
b. requirement to work at any location nominated by the Employer on a temporary or permanent basis;
c. agreeing that all additional hours are reasonable.” 11
[23] Mr da Costa sent correspondence to EIM on 10 June 2019 raising his concerns with the new contract. A response was sent on 24 June 2019 by Ms Alison Traecey, HR Associate of Employment Innovations, on behalf of EIM.
[24] Mr da Costa sent a further email with his responses to the matters raised by Ms Traecey included.
[25] Relevantly, the email exchange included the following regarding reasonable additional hours. The email exchange takes the form of particular clauses of the contract with comments from Ms Traecey, and from Mr da Costa. For clarity, I have annotated to indicate who each comment is from:
“4.3 The Employer may also require you to work reasonable additional hours from time to time, including on weekends and public holidays. You agree, having regard to the Employer’s operational requirements, the nature of your position and the salary paid to you under this contract, that all additional hours are reasonable.
Ms Traecey: This clause is derived from the NES minimum workplace standards and is in compliance with the Award.
Mr da Costa: I’m not saying it’s not compliant.
Ms Traecey: Your salary is well above the Award rate for this reason – to compensate you for times where additional work hours that may be required – e.g. if you need to do some work at home to get a task finished.
Mr da Costa: That is a wrong assumption, my salary is above the award to be at market value. The award is generic, does EIM pay the same to UEE trainers and Business trainers? EIM can’t hire trainers for this department (UEE) paying award rates, and management knows that. Let’s put some context here, it’s not uncommon for me to work 8.30am-9.00pm Monday to Friday and sometimes 2 weeks in a row, I can’t agree on that all additional hours are reasonable.”
[26] Mr da Costa did not sign the new contract at any point. On the basis of the evidence I am satisfied that Mr da Costa did not accept the proposed new contract and continued to work under his existing contract.
[27] EIM submitted that to attempt to remedy its financial difficulties, a new training delivery model was introduced whereby electrician trainees would complete their studies and practical assessments in intensive batches. To accommodate this, Brisbane-based trainers would work 12-hour days over 5 days for 3 batches, and 12-hour days for 3 days for one batch.
[28] EIM submitted that this model was discussed with the three Brisbane-based trainers at the time, being Mr da Costa, Ms Moniz, and Mr Leon van Wuyk. EIM submitted a meeting was held with the three trainers and management and the intensive batch delivery model was agreed on.
[29] EIM submitted the agreement for payment for the longer hours was time in lieu (TOIL). For example, four extra hours worked for the day would equal four hours trainers could schedule for time in lieu. For Ms Moniz, who only normally worked 3 days per week, it was decided that she be paid for the extra four hours per day rather than receiving time in lieu. 12 TOIL accumulated was recorded in a spreadsheet where the trainers would record the extra hours worked so accumulation could be tracked.
[30] Ms Michelle Bottrall provided a witness statement admitted into evidence. 13 Ms Bottrall said that Mr da Costa and his wife Ms Moniz are asserting that she attended a meeting where a deal of l .7 hours was paid for every l hour worked after the normal 7.6 hours and that award wages were discussed in this same meeting. Ms Bottrall refuted this claim. Ms Bottrall said she is aware of a verbal meeting which took place offering the opportunity to complete classes in an intensive model (designed by Mr da Costa and Ms Moniz) to be run on a time in lieu model, and this was an honesty recording system on an excel spreadsheet.
[31] Ms Bottrall said she always just believed that time in lieu was, if you work an extra hour you can take that hour off at another time, and she had never contemplated penalty rates as they were just focused on keeping the company alive and Mr da Costa and Ms Moniz were on extremely high wages.
[32] Ms Bottrall said her experience with Ms Moniz and Mr da Costa had been nothing but positive, including ample options of work flexibility with such a young family, use of the Company apartment in Cairns for a family holiday at no expense, presents from every trip she had been on, gifts for their children at Easter and Christmas and always a caring ear.
[33] Ms Bottrall said at the time of implementing the ‘Intensive Model’, EIM was struggling, and she was not in a position to be micromanaging employees. Ms Bottrall said it had been agreed trainers who engaged in extra hours outside of their usual day were to take time in lieu, because Ms Bottrall was spread thin Mr da Costa and team were tracking their own hours/time in lieu. Ms Bottrall said she was devastated to find out this system had been abused.
[34] Ms Bottrall said that Mr da Costa has suggested that a particular email is evidence that she understood the TOIL arrangement was as claimed by Mr da Costa, however her response to Ms Moniz’ request for extra payments in the email indicates she didn’t quite understand what Ms Moniz had written. Ms Bottrall said she considered Ms Moniz’ response was referring to hours she was working under a flexible work model from home to accommodate for her family needs. Upon re reading the email communication Ms Bottrall said she is of the belief that Ms Moniz did not correct her on her oversight, and had Ms Moniz, she would have immediately acted and brought this to the Management Team. Ms Bottrall said they were under so much pressure at that time keeping the company alive that she didn’t pick up on the oversight.
[35] Mr da Costa submitted that “an agreement was that for every day of intensive classes, the allocated trainer would accumulate 7.6h of on-call time (or, if agreed with management, payment for the 7.6h at the employee’s hourly rate)”. It was put that this agreement was made during a meeting with Ms Bottrall.
[36] In his written submission, Mr da Costa concedes that “there’s no written agreement on this deal”. 14
[37] Mr da Costa gave evidence that EIM tried to break the agreement regarding TOIL and at the time he emailed Mr Bottrall and Ms Bottrall explaining why the on-call deal happened and why it was a good deal for EIM. Mr da Costa provided copies of these emails and said Ms Bottrall never said to him she was unaware of the deal and never replied to any email.
[38] Mr da Costa said Trainers agreed to this model as they were given the “bonus” of having their extra effort compensated on the way the overtime was calculated. Without this bonus, trainers wouldn’t have agreed to the new model and it would have not been implemented.
[39] Ms Bottrall said Ms Moniz’ work arrangements were quite different to the other two full time trainers. Ms Bottrall also relies on the witness statements of Ms Melissa White and Ms Zoe Rundle-Curry testifying to the honesty of Ms Bottrall, and all other staff were working on a one to one basis.
[40] Mr da Costa said a meeting was held where hours would be reduced from 3 weeks to 2 weeks resulting in four hours overtime every day. Mr da Costa said that his understanding from the meeting with Ms Bottrall was that for every intensive 12-hour day a trainer would take one day in lieu. He said he did not know where the 1.7-hour number came from. His evidence was he understood that was the same for all the trainers and in Ms Moniz’ case would be paid at the same rate, so she would be paid effectively double time.
[41] Mr da Costa referred to the excel spreadsheet setting out a calendar of work hours and TOIL hours from July to December 2017 for himself and Leon van Wuyk that he said was sent from Ms Moniz to Ms Bottrall for approval. Mr da Costa referred to the month of August 2017 which showed an equal number of days of work to days of TOIL during the intensive.
[42] Mr da Costa pointed out the calendar was planning from July to December 2017 and it can clearly be seen one day of classes also schedules a day of TOIL. Mr da Costa said Ms Moniz prepared the calendar and Ms Bottrall approved the rostered calendars. Ms Bottrall accepted that she would have received the excel spreadsheet with the email and she would have approved it.
[43] Ms Bottrall also said she was contacted by a previous trainer Mr Jarrod McCarthy on 20 December 2019, after the dismissal and said that he had told Mr da Costa that he believed that the TOIL accrued at one hour for one hour. Ms Bottrall said Mr McCarthy had said he did not recall populating the calendar at the time.
[44] Mr da Costa said Mr McCarthy was a third trainer employed for a brief time while Mr da Costa and Leon van Wuyk were employed several years ago. Mr da Costa said Mr McCarthy said to him that he now believes it was one hour for one hour, however at the time he was employed he recorded his TOIL as one day for one day. The effect of Mr da Costa’s evidence is that Mr McCarthy did not raise any issue at the time and has only revisited his view on the matter well after the time of his employment. Mr McCarthy did not give evidence at the hearing himself.
[45] Mr da Costa said there was no dispute there was a meeting about the new TOIL arrangement with Ms Bottrall. Ms Bottrall said she remembers a meeting did occur and the model was presented by Ms Moniz and a TOIL arrangement was agreed. Ms Bottrall said Mr Bottrall was also at the meeting.
[46] Mr da Costa said Ms Bottrall claims she is good at documentation but is unable to produce any record of a one to one agreement as now claimed. Mr da Costa also said Ms Bottrall did not question the August 2017 email, and the October emails clearly saying each day of intensive equals a day in TOIL.
[47] Mr da Costa said it is also clear that Ms Moniz was trying to explain that it was one day of TOIL for each day of intensive and Ms Moniz always claimed TOIL this way and it was always paid which is the same as for Mr da Costa and Mr van Wuyk. Ms Bottrall accepted that she should have challenged it and should not have worked on an honesty system.
[48] Mr da Costa also said that Mr Bottrall noted that in February 2018 the trainers were accumulating too much time off and changed the payment method of leave to weekly for this reason. Mr da Costa said that it is not plausible that the employer did not know why so much TOIL was being accumulated. Mr da Costa said he was logging his own hours and Mr van Wuyk was logging his own hours. He said Ms Moniz claimed her hours using the same method. Mr da Costa said that if there was no agreement, why was everyone logging the hours in the same way.
[49] Ms Bottrall accepted that she always had access to the excel spreadsheet logs. It is apparent from the logs that they clearly indicate how much time is rostered training and how much was TOIL. It could not be said that there was any attempt to disguise the amount of TOIL being taken. Ms Bottrall referred to an email Mr van Wuyk sent to Mr Bottrall. The letter is undated and Ms Bottrall was unable to indicate when the email was sent. Mr van Wuyk did not give evidence in the matter. The excerpt from the email read as follows:
“Regarding the Time in Lieu: Both Miguel and Sofia said the hours were calculated as per the award, and they were agreed on in a meeting we all had in the training shed when we derived this new model. When all this became an issue Miguel did mention to me how these hours were calculated, both him and Sofia quoted the award – I cant (sic) remember what this breakdown is, but they were pretty convinced they were correct.
I don’t have access to my EIM email’s (sic) to see if anything was communicated around this, but I can’t recall any.”
[50] Ms Bottrall said she did not wish to dispute who entered what into the log.
[51] Mr da Costa also referred to an email of Mr Bottrall on 3 July 2019 which said as follows:
“From: Director
Sent: Wednesday, July 3, 2019 5:20 PM
To: Sophia Moniz; Leon van Wyk; Joao Costa
Subject: Urgent HR Matters
Importance: High
Hi Sofia, Leon and Miguel,
EIM Management has recently reviewed their business model with focus around ‘UEE Intensives’. As a result of this review it was decided to move from the time in lieu model to paying employees for their additional hours.
This was presented to the UEE Team via their monthly team meeting conducted by Melissa White (Training Manager) and accepted verbally by all attendees.
Upon implementing this new model, it was identified that UEE Trainers were calculating additional hours at 1.7, which was never approved in writing by the CEO.
However, moving forward EIM Management are offering UEE Trainers the following offer in relation to all ‘UEE Intensives’ effective as of 17 June 2019.
Offer: For all hours worked between 5pm and 9pm to accommodate ‘UEE Intensives’ these hours will be paid at the trainers hourly rate for each hour worked.
This offer has been calculated based on the fact that each of you as trainers are on 40% above the award. With the intention that no trainer would be expected to do more than one intensive per fortnight.
EIM will no longer be offering Time in Lieu for any additional hours.
This offer is for you to either accepted or decline. If accepted it will be business as usual, if declined I will ensure your roles remain within or about the standard 38 hours as per your contracts.
In the instance you decline this offer, you may be required to (a) work part of an intensive and work on a handover model (b) have KPI’s adjusted to result new roles and responsibilities for example working with 500+ online students to assist with their studies and progression (c) provide further support with one on ones, practical’s and also validation.
Further conversation has taken place as a result of this review which will see EIM change their ‘Intensive’ model to run 9am – 5pm with smaller numbers more regularly. More information will be provided once this model has been finalized.
In addition, as EIM have currently been paying you your annual leave weekly as accrued, this will stop as of this week’s pay as a result of the new model.
You will also notice through Employment Hero you will see an Amendment of Terms, this is to eliminate the misunderstanding of ‘reasonable hours’. As a result of being paid 40% above the award your standard hours will remain 38 hours, however EIM are in a position to request up to 42.5 hours from you (exception of Sofia who will remain on her 20 hours) without triggering time in lieu obligations.
What happens from here? I will require you to accept or decline this offer. I will require you to sign the Amendment of Terms.
I am aiming for a model where moving forward all trainers can return to 38-hours per week with additional hours no longer required. I believe this end model will work well for all involved.
I appreciate your patience with this process and your reply email no later than Friday,
exception of Leon who may not have access to his emails until Monday 15th July.
Regards
Nick Bottrall
Director”
[52] Mr da Costa said in this email Mr Bottrall said he never approved the model in writing, however moving forward made a different proposal. Mr da Costa said this email was sent two months before his dismissal and the issue concerning TOIL was not raised again until the date of his dismissal. Mr da Costa said that initially the employer treated the matter as a mistake however then relied on the TOIL issue months later as a reason to terminate him.
[53] Ms Bottrall also referred to a written warning on 21 August. Mr da Costa said the written warning had nothing to do with this issue. Ms Bottrall said there was a lead up of behaviour. Ms Bottrall accepted that the August warning had nothing to do with TOIL, however said in the interim period Mr Bottrall was still looking into the TOIL issue and investigating whether there had been an agreement for taking TOIL as asserted by Mr da Costa and the delay was reflective of the time Mr Bottrall took to look into the issue.
[54] Ms Moniz’ evidence was that in August 2017 EIM adopted the intensive model to deliver classes in Brisbane and it was agreed between Brisbane UEE trainers and Ms Bottrall, that every day of intensive classes would be equivalent to two normal days of work.
[55] Ms Moniz said she was the trainer that had the best relationship with Ms Bottrall, and Ms Bottrall decided she would communicate with Ms Moniz and Ms Moniz would explain the procedures to the remaining trainers.
[56] Ms Moniz said she created a calendar, showing classes, trainer allocations and on-call time. Ms Moniz said Trainers were assigned on-call time immediately after the termination of classes and this was sent to Ms Bottrall on 29 Jun 2017.
[57] Ms Moniz said it was later identified that if this calendar was to be followed, EIM’s operations had little flexibility, and it was decided it was better to have a “bank of hours” for on-call time. Ms Moniz said in September 2017 Ms Bottrall instructed her to create “time in lieu log.xls”, and later told her where to store it.
[58] Ms Moniz said as she worked reduced hours, on a total of 20h per week, from which 2.5h were worked from home on Monday and Tuesday and the remaining hours were worked on Wednesday to Friday and accumulating on-call time wouldn’t suit the business needs as she would stay for too long absent from campus. It was agreed that in her case, overtime would be paid being - payment of two days of work (2x7.6h) per every day of intensive class.
[59] Ms Moniz said after one class finished, typically three days in her case (Wednesday to Friday), she would send an email to Ms Bottrall asking for the payment of her overtime. Ms Moniz said she was asked by Ms Bottrall on multiple occasions for clarification on the calculations leading to the hours she was claiming, and she said she always replied and the hours were always paid. Ms Moniz referred to emails of 25 August 2017, and 25 October 2017 including an email where she stressed that “each day of intensives counts as 2 regular days”.
[60] Mr da Costa said an email of 25 August 2017 sent from Ms Moniz to Ms Bottrall setting out the method of calculating TOIL also demonstrated that the parties agreed to the arrangement as described by Mr da Costa. The email was as follows:
“From: Sophia Moniz
Sent: Friday, August 25, 2017 8:30 PM
To: Michelle Lynn
Subject: PLC intensive
Hi Michelle,
Just to let you know that I finished today the PLC intensive class and it all went well and I think they liked it. They definitely like this new model with intensive classes, although it is full on, and very tiring (for them and for me!!!:))
I’ll try to mark all the practicals tomorrow, as I had a few HLSP’s.
As we agreed before, I would appreciate if you could pay me next week the 48h (2x3 days of 7.6h + the 2.5h of Monday and Tuesday), instead of the usual 20h.
Have a wonderful weekend!:)”
[61] Ms Bottrall also referred to the 25 October 2017 emails raised by Ms Moniz in support of her position. The email chain was as follows:
“From: Michelle Lynn
Sent: Wednesday, October 25, 2017 11:53 AM
To: Sophia Moniz
Subject: RE: PLC intensives
Thanks Sofia for reminding me, please can you do that each time as I will forget.
M
Michelle Lynn
Group General Manager
From: Sophia Moniz
Sent: Wednesday, 25 October 2017 11:56 AM
To: Michelle Lynn
Subject: RE: PLC intensives
No worries, Michelle, I will not forget it!!lolol!
Kind regards,
Sofia Moniz
Electro-technology Trainer & Assessor
From: Michelle Lynn
Sent: Wednesday, October 25, 2017 11:59 AM
To: Sophia Moniz
Subject: RE: PLC intensives
Sofia
Should it be 12x3 36 hours? You have 48?
Michelle Lynn
Group General Manager
From: Sophia Moniz
Sent: Wednesday, 25 October 2017 12:06 PM
To: Michelle Lynn
Subject: RE: PLC intensives
So, it is 2 x 3days of 7.6h = 45.6h (each day of intensives counts as 2 regular days) + 2.5h of Monday and Tuesday (as per normal weeks).
Isn’t that right?
Kind regards,
Sofia Moniz
Electro-technology Trainer & Assessor
From: Michelle Lynn
Sent: Wednesday, 25 October 2017 1:16 PM
To: Sophia Moniz
Subject: RE: PLC intensives
HA Sorry forgot the Monday and Tuesday
Michelle Lynn
Group General Manager”
[62] Ms Bottrall said Ms Moniz had her own arrangements that she worked flexibly, and the reason it was hard to explain was that Ms Moniz’ arrangements included extra duties and the fact that Ms Moniz worked on a different model and she did extra hours. Ms Bottrall’s evidence was to the effect that in the emails when she said she forgot about the Monday and Tuesday this was related to her understanding of Ms Moniz having performed other additional work.
[63] Ms Moniz said that it was always within EIM knowledge that intensive classes would run 9.00am to 9.00pm with 1h lunch break and 30min for trainer set up, a total of 11.5h per day. Ms Moniz said it’s easy math to understand that working 45h in three days equates to 15h per day, the difference comes from how overtime was always calculated.
[64] Ms Moniz said she had had no doubt Ms Bottrall, as EIM’s General Manager was aware it was agreed each day of intensive class was counted as two regular days. Ms Moniz accepted she was paid in money and not time. It was put to Ms Moniz that she did not have a written agreement that she was paid two days for each day. Ms Moniz said she provided the only emails she had in her evidence which showed what she was paid for intensives.
[65] Ms Melissa White, the Training Manager for EIM provided a witness statement 15 for EIM in the matter. Ms White said that on 27 June 2019 she sought out the CEO who was in discussion with Ms Bottrall in one of the EIM offices. Ms White said she reported to them both that Ms Moniz was wanting to be paid 1.7 hours for every hour over 7.6 she worked as part of the intensive classes being run in Brisbane.
[66] Ms White said she brought the findings to their attention because it seemed hugely excessive and she needed some guidance as to how to respond to the request. Ms White said Mr Bottrall said “no way it’s one for one” to which she mentioned that Ms Moniz had been claiming 1.7 for some time. Ms White said after some quick research it was realised that Mr da Costa had also been calculating his extra daily hours at 1.7. Ms White said both Mr and Mrs Bottrall looked shocked and Mr Bottrall instructed the management team to find all the documentation that would have been stored at the time the intensives have been developed.
[67] Ms White said the management team searched through countless emails and management meeting minutes, Brisbane meeting minutes and could not find a single supporting document that such a deal existed.
[68] Mr da Costa asked what documentation demonstrated a calculation of 1.7 hours. Ms White said the TOIL Log and an email from Ms Moniz. It was put to Ms White you could not conclude a calculation of 1.7 from the log. Ms White accepted that management had access to the log. Ms White accepted that management could check the hours but said it was an honesty system as well. Ms White was unable to give evidence about the log itself in 2017 as she said it was before her time. Ms White accepted that no other documents were found concerning an agreement.
[69] Ms Zoe Rundle-Curry the Compliance Manager for EIM provided a witness statement for EIM, 16 and said on Thursday 27th June Mr and Ms Bottrall and Ms White happened to be in her office when they were alerted to the 1.7 hours arrangement with the Brisbane UEE Team.
[70] Ms Rundle-Curry said they were all in disbelief when they learned of the 1.7 hour to every one extra hour worked arrangement being enjoyed by Mr da Costa and colleagues as they all had worked so hard over the past three years to keep the business going.
[71] Ms Rundle-Curry said she certainly would have advised against such a proposal taking into account the generous wages they were already enjoying. Ms Rundle-Curry said after an extensive search, no documentation was found amongst emails or meeting minutes that even suggested that a discussion on remuneration had taken place. Ms Rundle-Curry said had the question arisen regarding overtime loading there would have been consultation and investigation as to what the rate should be, and this never occurred.
[72] Ms Rundle-Curry said Ms Bottrall is an incredibly diligent minutes taker and documents virtually everything that is said and done in meetings including pertinent casual conversations so if there are no documented meeting minutes about this overtime arrangement, then she firmly agreed it never happened.
[73] Mr da Costa asked Ms Rundle-Curry if the intensive classes involved a reduction from 15 normal days to eight long days and she accepted that. Ms Rundle-Curry said this issue was never raised at a management meeting. Ms Rundle-Curry said the only thing she ever heard of was one for one.
[74] On 21 August Mr da Costa was given a warning from Mr Bottrall as follows:
“Dear Joao,
Written Warning – Misconduct
This letter is to provide you with a written warning regarding recent misconduct. The reasons for issuing this warning are as a result of your conduct on 23/07/2019 when you emailed another team member with information in a negative tone criticising management which included discussions regarding your employment terms and conditions. This type of conduct, specifically the tone and context of the email does not uphold the Company’s core values and reputation and is in breach of the code of conduct which you have viewed and acknowledged recently on 5 June 2019. This was discussed recently in our performance management meeting where you were provided with an opportunity to bring a support person and to respond.
Repetition of this behaviour or similar misconduct will result in further disciplinary action, up to and including termination of your employment. Please note that this written warning is confidential and not to be discussed with anyone within the company, other than myself or human resources. Disclosing this could lead to further disciplinary action, up to and including termination of your employment.
We now request that you sign to indicate that you have received a copy of this letter. Should you refuse to sign a copy of this letter, it will be noted as “Refused to Sign Copy” and the letter will be kept on your file.
If you need to discuss this matter further please do not hesitate to discuss this with me.
Yours Sincerely,
Nicholas Bottrall
Owner/ CEO
EIM Training”
[75] At the determinative conference it appeared to be agreed between the parties that this warning was not directly related to either of the issues relied upon to dismiss Mr da Costa and despite being referred to in the termination letter the incident on 23 July was not relied upon to any significant extent by EIM in the course of the matter. On that basis I do not intend to afford it any particular weight in determining whether the dismissal was unfair.
[76] On 2 September 2019, a letter from ASQA was sent to EIM outlining a complaint about Mr Matthew Linklater, a new trainee, that had been made. The complaint alleged that Mr Linklater did not hold his relevant training and assessment qualification while conducting training for EIM. In its letter, ASQA stated that it:
“had conducted an initial assessment of the allegations made in the complaint and has decided not to take further action. ASQA is not investigating this complaint further as: the complainant did not provide evidence to support the allegations made and advising that ASQA did not intend to take the matter further as there was no evidence to support allegations made.”
[77] It was EIM’s submission filed before the determinative conference that Mr da Costa had made the complaint to ASQA. In advancing its argument EIM has submitted that Mr da Costa had been caught looking through Mr Linklaters LinkedIn account. Mr Bottrall did not give evidence however it seems clear that following EIM being advised of a complaint being made to ASQA a view was formed that Mr da Costa’s attitude had turned against it. EIM submitted that Mr Bottrall contacted ASQA, seeking to identify the complainant. However, ASQA advised that they were unable to advise as such.
[78] Ms Bottrall said in her statement that she was in attendance at an ASQA audit on 10 December 2019 as the General Manager of EIM Training Pty Ltd, and the lead auditor made a point of praising EIM for the model they use to bring new trainers into their industry and from their particular trade. Ms Bottrall said that securing Electrotechnology Trainers has always been challenging as EIM competes with the mining industry. Ms Bottrall said from the time of her commencement at EIM they had always used a supervision model, and this model has proved to be an excellent way for EIM to ensure quality across all ASQA standards as they were able to mould these trainers with the knowledge required to keep EIM compliant with the ASQA standards.
[79] Ms Moniz gave evidence that it was her that made the complaint to ASQA and not her husband as suspected by EIM. Ms Moniz said she had a bad experience with a previous class where a new trainer was not prepared, so she ended up training the class herself. Ms Moniz said on a later occasion she witnessed the same trainer was unable to deliver a practical class, having another trainer stepping up. Ms Moniz said she believed that having a trainer without enough knowledge or proper qualifications is not good or fair for students.
[80] Ms Moniz said the complaint relates to the fact that EIM is employing trainers without the proper qualifications to work as a trainer and assessor. Ms Moniz said the person in question was not qualified to work as a trainer.
[81] Ms Moniz said on 16 July 2019 she was told by her Supervisor that:
“this week’s PLC classes will be run by our new UEE trainer Matt. … I would like you to be available to support him during your normal working hours, if he requires it and if possible...”.
[82] Ms Moniz said this was not proper supervision to someone inexperienced and unqualified as a trainer and assessor.
[83] Ms Moniz said she ended up having to go on sick leave and thus knew it was unlikely Mr Linklater was being supervised as no Instrumentation trainers were free. Ms Moniz said with all this information, she decided to report the situation to ASQA, the regulator for the VET sector. Ms Moniz said she had previously showed internally her concerns regarding the issue. Ms Moniz said while EIM’s Director accused her and Mr da Costa of collusion she maintained she acted on her own, based on her own convictions.
[84] Whilst Ms Moniz was giving her evidence Ms Bottrall appeared to concede that on the evidence it now appeared that the complaint to ASQA had been made by Ms Moniz. In relation to EIM intellectual property, Ms Bottrall said when Ms Moniz was pregnant and on sick leave she was shut out from IT systems and was not required to respond to work related issues while on leave for her own wellbeing. On that basis Ms Bottrall said while Ms Moniz may have lodged the complaint, she was only able to do so because of information provided to her by Mr da Costa who retained access to the EIM IT system, including the CloudAssess platform which Ms Moniz would not have had access to.
[85] Mr da Costa said in response that at the time the complaint was made to ASQA Ms Moniz was working, and if she was working at that time she had full access to the EIM IT system. Mr da Costa said on the same day the complaint was made an email was sent by Mr Bottrall to Ms Moniz about work. Ms Moniz also said that she was working the day she made the complaint which was 29 July 2019. Ms Moniz said on that day she received an email from Mr Bottrall at 12.08pm. The email Ms Moniz said she received was produced and is as follows:
From: Director
Sent: Monday, July 29, 2019 12:08 PM
To: Sophia Moniz
Subject: Work
“HI Sofia,
Because you are no longer training the intensive classes we need to ensure your work time is driving income for the business. Due to this, we need this reporting system to work.
Being one of our highest paid employees (by hour) and now not contributing to the intensives, we have to be sure that your time is spent resourcefully and redirect your duties and time as such.
For example I checked your emails out for Monday and Tuesday and found very few of them, we then checked your CloudAssess and found the same result.
This is why we need to you to be working from the campus for the 20 hours, to ensure your efforts are adding value and driving income for the business.
I believe 3 days per week can accommodate this time and to maintain flexible work
practices, I will allow you to decide start times and finish times to work with in with your family.
Once you have decided the start and finish times please email me them back, these will stand until you go on maternity leave. I will be checking mydesk and cloudasses daily.
I need you to be on the phone talking to your online students, sending reminder emails of what they have to do, texting them reminders, whatever it takes to motivate these student (sic) in completing units. All of this needs to be documented in AXcelerate.
Evidence of this work is what management need to be seeing. If you do this you will be able to achieve the 15 units we are requiring of you.
If, as you have noted in previous emails, you are not feeling up to working or feeling in anyway stressed you need to go to the doctor and get a medical certificate and take your personal leave, I must stress this as a duty of care I have.
We are here to support you.
Regards
Nick Bottrall
Director”
[86] Ms Moniz said she lodged the complaint to ASQA at about 2.20pm that day, about two hours after she received this email from Mr Bottrall. Ms Moniz said the email received from Mr Bottrall showed she was still working at that time and that she was not locked out of the IT system until later when she went on maternity leave.
[87] Mr da Costa said there was never any evidence that he made the complaint despite Mr Bottrall having arrived at that conclusion. Ms Bottrall continued to maintain that Mr da Costa colluded with Ms Moniz to make the complaint. Mr da Costa said in response that if that was so, why was he terminated and not Ms Moniz who is still employed. Ms Bottrall said nothing would be addressed with Ms Moniz whilst she was still on maternity leave. Ms Bottrall said whilst she could not speak for her husband, her view as current General Manager and speaking for EIM is that there will be a meeting with Ms Moniz upon her return.
[88] It was put to Ms White that Mr Bottrall concluded that Mr da Costa colluded with Ms Moniz about the complaint to ASQA and concluded that the only way Ms Moniz could have known Mr Linklater was conducting training was if Mr da Costa told her. Ms White said she could not remember if Ms Moniz was on maternity leave at this time or not.
[89] Ms White was referred to an email she sent from to Ms Moniz on 16 July 2019. It was put to Ms White the email asked Ms Moniz to supervise Mr Linklater. Ms White accepted that Ms Moniz was scheduled to supervise Mr Linklater and therefore knew he was to take a class.
[90] It was also put to Ms White that CloudAssess records indicate that Mr Linklater was marking assessments. Ms White said Mr Linklater would have marked however he was being trained on how to use the platform and the supervising trainer would go in and assess the work done by Mr Linklater. It was put to Ms White that Mr Linklater was not qualified to conduct the training and Ms White said Mr Linklater was qualified for supervision training.
[91] Ms White said at the time (of the dismissal) it looked like Mr da Costa had colluded with Ms Moniz in relation to the complaint, however said she was not part of the decision to dismiss Mr da Costa and said she was “just listening.”
[92] Ms Rundle-Curry appeared to concede during her evidence that with the benefit of hindsight the issue in relation to the ASQA complaint may not have been a valid reason for dismissal of Mr da Costa and may have been an overreaction given it has come to light since that Mr da Costa did not make the complaint. Ms Rundle-Curry’s evidence was to the effect that the difficulty for Mr Bottrall was at the time it appeared that Mr da Costa made the complaint or assisted in it. Ms Rundle-Curry said that from her point of view the first port of call should have been to the employer rather than an external agency.
[93] Mr da Costa returned to work on 9 September 2019, following a period of paternity leave. Whilst Mr Bottrall could not give evidence at the determinative conference it appears not in dispute that Mr Bottrall had requested Mr da Costa to meet with him. Ms White attended the meeting via telephone as a witness. It is Mr da Costa’s evidence that he was not aware of what was to be discussed in advance of the meeting, nor the purpose of the meeting.
[94] Ms Bottrall said Mr da Costa was sent an email on 4 September by Mr Bottrall. Mr da Costa said the email was about when he was returning to work and did not raise any other issues. Ms Bottrall could not give direct evidence about what occurred at the meeting.
[95] In Mr da Costa’s words he said he was ambushed, had no warning of a performance meeting, or an opportunity to prepare himself or have a support person. He said the only real question raised at the meeting was whether he made the complaint to ASQA, and he said he replied no, and was subsequently dismissed. It is common ground that during the meeting, Mr Bottrall put to Mr da Costa whether he had made the complaint to ASQA. Mr da Costa said that in the meeting he denied that he lodged the complaint, and instead stated that it was his wife, Ms Moniz that had lodged the complaint.
[96] Mr da Costa agreed that there was a brief pause, so he could consider his responses further. Mr da Costa said he understood Mr Bottrall went and spoke to Ms White at this time. Mr da Costa agreed he did not ask for a support person, but he said he did not have the option to ask for a support person as he did not know what the content of the meeting was going to be. Mr da Costa said Mr Bottrall did not offer him the option of having a support person.
[97] Upon the re-commencement of the meeting EIM submitted that Mr Bottrall informed Mr da Costa that his employment was terminated for incorrectly taking time off in lieu and reporting EIM to ASQA. It is EIM’s submissions that Mr da Costa’s actions amounted to serious misconduct.
[98] Mr da Costa said the TOIL issue was not actually raised with him at the meeting in which he was dismissed by Mr Bottrall, and the transcripts do not refer to any discussion about TOIL. Mr da Costa said it was only later that TOIL was included as a reason for dismissal in the dismissal letter. Ms Bottrall said she could not give evidence about what was said at the meeting as she was not there but believes Mr Bottrall would have raised it.
[99] The termination letter sent to Mr da Costa after the meeting was as follows:
“Dear Joao,
Termination of Employment
This letter is to confirm our conversation at the disciplinary meeting on 09/09/2019, that your employment is terminated with immediate effect for reasons of gross misconduct. The basis for the Company’s belief that you are guilty of gross misconduct and any other details relating to the termination of employment are set out below:
1. The unauthorised use of EIM Training’s Intellectual Property causing risk to EIM’s reputation, viability and profitability.
2. The false filing of your time in lieu reporting without management knowledge or consent.
Additionally, you received a previous written warning on 21/08/2019 for a serious breach of the terms and conditions of your employment contract. This incident involves you discussing confidential information with another team member and criticising Management in a manner that is inconsistent with the Company’s Code of Conduct.
Having considered these recent events in detail, I reached the conclusion that your recent gross misconduct and behaviour is unacceptable. Consequently, it is for the above-mentioned reasons that I decided to terminate your employment with EIM Training effective from 09/09/2019.
Any accrued leave entitlements will be paid into your bank account.
I would like to also remind you of your continued obligations of your employment contract, specifically company intellectual property and confidentiality.
Yours sincerely,
Nick Bottrall”
[100] Section 394 of the Act sets out:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[101] Further, ss.385 and 387 relevantly provide 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.”
“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.”
Valid reason
[102] As stated earlier in this decision, on the basis of the material before the Commission it is apparent that Mr da Costa never accepted the new contract offered to him in 2019.
[103] EIM submitted that it first became aware of Mr da Costa claiming additional TOIL hours on 27 June 2019 and began an investigation as outlined above. Ms Bottrall has said it was based on an honesty system of the trainers logging their own TOIL hours, and it was not challenged because Ms Bottrall did not micromanage the trainers. Ms Bottrall also said at the time the program was developed if they were doing one week of intensive program the balance of the time was put down to marking and it was assumed the trainers worked the hours to have hour for hour.
[104] Ms Bottrall said that Mr da Costa knew that he couldn’t take TOIL in the manner he did. I asked Ms Bottrall to direct me to the evidence that Mr da Costa knew that, and she relied on her own evidence that she refuted the agreement claimed by Mr da Costa and Ms Moniz, and also the email sent to Mr da Costa questioning his calculations.
[105] It seems to me from the evidence that it is more likely than not, that the parties left the meeting where the new training delivery model and TOIL agreement was discussed with different understandings of what had been agreed to.
[106] Ms Bottrall accepted that there was a TOIL agreement but that it was hour for hour and if she had agreed on something else she would have documented that, and she would not have agreed with a day for a day.
[107] I am satisfied from the evidence of Ms Moniz and Mr da Costa that they genuinely believed that that the arrangement that was agreed to with Ms Bottrall would be a day off for the long intensive days for full times trainers, however it was remunerated as money in the case of Ms Moniz. The delivery model reduced the number of working days and resulted in long 12 hours days to deliver the training.
[108] It is entirely plausible that Mr Moniz and Mr da Costa believed the proposal they intended to be put was both acceptable and accepted by Ms Bottrall at the meeting. The fact that no written agreement was entered into at or following the meeting was regrettable and tends to further support the likelihood of the parties having walked out of the meeting with different understandings about what had been agreed.
[109] Ms Bottrall’s evidence was generally to the effect that she was very busy at this time and this may provide some explanation for why the parties did not reduce the new arrangement to a formal written agreement.
[110] There was no attempt to disguise the arrangement. The logs being kept available for management to inspect over an extended period of time, as well as the emails exchanged support Mr da Costa’s and Ms Moniz’ contention that they believed the agreement was as they claimed in their evidence.
[111] On the other hand, I am also satisfied on the basis of the evidence that Ms Bottrall was operating under a belief that the arrangement agreed was one for one and never intended to make the agreement. This is consistent with the evidence of Ms White and Ms Rundle-Curry that Mr and Ms Bottrall were shocked on learning of the manner in which they had been paying all the trainers involved in the intensives. Unfortunately, no one in management detected this issue earlier despite the log being provided to management, and the emails indicating how the arrangement was being applied.
[112] I have not found the email from Mr Leon van Wyk persuasive as he did not give evidence and he was clearly accruing the TOIL in the same manner as Mr da Costa while employed.
[113] It also appears from the email Mr Bottrall sent to the trainers on 3 July that on having learned of the issue EIM did not at that time indicate a view that there had been any deliberate fraud or dishonesty and made no suggestion of any potential disciplinary measures and instead appeared to treat the situation as a misunderstanding.
[114] Overall, I am satisfied on the basis of the evidence for the reasons set out above that the TOIL is was not a valid reason for dismissal.
[115] The other issue relied upon as a basis for termination was in connection with the complaint to ASQA including within that the issue of misuse of EIM IT systems. The evidence establishes that contrary to EIMs position Ms Moniz was working at the time of the complaint and had access to the EIM’s computer systems. I accept Ms Moniz’ evidence that she was the complainant. It is clear from the evidence that Ms Moniz made the complaint approximately two hours after receiving the email from Mr Bottrall substantially changing her ongoing working arrangements.
[116] Ms Moniz had both access to the IT system and therefore the information necessary to make the complaint, and also the motive for making the complaint as retaliation to the email from Mr Bottrall. Ms Moniz gave evidence she made the complaint of her own volition without the involvement with Mr da Costa. This is consistent with Mr da Costa’s evidence. There is no evidence to link Mr da Costa to the complaint.
[117] I am satisfied on the basis of the evidence that Mr da Costa did not make the complaint or collude with Ms Moniz to make the complaint and on the basis the ASQA complaint did not provide EIM with a valid reason for dismissal.
[118] On the basis that none of the reasons for dismissal were valid reasons, I am satisfied EIM did not have a valid reason for dismissal.
Whether the person was notified of that reason
[119] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 17 and in explicit18 and plain and clear terms.19
[120] Notification only occurred at the meeting on 9 September. Ms White was asked if on 9 September she knew that Mr Bottrall was coming to a meeting to dismiss Mr da Costa. Ms White said she did not know that. Ms White said she knew there was going to be a meeting.
[121] Mr da Costa asked Ms White how the decision was reached to summarily dismiss him. Ms White said she did not know and it was Mr Bottrall’s decision.
[122] Mr da Costa’s evidence was that the only issue that was the subject of discussion at the meeting was the ASQA complaint. The transcript filed as part of EIMs material appeared to refer to the TOIL issue. Ms Bottrall and Ms Rundle-Curry could not give any evidence on this issue and Ms White did not give clear evidence contradicting Mr da Costa’s on this issue. The TOIL issue may have been referred to by Mr Bottrall as a reason for dismissal, however if was it seems not to have been discussed in any detail.
[123] The termination had immediate effect. The termination letter issued later referenced both the ASQA and TOIL issues.
[124] I am satisfied Mr da Costa was notified of the ASQA complaint as a reason for his dismissal at the meeting 9 September. On the evidence, although it was likely raised for discussion during the meeting on 9 September, I cannot be satisfied Mr de Costa was notified that the TOIL issue was a reason for dismissal. Regardless, in the alternative where Mr de Costa was notified about the TOIL issue, it is not central to the determination of this case.
Opportunity to respond
[125] It is apparent from the evidence there was no advance notice of what would be discussed at the meeting. The ASQA issue was raised with Mr da Costa by Mr Bottrall, and following Mr da Costa’s denial that he made the complaint there was a pause in the meeting for approximately 10 minutes. When the meeting recommenced Mr Bottrall advised Mr da Costa that he was being dismissed. As discussed above the TOIL issue may have been raised despite Mr da Costa’s denial that it was, but if it was it not discussed in any level of detail.
[126] Mr da Costa was given an opportunity to respond at the meeting in relation to the allegation concerning the ASQA complaint, but I am doubtful he was given any genuine opportunity to respond to an allegation put to him regarding to the TOIL issue and it is more likely it was referred to in passing with the focus of the meeting being the ASQA complaint and whether Mr da Costa made it or was colluded with Ms Moniz in making it.
[127] Given it is apparent Mr da Costa was given no advance warning of the purpose of the meeting or the topics to be discussed, or any potential disciplinary outcomes that may flow from the meeting, he was not given an opportunity to respond.
Unreasonable refusal of support person
[128] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[129] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 20
[130] While Mr da Costa submitted he was not given the opportunity to have a support person present, there is no evidence Mr da Costa requested a support person or that EIM refused Mr da Costa’s request.
[131] In all the circumstances, whilst I find that EIM did not unreasonably refuse to allow Mr da Costa to have a support person present at discussions relating to the dismissal it is also clear Mr da Costa had no notice about the nature of the meeting that was to occur.
Warnings about that unsatisfactory performance
[132] EIM submitted that Mr da Costa had received warnings prior to his dismissal. The Commission was provided only with the written warning dated 21 August 2019, which concerned email correspondence sent to all staff concerning the ongoing dispute around employment terms and conditions between Mr da Costa and management. 21
[133] Despite EIM’s submissions in this regard, as Mr da Costa was not dismissed for unsatisfactory performance but for serious misconduct not related to his work performance, and I find this factor is not relevant to the present circumstances.
Size of the employer’s enterprise
[134] EIM gave evidence that at the time of Mr da Costa’s dismissal it employed 20 staff. At the determinative conference Ms Bottrall said EIM had 18 to 20 employees at the time and whilst it did not have internal human resources it used an external advisor Employment Innovations and they work with EIM on a very remote basis. While not a small business for the purposes of the Act, EIM is not a large employer.
[135] In his witness statement, Mr da Costa made statements to the effect that EIM “is big enough and in operation for more than 15 years, making it very unlikely it impacted on the procedures followed in effecting the dismissal” and “EIM management also demonstrated they are aware they should notify employees of performance meetings and allow for a support person in previous occasions”. 22
[136] Whilst not a small business as defined EIM is not a large business and was managed by Mr and Ms Bottrall it seems. It does not appear that there was a formal disciplinary process followed.
Absence of dedicated human resources
[137] Mr da Costa in his witness statement said that EIM works with the support of a specialized HR firm (Employment Innovations), so although there aren’t HR specialists EIM had advice.” 23 Again Ms Bottrall said it engaged Employment Innovations on a very remote basis. It is clear EIM does not have dedicated human resource management specialists or expertise in the enterprise and this would have been likely to impact on the procedure followed in effecting the dismissal.
Other matters
[138] Mr da Costa is a father of young children and had been employed by EIM since 2013 which is not an inconsiderable period.
[139] Having weighed the evidence regarding each of the matters in section 387 I am satisfied that the dismissal was harsh, unjust and unreasonable on the basis that EIM did not have a valid reason and also failed to afford Mr da Costa procedural fairness in the manner in which it arrived at the decision to dismiss him.
[140] As to any remedy to be ordered, s.390 provides:
“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.”
[141] Mr Da Costa said he did not seek reinstatement and was seeking financial compensation including for notice he was not given. I am satisfied on the facts of this case reinstatement would be inappropriate. That being so consideration now turns to appropriate compensation.
[142] 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.”
393 Monetary orders may be in instalments
To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”
[143] In determining appropriate compensation, I have adopted the formula in the matter of Sprigg v Paul's Licensed Festival Supermarket 24
Remuneration if the person had not been dismissed;
[144] It is necessary to determine how long Mr da Costa would have remained in employment had he not been dismissed and determining this issue involves a degree of conjecture. It should be noted that Mr da Costa had been employed by EIM for a considerable period, however it is also the case that in the months leading up to the termination of Mr da Costa the relationship between Mr da Costa and EIM was becoming increasingly sour. Whilst the written warning issued in August was not generally relied upon by EIM to support the decision to terminate Mr da Costa, the issue that was the subject of the warning does point to increasing tension between Mr da Costa and his employer.
[145] The evidence also indicates that as Mr da Costa had not agreed to sign a new contract of employment, all issues between the parties in relation to working hours going forward were not settled.
[146] Mr da Costa gave evidence that he told Mr Bottrall at the meeting on 9 September 2019 that his wife had made the complaint to ASQA. Ms Moniz remains an employee of EIM however it seems from the evidence of Ms Bottrall the question of what disciplinary measures EIM intends to take in regard to Ms Moniz remain in abeyance whilst Ms Moniz is on maternity leave. Had Mr da Costa not been dismissed on 9 September 2019, and EIM turned its attention to Ms Moniz at that time instead that is likely to have also increased the tension in relationship between Mr da Costa and EIM.
[147] It is also apparent that EIM holds a view that Mr da Costa and his wife have enjoyed a windfall they were not entitled through the TOIL arrangement that operated from 2017 until 2019. Whilst it is not a matter for these proceedings EIM made reference to potential recovery proceedings against Mr da Costa in its material filed. This would also have remained an ongoing issue had Mr da Costa remained in employment and was likely to put further pressure on the employment relationship.
[148] I have concluded having weighed the evidence that in all likelihood Mr da Costa would have remained in employment for at least a further 12 weeks.
[149] Ms Bottrall said Mr da Costa earned $1961.00 gross per week according to his contract of employment. Mr da Costa said he earned $10,000 more than the contracted amount in the previous financial year, and in the six months before his termination earned $61,592.00 including overtime and divided by 26 weeks equals $2,368 per week.
[150] Given EIM had foreshadowed an intention to hours of work arrangements and uncertainty of overtime payments continuing I intend to assess the remuneration based on the contacted rate.
[151] $1,961 multiplied by 12 weeks equals $23,532.00.
[152] I make no further reduction on account of contingencies given the period of employment determined had Mr da Costa not been dismissed has past.
Remuneration earned
[153] Mr da Costa said that in the six months following his dismissal the only income he has earned was on 25 February 2020, in the amount of $2,158.00. That amount deducted from $23,532.00 equals $21,374.
Income reasonably likely to be so earned
[154] The evidence did not suggest the likelihood of Mr da Costa earning income between the making of the order and actual compensation.
Efforts to mitigate the loss
[155] Mr da Costa provided evidence concerning his attempts to gain other employment. He said he had been seeking other employment almost daily, however the market is slow now with COVID-19. He said he is doing some work with a training company that performs work in Brisbane and interstate but with COVID-19 he cannot work interstate at the moment. I make no further deduction in relation to this matter.
Length of service
[156] Mr da Costa’s length of service was considerable, and I make no further deduction on the basis of his length of service.
Viability of the employer’s enterprise
[157] Ms Bottrall confirmed that the business was still trading however submitted that being an education facility, due to COVID-19 its work has reduced by 50%. Ms Bottrall said if a remedy was granted it should be done as part of a payment plan. Ms Bottrall said if Mr da Costa had to be paid 6 months wages in one lump sum the business could not continue to employee the 14 employees it currently has and would have to operate on such a limited scale it would not be compliant with other regulating bodies with the number of students.
[158] Ms Bottrall said EIM was staying about two months in front at the moment, and the majority of its students are international students, and most have lost their jobs and their payments which the business would normally see as cash flow are staggered at the moment, and as things settle some staff have dropped days.
[159] Mr da Costa said he is working on a casual basis, and he receives job start allowance at the moment, he was concerned if payments were made in instalments it would impact on his payments from Centrelink. Mr da Costa submitted as an alternative that part of the amount could be paid as lump sum and part in instalments.
Compensation cap and misconduct
[160] $21,374.00 does not exceed the compensation cap. I have not found that Mr da Costa engaged in misconduct and therefore there is no basis to reduce the amount because of subsection 392(3). There are no other matters I consider relevant to the assessment of compensation.
[161] I have concluded that EIM Training Pty Ltd should pay to Mr Joao Miguel Ferreira Caldas da Costa the sum of $21,374.00 gross taxed according to law. Section 393 provides that an order under subsection 392(1) may permit the employer concerned to pay the amount required in installments specified in the order.
[162] I have concluded it is appropriate for the sum to be paid in two separate installments given the financial challenges faced by EIM at this time. Added to that is the fact of the Mr Bottrall having suffered a major injury and being unable to assist Ms Bottrall in managing the business at this difficult time.
[163] I intend to issue an order that the first instalment of $10,687 be paid within 21 days from the date of this decision, and the second instalment be paid within 42 days from the date of this decision.
COMMISSIONER
Appearances:
Mr Joao Miguel Ferreira Caldas da Costa appearing on his own behalf
Ms Michelle Bottrall appearing for the Respondent.
Hearing details:
2020,
Brisbane:
April 30
Printed by authority of the Commonwealth Government Printer
<PR719919>
1 Exhibit 1 Witness statement of Joao Miguel Ferreira Caldas da Costa dated 9 January 2020, Attachment A – RE: Trainer & Assessor (Electro technology) Appointment – EIM Training.
2 Ibid.
3 R1: Unfair Dismissal background, page 1.
4 Ibid.
5 Ibid.
6 Exhibit 3 Witness statement of Carla Sofia Martins Moniz dated 9 January 2020.
7 Exhibit 1 Applicant’s witness statement 1- paragraph 2.
8 Respondent submissions Background to Unfair Dismissal.
9 Respondent submission Background to Unfair Dismissal Attachment D - Re: Amended Employment Contract – EIM Training.
10 Exhibit 1 Witness statement of Joao Miguel Ferreira Caldas da Costa dated 9 January 2020, Attachment H - EIM Employment Contract - Full Time Salaried Employees.
11 Exhibit 1 Witness statement of Joao Miguel Ferreira Caldas da Costa dated 9 January 2020 at [17].
12 Ibid.
13 Exhibit 2 Witness statement of Michelle Bottrall.
14 Applicant’s outline of Argument, page 2.
15 Exhibit 4 Witness statement of Melissa White.
16 Exhibit 5 Witness statement of Zoe Rundle-Curry.
17 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
18 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
19 Ibid.
20 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
21 Written Warning – Misconduct dated 21 August 2019.
22 Exhibit 1 Witness statement of Joao Miguel Ferreira Caldas da Costa dated 9 January 2020 at [88](f).
23 Exhibit 1 Witness statement of Joao Miguel Ferreira Caldas da Costa dated 9 January 2020 at [88](g).
24 Sprigg v Paul's Licensed Festival Supermarket, Print R0235 (AIRCFB, Munro J, Duncan DP, Jones C, 24 December 1998).