| [2020] FWC 5554 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Fe Ben Acal
v
JBS Australia Pty Limited
(U2019/12184)
DEPUTY PRESIDENT ASBURY |
BRISBANE, 22 OCTOBER 2020 |
Application for an unfair dismissal remedy – No valid reason for dismissal – Abandonment of employment not established – Dismissal harsh, unjust and unreasonable – Reinstatement not appropriate remedy – compensation awarded.
[1] Mr Fe Ben Acal (the Applicant) applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by JBS Australia Pty Limited (the Respondent). The Respondent is a meat and food processing company operating nationally. The Applicant was employed at the Rockhampton Plant as a maintenance fitter from 13 January 2014 until his dismissal on 18 October 2019. On 12 October 2020, I issued an Order 1 requiring that the Respondent pay the Applicant compensation on the basis that I decided that his dismissal was unfair. These are the reasons for my decision.
[2] The Respondent dismissed the Applicant for serious misconduct and contends that the Applicant breached the terms and conditions of his employment, by walking off the job on 2 October 2019, and thereby abandoned his employment. The Respondent also contends that the Applicant had previously engaged in similar conduct and had been given a final warning for walking off the job on 13 July 2019.
[3] The Applicant contends that on 2 October, before commencing work, he reported to the first aid centre on the Respondent’s site to report a painful finger and informed a number of the Respondent’s managers who were present, that he was leaving the site to see his doctor. An injury to the Applicant’s finger had been the subject of a workers’ compensation claim. The Applicant also contends that he was subjected to a series of questions about what had happened to his finger prior to leaving. Further, the Applicant contends that he had a medical certificate to cover the period after he left the site, and despite this he was dismissed. The Applicant submits that this was not a valid reason for dismissal.
[4] The matter was listed for a conciliation conference before a Fair Work Conciliator which did not resolve the dispute. The matter was then allocated to me for determination and Directions were issued for the filing of material. I decided to conduct a hearing on the basis that there were disputed issues of fact and I considered that this was the most appropriate way to resolve those issues, having regard to the views of the parties.
[5] Section 396 of the Act requires that four specified matters must be decided before the merits of the application may be considered. There was no contest between the parties about any of those matters. I find that:
a) the application was made within the period required by s.394(2);
b) the Applicant was a person protected from unfair dismissal;
c) the Respondent was not a “small business employer” as defined in s.23 of the FW Act; and
d) the dismissal was not a case of genuine redundancy.
[6] Directions were issued for the hearing, requiring the parties to file material including statements of evidence from witnesses. At the hearing the Applicant sought to be represented by a Solicitor. Permission was granted on the basis that I was satisfied that granting permission for the Applicant to be represented would enable the matter to be conducted more efficiently, given its complexity, and that it would not be unfair to the Respondent. In particular, I had regard to the fact that the Applicant’s first language is not English and that the Respondent has dedicated human resource management practitioners, one of whom conducted the hearing on its behalf. A Cebuano interpreter was arranged to assist the Applicant during the hearing.
[7] The Applicant gave evidence on his own behalf. The Applicant was permitted to tender a document entitled “Outline of Written Submission” as his statement of evidence, together with 16 supporting documents appended to that Submission. 2 Evidence for the Respondent was given by:
• Mr Bill Sauer, Plant Manager; 3
• Ms Jade Parkin, Human Resources Officer; 4
• Ms Amanda Bates, First Aid Nurse; 5 and
• Mr Aaron Mehrten, Fitter. 6
[8] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows:
(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.”
[9] The employer bears the onus of establishing that there was a valid reason for a dismissal.7 A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”8 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,9 and validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.10
[10] To determine whether there was a valid reason for a dismissal relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred, on the basis of the evidence before the Commission. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. Further, to constitute a valid reason for dismissal, the Commission must assess whether the conduct was of sufficient gravity or seriousness to justify dismissal as a sound, defensible or well-founded response. 11 In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer.12
[11] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.13
[12] I turn now to consider the evidence and submissions in relation to the dismissal of the Applicant.
[13] It is necessary to traverse the chronology of events – in particular the uncontested evidence relating to the written warnings issued to the Applicant during the course of his employment – in order to understand the present dispute. As previously noted, the Applicant commenced employment with the Respondent on 13 January 2014 in the position of maintenance fitter. The Applicant was covered by the JBS Australia Pty Limited - Rockhampton Maintenance Enterprise Agreement 2018.
10 July 2019 – Incident
[14] On 17 July 2019, the Applicant was issued with a final written warning following an incident that occurred on the 10 July 2019. The uncontested evidence of the Respondent’s witnesses is as follows. On 10 July 2019, the Applicant was working an afternoon shift and arrived at the workplace at 11:56 am. After attending a job in the Blood Plant area, the Applicant approached his supervisor in the lunchroom and indicated that there was an issue at the last job. The Applicant’s supervisor advised him to attend the Human Resource office to discuss the issue and to seek approval to leave the site before the end of his shift. The Applicant did not attend the HR office and left the site, clocking out at 2:02 pm.
[15] On 11 July 2019, Ms Melissa Trott, Human Resource Manager, telephoned the Applicant to discuss why he had left site without advising HR. According to the Respondent, the Applicant advised that he went home sick, that he had attended his doctor. The Applicant provided a medical certificate indicating that he was unfit to attend work on 10 July 2019. Ms Trott requested the Applicant attend site with his medical certificate to discuss further why he had left site without advising HR. The Applicant declined and stated he would come to site on the 12 July 2019.
[16] On 12 July 2019, the Applicant attended a meeting with Ms Trott and Mr Aaron Mehrten, an employee representative, to discuss the incident that occurred on 10 July 2019. During this meeting, the Applicant stated that he had left site to go home to seek medication for his headache, as he was feeling stressed and was suffering from hypertension after a discussion with Dave, the leading hand. The Applicant conceded that, prior to leaving site, he did not attend the Respondent’s medical centre to advise he was feeling unwell or the HR Office to advise of any issues that occurred during his shift.
[17] A letter titled “Letter of Response – Breaching Standard Terms and Conditions of Employment – Walking off the job” was issued to the Applicant on 13 July 2019. The letter set out the incident on 10 July 2019 and the Applicant’s statement provided in the meeting on the 12 July 2019. The letter outlined the Respondent’s findings in relation to the alleged breach as follows:
“…the Company has found you have walked off the job without obtaining the required approvals. Breaches of the Standard Terms and Conditions of Employment is behaviour that will not be accepted by the company. You have sign the acknowledgement for the Employee Handbook indicating that you have fully read, understood and agree to comply with all policies and procedures as part of your Standard Terms and Conditions of Employment”.
[18] The Applicant was asked to provide a response to the following questions by close of business, 15 July 2019:
“1. Due to your failure to meet the expectations of a JBS employee by seriously breaching the Standard Terms and Conditions of Employment by walking off the job, why should we continue your employment given that you have terminated your own employment by walking off the job prior to completion of your shift?
2. Why should you not face further disciplinary action up to and including termination of your employment given the serious breach of Standard Terms and Conditions of Employment?”
[19] In his letter of response dated 15 July 2019, the Applicant stated that he was “very sorry of what happen”. He also stated that he was trying to understand the pressure of Leading Hand and raised that he had observed the Leading Hand throw things. The Applicant also said that he was feeling sick and suffering from “mind stress”, a headache and dizziness when he went home to seek his own medication. The Applicant was issued with a Final Written warning on 17 July 2019. The Applicant was required to refamiliarize himself with the Employee Handbook and was suspended from work until 18 July 2019. The letter stated that “a continued failure to adhere to the Standard Terms and Conditions of your employment may result in additional disciplinary action, up to and including termination of your employment”. The letter was signed by the Applicant, to acknowledge receipt.
[20] In his written submissions, the Applicant stated that he respected his employers’ findings, and acknowledged that he did not comply with the Respondent’s processes of informing the HR office or Medical Centre prior to leaving the site on that occasion.
27 July 2019 – Incident
[21] On 5 September 2019, the Applicant was issued with a letter titled “First and Final Warning – Misconduct – Breach Standard Terms and Conditions – Workplace Health and Safety Policy” 14 following an investigation into an incident that occurred on 27 July 2019.
[22] The First and Final Warning letter summarises the incident as follows. On 27 July 2019, after attending a job in the boning room area, the Applicant reported to the medical centre at approximately 2:00 pm with a laceration to his left little finger. According to the Respondent, a review of the Applicant’s injury was impeded as the wound had been glued together and had paper towel stuck to it with maintenance glue.
[23] The Applicant provided an initial statement at 2:25 pm on 27 July 2019 to the First Aid Nurse. According to the letter dated 5 September 2019, the Applicant stated that he had been fixing the hook return chain, using the lard bar to hit the chain, when his left hand caught the corner of the plate. Following this, the Applicant was taken to the hospital by an employee of the Respondent.
[24] After the Applicant received treatment, a further statement was provided by the Applicant on 31 July 2019. The letter dated 5 September 2019 summarised the Applicant’s statement as follows:
“During this statement you had advised “At exactly 1.25pm I went to the chain. I got the ladder and the stainless bar and did the job exactly like we always do”. You advised that you were unaware of your injury until after you removed your gloves stating “When I got down and move around to the sink in the cut down, when I tried to remove the blue rubber gloves I found heaps of blood inside my glove”. After realising you were injured your immediate actions as stated were “I took off my dirty gloves, I covered it with paper towel and then go down to the workshop”, “in the workshop I tried to stop the bleeding witch locktight. I put locktight on the paper towel and put it on my hand”.
[25] The letter went on to state that the Applicant did not report directly to the medical centre for treatment and instead glued his finger, risking potential further damage when this had to be removed at the hospital and that this conduct was a failure to follow Company reporting processes as well as the Company’s Workplace Health and Safety Policy. The letter of 5 September 2019 also stated that the Respondent conducted an investigation into the incident and reviewed the CCTV footage that had captured the event. The Respondent stated in its letter dated 5 September 2019 that CCTV footage (which was not tendered during these proceedings), indicated inconsistencies between what occurred and the Applicant’s version of events.
[26] The letter also stated that the Applicant failed to appropriately complete a “Take 5” (safety assessment) on the day the Applicant sustained the injury, and that such a process was required by the Company. The letter further stated that on review of prior Take 5’s performed by the Applicant, the Respondent identified that the Applicant has provided the same information on all Take 5s completed in his book, including various types of jobs involved with various risks. This indicated that the Applicant had not adequately assessed potential hazards or managed any potential risks prior to him undertaking tasks. Further, the letter stated that during the re-enactment, it was identified that the Applicant failed to maintain 3 points of contact whilst working on the ladder to complete the task.
[27] The letter outlines the findings of the Respondent as follows:
“The Company has taken into consideration all of the information available to us and the evidence does show that through your own doing you have serious breaches company policies and procedures including the Workplace Health and Safety Policy”.
[28] The disciplinary action imposed by the Respondent was a First and Final Warning. Similar to the letter dated 17 July 2019, the Applicant was advised that continued failure to adhere to the Standard Terms and Condition of the Applicant’s employment may result in additional disciplinary action, including termination of his employment.
[29] The Applicant tendered a Queensland Workers’ Compensation Work capacity certificate dated 30 September 2019. The certificate stated that the injury sustained by the Applicant on 27 July 2019 required treatment from 28 July 2019 to 29 October 2019 and suitable duties from 28 August 2019. The certificate indicated that the Applicant’s hand function was affected by his injury, and that he was not to perform lifting or fitting with his left hand and that he was able to perform light duties while wearing a splint at all times.
[30] During the hearing, it was established that a condition of his light duties was that the Applicant was required to report to the medical centre at the commencement and finish of his shift each day.
2 October 2019 – Incident
[31] The Respondent contends that on the morning of Wednesday 2 October 2019, the Applicant presented at the workplace stating that he wanted to go home, because of a sore finger. As previously noted, the Applicant had made a Workers’ Compensation claim in relation to an injury to the same finger and was undertaking light duties in connection with that claim. According to the Respondent, the Applicant claimed to have injured his finger at work the previous day, while performing light duties.
[32] According to the Respondent’s submissions, a conversation was held in the HR Office on the morning of 2 October 2019 to ascertain if there had been a further injury and how it occurred, as the Applicant had left the site the day before without reporting an injury. The Respondent submits that the Applicant refused to participate in the conversation and left the site, despite being advised twice that he would be considered as walking off the job. It was noted by the Respondent that the Applicant’s finger was visibly swollen, however, no issues had been reported at the end of his shift and the Respondent submits that it was unclear whether this was a work related aggravation of the previous injury or if there was an ability to complete alternative duties until a medical appointment was made. According to the Respondent’s submission, the conversation ended when the Applicant walked off the job at 7.38 am and clocked out at a time that was prior to when he would be able to book in to see a GP or a specialist.
[33] The Respondent submitted that it was not given the opportunity to fully investigate the Applicant’s claims as he did not attend site again until 10 October 2019. During this time, the Applicant was issued with a medical certificate stating that he was totally incapacitated for work, for the period 2 – 10 October 2019 with a scheduled return to light duties on 11 October. The evidence of the Respondent’s witnesses in relation to these matters can be summarised as follows.
[34] Ms Bates’ (First Aid Nurse) evidence was that the Applicant reported to the Medical Centre on the site on the morning of Wednesday 2 October 2019 complaining that his finger was sore and swollen. Ms Bates said that the Applicant had the splint off his finger and stated that he could not put it on as it was too tight. Ms Bates informed HR of the matter and a further discussion ensued involving Ms Parkin (Human Resources Officer) to discuss how the Applicant had hurt his finger and him completing some alternate duties without using his hand. During this discussion, the Applicant said that he had injured his finger the day before while using a high-pressure hose.
[35] Mr Sauer (Plant Manager) and Ms Light (Occupational Health and Safety Officer) subsequently joined the discussion. The Applicant repeated that he had injured his finger while using a high-pressure hose during his shift on 1 October. Ms Parkin states that the Applicant was asked by Mr Sauer how sore the finger was and said that on a scale of 1 – 10 the pain in his finger was 9.5.
[36] Mr Sauer states that the Applicant said that his finger was so sore that he could not touch it or put the splint he was required to wear onto his finger. Mr Sauer confirmed that the Applicant said he injured his finger using a high-pressure hose. Mr Sauer said that he asked the Applicant what his restrictions were, and the Applicant could not answer the question. Mr Sauer also said that he asked Ms Parkin what the Applicant’s restrictions were and she replied that they were no lifting, or fitting with the left hand, and those restrictions were acknowledged by the Applicant.
[37] Ms Bates and Ms Parkin gave evidence that the Applicant was asked by Mr Sauer why he had been using his left hand if he knew what his restrictions were, to which the Applicant responded that he was asked to perform duties where he would be required to use his left hand. Ms Bates and Ms Parkin said that the Applicant stated that if the Respondent could not accommodate his restrictions, then his Doctor would “give him a big rest”. 15 Mr Sauer said that he asked the Applicant whether this is what he wanted. In further oral evidence Ms Parkin denied that Mr Sauer pointed his finger at the Applicant during this discussion or that Mr Sauer said that if the Applicant left the workplace it would be his choice and his fault.
[38] Ms Parkin also said that Ms Light told the Applicant twice that if he left the workplace he would be walking off the job. Ms Parkin said this once at the door of the office and then followed the Applicant outside and repeated that statement. Ms Parkin said that she believed the Applicant heard Ms Light and said that she based this belief on the fact that he turned around. Under cross-examination, Ms Parkin accepted the possibility that the Applicant did not hear what Ms Light said to him. In response to a question about the subject of the meeting with the Applicant on 2 October 2019, Ms Parkin said that the Applicant told the medical centre staff on 1 October that there were no issues with his finger and the only reason for the meeting on 2 October was to determine what had happened overnight and why he had gone from being fine, to being unable to work. Ms Parkin maintained that the purpose of the meeting was to determine what the Applicant had been doing and whether he had been working within his restrictions.
[39] Ms Parkin could not recall whether the Applicant said that he was unable to work and stated that the Applicant said that his finger was sore. Ms Parkin also said that she could not recall whether the Applicant said that he was going to a doctor. Ms Parkin did not agree that the Applicant could have been concerned about consequences for his employment as a result of the questions he was being asked, and maintained that he had left site because he was being asked some questions that he could not answer. Later, Ms Parkin said that Mr Sauer was asking the Applicant questions about his restrictions and what he had been doing and when the Applicant answered those questions, he could see that he was “putting himself into a hole.” 16 Further, Ms Parkin said that in her view, the Applicant knew that he was not following his restrictions to the best of his ability and so he left. In response to a question about whether the Applicant had a fear about what he was being asked, Ms Parkin said that in her view fear was not the right word, but it got too much for the Applicant and he left.17
[40] In her statement Ms Bates said that before leaving the workplace on 2 October 2019, the Applicant stated that he had to go home to go to the Doctor. In her oral evidence Ms Bates said that the Applicant did not request a support person or a representative in the discussions on 2 October. Ms Bates also said that she believed that the Applicant heard the statement that if he left the meeting on 2 October, he wold be walking off the job, because the Applicant turned his head when the statement was made. Under cross-examination Ms Bates said that it was possible that the Applicant heard Ms Light say something, without understanding what she said. Ms Bates also agreed that during the discussion on 2 October, the Applicant stated that he could not work that day. Ms Bates did not hear any aggression in Mr Sauer’s tone of voice and said that they were just having a conversation about what jobs the Applicant had been doing the day before,
[41] Mr Sauer said that during the discussion on 2 October 2019, the Applicant got upset before leaving, and said that he was not arguing. After making this comment, Mr Sauer said the Applicant exited the building. Ms Light stated that she followed the Applicant to the door and said to him that he was walking off the job. Ms Light said that the Applicant responded, however she could not hear him, she saw him throw his hands in the air. When the Applicant reached the garden outside reception, Ms Light said “you understand that you are walking off the job and you will lose your job”. 18
[42] Under cross-examination, Mr Sauer was asked why Ms Light would have come into his office on 2 October 2020 to discuss the Applicant’s injury, and said:
“All right. At 7.28 am Karen Light came to your office. Why would she go to your office about this issue? --- Well, because just basically any employee who hurts themselves or injuries themselves at the site here at JBS Rockhampton, I have a real interest for. We a very proactive and active in trying to prevent injuries, and also to rehab, rehabilitate people back into the workforce. So anybody with some sort of injury that - I keep an eye on everybody, actually, that has some sort of injury, and we try to rehabilitate. This employee apparently reported to first aid the afternoon before and said that his day had gone well and the injury has been fine. And then when he has come to HR that day, the morning of that day, he has said his finger was extremely sore, sort to touch, and he couldn't put his splint on. So obviously I just wanted to know where he was with his rehab, and wanted to have a chat to him and find out how he was. Really that's about it.” 19
[43] Mr Sauer maintained that his reason for questioning the Applicant was concern in relation to his rehabilitation. In response to a question as to whether on 2 October 2019 information from the Applicant was time-sensitive, Mr Sauer said that he likes to know what is going on. In response to the proposition that if the Applicant made a workers’ compensation claim or tried to hold the Respondent liable for any injury, then information he gave that morning could have compromised his claim, Mr Sauer said that his number one concern that morning was rehabilitation of the Applicant. Mr Sauer also said that he had been told by his Occupational Health and Safety Officer that the Applicant had reported that he was well at the end of the previous day, and he thought that “something wasn’t quite right” 20.
[44] Mr Sauer said that he asked the Applicant about his restrictions and whether he had used the hand with the injured finger on any of the work that he had done. The Applicant stated that he had used that hand to hold a hose. The Applicant then said that his Doctor wanted him to rest at home and in response to a question as to whether this was what he wanted, the Applicant beat his chest and said something about arguing before opening the door and walking out. Mr Sauer said that he did not raise his voice and denied pointing his finger at the Applicant. Mr Sauer did not agree that he was at cross-purposes when speaking to the Applicant because of language or cultural differences and said he had no issue with talking to the Applicant or understanding him. Mr Sauer had the following exchange with the Applicant’s legal representative in relation to what information he would have sought if the Applicant had not left the workplace:
“Okay. If Mr Acal hadn't left, what extra information would you have needed from him? --- Probably a little bit more detail on what he claimed his work was the day before, how it went about, if anybody instructed him to do it; if so, who instructed him to do it. Like I say, the rehabilitation plan we have in place, it's approved by local doctors in town. We try to get employees back to work on the job, into an environment where they can do some sort of work that is to the rehabilitation plan, and that it helps them with getting on with trying to get back to work in their normal position. I mean, that was all I was trying to do. So no different to any other employee on the site.
Okay. I mean, he couldn't have given you that information in a letter over the next few days, or with return to work? --- I'm not sure. I'm not sure.
Well no, I mean, could he have? --- I suppose he could have, yes. But he was here, so I could ask him a question here. It's no different if it was this employee or any other employee, I could ask the question.
If he hadn't checked in with the nurse, or if he hadn't checked in with the medical people, if he had just phoned you and said, "My finger hurts too much. I can't work today", how would you approach the situation? --- He wouldn't have phoned me, he would have phoned the HR department.” 21
[45] The Applicant gave oral evidence that on 1 October 2019, he attended the Medical Centre before he left work, as per the conditions of his light duties plan. The Applicant said he opened the door and said to Ms Light “hey, I’m here, I’m still here”. 22 When asked by his legal representative during his evidence-in-chief, whether the Applicant told Ms Light about his finger, the Applicant stated as follows:
“What did you tell her? Did you tell her that your finger was sore then?---Actually I didn't mention - I didn't - yes, I didn't mention that my - my finger is sore. But I can still feel a numb, a kind of - it's not a - it's not the sore, it's not the pain, a kind of numb.
Okay?---What - what's it - - -
No, don't - let's not worry about that. I'm just asking you, did you tell Karen anything about your finger on 1 October before you left work?---She - - -
Hang on, Mr Acal. I want the translator to translate my question?---Okay, okay, okay, okay. Okay - okay, okay, okay. I just told him - I told her that - okay, okay, I understand. Actually, it's not a kind of saying that painful - but I (indistinct) - - -
Mr Acal, Mr Acal, stop. I am asking you, on 1 October before you left the workplace, did you mention anything about your finger?---I mentioned is still the same. That's what I - what I used to say to them. It's still the same. Because every time I go out and they - there are - there are some log books over there, every time I go out that I can sort of feel a kind of numb, every time I can, a kind of - I'm not sure what - but I told her, still the same. I can feel a numb, just like that. 23
[46] In his witness statement (outline of submissions) the Applicant said that the situation on 2 October 2019 was different from the situation on 12 July, as he had not started working but instead had presented to the Medical Centre with a swollen finger. The Applicant also said that during the discussion in the HR Office, Mr Sauer turned it into an argument and pointed his finger at the Applicant stating that the injury was the Applicant’s fault and his choice. The Applicant tendered a photograph of his swollen finger said to have been taken at 7.18 am on 2 October 2019. In his Form F2 application, the Applicant stated that when he went to report his swollen finger on the morning of 2 October, his finger was painful and he could not put the splint that he was required to wear, onto his finger. The Applicant said he could not touch his finger because it was too painful and that he had not put his working clothes on when he reported to the Medical Centre.
[47] The Applicant gave oral evidence that he arrived at approximately 7:00 am on 2 October 2019. 24 Following this, the Applicant went to the medical centre, however as no one was present, he waited outside. Ms Light arrived at the medical centre. Upon her arrival, the Applicant stated he showed her his swollen finger and told her what happened to his finger the day before. Following this, the Applicant said that Mr Light requested that he wait outside. After approximately 20 minutes during which the Applicant waited,25 the Applicant said he was asked to come inside the HR office with Ms Light and Ms Bates. Ms Parkin, who the Applicant said was inside the office, left to get Mr Sauer.
[48] During the hearing, the Applicant was asked what he said to Ms Bates and Ms Light. He stated as follows:
“You said you explained everything to Jade and Amanda. So what did you say to them?---Just, they were asking me what happened - what happened on the previous - previous day, what work you have done? So I explained to them, when I - when I was working on the previous day I was working the - with the - with Clarky(?) and then using the high pressure hose, using the high pressure hose and then sometimes the hose, it will - it will squeeze when I - when I open more with the - with the - with the pressure of air. It will squeeze and then I try to fix the block of - block of (indistinct) screw with the high pressure air of the hose, so - and yes, that's what it is. And then when I - when I go home I just - I - my finger was still wet with the bandage on it and - and explained still wet because I was working during - during that day. That day it was raining. It was raining so I - so I had (indistinct).
What did you tell them about the state of your finger?---That - what do you - what is that? I show to them that it's swollen. I told them. Okay, thanks. Thanks, McNamara. I just told them that I was working in the boiler house (indistinct) my finger. Because I showed them that it's swollen during - I can - I told them it's very sore. And then it's very obvious that it's swollen. So I show to them and then I told them it's sore. And then they asked me what happened. I told them I was working on the previous day in the boiler house and the coil(?) screw, using the high pressure hose, blowing the (indistinct).” 26
[49] Following further questioning from Ms Bates and Ms Light, the Applicant stated that Mr Sauer and Mr Parkin came in and Mr Sauer began questioning him regarding what happened, how much pain the Applicant was in and what his restrictions were. The Applicant stated as follows:
“…there are - there are heaps of questions from Bill Sauer. And then I answer and then - answer to them. When I - when I went home and then I was sleeping on the couch and then I feel numb on my - my finger and then when I tried to take off the - tried to take off the splint on it with the bandage it's a little bit wet and then it's sticking to my - to my skin and then that's the time it start to swell. And then later that night I can feel the pain. And then how - (indistinct) how pain? From Zero to nine, how pain - pain is that? I told them around nine, I reckon. Nine. So - and then he - he asked me again. "What is your restriction?" And then, yes, and then that's the time when I answered - "You know my restriction. It was written on the - on the, you know? And then no lifting, no - that's it." And then he asked what is really his - and he asked to the - both of them, "What is really his restrictions? No lifting, no sitting, that's it." And then so you're using your hand. And then that's what he said. "You're using your hand. So it's all your fault. It's all your choice." While raising his two finger, pointing on me. So when that gets to the point where he raise up his finger while saying, "It's all your fault, it's all your fault", I - "It's all your choice", I told - I stood up and then I told him, "Sorry, mate, I cannot argue you any more." And then go out. And then Karen tried to followed me outside the door and she was just standing at the door. And then, "Were are you" - Karen told me, "Where are you going, [Fe Ben]?" I told her while walking, I - I (indistinct) and then I told them, "I'm going - my finger is sore and my - I'm going to seek medication on it. I'm going to see my doctor." And then while walking, while going out she said something but I didn't heard her during that…” 27
[50] During the hearing, it was put to the Applicant that he understood that the management team, consisting of Ms Sauer, Mr Light, Ms Parkin and Ms Bates, did not want him to leave the workplace. 28 The Applicant conceded that he was advised by the management team not to leave, and that if he left, they would consider that he was walking off the job.29
[51] The Respondent also tendered video footage of the Applicant leaving the workplace on 2 October 2019 and a summary of events shown in the footage was set out in the Respondent’s outline of submissions as follows:
“a. At the commencement of the footage (CCTV Footage JBS Rockhampton 02102019 – HR Office) Fe Ben is sitting on a seat directly opposite the medical centre (not visible) behind the red coloured bush in the centre top of screen. See Attachment # photo for reference.
b. At 7:28:39 First Aid Nurse Amanda can be seen walking out of the HR Office towards the seated area, Fe Ben can be seen walking from the seated area at 7:28:48 and entering the HR Office at 7:28:53. At this stage HR Officer Jade Parkin and First Aid Nurse Amanda Bates are in the HR Office.
c. At 7:32:25 Plant Manager Bill Sauer and OHS Officer Karen Light can be seen entering the HR Office.
d. At 7:37:09 the HR office door opens and Fe Ben Acal exits the HR Office.
e. At 7:37:20 OHS Officer Karen Light opens the HR office door – Pink High Vis Shirt is visible in the doorway.
f. At 7:37:25 Fe Ben stops at the end of the HR seating area and can be seen to raise his arms and communicate with Karen briefly before continuing to walk away.
g. At 7:37:30 Fe Ben stops again communicates with Karen and gestures his arms. Fe Ben can then be seen continuing to walk along the path, around the corner and across the pedestrian crossing towards the plant exit.
h. The footage (CCTV Footage JBS Rockhampton 02102019 - Front) at 7:37:51 shows Fe Ben enter the screen from the left side of screen and walk along the path, across the crossing and off site.”
[52] The Applicant’s representative accepted in closing submissions that this summary of the events shown on the CCTV footage is accurate. 30
Events following the Applicant leaving the workplace
[53] In his form F2 Application, the Applicant stated that after he left work, he did not hear from the Respondent in relation to organising medication for his finger. The Applicant states that after he left the workplace, he attended a doctor who gave him a medical certificate. That certificate, tendered by the Applicant, states that the Applicant has no capacity for work from 2 to 4 October 2019. The Applicant also tendered a medical certificate dated 3 October 2019, which states that he has no functional capacity to work and had sustained a further injury involving his finger being sore and swollen and requires review in seven days. The Applicant tendered a further medical certificate dated 10 October 2019, which states that he can return to some form of work on 11 October 2019, if suitable light duties are available. The Applicant’s evidence was that his wife, who also works for the Respondent, submitted these certificates to the Respondent on his behalf, with the first certificate being provided to the Respondent on 3 October 2019.
[54] The Applicant also said in his witness statement that he was stood down without pay from 2 October 2019 and was not permitted to take sick leave as provided for in the relevant enterprise agreement. The Respondent commenced an investigation into the incident.
Meeting on 10 October 2019
[55] At 1:15 pm on 10 October 2019, the Applicant attended a meeting with Ms Trott. The Respondent tendered a document titled “Record of Statement”. The document is two pages in length, signed by the Applicant and records a discussion between the Applicant and Ms Trott, about the events of 2 October 2019. The Record of Statement includes the following:
“15.Q. After the conversation in HR you were leaving site and Karen [Light] advised that if you left site you would be walking off the job?
A. That's right but I didn't start work, I didn't even put on my working clothes.
16.Q. You had presented for you shift and were offered appropriate duties within your restrictions so why is it that you left site?
A. I already answered that, to seek medication on my finger.
17. Q. You are aware you have already been spoken to in regards to walking off the job, you should already be aware of these processes?
A. Yeah you have already spoke to me about that. But why I left over there cause I cannot take more arguments with my boss. With Bill Sauer and with Karen. I told them, cause they are blaming me cause I was using my left hand. I told them, it was kind of an exaggerated question. I’m just doing the job. You're the one giving me the job. Your blaming me with the job but you're the one giving me the job out of what I have signed in here. That's why I walked off the job. Different to what I have signed.”
[56] The Applicant is recorded as having stated that on 1 October 2019, he was requested by his supervisor to use a high-pressure hose to blow coal on a shute to clear a pipe and that he had undertaken this task a week earlier. The task required the Applicant to hold the hose with both hands and he is recorded as stating that he was struggling with the hose because of the pressure in it. Further the Applicant is recorded as stating that he did not feel pain but instead felt cramps and did not notice his finger was swollen until the night of 1 October when he got home, sat on his couch and removed the splint from his finger. In his statement of evidence for this hearing, the Applicant took issue with record of interview being taken to confirm that he accepted he walked off the job on 2 October 2020.
Meeting of 14 October 2019
[57] On 14 October 2019, the Applicant attended a meeting with Ms Trott and Mr Aaron Mehrten, as a support person. That meeting was termed a “Letter of Response meeting”. The Applicant also attended a further meeting referred to in the Respondent’s evidence as the “Termination meeting”. Mr Mehrten gave evidence about the “Letter of Response” and Termination meetings” with the Applicant and said that he acted in the capacity of the Applicant’s “EBA Representative” in those meetings. Mr Mehrten’s witness statement was set out in a question and answer form as follows:
“2. Q. Do you recall the conversation in the Letter of Response meeting regarding Fe Ben providing a response letter to the company?
A. Yes, Fe Ben said that all the information was already in his statement. He was asked if there was anything further he wanted to add along with his statement and he said no it was all there. I asked him if there was maybe more detail he wanted to add and he told me no it was all there.
3. Q. Do you recall him commenting that he was "not able" to provide a further response to the company?
A. No I didn't hear him say that at all. I would have offered to help if that was the case.
4. Q. Do you recall the HR Manager advising him that the final decision would be made with the information available at the time?
A. Yes I remember that, that's why I asked him if he was sure he didn't want to add any more details.”
[58] Following the meeting, the Applicant was issued with a letter entitled “Letter of Response”, in which he was invited to provide a response to matters discussed at the meeting on 14 October, by close of business, 16 October 2019. No record of that meeting was tendered. The letter provided to the Applicant was in the following terms:
“Dear Fe Ben Acal
Letter of Response - Breaching Standard Terms and Conditions of Employment - Misconduct - Walking off the job
Today's meeting on Monday 14th October 2019 between yourself, HR and EBA Representative Aaron Mehrten has been initiated in response to your failure to adhere to Company Policies and Procedures as outlined in your Employee handbook.
On Wednesday 2nd October 2019 you were working on morning shift and arrived onsite clocking in at 6.48am. You have presented to First Aid and HR stating that you wanted to go home. A conversation was commenced in HR and during this conversation you have walked out of the HR Office. You were advised that this would be considered walking off the job and yet you have chosen to continue to leave site without permission or concluding conversations in HR. You have then clocked clocking out at 7.38am.
On Thursday 10th October you attended site after being requested by HR Manager - Mellisa Trott to discuss why you had left site on Wednesday 2nd October 2019. Your statement was taken in HR and you were then stood aside pending an investigation and a follow up meeting to be scheduled for Friday 11th October 2019. After numerous attempts to book in a time for this meeting on Friday 11th October an alternative meeting was scheduled for Monday 14th October 2019 at 1pm and an appointment confirmation was emailed to you.
In your statement taken in HR on Thursday 10th October 2019 you advised that you wanted to go home to seek medical treatment and that you did not want to "argue" with anyone about this. You confirmed that you are aware of company policy in regards to walking off the job when asked "After the conversation in HR you were leaving site and Karen advised that if you left site you would be walking off the job?" you responded with ''That's right but I didn't start work". Although you claim you had not started work, you had in fact presented for your shift clocking in and reporting to HR, your shift start time is 7am and you had clocked out at 7.38am. The CCTV footage for that morning was also reviewed and you can be seen walking out of HR when Karen Light appears at the HR door and you stop, look at her and then continue to leave site. Our investigation shows that Karen has advised not once but twice that if you left site you would be walking off the job. You have also confirmed this in your statement taken in HR. During the conversation in HR on Thursday 10th October you were advised that you have once again failed to follow company processes in regards to leaving site without appropriate approvals. You were advised that these issues would be investigated further, you were advised to attend for meeting to discuss further and that you would be given the opportunity to explain yourself in regards to your breach of company policy.
After completing our investigations of the alleged breach the Company has found you have walked off the job once again without obtaining the required approvals Breaches of the Standard Terms and Conditions of Employment is behaviour that will not be accepted by the company. You have signed the acknowledgement for the Employee Handbook indicating that you have fully read, understood and agree to comply with all policies and procedures as part of your Standard Terms and Conditions of Employment.
Serious breaches of Company Policies and Procedures will not be tolerated and as such the Company views this behaviour as a significant failure on your behalf to meet the obligations, responsibilities and expectations of a JBS Australia employee. Your employment history shows that you have worked here long enough to know that this is behaviour that is not tolerated by the Company. You have also been spoken to in regards to Walking off the job in July 2019 and have received a previous Letter of Response and Final Written Warning in regards to this previous breach.
You have previously been spoken to in regards to breaches of company as below:
05 September 2019 - First and Final Written Warning - Misconduct - Breach Standard Terms and Conditions - Workplace Health and Safety Policy
18 July 2019 - Final Written Warning- Breach of Standard Terms & Conditions - Walking off the job
13 July 2019 - Letter of response - Breach of Standard Terms & Conditions of Employment - Walking off the job
As a result of your recent serious breach of Company Policy to which you have admitted, the Company is now considering disciplinary action which may include termination of your employment. Prior to making our final decision the Company is allowing you the opportunity to respond to the concerns raised. The Company asks that you provide a written response to the below questions:
Due to your failure to again meet the expectations of a JBS employee by seriously breaching the Standard Terms and Conditions of Employment by walking off the job for a second time, why should we continue your employment given that you have terminated your own employment by walking off the job?
Why should you not face further disciplinary action up to and including termination of your employment given the serious breach of Standard Terms and Conditions of Employment?
Please provide your written response to myself by close of business Wednesday 16th October 2019. A follow up meeting in regards to your continued employment with JBS Australia Rockhampton will be held at 1pm on Friday 18th October 2019. You will not be required to attend work until the date and time mentioned above. Once we receive your response we will make a decision on your future employment with JBS Australia Pty Ltd.”
[59] It is not in dispute that the Applicant did not provide a written response to the letter of 14 October 2019.
18 October 2019
[60] The Applicant attended a meeting on 18 October 2020 – the Termination meeting. Ms Trott and Mr Mehrten, again attending as the Applicant’s support person, was in attendance. During this meeting, the Applicant was advised that the Respondent had made the decision to terminate his employment. Following the meeting, the Applicant was issued with a termination letter. It is necessary to set out the letter in full:
“Dear Fe Ben Acal
RE: Termination - Breaching Standard Terms and Conditions of Employment - Serious Misconduct - Walking off the job
Today's meeting on Friday 18th October 2019 between yourself, HR and EBA Representative Aaron Mehrten has been initiated in response to your failure to adhere to Company Policies and Procedures as outlined in your Employee handbook.
On Wednesday 2nd October 2019 you were working on morning shift and arrived onsite clocking in at 6.48am. You have presented to First Aid and HR stating that you wanted to go home. A conversation was commenced in HR and during this conversation you have walked out of the HR Office. You were advised that this would be considered walking off the job and yet you have chosen to continue to leave site without permission or concluding conversations in HR. You have then left site clocking out at 7.38am.
On Thursday 10th October you attended site after being requested by HR Manager - Mellisa Trott to discuss why you had left site on Wednesday 2nd October 2019. Your statement was taken in HR and you were then stood aside pending an investigation and a follow up meeting to be scheduled for Friday 11th October 2019. After numerous attempts to book in a time for this meeting on Friday 11th October an alternative meeting was scheduled for Monday 14th October 2019 at 1pm and an appointment confirmation was emailed to you. During the meeting in HR on Monday 14th October 2019 you were issued with a Letter of Response for Breaching Standard Terms and Conditions of Employment specifically Serious Misconduct - Walking off the job, and given an opportunity to respond to the company's concerns in relation to the incident and your overall commitment to the business. It was specifically discussed that if you chose not to respond in writing that the company's decision would be based on all information available to us at the time. The company has not received a written response in regards to our concerns.
In your statement taken in HR on Thursday 10th October 2019 you advised that you wanted to go home to see your Dr and that you did not want to "argue" with anyone about this. You have claimed "But why I left over there cause I cannot take more arguments with my boss" and also confirming "That's why I walked off the job". The conversation held in HR was a discussion that included questions to ascertain whether there was a need for you to leave site at that time. Rather than complete this conversation you have made the decision to leave even after being advised that it would be considered walking off the job. You confirmed that you are made aware that your actions would be considered walking off the job when asked in your statement "After the conversation in HR you were leaving site and Karen advised that if you left site you would be walking off the job?" you responded with ''That's right but I didn't start work". Although you claim you had no started work, you had in fact presented for your shift clocking in and reporting to HR, your shift start time was 7am and you had clocked out at 7.38am. The CCTV footage for that morning was also reviewed and you can be seen walking out of HR when Karen Light appears at the HR door and you stop, look at her and then continue to leave site. Our investigation shows that Karen has advised not once but twice that if you left site you would be walking off the job. You have also confirmed this in your statement taken in HR. Your statement also confirmed that you are aware that walking off the job is behaviour that is prohibited by the company stating "Yeah you have already spoke to me about that'
After completing our investigations of the alleged breach the Company has found that through your own actions you have walked off the job once again effectively abandoning your own employment. This behaviour constitutes Serious Misconduct. Serious breaches of Company Policies and Procedures will not be tolerated and as such the Company views this behaviour as a significant failure on your behalf to meet the obligations, responsibilities and expectations of a JBS Australia employee.
You have signed the acknowledgement for the Employee Handbook indicating that you have fully read, understood and agree to comply with all policies and procedures as part of your Standard Terms and Conditions of Employment. Your employment history shows that you have worked here long enough to know that this is behaviour that is not tolerated by the Company. You have also been spoken to in regards to Walking off the job in July 2019 and have received a previous Letter of Response and Final Written Warning in regards to this previous breach.
The Company feels that the employment relationship has broken down and that you are not capable of following company policies as outlined in the Employee Handbook.
Accordingly it is the Company's decision to terminate your employment, effective immediately, as you have breached the JBS Standard Terms and Conditions of Employment specifically Misconduct - Breaching Standard Terms and Conditions of Employment - Walking off the job.
You will be paid your wages and entitlements up to your last day of work Tuesday 1st October 2019.
The payment will be made as soon as the appropriate calculations have been performed by the Payroll Department and you have returned all Company property. The payment will be made into your nominated bank account.”
[61] It was submitted for the Applicant, that the video footage shows some sort of interaction between the Applicant and Ms Light, but that an inference should not be drawn that the interaction was disrespectful, and there was no evidence to support such an inference. It was further submitted that the video was not inconsistent with the Applicant’s evidence that he heard Ms Light say something but did not know what was said. Given that it was emotional situation, it does not beggar belief that the Applicant did not quite understand what was said.
[62] The substantive issues were identified by the Applicant’s representative as whether the Respondent was entitled to require the Applicant to remain at work on 2 October for the interview, and if the Respondent was so entitled, whether the Applicant’s failure to do so was serious misconduct. It was also submitted that regardless of the intentions of JBS staff at the meeting, and regardless of whether it was heated, the Applicant formed a reasonable concern about the nature of the questions being asked. It was not a huge leap for the Applicant to determine that the questions may lead to disciplinary proceedings or impact on any claim the Applicant wanted to make in relation to the finger injury.
[63] Further, it was submitted that the Applicant’s perspective is that he did not report to work with an intention to commence work but rather as a courtesy, to advise that he would not be able to work that day. The information that the staff of JBS sought to obtain from the Applicant at the meeting on 2 October may have been important and necessary, but it was not time-dependant. It was reasonable in the circumstances for the Applicant to consider that he was taking a sick day and that the questioning he was subjected to was not warranted and that he would go on a produce a medical certificate that he would be unable to work. Accordingly, there was no power for the Respondent to detain the Applicant and his view that he was entitled to leave the workplace was reasonable.
[64] The Respondent submitted that the Applicant left the site on 1 October 2020 after completing his shift, without reporting any issue with his finger. The Applicant reported for work on 2 October at 6.48 am and his usual start time was 7.00 am. The Applicant refused to participate in a discussion about his injury and left the site despite being warned twice that if he did so, he would be considered as walking off the job, conduct about which he had previously been warned. In its written submissions the Respondent states that when the Applicant left the workplace on 2 October, it was noted that his finger was visibly swollen but as no issues were reported at the end of his last shift, it was unclear if this was a work related aggravation or if there was an ability to complete alternate duties until an appointment with a medical practitioner could be made. The Respondent also states that the Applicant walked out and clocked off at 7.38 pm, prior to being able to book in to see his GP or specialist.
[65] It is submitted that the Company was not able to fully investigate the claims of aggravation of the injury at work or the Applicant’s misconduct in walking off the job, because the Applicant did not attend site again until 10 October. This submission is made notwithstanding that the Applicant had a medical certificate stating that he was incapacitated to attend work for the period from 2 – 10 October 2019.
[66] The Respondent asserted that after an investigation it concluded that the Applicant walked off the job and abandoned his employment. His employment record was considered and it was noted that he had been disciplined in July 2019 for walking off the job and not following Company processes and had been issued with a final warning. In addition to this, it was noted that the Applicant had been issued with a first and final written warning in September 2019 following a safety incident. Accordingly, the Company determined to dismiss the Applicant and on the basis that the dismissal was for misconduct, did not pay him any wages in lieu of notice.
[67] In oral submissions, it was contended for the Respondent that if the Applicant was unfit for work on 2 October he could have telephoned the Respondent rather than attending the site. When the Applicant attended the site the Respondent assumed that he was reporting for work. It was also contended that the Applicant had not indicated that he wanted to go home, but rather that he was having an issue. Given that it was 7.00 am in the morning, Doctors were not open for the Applicant to attend. In relation to the Applicant’s evidence that he was not dressed for work at the point he left, it was submitted that this is the normal process for employees undergoing rehabilitation, with such employees reporting for work and before going to get dressed for work, seeing the nurse and attending the HR Department to sign a rehabilitation book to report on their progress.
Was there a valid reason for dismissal of the Applicant?
[68] I do not accept that there was a valid reason for the Applicant’s dismissal. In particular, I do not accept that the Respondent’s conclusion that the Applicant abandoned his employment on 2 October 2019 by walking off the job, and thereby engaged in misconduct that justified dismissal. The assertion that the Applicant walked off the job and effectively abandoned his employment, was included in correspondence to the Applicant which was sent by the Respondent’s Human Resources Manager. Abandonment of employment was also asserted as the reason for dismissal in the Respondent’s submissions in these proceedings.
[69] Abandonment of employment occurs when an employee walks off the job or fails to attend after a period of absence, in such a way that the employer is reasonably entitled to conclude that the employee no longer intends to be bound by his or her contract of employment.
[70] In my view, when the conduct of the Applicant in the present case is considered in context and in light of all of the relevant circumstances, the Respondent had no reasonable basis for concluding that the Applicant abandoned his employment. Firstly, it is not disputed that the Applicant had an injured finger and that it was visibly swollen. This much was accepted by the Respondent’s witnesses who observed the swelling. Ms Bates, Mr Sauer and Ms Parkin all stated that the Applicant told them his finger was swollen and tender and that he could not wear the splint he was required to wear in accordance with his return to work plan. It is also the case that the Respondent’s managers knew that the Applicant had sustained a work-related injury to his finger and that he was on light duties at the time. The Applicant’s uncontested evidence was that his finger was painful with the pain being 9.5 on a scale of 10 and that he informed Mr Sauer that this was the case.
[71] Secondly, I accept the Applicant’s evidence that before he left the workplace, he informed the Respondent’s managers that he needed to see his doctor. The Applicant’s evidence on this point was corroborated by Ms Bates who said in her witness statement that the Applicant stated that he had to go home to see the Doctor. In this regard, I also note that the Respondent’s submissions contend that the time at which the Applicant left the worksite was too early for him to see a doctor and that on Mr Sauer’s evidence there was a discussion about the Applicant’s doctor giving him time off work. These matters are corroborative of the Applicant’s evidence that he stated he was leaving to see a doctor. Further, I note that there is no evidence that any of the Respondent’s managers who were present at the discussion with the Applicant or Ms Bates who is a nurse, offered him first aid or medical assistance for his injury but rather. Rather, they questioned him about how the injury had occurred.
[72] Thirdly, the Applicant did go to see his doctor on 2 October and the doctor issued a medical certificate indicating that the Applicant was completely incapacitated for work from that date until 4 October 2019 and subsequently until 10 October 2019. On the basis of those medical certificates and the evidence about the state of his finger at the point he was involved in a discussion with the Respondent’s managers on 2 October 2019, the Applicant was completely incapacitated for work before he left the workplace. If the Respondent’s managers did not know the extent of the Applicant’s incapacity on 2 October when he left the workplace, they knew by 3 October, by virtue of being provided with a copy of the medical certificate dated 2 October, and the subsequent certificate, by the Applicant’s wife, who delivered them to the workplace. The Applicant’s evidence about the certificates being provided to the Respondent by his wife was not disputed.
[73] Notwithstanding that the medical certificates explained the absence, the Respondent’s managers persisted with the view that he had abandoned his employment in circumstances where they knew, or should have known, that he was totally incapacitated for work and had submitted medical evidence to establish this. The conduct of the Applicant in this regard is inconsistent with abandonment of his employment and the Respondent maintaining that the Applicant had abandoned his employment was not a conclusion that is valid, sound or defensible.
[74] Fourthly, none of the questions asked by the Respondent’s managers on the morning of 2 October were time-critical and there was no reason why the manner in which the injury was sustained could not have been discussed when the Applicant was cleared to return to work. In this regard, I note that the Applicant informed Ms Trott during the interview she conducted with him on 10 October, that his supervisor had allocated a task to the Applicant on 1 October which was arguably outside his work restrictions. This should have been a matter that Ms Trott investigated instead of focusing simply on the Applicant’s conduct. Fifthly, the Applicant’s does not have a good command of the English language and was confronted by managers questioning him and issuing directions, in circumstances where he was injured and wished to leave the site.
[75] Notwithstanding these matters, I am also of the view that the Applicant was not blameless in the events on 2 October 2020 which led to his dismissal. It was not unreasonable for the Respondent’s managers to ask the Applicant some questions about his injury and how it was sustained, before he left work and to attempt to ascertain whether he was capable of performing some other work on that day. The Respondent was also entitled to discuss with the Applicant why he was using a high-pressure hose, contrary to the light duties that he should have been performing. While there was evidence that he was asked to do this task by a supervisor, the Applicant had some responsibility for ensuring that he worked in a manner that was consistent with his restricted duties.
[76] It is also the case that the Applicant was informed in clear terms that if he left the workplace before answering questions that the Company wished to pose to him, it would be considered as walking off the job, a matter he had previously been warned about. It should have been apparent to the Applicant that the Company did not share his view that he was not walking off the job because he had not started work. Further, it should have been apparent to the Applicant that he was defying a direction to remain at work and have a discussion about his injury.
[77] The Applicant’s evidence that he did not understand that he was being directed to remain at work for the discussion was not convincing and he ultimately conceded that he did know that he was being directed not to leave the workplace and that he left nonetheless. The Applicant also stated in his oral evidence that he left because the Respondent’s managers were “opposing” him with “aggressive action and words” rather than because he was in pain or there was any urgency about him seeking medical attention. I do not accept the Applicant’s evidence that Mr Sauer was aggressive towards him. It is more probable than not that the Applicant knew that he had performed work which was inconsistent with his restricted duties, and did not want to answer questions about how his injury had occurred.
[78] I also note that the CCTV footage shows that as the Applicant left the office and walked away, he stopped twice to have a brief discussion with Ms Light, during which he raised his arms and gestured. I am satisfied that the Applicant knew full well that Mr Sauer and other management representatives did not want him to leave and wished to continue to have a discussion with him, and that he disregarded this and left the site. It is also apparent from the Applicant’s evidence that he did not leave the workplace because he was in pain and needed to seek urgent medical attention, but rather because he took issue with the questions he was being asked or the manner of the questioning.
[79] The fact that the Applicant had previously treated a cut he sustained at work by gluing it with industrial glue rather than following Company procedure and reporting his injury to the nurse stationed at the workplace, is indicative of a propensity on the part of the Applicant to disregard his obligations to work safely. It was not unreasonable for the Respondent’s managers to seek to have a discussion with the Applicant about the injury to his finger. It is also the case that the Applicant had previously walked off the job and had been told that if he did so again he would be liable to be dismissed.
Was the Applicant notified of the reason for his dismissal?
[80] It has been held that as a matter of logic an employee cannot have been given an opportunity to respond to any reason for dismissal based on capacity or conduct in circumstances where the employee is not notified of the reason. An employee must be given an opportunity to respond to the reason for dismissal before the decision to terminate is made.31
[81] The Applicant was notified of the reasons his employment was in jeopardy in the letter of response dated 14 October 2019 and in his discussion with Ms Trott on 10 October. The Applicant was also notified of his dismissal in the meeting on 18 October 2019 and the letter confirming the dismissal on that date.
Was the Applicant given an opportunity to respond to the reason for his dismissal based on his conduct?
[82] I have some reservation about the lengthy written correspondence that was sent to the Applicant setting out the reasons for his dismissal and whether his English language skills were sufficient for him to comprehend the contents of the correspondence and to respond. I also note that while the Applicant was interviewed and questioned about the issues which led to his dismissal, he was requested to respond in writing and did not do so. The Applicant did not give any evidence that these matters hindered his ability to respond and I also note that Mr Mehrten said that he would have assisted the Applicant to provide a further response to the matters if he wished to do so. On balance, I am satisfied and find that the Applicant was given an opportunity to respond to the reason for his dismissal.
Was there an unreasonable refusal by the Respondent to allow the Applicant to have a support person
[83] The Applicant was represented by Mr Mehrten at meetings in relation to the matters that led to his dismissal. There is no evidence that any request for additional representation was made and there was no refusal of representation.
Was the Applicant warned about the unsatisfactory performance before the dismissal?
[84] The Applicant was warned about leaving the workplace without permission and also about failure to comply with occupational health and safety and related procedures, both of which were matters which led to his dismissal.
Did the size of the employer’s enterprise impact on the procedures followed in effecting the dismissal of the Applicant?
[85] The employer’s enterprise is large and it had 517 employees at the time the Applicant was dismissed. The size of the employer’s enterprise did not impact on the procedures followed in effecting the dismissal of the Applicant and this is a neutral consideration in the determination of whether the dismissal was unfair.
Did the absence of dedicated human resource management specialists or expertise in the enterprise impact on the procedures followed in effecting the Applicant’s dismissal?
[86] The employer has dedicated human resource management specialists and this did not impact on the procedures followed in effecting the Applicant’s dismissal and is a neutral consideration in the determination of whether the dismissal was unfair.
Are there any other relevant factors?
[87] It is relevant that the Applicant was dismissed summarily and was not paid an amount in lieu of notice. It is also the case that the Applicant was stood down without pay during a period where he had medical certification which would have entitled to him to personal leave, notwithstanding that he may not have had sufficient personal leave accrued to cover the entire period. While the Respondent made attempts to rectify these matters after the dismissal, I am of the view that they add to the unfairness with which the Applicant was treated.
Conclusion in relation to unfair dismissal
[88] I am satisfied and find that the Applicant’s dismissal was harsh because of its consequences for the personal and economic situation of the Applicant. He had been employed by the Respondent for almost six years. The Applicant’s dismissal was unjust because he did not abandon his employment and his conduct in leaving the workplace in the circumstance which pertained on 2 October 2019 was not misconduct to which dismissal was a valid, sound and defensible response. The dismissal was also unreasonable because the conclusion that the Applicant had abandoned his employment by walking off the job, was decided on inferences that could not have been reasonably drawn from the material before the employer.
REMEDY
[89] Having found that the Applicant was protected from unfair dismissal, and that his dismissal was harsh, unjust and unreasonable, it is necessary to consider what, if any, remedy should be granted to him. I consider that the Applicant should have a remedy for his unfair dismissal. In his Form F2 Application, the Applicant sought “the right compensation for this claim”. In his oral evidence at the hearing, the Applicant sought reinstatement although this was not pressed to any great extent the Applicant’s evidence did not establish that he genuinely sought reinstatement.
[90] The Applicant showed no insight into his conduct on 2 October 2019. Further, the Applicant showed no remorse or understanding about his contribution to the situation he now finds himself in. The Applicant also indicated in his evidence that he was thinking of getting another job but that he was seeking reinstatement to his position with the Respondent because he had been unable to get another job. In short, the Applicant’s evidence that he was seeking reinstatement did not convince me that the relationship with the Respondent could be re-established and that the Applicant would make any effort in this regard. I also accept Mr Sauer’s evidence that the Applicant has a history of engaging in misdemeanours and the Company has expended effort to assist him to rectify his conduct to no avail. As a result, Mr Sauer has lost trust in the Applicant. On balance, I accept that this is reasonable, and notwithstanding that I have found that the conduct of the Applicant on 2 October 2020 did not provide a valid reason for dismissal, I do not consider that reinstatement is an appropriate remedy, in all the circumstances of this case.
[91] Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation if it is appropriate in all the circumstances. The remedy of compensation is designed to compensate an unfairly dismissed employee in lieu of reinstatement, for losses reasonably attributable to the unfair dismissal, within the bounds of the statutory cap on compensation that is to be applied. 32
[92] Having regard to all the circumstances of the case, including the fact that the Applicant has suffered financial loss as a result of his unfair dismissal, I consider that an order for payment of compensation to him is appropriate. Accordingly, it is necessary to assess the amount of compensation that should be ordered to be paid to the Applicant. In assessing compensation I am required to take into account the circumstances of the case including the matters in s. 392(2) as follows:
“(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.”
[93] The established approach to the assessment of compensation was set out by a Full Bench of the Commission in Sprigg v Paul Licensed Festival Supermarket. 33 That approach has been consistently applied in the context of the current legislative provisions by Full Benches of the Commission in a number of cases.34 The approach to calculating compensation in accordance with these authorities is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 5: Apply the legislative cap on compensation.
Remuneration the Applicant would have received, or would have been likely to receive, if he had not been dismissed (s.392(2)(c))
[94] There is an element of speculation in determining an employee’s anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed. 35
[95] I am satisfied on the balance of probabilities that if the Applicant had not been dismissed on 18 October 2020, he would have remained employed by the Respondent for a further six months. The Applicant was already subject to a final warning and the Respondent would have been entitled to issue him with a further warning in relation to his conduct on 2 October 2019, notwithstanding my finding that the Applicant’s conduct on that date did not constitute a valid reason for dismissal.
[96] I am also satisfied on the balance of probabilities that if the Applicant had not been dismissed on 18 October 2019, he would have remained on light duties until at least 8 January 2020. I have reached that conclusion on the basis that the Applicant provided a medical certificate dated 8 January 2020 which indicated that he could return to full duties from that date. However, based on the length of time his injury had persisted and the fact that he had again injured his finger in October 2019 (or aggravated his existing injury) I think it likely that for most of the six month period I have assessed that he would have remained in employment, the Applicant would have been performing some form of modified or light duties. I also note that the Applicant stated in his evidence that he had been assessed as having a permanent incapacity as a result of the injury to his finger. Further I note the unsatisfactory state of the evidence about what the Applicant’s earnings were when he was undertaking his ordinary duties.
[97] Accordingly, I think it appropriate to use the Applicant earnings while he was undertaking light duties to calculate compensation. The Applicant’s hourly rate was $37.69 and he was working a 40 hour week. Therefore his earnings were $1,507.60 per week and he would have earned the amount of $39,197.60 in the six month period following his dismissal.
Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f))
[98] The Applicant has had some income through driving for Uber since his dismissal. He commenced uber driving in January 2020 and in the period over which I have assessed compensation, earned an amount of $12,494.99 from this work. The Applicant incurred expenses in order to carry out this work in the order of $2,000 per month. Some of those expenses were associated with car repayments and expenses associated with the Applicant’s mobile telephone, which he would have incurred regardless.
[99] It is appropriate to allow for some but not all of those expenses in the calculation of compensation. I have determined to allow an amount of $3075.69 for those expenses resulting in an amount of compensation of $29,778.00. This calculation is intended to put the Applicant in the position he would have been in but for the termination of his employment. 36
Viability (s.392(2)(a))
[100] No submission was made on behalf of the Respondent that any particular amount of compensation would affect the viability of its enterprise. My view is that no adjustment will be made on this account.
Length of service (s.392(2)(b))
[101] I have had regard to the fact that the Applicant had over 6 years of service in the award of compensation I have determined.
Mitigation efforts (s.392(2)(d))
[102] The Applicant was injured and was not cleared to return to full duties until 8 January 2020. The Applicant also continues to suffer from permanent incapacity as a result of his injury. Thereafter, he mitigated his loss by undertaking uber driving which is the only employment he states that he could obtain in the current environment. I accept that the Applicant made reasonable efforts in all of the circumstances, to obtain alternative employment following his dismissal and I do not consider it appropriate to reduce the compensation on this account.
Any other relevant matter (s.392(2)(g))
[103] It is necessary to consider whether to discount the remaining amount ($29,778.00) for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which the Applicant was subject might have brought about some change in earning capacity or earnings. 37 Positive considerations which might have resulted in advancement and increased earnings are also taken into account.
[104] The discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of the decision. 38 Because I am looking in this matter at an anticipated period of employment which has already passed (six months from 18 October 2019), there is no uncertainty about the Applicant’s earnings, capacity or any other matters during that period of time. It is also the case that there is an element of contingency in the amount of compensation on the basis of the Applicant’s injury and my conclusion that he would have continued on light duties rather than return to full duties.
[105] In all the circumstances, my view is that it is not appropriate to discount or increase the figure of $29,778.00 for contingencies. I have considered the impact of taxation, but my view is that I prefer to determine compensation as a gross amount and leave taxation for determination.
Misconduct (s.392(3))
[106] The period over which I have assessed compensation already reflects my views about the Applicant’s conduct and I have decided not to make a further adjustment on this basis.
Shock, distress or humiliation, or other analogous hurt (s 392(4))
[107] In accordance with s 392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.
Compensation cap (s.392(5)-(6))
[108] The amount of $29,778.00 is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which the Applicant was entitled in his employment with the Respondent during the 26 weeks immediately before his dismissal. In those circumstances, my view is that there is no basis to reduce that amount by reason of s. 392(5) of the Act.
Instalments (s.393)
[109] No application has been made to date by the Respondent for any amount of compensation awarded to be paid in the form of instalments.
[110] In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, my view is that there is no basis for me to reassess the assumptions made in reaching the amount of $29,778.00. 39
[111] For the reasons I have given, my view is that a remedy of compensation in the sum of $29,778.00 (less taxation as required by law) in favour of the Applicant is appropriate in the circumstances of this case. An Order requiring that the Respondent pay compensation to the Applicant in the amount of $29,778.00 in gross wages, to be taxed according to law, and superannuation contributions in the amount of $2,828.91 by 2 November 2020 has been issued.
DEPUTY PRESIDENT
Appearances:
Mr M Jamieson of Everyday Lawyers for the Applicant.
Ms M Trott for the Respondent.
Hearing details:
15 April.
2020.
By telephone.
Printed by authority of the Commonwealth Government Printer
<PR723650>
2 Exhibit A1 – Applicant’s Outline of Written Submission.
3 Exhibit R1 – Witness Statement of Bill Sauer.
4 Exhibit R2 – Statement of Jade Parkin.
5 Exhibit R3 – Statement of Amanda Bates.
6 Exhibit R4 – Statement of Aaron Mehrten.
7 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.
8 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
9 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
10 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
11 Bista v Glad Group Pty Ltd [2016] FWC 3009.
12 Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000.
13 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
14 Exhibit R12.
15 Exhibit R1, Exhibit R2 and Exhibit R3.
16 Transcript PN350.
17 Transcript PN354-355.
18 Exhibit – Ms Light
19 Transcript PN281.
20 Transcript PN290.
21 Transcript PN295 – 298.
22 Transcript PN96
23 Transcript PN97 – 101.
24 Transcript PN73
25 Transcript PN110
26 117-118
27 121
28 PN202.
29 PN205
30 Transcript PN483.
31 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at para. 75, [(2000) 98 IR 137]
32 Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17]
33 (1998) 88 IR 21
34 Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431
35 Double N Equipment Hire Pty Ltd v Humphries [2016] FWCFB 7206 at [16]-[17]
36 Bowden at [24], citing Ellawala v Australian Postal Corporation Print S5109 at [35]
37 Ellawala v Australian Postal Corporation Print S5109 at [36]
38 Enhance Systems Pty Ltd v Cox PR910779 at [39]
39 Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32]