DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Callum Weatherall
v
Elevate Education Pty Ltd t/a Elevate Education
(U2020/6066)

Termination of employment – applicant dismissed for alleged misconduct – application for an unfair dismissal remedy – regular and systematic casual employee – presenter of tutoring services to high school students – impact of COVID-19 pandemic – applicant sets up tutoring business – failure to inform respondent – whether applicant in breach of employment contract – Facebook page of new business sent to respondent’s employees – concerns of respondent as to similar business in competition with it – applicant denies any similarities and claims no breach of employment contract – three meetings held to discuss concerns of respondent – father attends two meetings as support person – applicant claims to have ceased all involvement with new business – respondent sought apology – form of apology in dispute – father’s involvement unhelpful – alternative business is similar to respondent’s business and potentially in competition – apology to respondent appropriate – apology to all staff unnecessary – applicant found to have not ceased all involvement with business – applicant remains an owner and named on website – factors in favour and against unfairness of dismissal weighed up – valid reason for dismissal – otherwise good performance – no mitigating factors outweigh the applicant’s conduct – applicant’s dismissal not harsh, unjust or unreasonable – application dismissed.

BACKGROUND

[1] Mr Callum Weatherall (the ‘applicant’) commenced employment on 22 January 2018 as a casual Presenter with Elevate Education Pty Ltd (‘Elevate’, the ‘Company’ or the ‘respondent’). Elevate provides study skills programs and tutoring services to high school students on a one-on-one basis, in groups or seminar settings and online. Elevate employs 389 staff consisting of:

•  227 Casual Presenters;

•  59 Casual Coaches;

•  90 Casual Connect Staff; and

•  13 Full Time Office Staff.

[2] The applicant was engaged under a contract of employment which described his role as a Presenter, to ‘communicate the Company’s study skills seminars and techniques to students in an entertaining, informative and non-threatening manner to help them achieve their personal best at high school.’ His remuneration is set out at Cl 5 of the Contract and provides as follows:

•  $80 per first hour of seminar presented;

•  $36.67 per subsequent hour for presenting and coaching;

•  $100 per diagnostic as a diagnostic consultant;

•  $30 commission per diagnostic depending on if it closed and at what size it closed; and

•  $30 per seminar for any subsequent seminars at the same school on the same day.

The majority of the Presenters are university students and the applicant attends university and is studying to become a teacher.

[3] The applicant was dismissed for alleged serious misconduct in that it was discovered on Facebook that he had set up a new company, MJW Student Mentors (‘MJW’) in direct competition to Elevate and the services it provides and without its consent. Elevate maintains that in setting up MJW, the applicant had been in breach of Cl 4 of his contract of employment which provides a non-competition clause which states:

‘During the period of, and for 3 months after termination of this Agreement, You must not be directly or indirectly engaged or concerned in the conduct of any activity that is similar to or competes with any activity carried on by the Company (except as a representative of the Company or with the written consent of the Company).’

Clause 12 was also referred to, and reads as follows:

‘a) You acknowledge that as an employee, all intellectual property created by You in the course of Your employment including, without limiting generality, any variations or additions You make to seminar transcripts, belongs to the Company. You waive all moral rights, being the right of attribution and the right of integrity, in respect of such intellectual property.

b) You will return all Company property, including intellectual property, seminar transcripts, surveys, feedback forms, handbooks, computer software, methodologies, documentation, materials, working papers, any other items developed during the course of employment, security cards and keys which are rightfully the property of the Company or its nominee, including any copies thereof which may have been reproduced, to the Company on termination of employment or whenever requested by the Company.’

[4] Following an investigation by the respondent, which found that the applicant’s conduct was serious misconduct and in breach of his contract of employment, Elevate sent a letter to him on 17 April 2020, recognising the applicant’s value as an employee and its willingness to maintain the employment, and proposing his employment relationship could be maintained subject to him:

•  ceasing his involvement with MJW and taking steps to stop its activities; and

•  apologise to the respondent and its employees for his conduct.

[5] Although the applicant had said he had ceased his employment with MJW, Elevate became aware on 21 April 2020, through an ASIC search, that he remained as an Associate Partner of the holder of the MJW business name. Accordingly, the applicant was dismissed in an email dated 1 May 2020, which reads:

‘Dear Callum

Termination of your employment

I am writing to you about the termination of your employment with Elevate Education. As outlined in our letter dated Friday 17th April 2020, we believe your conduct in relation to MJW Student Mentors constitutes wilful behaviour by you that breaches your employment agreement. This conduct is inconsistent with the continuation of your contract of employment.

We consider that these actions constitute serious misconduct, and therefore warrant summary dismissal.

Prior to making this determination we investigated this matter thoroughly and provided you with a copy of all evidence we considered, and a set of actions to be undertaken in order to avoid summary dismissal. We also had a meeting with you on 20th April, and a further meeting with you in which you were supported by your father, on 29th April. We also note that you provided a written response following the meeting on 20 April.

After considering all evidence (including your written and oral statements) we have decided to terminate your employment effective from Friday 1st May 2020, for the following reasons:

•  We believe your conduct in relation to MJW constitutes willful (sic) actions by you that is inconsistent with the continuation of your contract of employment.

•  We therefore consider that your actions constitute serious misconduct, and warrant summary dismissal.

•  In our letter dated Friday 17th April 2020, we proposed that as an alternative to summary dismissal, we could instead issue you with a written warning if actions a)-f) were taken by Friday 24th April 2020.

We are not satisfied that these conditions have been appropriately met by you

Where to from here:zz

1. Your access to all Elevate platforms (including but not limited to Skedulo, Salesforce, Dropbox, and Litmos) will be revoked.

2. You must mail to the Elevate Head Office, by 5pm, Friday 8th of May 2020 any hard copies of confidential or proprietary company information which is currently in your possession, including but not limited to seminar scripts, manuals, and training materials. If you have confidential or proprietary information that is stored electronically on any device in your control, this must be deleted from each device, including deleting it from your deleted or trash items. You must confirm, by email to myself that you have done so by 5pm Friday 1st May 2020. Failure to satisfy these requirements may result in further action being taken against you.

3. You must not disclose to any person any confidential or proprietary company information. This obligation extends beyond termination of your employment. Failure to adhere to this obligation may result in further action being taken against you.

4. You will be paid any outstanding payup to and including your last day of employment (Friday 1st May 2020). After this date, your name will be removed from the Elevate payroll.

5. You must return your Elevate polo and hoodie to the Elevate Head Office by 5pm Friday 8th May 2020. Upon receiving your uniform, we will credit your $110 deposit to your bank account.

You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at www.fairwork.gov.au.

If you have any questions regarding this decision, please do not hesitate to contact me on [mobile number provided].

Yours sincerely,

Phoebe Pincus
General Manager’

[6] On 4 May 2020, the applicant filed an application with the Fair Work Commission (the ‘Commission’), pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), in which he seeks reinstatement to his former position. In accordance with my usual practice, I convened a conference, via telephone on 8 July 2020. However, the application was unable to be resolved. Directions were confirmed and a telephone hearing date listed on 27 August 2020, given the then prevailing restrictions on in-person hearings due to the COVID-19 pandemic. At the hearing, the applicant was represented by Mr R Reitano of Counsel, instructed by Mr H Macken, Solicitor, Leigh Virtue & Associates. The respondent was represented by Mr S Blanks and Ms C Massai, Solicitors, SBA Lawyers, with both parties being granted permission to be represented by lawyers, pursuant to s 596 of the Act.

THE EVIDENCE

[7] The following persons provided statement and oral evidence in the proceedings:

•  the applicant;

•  Mr Bayley Mathai – friend and partner in MJW;

•  Mr Phillip Weatherall – the applicant’s father and a solicitor;

•  Mr Aref Taleb – former employee of Elevate;

•  Ms Phoebe Pincus – General Manager, Elevate;

•  Ms Georgia Flood – Global Head of Human Resources, Elevate;

•  Mr John Varvarigos – Chief Operating Officer (Global), Elevate;

•  Mr Kane McChesney – Head of Coaching Australia, Elevate;

•  Ms Holly Mann – former Head of Recruitment, Elevate; and

•  Ms Carla Massai – Solicitor for the respondent.

For the respondent

Ms Phoebe Pincus

[8] Ms Pincus described the Company’s operations, its staff and that it is part of a global group with similar operations in the United Kingdom, the United States and South Africa. Ms Pincus set out the remuneration rates for the applicant as a casual Coach and Diagnostic Consultant. Attached to Ms Pincus’ statement were emails sent to all Presenters in March 2020, as a result of the decrease in work consequent upon the COVID-19 pandemic.

[9] On 30 March 2020, Ms Pincus was invited by the applicant to ‘like’ the MJW Facebook page. This prompted a phone conversation she had with the applicant on 2 April 2020. During the discussion, the applicant explained it was basically a tutoring company set up with some friends, as a creative outlet and to make money, when work was so scarce. Ms Pincus told him that the content and structure of sessions looked similar to Elevate and it was very seriously being considered as a breach of his contract of employment. He claimed he had forgot about the contract of employment and did not want to do anything wrong by Elevate. Ms Pincus invited him to a Zoom meeting on 3 April 2020, with Ms Flood and herself.

[10] At this meeting, Ms Pincus took notes and referred to the conversation. Ms Flood explained the concerns of the respondent and that there may be a potential breach of the applicant’s employment contract. He was invited to respond and to provide a written response. Ms Flood referred specifically to Cls 4 and 12. However, the applicant said he could not remember them. Ms Flood showed him the two clauses and said his actions may amount to serious misconduct. However, no decision had been made and the Company wanted to gather information and give him the opportunity to respond to the allegations.

[11] Ms Pincus then showed the applicant a comparison document between MJW and Elevate’s website content. I annex this comparison to this decision as Annexure ‘A’. Ms Flood outlined the respondent’s position that MJW’s website be taken down and the issue be amicably resolved. She accepted that he might not have sole authority to do that and other steps may be necessary.

[12] As to the similarities to Elevate’s activities, the applicant explained that, unlike Elevate, MJW runs online subject-specific tuition and specialist sessions in English and Maths. The business began two weeks earlier and involved himself and two friends. He agreed he drew on skills he learnt at Elevate. He further claimed that MJW does not offer study skills specific sessions. MJW provides feedback on practice questions, which Elevate does not do.

[13] Ms Pincus said the applicant apologised for not letting the respondent know, but the only thing to clear up was that it was not a competing business, as he did not consider there were any similarities between the two businesses. The applicant was offered to provide a written response by 7 April 2020, before any decision was made. The applicant replied as follows:

‘Hey Phoebe,

Firstly, after having a chance to think about everything I want to begin by apologising to yourself and everyone at the company. It was rude of me to start this up without letting you know.

The next I want to say is that, the reason I felt at time when setting this up I didn’t need to let you know about it is because of how fundamentally different our service is to Elevate’s. I never had the intention to reproduce Elevate’s content or copy what the company does in any way.

You know after working with me over the last 2.5 years I’m very passionate about working for Elevate, and I love helping kids with study skills. I’m training to be teacher, its where I’m going to work eventually. Starting this business was just a creative outlet for me to put all my spare time towards something I’m passionate about and something that would expose to some new things.

For example, in High School I ran my own study skill seminars for the years below me even before working for elevate.

I hope you understand.

Warm regards,

Callum’

[14] A further Zoom meeting was arranged for 20 April 2020 after Ms Pincus sent the applicant an email on 17 April 2020, which stated, inter alia:

‘3. Outcome

After reviewing all of the evidence and considering your written response to the allegations, we believe your conduct in relation to MJW constitutes wilful behaviour by you that is inconsistent with the continuation of your contract of employment. Further, we are not currently satisfied that your response sufficiently acknowledges or adequately addresses the breach of contract.

We therefore consider that your actions constitute serious misconduct, and warrant summary dismissal.

We do however acknowledge your desire to continue working at Elevate, and your willingness to compromise. In order to continue the employment relationship with you, we need to be satisfied that you agree to act in accordance with the terms of your employment agreement.

As an alternative to summary dismissal, we will instead issue you with a written warning if the following actions are taken by Friday 25th April 2020, namely:

a) Your involvement with MJW will cease, and

b) Advertising of MJW services to cease, and

c) MJW website to be taken down, and

d) All branded personal advertising to cease, and

e) You will issue a written apology to Elevate, and

f) You will issue an apology to all Elevate staff that received an invitation to follow

MJW (which will first need to be approved by us), specifically acknowledging the unprofessional and inappropriate nature of your behaviour. It will also need to acknowledge that your actions have not been consistent with the spirit of Elevate.

Moving forward, if you would like to offer un‐branded subject specific private tutoring, this will first need to be approved by us.

Please note that if these actions are not taken by this date, we will terminate your employment effective immediately. We will also follow up with MJW directly via our lawyers.

Please let me know if you have any questions, and we will talk this through with you at the meeting scheduled for 2PM on Monday 20th April 2020.

Regards
Phoebe.’

[15] At this meeting, the applicant attended with his father. After setting out the respondent’s position, the applicant said:

‘My involvement [with MJW] has ceased. I stopped working with them. We made a lot of changes, still of the opinion that there are no similarities; however, we made a lot of changes, the timetable content was removed, and the website does not make any more mention to that. It is a partnership and I cannot make any further changes. I don’t feel like to say that I am ben inappropriate or unprofessional. Sound ridiculous to write a letter to people saying things that are not true. I already have apologised to Phoebe.

Ms Flood stated that the applicant did not fully appreciate his conduct and was still formally listed as an owner of MJW online, after advising he had removed himself. Ms Pincus said the applicant’s father, in an aggressive tone, said:

‘You and I both know that Callum had no employment or shifts or work. The website has been completely changed. You cannot restrain someone for earning money. Why doesn’t Callum have JobKeeper yet? We checked and he fits the criteria because he has been employed for over a year. He fits the criteria and needs to get paid.

[16] In a query about JobKeeper, Ms Flood explained that no employees had received JobKeeper as Elevate was still working through the eligibility criteria and process. The applicant’s father claimed the letter above at [14] was inappropriate and the applicant ‘had legal advice and as Callum is not getting paid, the employment contract is void’. Ms Flood responded that no shifts for a casual does not mean the person is not an employee. The conversation continued with the applicant’s father claiming his son was being bullied and Ms Flood suggesting they work together on the form of an apology. The applicant said it is ‘just not going to happen’. The applicant’s father claimed the conduct was not serious misconduct as he had looked at the definition and obtained a second legal opinion, who believed it was ‘nothing like serious misconduct, absolutely ridiculous’, and if it was, why the Company did not just fire him. Ms Flood said the respondent valued him as an employee, but needed a process (to resolve it) with the extra step of an apology. The applicant said he did not see why he needed to apologise, and his father added ‘It is a punitive punishment. It is tantamount to bullying’.

[17] Ms Pincus participated in the meeting with Mr Varvarigos, Ms Flood, the applicant and his father on 29 April 2020, and the meeting of management immediately thereafter, where it was agreed to confirm the dismissal decision as none of the respondent’s conditions; see: [14] above, had been meet, and there was no genuine acknowledgement by the applicant of a breach of contract and no contrition. The Company could not be confident the applicant would uphold his employment contract in the future.

[18] Ms Pincus prepared and signed the applicant’s termination of employment letter; see: [5] above.

Ms Georgia Flood

[19] Ms Flood joined Elevate in March 2020, having had six years’ previous experience in Human Resources. Ms Flood took her own notes of the meetings with the applicant on 3 April and 20 April 2020. As Ms Flood’s recollection of these meetings is, in substance, the same as Ms Pincus’ evidence, I will not repeat it here.

[20] In respect to the meeting on 29 April 2020, Ms Flood sought Mr Varvarigos’ involvement, given the ongoing lack of agreement and the difficulty in the earlier meeting (with the applicant’s father’s interruptions). Ms Flood said:

‘I do not remember the exact words that were said during the meeting, but I remember having a conversation where at the beginning of the call I let Callum and his father know that the purpose of the meeting was to see if we could come to some sort of understanding and outcome that would be workable for everyone. I also said that we felt it would be beneficial to have JV on the call to provide some additional context to our perspective on the situation. I also let Callum know that we were aware he was still listed as a director of MJW, having completed another ASIC search.

Towards the end of the call, I said that apology was important and the terminology ‘inappropriate and unprofessional’ behaviour was relevant given that there was a breach of contract and this breach had been advertised to other employees within the company. I also said this was inappropriate especially given Callum is considered a senior member of the team. Neither Callum or his father agreed with this point. They were concerned with the delivery of the apology rather than the purpose and intent.’

[21] Ms Flood’s evidence about the reasons for the applicant’s dismissal are the same as set out in Ms Pincus’ evidence.

Mr John Varvarigos

[22] Mr Varvarigos’ statement dealt with the Zoom meeting he had with the applicant, his father, Ms Pincus and Ms Flood, on 29 April 2020. Ms Flood described how the purpose of the meeting was to come to an understanding about the applicant’s continued registration as a director of MJW and to discuss an apology for his actions.

[23] Mr Varvarigos explained that the issue was that other employees had been invited by the applicant to ‘like’ the new business’ Facebook page and this ‘is a problem’. The applicant’s father responded by saying ‘You are wanting to make an example of him’ and that if other people were affected by the invite, then that was a management issue and his son should not be required to apologise.

[24] Mr Varvarigos replied that the issue had been created by the applicant in setting up a competing company in breach of his employment contract. Mr Varvarigos said that the applicant’s father interrupted ‘an alleged competing company’. The applicant said ‘I didn’t mean to invite them’. There was then an exchange between Mr Varvarigos and the applicant’s father about what an apology would look like. His father added:

‘He hasn’t done anything wrong. There isn’t anything to apologise for. He is just trying to make some money. Allegedly he is competing’.

[25] The applicant said he was concerned that as a 2IC of a team, he felt uncomfortable apologising and then returning to work. Mr Varvarigos accepted that this was the applicant’s decision to make and that the Company could not force him to apologise.

[26] Mr Varvarigos said that after the meeting he, Ms Flood and Ms Pincus met and decided to confirm the decision to summarily dismiss the applicant for breach of contract, his failure to apologise or cease all involvement with MJW. Mr Varvarigos believed the applicant was not willing to take any responsibility for his actions, or accept he had done anything wrong.

Mr Kane McChesney

[27] As Head of Coaching, Mr McChesney is responsible for selling, organising and coordinating all one-on-one coaching sessions for the respondent. Mr McChesney identified 12 potential clients in late February/early March 2020, who wanted to book a diagnostic consultation and who lived within 25km of the applicant (a distance considered reasonable to travel) and a further 18 potential clients who lived in unserviceable areas and where a remote Zoom arrangement was available. A diagnostic consultation is an introductory coaching session before a client decides to take up a full coaching program. The applicant was familiar with these sessions.

[28] Mr McChesney said that during this period, the applicant only advised of four hours’ availability (from 4pm-8pm Wednesdays) in a full week. This made it ‘near impossible’ to schedule work for him and meant other coaches living further than 20km had to be rostered for clients in his area.

[29] On 27 March 2020, Mr McChesney was invited by the applicant on Facebook to ‘like’ the MJW Facebook page.

Ms Carla Massai

[30] As the solicitor representing the respondent, Ms Massai’s statement dealt with her Australian Securities and Investments Commission (‘ASIC’) searches of MJW, which established the business was registered on 25 March 2020. As at 31 March 2020, ASIC records indicate that MJW Student Mentors’ business address was the applicant’s home address (details withheld) and the Business Holder details were ‘BP Jones, BM Mathai and CV Weatherall’. The Associates/Partners were the same persons.

[31] Further ASIC inquiries were made on 21 April 2020 and 13 July 2020, and were annexed to her statement. These later search extracts are identical in content to the first made on 31 March 2020.

The applicant

[32] The applicant set out his background, experience, and work performed for the respondent since December 2017. He said that working at Elevate inspired him to become a school teacher, switching from medical science to a teaching degree. The applicant described his passion for running group seminars and giving up his own time to promote the Company, build its business and travel to various locations in NSW to present to clients. He claimed to have completed more seminars than any other presenter in NSW in 2020, and frequently received positive feedback from teachers and parents. He was runner-up for top Consultant in Australia in 2019.

[33] The applicant agreed that in early February/March 2020, he did have limited availability to work for Elevate because of University priorities. In February, he had full time availability and in March, 18 hours and 4 hours as a Consultant. However, the work was very inconsistent, and shifts are not guaranteed. By the end of March 2020, the COVID-19 pandemic had meant no seminars were being conducted, there was no word of financial support for stood down workers, and he had no other source of income. He was living at home with his father and brother.

[34] In this context, and after talking to his friends in the same position, they came up with the concept of an online tuition company to support students working at home, without a teacher. The concept offered mainly English and Maths tutoring. They only decided to create the new business as they had no work and no income. He and his friend, Bayley Mathai, set up a Facebook page and website, and invited close friends to ‘like’ the page. Elevate staff were not purposely invited and ‘there was never any intention to do anything untoward to Elevate’.

[35] The applicant described the call with Ms Pincus on 2 April 2020 as ‘quite relaxed’. She had told him not to stress as it was not an issue, and just routine. He explained that MJW was completely different to Elevate and not in competition with it, or copying its product. He said he found it ‘strange’, being asked about his contract of employment, which he was not provided with. He also claimed a lot of other Presenters run private tuition. He was happy to compromise and make changes to the business to satisfy their concerns.

[36] When he received the 6 April 2020 email from Ms Pincus, the applicant claimed he:

•  had not received a copy of his contract of employment;

•  had no recollection of ever agreeing to the sections quoted in Cls 4 and 12;

•  did not agree to the definition of serious misconduct and was shocked that trying to earn an income could constitute misconduct, let alone serious misconduct; and

•  did not accept the record of the meeting as accurately reflecting what had taken place. This was why he asked his father to get involved.

The applicant sent a response to Ms Pincus; see: [13] above, and told his father:

‘I set up MJW, an online tutoring business with two school mates ... because of the lockdowns I have been turned away from schools presenting and my future diary for work is empty. I do not think I've done anything wrong, but to address Elevate concerns I will remove myself and any involvement from the business .... The website has already been completely changed, even though I do not believe there were any similarities with Elevate. I have asked Bayley who is the other partner that I no longer can be part of the business and to be removed.’

He told his father that he did not feel comfortable to offer an apology for unprofessional and inappropriate behaviour, as it was not true. Further, he did not know who the apology would be provided to, or how it would be conveyed.

[37] It was the applicant’s evidence that he told Mr Mathai on 18 April 2020 that he would not be having any further involvement in the business and to make the necessary changes. He said he sent a note to Mr Mathai and Mr Brandon Jones in the following terms:

‘Dear Bayley and Brandon,

As you are now aware, there are issues I'm having with my employer Elevate regarding my involvement with MJW. They're under a mistaken belief I have breached my work agreement by using their content and they also see this as competition.

They have asked me to remove myself, which I will do. I will no longer be taking part in the business of MJW Mentoring as of the 18/4/20.

Regards
Callum Weatherall’

The applicant understood that Mr Mathai removed any mention of his involvement on the website. He claimed that Mr Mathai modified the website to address each of Elevate’s concerns. He later learnt that Mr Mathai had inadvertently left his name on the website as one of the Presenters.

[38] The applicant referred to the meeting with Ms Pincus and Ms Flood on 20 April 2020. The applicant explained his position in response to Elevate’s letter to him. He had ceased all involvement with MJW. He had no control over others, had apologised to Ms Pincus, but could not agree that his behaviour was unprofessional or inappropriate and why he should convey this to other employees. Ms Flood had said that his apology did not acknowledge he had acted in accordance with his employment contract and other employees had approached the Company and said they believed it was inappropriate to ‘like’ the MJW post.

[39] The applicant agreed his father raised the status of his employment and that he had not behaved unprofessionally. His father said that he has no shifts, no income and could not be restrained from earning an income. His father raised the JobKeeper issue. After an exchange about the nature of the apology, the applicant told Ms Flood ‘I can’t see myself writing that apology’. His father said the statements were untrue and embarrassing and his ‘gut feeling’ was if he did not apologise, he would be dismissed. Ms Flood denied this and asked that he put any concerns in writing, and Elevate would get back to him.

[40] The applicant said his father then said words to the effect:

‘It never was done behind Phoebe’s back ... it was posted online, you've said to Callum it meets the criteria of serious misconduct and I have had another opinion from a law firm, and they have told me this does not amount to serious misconduct or misconduct at all. If you respect Callum as a good employee - he's travelled at short notice across NSW against my best wishes because I worry about him driving these long hours. If he has made a mistake, then so be it but it certainly doesn't warrant serious misconduct.’

He added:

‘If it’s serious misconduct then you are terminating his employment.’

Ms Flood responded that they wanted to work this out because he was a good employee. His father insisted his son was no longer part of MJW as can be seen from the website.

[41] The applicant said that the same evening (20 April 2020), he received a JobKeeper update from Elevate and he provided a JobKeeper Declaration Form. He also sent his response to the meeting that day; see: [13] above.

[42] The applicant offered his version of the meeting on 29 April 2020, with Mr Varvarigos, Ms Flood and Ms Pincus. He began by commenting that he was surprised Mr Varvarigos was wearing a red baseball cap. The applicant said that after Ms Flood mentioned the business registration of MJW, he replied that he had met Bayley and said ‘I’ve taken steps to remove myself but am no longer part of it and the other partners were submitting it’.

[43] Mr Varvarigos stated that his view was that there was a close connection between the businesses of MJW and Elevate. He then referred to the apology required (which he understood was the only remaining issue). He said that doing nothing is an open invitation to others to breach their employment contracts. The applicant took this to be a form of intimidation or bullying to stop others from breaching their contracts. He was not prepared to ‘put my signature’ on an apology in which he admitted unprofessionalism and inappropriate behaviour. This was false. There was then an exchange about the wording of the apology. Ms Flood said she had understood, from their last meeting, that he was comfortable with putting an apology (his father denied this). His father then said:

‘’Nothing has since been put to us any differently and what Callum has been asked to agree to is not true and he won’t write an apology in that form.’ Dad then suggested that if it was a management issue, this should be dealt with by management sending an email to staff and not using Callum. He indicated that he did not consider it was appropriate for Callum to be required to embarrass and humiliate himself when all he did was try to get some work.’

Mr Varvarigos said it was not the intention to humiliate or embarrass him, but the Company could not live without an apology.

[44] There were further exchanges as to who would come up with the proposed wording of the apology. Mr Varvarigos believed it was up to the applicant to come back to the Company with something he felt comfortable with. His father said he did not understand why an apology was necessary and queried again how the apology would be conveyed to staff. Ms Flood replied that it was about getting an ‘in principle’ agreement to the apology first. After his father further queried the conveying of the apology, Mr Varvarigos concluded that no progress was being made. The applicant’s father put that if it was about conveying a message to other employees, this was a management issue, not his son’s. The applicant added that if he did what was proposed in the apology, he could not expect other staff to respect him as a leader. He pointed out that he never intentionally invited anyone from Elevate to ‘like’ the Facebook page. He claimed that there was no suggestion, at any time, in the meeting that Elevate’s other conditions had not been met – it was all about the apology. Shortly after the meeting, the applicant was told by the other staff that they had received JobKeeper.

[45] The applicant was dismissed on 4 May 2020. When he told Mr Mathai he understood he took no further steps to change the information with ASIC. The applicant concluded his evidence by stating:

‘I am strongly of the view that there was absolutely no valid basis for the termination of my employment. In my mind the only reason they terminated my employment was because I was unwilling to be used by them to bully and intimidate other employees by providing an unspecified apology to unspecified people in an unspecified way. I felt this was unethical, inappropriate, and wrong and also that it was a completely unreasonable demand.

I also felt that the whole process and the manner in which it was handled by Elevate was unfair. At various times I felt ambushed by what was happening and by the changing parameters of what was, or was not, required of me.’

[46] Since his dismissal, the applicant has had casual employment with The Academy Brand (a retail brand) of approximately 12 hours a week. He relies on the support of his family.

Mr Bayley Mathai

[47] Mr Mathai has known the applicant since school and was aware he was involved in tutoring. They and another friend, Mr Jones, were having difficulty with earning income during COVID-19 and decided to set up a company which offered individual coaching and tutoring from home for high school students. He described the business as ‘not particularly successful’, with never more than two or three students.

[48] Mr Mathai was advised by the applicant that Elevate had a problem with his involvement in MJW. On 17 April 2020, the applicant asked him to take steps to remove him from the MJW website. He removed his photo and any reference to him on the business’ website; inadvertently omitting his name from the available tutors in the booking section. Mr Mathai said that this was of no consequence, as no one had ever booked through the online service, except for his mother who had booked a session for his brother.

[49] Mr Mathai acknowledged that at this time, he did not remove the applicant from the ASIC registration, as he understood he and Elevate were negotiating with a view to him continuing employment with Elevate and continuing in the tutoring business. He assumed it was of no concern, as the applicant was not undertaking any work for MJW, in any event.

[50] Mr Mathai claimed that after he was advised of the applicant’s dismissal shortly after 4 May 2020, he formed the view that there was no point in changing the ASIC information or their partnership in MJW. However, he did not restore the information he had earlier deleted from the website.

[51] Mr Mathai said at the present time (3 August 2020), he was the only person performing tutoring services and earning income through the business. As the website was not generating any business and as he relied on personal contacts, he arranged to remove the MJW website. It was Mr Mathai’s evidence that the total income earnt by the business was $238.64, of which $158.64 was from his mother’s booking (for his brother).

[52] Mr Mathai claimed that the applicant’s dispute with Elevate had caused him, Mr Jones and the applicant great uncertainty and distress, as they had no source of income. Mr Mathai believed that MJW could not be said to be in competition with Elevate, as from his knowledge, it does not operate in the same was as MJW.

Mr Phillip Weatherall

[53] Mr Weatherall said that on 18 April 2020, his son asked him to take part in a Zoom meeting with him, Ms Flood and Ms Pincus. He asked him what he thought of the email of 6 April 2020 alleging serious misconduct. Mr Weatherall said his son did not feel comfortable about apologising to Elevate by acknowledging unprofessional and inappropriate behaviour which was untrue. To do so would be dishonest.

[54] Mr Weatherall’s recollection of the conversation on 20 April 2020 (paras 9-31), exactly replicates his son’s version of the conversation. I need not repeat it here.

[55] Mr Weatherall also attended the Zoom meeting with his son, Mr Varvarigos, Ms Pincus and Ms Flood on 29 April 2020. Mr Weatherall said that the meeting began with Mr Varvarigos stating that there was ‘a gap between what we see and what you see. It’s a big issue for us’ and their research showed ‘it was sufficiently close’ (the similarities between MJW and Elevate). He went on to say that no business would allow this, as it was an invitation to others to breach their employment contracts. It was not about an apology to him or Ms Pincus, but ‘our hand is forced here’ and ‘there’s not much we can do; we can’t do anything … this is an open invitation to others to breach the contract’.

[56] After his son said he was not prepared to admit unprofessionalism and inappropriate behaviour in an apology, Mr Varvarigos said that they could look at the wording, but the apology must acknowledge he had done something wrong. His son said he would need time to think about it as it was something new. Mr Varvarigos said it was not new and it was an easy conversation to have, if he was open to it.

[57] Mr Weatherall then said:

‘Nothing has been said to us differently ... and this is not true, and he won’t be writing an apology to anyone in that nature ... it’s a managerial issue and you want to use Callum as an example, you can send a memo reminding staff of their contract obligations from management ... Callum should not be used for this purpose as it’s humiliating and embarrassing, all Callum was trying to do was find some work.’

[58] When Mr Weatherall challenged that his son did not apologise earlier, Ms Flood responded:

The conversation continued:

Mr Weatherall’s summation of this meeting is the same as his son’s at [40] above. It is unnecessary to repeat it.

[59] Mr Weatherall believed that the entire process was quite unfair because his son was required to agree to an apology, without knowing the critical elements of it, who it would go to, how it would be published and who else might see it. Elevate had refused his frequent requests to clear up these matters, but the representatives did not answer on the point and were evasive and non-responsive. He shared his son’s concerns and believed the apology to staff was an unreasonable request, and even if he did apologise, he would still be dismissed. After the Zoom call, he told his son that Elevate had already decided to dismiss him for breach of his employment contract.

Mr Aref Taleb

[60] Mr Taleb was employed by Elevate for three and a half years as a Presenter, Coach, Team Leader and Consultant. He resigned in March 2020 because he believed the Company practices were exploitative and unfair.

[61] It was Mr Taleb’s evidence that Elevate’s business was marketed and sold on a model that made a clear distinction to ‘one on one’ content-based tutoring. This was sold as to justify the higher prices it charged. In light of this and being aware of MJW’s website, Mr Taleb believed that it was plain the two businesses were not similar. Further, Mr Taleb was aware that many Coaches, working for Elevate, also conducted ‘one on one’ tutoring, without any issue being raised.

[62] Mr Taleb said he took no offence of any kind with MJW’s Facebook page. He believed that forcing the applicant to apologise was humiliating and embarrassing, both to him and the applicant.

Reply statements

Ms Massai

[63] Ms Massai has a personal Facebook account, but she and the applicant are ‘friends’ on Facebook and would not be able to see the applicant’s posts, unless he made a public post. She could see the applicant had about 1000 Facebook friends. Ms Massai understood that a Facebook user can select who to invite to ‘like’ a page or can invite all of the user’s friends to ‘like’ the page. The latter can also happen if the page is available to the public.

[64] On 6 August 2020, Ms Massai looked at the applicant’s Facebook, as she was aware the respondent had about 30 casual Presenters and Coaches. She noticed one employee, Mr Caleb Siles, ‘liked’ the post. Later, on 10 August 2020, she noticed that the applicant is friends with 29 of the respondent’s employees, including Ms Pincus and Mr McChesney.

Ms Mann

[65] Ms Mann described a conversation with Ms Pincus on 12 August 2020 concerning the applicant’s contract of employment. Apparently, the email of the signed contract was broken (cut off), but Ms Mann recalled that the applicant had returned the signed contract.

Ms Pincus

[66] Ms Pincus identified a list of regular casual Presenters and Coaches who had been identified by the applicant to ‘like’ the MJW Facebook page. Ms Pincus also described the conversation referred to by Ms Mann above, as she could not find a signed copy of the applicant’s contract of employment. In their conversation, Ms Mann confirmed the applicant had returned a signed contract.

Oral evidence

The applicant

[67] In further evidence in chief, the applicant said he continued to have casual retail employment which he has had since October 2019. Since his dismissal, he has earnt ~$6,000 from that employment.

[68] In cross examination, the applicant agreed he had provided a signed contract of employment to Ms Mann on 13 December 2017, but he no longer had a copy of the contract. The applicant confirmed he had received the series of emails in March 2020 dealing with the respondent’s response to the COVID-19 pandemic and its effect on staff. He was not involved in alternative online seminars for students. However, he acknowledged in the email of 23 March 2020, that the respondent had said it was doing everything it sensibly could to maintain workflow for Presenters and Coaches. Two days later, he registered MJW. He was a co-owner.

[69] The applicant agreed he had not discussed any of his concerns of lack of work with the respondent and he could have done so. On 27 March 2020, he put a post on Facebook on which he had about a thousand friends, of which 25 were employees of Elevate. He denied he was providing time management skills and study skills when the post said:

‘More importantly, with this knowledge, we can teach them the independent learning skills that will allow them to continue getting the most out of their education whilst having restricted access to teachers.’

He claimed this meant teaching subject content, not learning skills. He said he was never going to use any of the skills he used at Elevate, as it was solely ‘one on one’ tutoring. Knowing students were at home and not used to home learning, the intention was to teach them Maths and English to help with their limited access to teachers. He conceded Maths and English are not mentioned in the post.

[70] The applicant said he had sent a number of responses to Ms Pincus after her email of 30 March 2020, but had not received any replies. On the same day, he sent an invitation to ‘like’ the MJW Facebook page to a large number of friends, but could not recall if Ms Pincus and Mr McChesney received it. By 9 June 2020, he had received 269 ‘likes’. The applicant believed it was appropriate to send the page invitation to Elevate staff because:

‘It’s a business that has similarities to theirs and I think that it isn't inappropriate to send it, so therefore it must be appropriate. I don't think there's any issues with it.’

The applicant was referred to the following comments on the MJW website:

‘MJW Student Mentors teaches students the study, time management and accountability skills that are required to keep up with schoolwork and assignments.

Don't aim to follow this 100 per cent of the time. Top students have one in place to act as a guide and planning for their week, not as a hard and fast rule. Aim to follow it around 60 to 75 per cent of the time.

We provide an initial study questionnaire that allows us to tailor the service to your key concerns.

We provide the study skills needed to study efficiently.’

[71] The applicant did not accept as accurate Ms Pincus’ account of their conversation on 2 April 2020. The applicant did not say in the meeting with Ms Pincus and Ms Flood the next day, that he understood Elevate’s concern, as he had advertised similar things on the website. He did not say ‘Obviously, it is similar’. He agreed he had said he wanted to apologise and he felt it was appropriate to do so. However, he explained the apology was not because his conduct was inappropriate, but that he should have let Ms Pincus know, as ‘it was inappropriate to not explain to them clearly enough what exactly I was doing’; that is, that they were just tutoring. He later said in an email:

‘Firstly, after having a chance to think about everything, I want to begin by apologising to yourself and everyone at the company. It was rude of me to start this up without letting you know.’

He did not accept that ‘rude’ meant inappropriate. At this point, he had not discussed the matter with his father, who is a solicitor.

[72] The applicant acknowledged that Ms Pincus and Ms Flood’s versions of the 20 April 2020 Zoom meeting were correct ‘for the most part’. He had taken notes of this meeting. The same day, he sent a Jobkeeper form to Elevate, but could not recall if he had signed it (it was not signed). The applicant conceded that on 20 April 2020 he remained a co-owner of MJW, but he had made it clear to Mr Mathai that he was not going to be part of the business. He told him so in a note to Mr Mathai & Mr Jones; see: [37] above. However, he had not signed any form ceasing his role in MJW, or assigning his ownership to someone else. He agreed he did not provide a copy of the note to the respondent and could not recall if he told anyone about it. He claimed he gave the note personally to Mr Mathai in a coffee shop. The applicant agreed his name remained on the website and someone could have booked a seminar, but he was not to be involved.

[73] The applicant said that he changed his willingness to provide an apology after 7 April 2020 because what Elevate sought was ‘extremely inappropriate’ and ‘unfair’. He did not know who it would be sent to or whether his confidentiality would be maintained. He had not changed his position, as this was a completely different apology to what he had offered earlier. The applicant said he had not seen any complaints about the Facebook post from anyone involved.

[74] In re-examination, the applicant said he had not undertaken any tutoring for MJW and the only work he did was to set up the business. He understood only two clients had been engaged; one of whom was Mr Mathai’s brother.

Mr Mathai

[75] In cross examination, Mr Mathai agreed that he had put everything in his statement he could remember. When asked why he did not mention receiving the 18 April 2020 note the applicant referred to at [37] above, he said he did not remember receiving it.

Mr Phillip Weatherall

[76] In cross examination, Mr Weatherall agreed he had not seen the emails sent to his son by Elevate in March 2020. He believed that there was a difference between an apology to the Company and an apology to the staff who received the Facebook invite; with the latter being inappropriate, as it required his son to acknowledge his conduct had been unprofessional and inappropriate, which was not true. As a parent, he had concerns about agreeing to something which was not true and how confidential the apology would be. While he gave him this advice, ‘it was his call’.

Mr Taleb

[77] In cross examination, Mr Taleb said that in his exit interview when he resigned, he had agreed to set up and administer an Elevate alumni group. It was not to help the respondent’s reputation, but to set up a like-minded group of individuals. It was not intended to damage the respondent. He agreed he valued his work at Elevate, but was critical of their structures and how the Company dealt with issues about pay and conditions.

Ms Pincus

[78] In cross examination, Ms Pincus said that no meetings with the applicant were recorded and her statement was based on her own notes taken at the time.

[79] Ms Pincus accepted that in the meeting on 20 April 2020, the applicant kept reiterating that he could see no similarities between MJW and Elevate. She agreed that this was inconsistent with her other evidence, that he had earlier acknowledged they were similar (‘Obviously, it is similar’). However, Ms Pincus acknowledged that Elevate does not engage in content specific tutoring. Elevate does not involve a person tutoring a child at home in Maths, English, Science or any other subject.

Ms Georgia Flood

[80] In further evidence in chief, Ms Flood reaffirmed that the respondent received an unsigned JobKeeper form from the applicant. She also confirmed that not all of Elevate’s employees were eligible to receive JobKeeper, as some were eligible through a different employer. In cross examination, Ms Flood agreed that the form itself does not require a signature and says ‘Electronic/email is OK’. Ms Flood accepted that employees in comparable positions to the applicant had received JobKeeper. Had he not been dismissed, he would have also been eligible.

[81] Ms Flood acknowledged that the notes of the meetings on 3 and 20 April 2020 were considerably detailed, whereas the latter notes of the 29 April 2020 were not in such detail. She explained that these notes were taken, but not transcribed in the same way as the earlier meetings.

[82] Ms Flood believed that the applicant’s conduct was inappropriate and unprofessional. She accepted that content-specific tutoring is not part of Elevate’s business.

[83] Ms Mann was not required for cross examination, as Mr Blanks agreed that the Browne v Dunn 6 R. 67, H.L. point would not be taken.

Mr John Varvarigos (from the United Kingdom)

[84] In cross examination, Mr Varvarigos said he did not consider wearing a baseball cap in the Zoom meeting on 29 April 2020 was inappropriate or unreasonable, particularly as it was very early in the morning in the UK.

[85] Mr Varvarigos said the contents of his statement were his succinct recollection of the 29 April 2020 meeting. To the extent his version of events differed from the applicant’s and Mr Weatherall’s recollections, he would need to compare them to his statement.

[86] Mr Varvarigos recalled that the meeting lasted for about half an hour. He agreed the main focus of the meeting was a discussion about the apology. Elevate had sought an apology which acknowledged the applicant’s unprofessional and inappropriate conduct. This conduct was establishing a competing business and he had sent Facebook invitations to Elevate’s employees. Mr Varvarigos believed that MJW was a competing business. But that was not all that was happening (with MJW).

[87] Mr Varvarigos agreed that at the meeting the applicant had stated he had abandoned any interest in MJW, but that assurance was found not to be the case. He was still listed on the website and as a director of MJW. These matters were put to him at the time. This was raised at the beginning of the meeting and the discussion then turned to the apology. Mr Varvarigos understood the applicant had not offered any apology in any form.

[88] Mr Blanks sought to tender the applicant’s employment file, which had been sought by the applicant. Over the objection of Mr Reitano (notwithstanding his client had requested it), I allowed the tender of the applicant’s file as a business record and provided the applicant with an opportunity to respond after the closure of the case, if he wished to.

[89] In response, the applicant said the file did not contain all his performance reviews. He claimed that at the end of every term, performance was reviewed. He would consistently hit 97% of the benchmark and was one of the few presenters who achieved this.

[90] The applicant explained that he was late on a few occasions for seminars in 2018 and 2019 due to traffic conditions from Wollongong to Sydney, 3 or 4 mornings a week. The applicant accepted he had received a warning for missing one seminar, as he forgot to set his alarm. In any event, he advised his manager and the seminar proceeded on time, with a different Presenter.

[91] The applicant acknowledged he had only one negative review from one teacher out of over 500 presentations. He had discussed the issue with Elevate’s Head of Performance, Ariane Dol and it appeared he had been correct in requesting better behaviour from students; although he acknowledged that views differed on how this should be done.

SUBMISSIONS

For the applicant

[92] Mr Reitano submitted that firstly, an important consideration in this case was that all of the evidence, including from the respondent, clearly established that whatever was the business of MJW, it was not a business that was ever going to be, or could ever be, in competition with Elevate. It was completely different to Elevate’s business.

[93] Secondly, the applicant had made it absolutely clear to Ms Pincus, Ms Flood and Mr Varvarigos and his co-partners that because of the problem MJW had caused, he would have nothing further to do with it. The applicant was keen to maintain his employment with Elevate and did not want MJW to cause any issue with that objective. In any event, MJW was not a ‘roaring success’ and was never going to be a concern to anyone. Even if it was in competition, it was hardly ever going to impact on a multinational operation, such as Elevate.

[94] Thirdly, Mr Reitano stressed the extraordinary events the applicant was facing at the time due to COVID-19. He had no work, no income and was relying on his father for support. He was never challenged that he had no intention to harm Elevate. He needed to earn some income.

[95] Fourthly, Mr Reitano put that the reason for the applicant’s dismissal was not a breach of his contract of employment as not only does his conduct not fit Cl 4, but his dismissal was over a dispute about the form of the apology, which the respondent had not even drafted. The applicant’s father had frequently asked what Elevate would accept and his son was open to any suggestions. However, the respondent declined to do so. Just saying his conduct was unprofessional and inappropriate does not make it so. Moreover, given all the circumstances, nothing he did could possibly be viewed as unprofessional or inappropriate.

[96] Lastly, Mr Reitano submitted that nothing had been put by the respondent that would prevent the applicant’s reinstatement. He has an excellent performance record, loved his job and had been promoted to a leadership role. He had entirely ‘off loaded any interest in MJW, just to keep the peace’. Further, given Mr Flood’s evidence as to the applicant’s eligibility for JobKeeper, the question of remuneration lost could be addressed by the payment of $750 a week for lost remuneration.

For Elevate

[97] Mr Blanks put that the starting point in this case was the applicant’s contract of employment, which he had signed and returned to the respondent on 13 December 2017.

[98] Turning to valid reason, under s 387(a) of the Act, Mr Blanks relied on what he said was ‘crystal clarity’ as to the material presented to the applicant by Ms Pincus comparing the websites of the two businesses. The applicant’s characterisation of MJW as having no similarities to Elevate, was ‘just false’. If the distinction is said to be student mentoring or student tuition, then this is not borne out by MJW’s website and Facebook page, the Facebook post and the invitation to ‘like’ the page. It was entirely reasonable to accept that the business had been set up to provide mentoring to students of the kind provided by Elevate. Ms Pincus set this out in detail at [18] of her statement. Mr Blanks put that it was not the point, as the applicant claimed that he never meant the words used in all MJW’s communications, were meant to be about just subject matter tuition. All the words used, and copied from Elevate’s materials have a plain, natural meaning. Further, MJW involved the use by the applicant of the techniques and skills and intellectual property he learnt at Elevate.

[99] In any event, the applicant’s guarantees of having ceased involvement with MJW were untrue, as he remained an owner and his name remained on the website. While the applicant relied on a note he claimed he gave to Mr Mathai; see: [37] above, this evidence would be disregarded, as Mr Mathai had no recollection of receiving it. Moreover, the applicant did not provide it to Elevate, until it was produced for these proceedings. Mr Blanks submitted that all of the objective evidence and the unreliability of the applicant’s assertions demonstrate that there was a valid reason for dismissal.

[100] Mr Blanks addressed the other matters in s 387 and noted that the applicant had been given multiple opportunities to respond and had his father as a support person in the meetings on 20 and 29 April 2020.

[101] In respect to the emphasis on the apology sought by Elevate, Mr Blanks observed that the applicant had initially been willing to provide an apology for not seeking approval to set up the business. Mr Blanks submitted that had he fairly disclosed what he was really intending to do and change all MJW’s materials to make it absolutely plain that MJW was entirely a subject-specific tutoring business, perhaps there may have been a different response from Elevate. The facts were he failed to recognise he had acted wrongly in not informing Elevate of what he was intending and nothing was done to change the public exposure of MJW after discussion with management.

[102] Mr Blanks squarely addressed the apology required to more than 25 of Elevate’s employees who had been invited to ‘like’ the MJW Facebook page. This was a management issue for the respondent, particularly given the employees are mostly casual. It was necessary to communicate with them to make it clear that setting up a business with similar activities, will not be approved by Elevate, particularly given the applicant had done so without seeking any such approval.

[103] Mr Blanks put that what is apparent from the evidence was that the respondent was open to the precise form of the apology; so much is clear from Mr Varvarigos’ evidence. It could easily be understood to be a suitably worded ‘statement’ to clarify the Company’s position as to what had occurred. It remains untenable for the respondent to reinstate the applicant, so long as he remains unwilling to engage in discussing an appropriate apology to staff. It was entirely open for the respondent to dismiss the applicant. In all the circumstances, his dismissal was not ‘harsh, unjust or unreasonable’.

[104] In reply, Mr Reitano submitted firstly, that it was a fundamental principle that if someone is going to be accused of dishonesty or falsehood, then the person must be given an opportunity to respond. Nothing was even put to the applicant that his evidence was false, when he said he had no intention to harm Elevate’s business and that he had not given Mr Mathai the note he referred to. While Mr Mathai did not recall receiving the note, it does not mean he did not receive it.

[105] Secondly, as to the apology, when Mr Varvarigos said ‘Tell me what it looks like’ is not ‘I will not provide an acknowledgement or an apology’. It is bizarre that the applicant did not meet Elevate’s conditions, when it did not tell him what they wanted.

[106] Thirdly, Mr Reitano said there was one ‘massive piece of absent evidence’. There was not a scintilla of evidence that reinstatement would be untenable. Rather, the evidence is to the contrary. Mr Blanks’ submission as to the impracticality of reinstatement, would be treated with caution.

[107] Lastly, by reference to sub-s 391(3) of the Act, Mr Reitano clarified that not only would lost remuneration be calculated from 1 May 2020 (the date of dismissal), but on a proper view, the applicant would be entitled to JobKeeper backdated to the scheme’s commencement, as he had received no income during that period. As to the applicant’s earnings from his retail job, Mr Reitano put that it would not be deducted because he had been receiving this income, in any event, since October 2019.

CONSIDERATION

Preliminary matters

[108] Before considering the merits of the application, a number of preliminary matters must be determined by the Commission in accordance with the intersection of s 385 of the Act, as to the definition of an ‘unfair dismissal’ and s 396 referring to these initial matters. I set out both sections below:

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.

396 Initial matters to be considered before merits

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

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

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

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

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

[109] In this context, I determine that:

(a) The applicant was dismissed at the initiative of the employer on 1 May 2020 (s 385);

(b) The applicant is a national system employee and the respondent is a national system employer (ss 13, 14, 380);

(c) The applicant’s unfair dismissal application was lodged within the 21-day statutory time limit prescribed by s 394(2)(a) of the Act (s 396(a));

(d) The applicant had completed the minimum employment period of 6 months, having been employed for nearly 2 and a half years (ss 382(a) and 383);

(e) The employment of the applicant was governed by a Contract of Employment and in any event, his annual rate of earnings was less than the high income threshold (s 382(v)(iii)); and

(f) Neither of sub-sections (c) or (d) of s 396 the Act are relevant to this application.

[110] I now turn to consider the criteria the Commission must take into account, pursuant to s 387 of the Act, as to whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’.

[111] Section 387 of the Act reads:

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.”

[112] Findings on each of these matters must be made, even if they are not relevant to the circumstances of a particular case. In this exercise, each matter must be given appropriate weight (including no weight or neutral weight, where not relevant) having regard to the findings of fact made by the Commission and taking into account the submissions of the parties. Where there is a statutory mandate to take into account a particular matter (as in s 387) means that it is a relevant consideration that the Commission is bound to take into account. So much so is evident from the decision of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend and ors (1986) 162 CLR 24 at [15] where His Honour said:

‘The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s.5(2)(b) of the ADJR Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions’

[113] I summarise the following propositions from His Honour’s judgment:

(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he/she is bound to take into account in making that decision.

(b) What factors a decision-maker is bound to consider in making the decision is determined by the construction of the statute conferring the discretion.

(c) Not every consideration that a decision-maker is bound to take into account, but fails to take into account, will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.

(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.

[114] The meaning of the phrase ‘harsh, unjust or unreasonable’ in the context of an unfair dismissal case, is found in the oft quoted judgment of the High Court (McHugh and Gummow JJ) in Byrne and Frew v Australian Airlines (1995) 185 CLR 410 at 465:

‘It may be that the termination is harsh but not unjust or unreasonable. unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’

[115] I turn then to each of the discrete matters in s 387 of the Act.

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) – s 387(a)

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

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

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

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

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

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.

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

[117] That where an employee is principally employed by a business (in this case, Elevate), and the employee sets up, and is directly involved in another business, which is similar to and/or likely to be in competition with his/her principal employer, may constitute serious misconduct and ground a finding of a valid reason for dismissal, is a well-established principle in employment law. It strikes at the heart of the employment relationship. In this respect, I refer to the decision of Commissioner Deegan in Pedley v IPMS Pty Ltd T/A peckvonhartel [2013] FWC 4282, where the Commissioner observed at [45]-[46]:

‘[45] The sole reason relied upon by the respondent for the termination of the applicant’s employment was the applicant’s conduct in sending an email to numerous recipients, including persons who were clients of the respondent, indicating that he was looking to expand his interior design company into a full-time operation and was seeking their support in doing so. Further, he advised that he would take on jobs of any size, at a lesser cost than a large organisation, and was hoping to work with them in the near future.

[46] I find that by sending an email in those terms the applicant breached his fundamental employment obligations to his employer. The email did not suggest that the applicant was seeking to perform small jobs outside his working hours. It clearly stated that he wished to build to a full-time operation and that his interest was not confined to small jobs that his employer would not take on. The applicant was clearly intending to set up a business that could be in opposition to his employer, albeit in a small way. He was soliciting work from current clients of his employer in clear breach of his obligation to put the interests of his employer before his own interests.’

[118] For my own part, I had a not dissimilar set of circumstances before me in Alverson v Artcraft Pty Ltd [2017] FWC 5501. At [203]-[207] I said:

‘[203] The coincidental observation by Mr Chataway of the applicant’s VMS unit in his driveway and what the applicant told him about his private business, was, in my opinion, a sufficient basis to justify Artcraft’s decision to dismiss him that day. How different the outcome might have been had Mr Chataway not helpfully driven the applicant home after he was dismissed. It is to this matter which I now turn.

Facts discovered after dismissal

[204] Earlier I referred to the applicant’s differing explanations as to his business of renting out a VMS unit/s in a conversation with Mr Reed in early 2016. In my opinion, Artcraft was entitled, as it were, to ‘connect the dots’ of the applicant sending confidential information to his personal email, his failure to sign a statutory declaration confirming he had destroyed or returned all of the Company’s documents, and the renting of a VMS unit for personal gain, to draw a firm conclusion that the applicant had placed himself in a conflict of interest with his duty and obligation to Artcraft’s interests. The applicant’s consistent trope in the proceeding was that he had not breached cl 11.1 of his contract of employment, or the general duty of fidelity owed to his employer, because his private business was not in competition with Artcraft. He rented his VMS unit and Artcraft only sold VMS units. Putting aside the conceded breach of cl 2.2 of the contract (in that he had not sought written approval to be engaged in any other business or occupation), his claimed distinction between his activities and Artcraft’s business, is illusory. It is a ‘distinction without a difference’.

[205] In my opinion, he was in the same business as Artcraft – providing VMS units to customers. It is of no consequence that his business rented VMS units and Artcraft sold them. It does not take a great leap of imagination to conclude that if a potential customer actually wished to rent or was encouraged, enticed or misled to rent a VMS unit/s, it was a loss of business for Artcraft. It cannot possibly be characterised in any other way. Whether Mr Alverson actually diverted a customer from purchase to rent (about which there is no conclusive evidence) is not the point at all. It had all the characteristics and appearance of a direct conflict of interest or, at the very least, a potential conflict of interest. Mr Alverson’s defence fails any objective test of reason or logic. It cannot seriously be sustained.

[206] Mr Alverson’s further plea was that he only had one VMS for ‘a bit of extra pocket money’ and, in any event, it was in need of repair. These claims were little more than a poor attempt to downplay and minimise the seriousness of the conduct he was actually engaged in. In my view, his VMS rental to Lakeside Kiosk was a real loss of business that might otherwise been secured by Artcraft, given its standing as the leading supplier of such products in the country. In my judgement, Mr Alverson’s evidence was built on a ‘platform of shifting sands’; as set out in my earlier comments (para [172] above) concerning his implausible belief that ‘rent’ is the same as ‘lease’, but offering them as two distinct options to a potential customer. His further ‘shifting sand’ evidence as to the nature and extent of his private business is the surest indicator that he knew Artcraft would view his business as a matter of serious concern, which represented a direct threat to its current and future business operations.

[207] As I earlier observed, it is apparent that Mr Reed had a somewhat different understanding of what Mr Alverson claimed he told him some months before – that the VMS unit had something to do with helping his son. Even if this was true (which is doubtful) it too would have the potential for a conflict of interest with Mr Alverson’s employment, as any assistance he provided to his son to build a VMS rental business, would be a conflict of interest with his employment by Artcraft.’

[119] In my opinion, a number of general observations may be made about cases of this kind. It is irrelevant that:

(1) the other business has little or no income;

(2) the employee is a non-active partner in its activities; or

(3) there is no evidence of actual poaching of clients/customers.

[120] Further, the motive for setting up the business and whether it is successful or not, are also irrelevant considerations. After all, why would you go to the trouble of setting up a partnership, registering a business and creating a website, if you did not intend it to be successful? Indeed, earning income was the applicant’s express motivation for doing so.

[121] In some cases, the employee concerned will deliberately not disclose the setting up of the business or take steps to hide or mask its activities; although I accept the latter was not a feature of this case, as I will refer to shortly. I readily accept that there may be circumstances where the similarities between businesses are not easily defined, unclear or fall into ‘grey’ areas. In my view, that is not the case here.

[122] As I set out earlier, the seriousness of the misconduct will be exacerbated where firstly, there is an express reference in an employee’s contract of employment to a non-competition clause applicable to the very set of circumstances evident in this case and the Company’s expectations set out in Cl 4; see: [3] above, and secondly, having given absolute assurances of disassociation from the business, the employee is found to have retained involvement; albeit him not having earnt any income, or gained any material benefit.

[123] In my assessment, there are a number of matters which tell against a finding of valid reason and a number of others which tell in favour of a valid reason. Those against include:

(a) The applicant did not attempt to hide or deceive the respondent about his involvement in MJW. One would hardly send a Facebook invite to ‘like’ the MJW Facebook page to Ms Pincus, the GM and Mr McChesney and 29 of the respondent’s employees, if you were trying to hide or mask your involvement in MJW’s activities.

(b) The applicant was acknowledged to have been a good employee and had been promoted and recognised for his contributions. I accept his evidence of his passion and dedication to his role at Elevate. There were no issues of performance or conduct, other than the question of his involvement with MJW.

(c) In my view, it was necessary and entirely appropriate that MJW seek and receive, an absolute assurance from the applicant that he had completely disassociated himself from any involvement in the advertising, participation in and management of MJW. I will say something more about this shortly. It was also appropriate that the applicant apologise for his conduct and provide an undertaking that he would comply with the terms of his contract of employment in the future. In one sense, the first of these expectations was complied with in the apology given to Ms Pincus. It seems to me it was not a ‘big deal’ to take the next step about his future compliance with his contract of employment. Had that been done (assuming the severance of his involvement with MJW), then, to my mind, that should have been the end of the matter. That said, I do not understand why the applicant was reluctant to put forward his own wording of an apology when this was what the Company had proposed. After all, he was not the offending party. Regrettably, the applicant did not take up this offer. Accordingly, I have a reasonable basis to conclude that an apology, in some form, might have ultimately resolved the impasse and the applicant might still have been employed.

(d) On the other hand, it is not immediately apparent to me what purpose was served by insisting the applicant apologise to his fellow employees. On one view, it might be presumed the other employees would have had little interest in the applicant’s dispute with, and discussions with the employer. Elevate claimed it had been approached by some employees, who thought the ‘liking’ of the MJW Facebook page was inappropriate, perhaps inferring it threatened their employment. I do not accept the respondent’s evidence in this respect.

•  Firstly, it is unlikely a person would ‘like’ a Facebook page if they believed it to be inappropriate.

•  Secondly, there was no documentary evidence of any such concern being conveyed to management; let alone any identification of the names of the complainants, nor were any called to give evidence.

I do not accept the respondent’s submission that unless the applicant apologised for inappropriate behaviour and unprofessionalism, it would lead to others breaching their contracts of employment. This was improbable speculation and a ‘long bow’ to draw. The applicant’s apology should have acknowledged his own breach of contract and the Company should have issued a general directive reminding employees of their contractual obligations, in this regard. This was a sensible, logical and reasonable basis for moving forward.

[124] The factors telling in favour of a finding of valid reason include:

(a) The applicant’s contract of employment makes clear that, at the very least, he should have sought the consent of the respondent, if he intended to be indirectly, or directly involved in an activity which was similar to the respondent’s activities.

(b) I do not accept that the applicant was unaware of his contract of employment, and therefore, presumably he had not known his conduct was in breach. In any event, while he may have not kept a copy, for a person of the applicant’s experience and education to claim he was unaware that setting up a business, which might be perceived as being in competition with Elevate, is implausible and highly unlikely. His claims of innocent naivety did not sit well with his later, albeit limited acknowledgement, that he should have at least informed Ms Pincus of his plans.

(c) It is nonsense to submit that MJW’s activities were not similar to, or might likely compete with the respondent’s activities as the comparison extracts from the MJW and Elevate’s websites content discloses at Annexure ‘A’.

(d) The applicant strenuously denied telling Ms Pincus ‘obviously it is similar’ and could not recall saying ‘I definitely understand where you’re coming from as I’ve advertised similar things on this website’. I do not accept his evidence in this respect. It was entirely likely that the applicant understood the similarities. Moreover, the applicant’s contention of no similarities between MJW and Elevate sits rather uncomfortably with this exchange in the evidence:

‘It’s a business that has similarities to theirs and I think that it isn't inappropriate to send it, so therefore it must be appropriate. I don't think there's any issues with it.’ (my emphasis)

(e) It seems curious that the applicant said he sent a note, dated 18 April 2020, to his fellow partners, Mr Mathai and Mr Jones that he would no longer be taking part in the business of MJW. He did not expressly indicate he was removing himself as a Director from the business registration. Significantly, he did not provide a copy of this note to anyone in Elevate’s management. It is of some concern that Mr Mathai; see: [37] above, had no recollection of receiving this note, and there was no evidence Mr Jones received or knew of it. Most troubling of all, the applicant’s evidence about this note is inconsistent. In his statement, he said he sent the note to Mr Mathai and Mr Jones, but in oral evidence, he said he handed it to him in a coffee shop. Nothing was said how it was conveyed to Mr Jones. I find this evidence about the 18 April 2020 note, leads to an inference that there was no note and it was a post facto creation for these proceedings to bolster the applicant’s case.

(f) While I appreciate and understand the applicant’s father’s defence and advocacy of his son’s position, in my judgement, I do not consider his contributions to the meetings on 20 April and 29 April 2020, were particularly helpful. The applicant’s father was to be a support person for his son. He plainly overstepped that role, by strongly advocating his son’s position in arguing with Ms Flood and Ms Pincus and putting claims which were plainly wrong, and perhaps provocative. I note further that in my observation the applicant was well able to defend his position and advocate his own cause.

[125] Mr Weatherall’s claim that the applicant’s conduct could not possibly be misconduct is plainly wrong and contrary to the Commission’s authorities on the subject, let alone it being a matter of just common sense, in which a reasonable person would perceive a conflict of interest with the applicant’s involvement in MJW and his employment with Elevate. Further, to submit he had a second legal opinion confirming his view, seems to me highly unlikely for any lawyer practicing in employment law to give such an opinion. It may well be the other lawyer was not given the complete picture.

[126] Mr Weatherall was also wrong to put that his son had not been in breach of his contract of employment, because he had never seen it. As I said earlier, it cannot be accepted that the applicant was unaware of his contract of employment. He was very careful to say he could not recall reading the terms of Cl 4 and Cl 12. This is not the same as denying he had not read it, or had not seen it. In any event, on the applicant’s own oral evidence, he agreed he provided a signed contract of employment to the respondent on 13 December 2017. It is implausible that the applicant was unaware of his obligations under Cl 4 of the very contract he had signed. I consider his protests to the contrary to be disingenuous.

[127] There is one final matter which I consider the most decisive in my determination of valid reason in this case. In the applicant’s 18 April 2020 note to his fellow Directors, and in the 20 April 2020 meeting with Ms Flood and Ms Pincus, both the applicant and his father categorically asserted that the applicant had ceased any involvement with MJW and had been removed from MJW’s website. However, ASIC searches the next day and three months later on 13 July 2020, continue to show the applicant as a business partner and his home address as the business address of MJW. In my view, both the applicant’s evidence and his father’s evidence was deliberately and knowingly misleading, both to the employer and to the Commission. While it was technically correct that the applicant was not actively involved in working for MJW at the time, and changes may have been made to the MJW website, it is pellucidly clear that he had not severed all involvement with MJW, when he could have easily done so. I am very much troubled by his evidence to the contrary. I consider that these matters, when weighed appropriately, comfortably establish that the respondent had a valid reason for the applicant’s dismissal. I find accordingly.

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

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

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

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

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

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

Whether the employee was notified of the reason for his dismissal – s 387(b)

[131] The applicant was notified of his possible dismissal in the email of 17 April 2020 and during the meetings of 20 and 29 April 2020. He was notified of his dismissal on 1 May 2020. This is a neutral factor in this case.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person – s 387(c)

[132] The applicant was provided with three opportunities to respond to the reason for his dismissal. He did so in writing and during the meetings on 3, 20 and 29 April 2020. There could be no suggestion that the applicant was denied an opportunity to respond; indeed, he was offered numerous opportunities to do so and he did. Moreover, the applicant was invited to consider continuing his employment by agreeing to Elevate’s terms or at least, putting his position as to the wording of the apology he could live with. He chose not to do so.

[133] Section 387(c) of the Act only requires the employer to give the employee an opportunity to respond to the reason for dismissal, not that the employer must concede to accept that response. I do not accept Mr Weatherall’s submission that the entire process was unfair. It would seem that Mr Weatherall’s belief, is not that there was not a thorough investigation and (many) opportunities for his son to respond, but the process was unfair because Elevate did not accept his explanations and response (and as it turned out, for good reason given the applicant misled Elevate that he had severed all links with MJW). This is not the test or what is required to afford a dismissed employee procedural fairness. This factor tells against a finding of unfairness.

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

[134] The applicant was not refused an opportunity to have a support person in the Zoom meetings on 20 and 29 April 2020. His father occupied that role (and more) on both occasions. This is a neutral factor in this case.

Whether the person had been warned about unsatisfactory performance before the dismissal – s 387(e)

[135] The applicant was not dismissed for unsatisfactory performance; rather, he was dismissed for serious misconduct for breaching his contract of employment. Therefore, this is not a factor in this case.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal – s 387(f), and the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal – s 387(g)

[136] The respondent is a medium sized organisation with dedicated human resource professionals and experienced managers who, in my view, conducted the disciplinary process fairly and appropriately. As previously mentioned, the applicant was not denied procedural fairness in the disciplinary process. While I have criticised the requirement for a personal apology to all staff being an alternative to dismissal, ultimately this was not related to the process of establishing a valid reason for dismissal. In any event, this observation did not detract from the seriousness of the applicant’s conduct which justified his dismissal.

Any other matters the Commission considers relevant – s 387(h)

[137] I have taken into account the applicant’s relatively short service, the difficulties he has in securing alternative comparable employment, the fact he is a student and has some income as a casual employee in the retail sector. None of these matters outweigh the seriousness of his conduct and behaviour, including his failure to acknowledge that he had breached his contract of employment, his continued insistence that MJW’s activities were not similar to, or within the scope of activities with which Elevate operated in, and his false assurances that he had severed all involvement with MJW.

[138] For the abovementioned reasons, and in weighing all of the matters the Commission is required to take into account under s 387 of the Act, I am satisfied that the applicant’s dismissal on 1 May 2020, was not ‘harsh, unjust or unreasonable’. Finally, s 381(2) of the Act is a significant overarching object of Part 3-2 – Unfair Dismissal of the Act. It is expressed as follows:

381 Object of this Part

(1) The object of this Part is:

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

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

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

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

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

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

Note: The expression “fair go all round” was used by Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

[139] In my opinion outcome in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both the applicant and the employer.

[140] Accordingly, application U2020/6066 is dismissed and these proceedings are concluded. I so order.

DEPUTY PRESIDENT

Appearances:

Mr R Reitano of Counsel, instructed by Mr P Macken, Solicitor, Leigh Virtue and Associates, appeared for the applicant.

Mr S Blanks and Ms C Massai, Solicitors, SBA Lawyers, appeared for the respondent.

Hearing details:

2020.

Sydney (via Microsoft Teams);

27 August.

Printed by authority of the Commonwealth Government Printer

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ANNEXURE ‘A’