| [2021] FWC 1220 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shane Harman
v
Joe Harkin as trustee for the Civil Labour (NSW) Trust
(U2020/12143)
DEPUTY PRESIDENT SAUNDERS |
NEWCASTLE, 5 MARCH 2021 |
Unfair dismissal – whether applicant was dismissed – whether dismissal harsh, unjust and/or unreasonable – compensation.
Introduction
[1] Mr Shane Harman was employed by Joe Harkin as trustee for the Civil Labour (NSW) Trust (Respondent) as an operator/truck driver. Mr Harman contends that he was unfairly dismissed by the Respondent on 1 September 2020. The Respondent contends that Mr Harman resigned or alternatively abandoned his employment. The Respondent also contends, in the further alternative, that it would have summarily dismissed Mr Harman for serious misconduct if he had not resigned or abandoned his employment.
[2] I conducted a hearing in this matter on 22 February 2021. Mr Harman gave evidence in support of his case. The Respondent did not call any witnesses to give evidence at the hearing. It relied on the following documents:
(a) a statutory declaration made by Mr Lawrence Muddle, Operations Manager, on 17 February 2021. 1 Notwithstanding the fact that this declaration was filed late and Mr Muddle was not called to give evidence, I permitted the Respondent to tender this document because Mr Harman was able to respond to each point made by Mr Muddle in his declaration and Mr Harman did not need, or seek, to rely on evidence from another person or any documentary evidence to respond to it. However, the weight I give to Mr Muddle’s declaration is limited in respect of the parts of the declaration which are contested by Mr Harman. The weight is so limited because Mr Harman was not given the opportunity to cross examine Mr Muddle about the contested parts of his declaration;
(b) a text message from Ms Regina Mikellides, the wife of Mr Patrick Wild, who is the owner of the group of companies of which the Respondent is a part, to Mr Harman sent at 5:59pm on 25 August 2020, including a photograph of a damaged plasterboard wall; 2
(c) a text message from Ms Mikellides to Mr Harman sent at 5:59pm on 1 September 2020; 3
(d) a text message from Ms Mikellides to Mr Harman sent at 12:58pm on 7 August 2020; 4
(e) an email from Ms Mikellides to various managers of the Respondent sent at 11:00pm on 6 August 2020 re “New Office Protocols – COVID”; 5
(f) an email from Mr Benjamin Pittman, Batcher, to Ms Mikellides sent at 12:30pm on 7 August 2020 re “Shane harman” in which Mr Pittman stated that he had told Mr Harman that he could not enter the Wild offices and Mr Harman was still not happy about the rule; 6 and
(g) an email from Ms Mikellides to Mr Hammond sent at 1:09pm on 7 January 2021 re “FWO Harman”. 7 In this email Ms Mikellides set out her version of relevant events concerning Mr Harman. It is effectively Ms Mikellides’ witness statement. Notwithstanding the fact that this email was filed late and Ms Mikellides was not called to give evidence, I permitted the Respondent to tender this document because Mr Harman was able to respond to each point made by Ms Midellides in her email and Mr Harman did not need, or seek, to rely on evidence from another person or any documentary evidence to respond to it. However, the weight I give to Ms Mikellides’s email is limited in respect of the parts of the email which are contested by Mr Harman. The weight is so limited because Mr Harman was not given the opportunity to cross examine Ms Mikellides about the contested parts of her email.
[3] Mr Jason Hammond, accountant for the Respondent, appeared (on his own) for the Respondent at the hearing. He attended the Commission 1.5 hours after the hearing had commenced. Mr Hammond said that he was late because he had been up late the night before with his wife, who was sick. Mr Hammond said that he slept through his alarm. I did not accept the truth of this explanation. First, Mr Hammond had a history of being late during the course of these proceedings. Mr Hammond rarely responded to email communications sent by the Commission to him during the proceedings. He was very late in complying with directions for the Respondent to (i) file and serve an employer’s response and (ii) file and serve the documents, submissions, and witness statements on which the Respondent wished to rely. Secondly, the Respondent applied unsuccessfully for an adjournment of the hearing a few days prior to the hearing. The adjournment request was refused, in writing, and the Respondent was reminded, in writing, that the hearing would commence at 9am on Monday, 22 February 2021. Thirdly, no documentary or other material was provided to support the contention that Mr Hammond’s wife had been sick or that her alleged sickness caused Mr Hammond to be up for much of the night. Fourthly, my Associate tried to call Mr Hammond at 9am because neither Mr Hammond nor any other representative of the Respondent was present at the Commission. The call went through to Mr Hammond’s voicemail. A message was left for Mr Hammond to inform him that the hearing in relation to Mr Harman’s application against the Respondent was commencing immediately. The first contact the Commission had from Mr Hammond on the morning of Monday, 22 February 2021 was at 9.59am when Mr Hammond called my chambers and left a voicemail to the effect that he “had a very sick wife this morning, I’m running late, I’ll be there in about 30 minutes. Give me a call back. Thank you”. Mr Hammond then emailed chambers at 10.08am, stating “Sorry. I’m running late. My wife is quite ill this morning. I do did (sic) call and left a message. I’ll be there by 10.30”.
[4] Notwithstanding Mr Hammond’s late attendance at the hearing, he was given the opportunity, which he took up, to ask Mr Harman all the questions he wanted to ask. Mr Hammond was also permitted to (i) tender, on behalf of the Respondent, all the documents that had been filed (late) by the Respondent and (ii) make detailed oral submissions in support of the Respondent’s case. I am satisfied that both parties were given a fair hearing and the Respondent was not materially prejudiced by reason of its chosen representative turning up late to the hearing.
Identity of the employer
[5] An initial issue needs to be determined concerning the correct identity of Mr Harman’s employer. In his form F2 unfair dismissal application, Mr Harman asserted that his employer was “Hunter Valley Concrete”.
[6] Mr Harman was not provided with a contract of employment or letter of offer during his employment with the Respondent. He was provided with some payslips, which stated that he was paid by “Civil Labour NSW A.B.N. 16 246 362 077”. Mr Harman’s PAYG payment summary for the financial year ending 30 June 2020 stated that his payer was “Civil Labour (NSW) A.B.N. 16 246 362 077” and the authorised person was “Joe Harkin”.
[7] In its form F3 response, the Respondent confusingly stated that Mr Harman had given the correct legal name of the employer in his unfair dismissal application but asserted that the legal name of the employer was “Civil Labour”. At the hearing Mr Hammond was asked about this. He informed the Commission that the legal identity of Mr Harman’s employer was Joe Harkin as trustee for the Civil Labour (NSW) Trust. This information is consistent with Mr Harman’s payslips and PAYG payment summary. I therefore find that Mr Harman was employed by the Respondent.
Relevant facts
[8] On 17 April 2019 Mr Harman commenced employment with the Respondent as a casual employee in the role of concrete agitator driver/plant operator. Mr Harman worked in the business trading as Hunter Valley Concrete. He became a full-time employee of the Respondent on 23 April 2019.
[9] I accept Mr Harman’s evidence that over the duration of his employment with the Respondent he raised the issue of not receiving pay slips on many occasions. Other employees of the Respondent receive their payslips by email. Mr Harman does not have an email address. He received some payslips in hard copy, but I accept his evidence that he did not receive payslips for many weeks that he worked for the Respondent. Mr Harman repeatedly raised this issue with Mr Muddle and Mr Pittman. He also spoke to Ms Mikellides about the issue on a number of occasions. The Respondent’s continual failure to provide payslips to Mr Harman caused him to become frustrated.
[10] Mr Harman was also frustrated about the Respondent’s COVID-19 directions. Mr Harman believed that they were inconsistent. By way of example, Mr Harman was told he could not enter the “Wild Office” which is located on the business premises of Hunter Valley Concrete. But he also received instructions from Mr Muddle from time to time for Mr Harman to go and see Mr Muddle in his office, which is located within the “Wild Office” building.
[11] Mr Harman was further frustrated about the non-payment of his superannuation by the Respondent.
[12] Ms Mikellides contends that in about early August 2020 she had a conversation with Mr Harman in which he yelled at her and told her to “get fucked”. Mr Harman denies these allegations. I prefer Mr Harman’s evidence over Ms Mikellides’s email and text messages. Mr Harman attended the hearing and was asked many questions by me and Mr Hammond. I found Mr Harman to be a credible witness. He had a good recollection of events, did not seek to overstate or exaggerate events, responded to questions directly, readily made concessions which were against his interest, including that he punched the wall and was angry, and gave oral evidence which was consistent with both his written evidence and, in large parts, the documentary evidence filed by the Respondent. Ms Mikellides did not attend the hearing or give evidence. I did not have an opportunity to examine her credibility as a witness.
[13] Ms Mikellides contends that on 7 August 2020 Mr Harman refused to carry out the duties assigned to him, yelled at her, stood over her, abused her, and hung up on her. Mr Harman accepts that he hung up on Ms Mikellides because he was not getting anywhere with his repeated requests for payslips, but otherwise denies the allegations. I prefer Mr Harman’s evidence about these matters to the contentions contained in Ms Mikellides’s email of 7 January 2021.
[14] At 12:58pm on 7 August 2020 Ms Mikellides sent a text message to Mr Harman in the following terms:
“Dear Shane,
It is unfortunate that you will not take my call to discuss matters.
I could hear that you were upset when you left the teleconference with Ben but yelling and being abusive is not acceptable in this workplace, so I will always ask you to refrain from that.
I am always happy to discuss should you wish to join in on another teleconference, just ask Ben to arrange that should you wish.
Regarding the new COVID Safety protocols on our sites, I am not sure why you are upset by those. Best practice is to minimise exposure between all individuals as much as practicable. A very real example of the need to be vigilant was the COVID scare in the office this week.
I reiterated that you do need to remain in your work area at the batch plant. There is no requirement for you or any other concrete workers to be on the Wild sites unless instructed by a supervisor who will also then manage your time at that site.
In this time of uncertainty, it is imperative that we work together to protect one another and try to keep jobs viable for everyone. There will be further safety information for our sites passed on in the coming days.
Please ensure you adhere to all safety instructions and protocols.
Happy to discuss should you wish to arrange a teleconference via Ben.”
[15] Mr Harman accepts that he did not answer a number of calls from Ms Mikellides on 7 August 2020. The reason he gave, which I accept, for not doing so was because he left his mobile telephone in another truck while he was making a work delivery to a particular site.
[16] On Tuesday, 25 August 2020 Mr Harman met with Mr Muddle and Mr Pittman in the lunch room of the concrete plant at which Mr Harman worked. Ms Mikellides participated in the meeting by telephone. I accept Mr Harman’s evidence that he – again – asked in this meeting for payslips to be provided to him. Ms Mikellides told Mr Harman that he had already received them. After further discussion, Mr Harman insisted, using a loud voice, that he had not received the payslips. I accept Mr Harman’s evidence that Ms Mikellides then called Mr Harman a liar and a moron. Mr Harman was frustrated and angry. He stood up, swung around and in so doing knocked his fist into the plasterboard wall of the lunch room, causing damage to the wall. Mr Harman then walked out of the meeting room. At the hearing Mr Harman “put his hand up” to punching the wall in this way and damaging it. He said he acted in this way out of frustration. I accept his evidence in this regard.
[17] I accept Mr Harman’s evidence that, at the meeting on 25 August 2020, he did not curse, threaten, abuse or yell at anyone, nor did he say words to the effect that he quit and would not be back. Ms Mikellides is the witness who contends that Mr Harman stormed “out of the room and saying he quit and would not be back”. Mr Muddle does not suggest in his statutory declaration that Mr Harman said during the meeting that he quit and would not be back. Mr Muddle contends that Mr Harman said words to that effect outside in the batch plant (at which time Ms Mikellides was not present).
[18] When Mr Harman left the lunch room he walked into the truck parking area of the batch plant. Mr Muddle came up to him and asked what he was doing. Mr Harman said that he could not believe he could not get the payslip issue sorted out. Mr Muddle told Mr Harman that he could not help him with that issue. I accept Mr Harman’s evidence that Mr Muddle then told him that he was probably not in the right head space, and he might as well go home for the day. Mr Harman responded by saying that the payslips issue was doing his head in, his stress levels were up, and he was going to see his doctor.
[19] I accept Mr Harman’s evidence that he then collected his jacket and folder of documents from the concrete truck he usually drove. Mr Harman took those things home on most days. Mr Harman also took his food from the lunch room before leaving work. I accept Mr Harman’s evidence that he did not take the following of his belongings before he left work on 25 August 2020: his CD from the truck he usually drove, his water bottle, his coffee cup from the lunch room, his cutlery from the lunch room, or his bowl from the lunch room.
[20] I do not accept the following contentions in Mr Muddle’s statutory declaration:
“… [Mr Harman] said he was out of here and he was collecting his belongings from the lunch room and the truck as he was leaving this place of employment. I stayed with him during this time to make sure no other damage was done by Shane as he was still very angry after he packed all of his belongings into his vehicle. He said he was finished with this place and drove off. I followed Shane in my vehicle as he drove away from the Batch Plant, he stopped at the workshop to say goodbye to the two men that worked there and told them he was finished with this place, he then drove off site.”
[21] Mr Harman denied this version of events in his evidence. Mr Muddle was not made available for cross examination. I found Mr Harman to be a credible witness and prefer his evidence over the content of Mr Muddle’s declaration where they are inconsistent. I accept Mr Harman’s evidence that he stopped on his way out of the workplace and spoke to an employee who is known to fix things at work. Mr Harman asked this employee if he could fix the damaged wall in the lunch room for him, to which the employee said words to the effect, “okay”. Mr Harman then said goodbye and left the workplace.
[22] On his arrival at home on 25 August 2020, Mr Harman called his general practitioner, Dr June Zhao, to make an urgent appointment to see her. Dr Zhao was not available. Because Mr Harman was concerned for his mental well-being, he made an appointment to see a different general practitioner in the same practice: Dr Stephen Trebble. I accept Mr Harman’s evidence that he saw Dr Trebble on Wednesday, 26 August 2020, notwithstanding the fact that Dr Trebble’s medical certificate is dated 28 August 2020. Mr Harman was adamant that he saw Dr Trebble on 26 August 2020. Further, the medical certificate states that Mr Harman “has a medical condition and will be unfit for work from 26/08/2020 to 31/08/2020 inclusive”.
[23] At 9:40am on 25 August 2020 Ms Mikellides sent a text to Mr Harman in the following terms and attached a photograph of the damaged plasterboard wall in the lunch room:
“Shane,
Please find picture of damage you have caused today at the HVC Batch Room by punching the wall.
I am sorry that you do not accept the COVID Safety protocols on these sites, however they are necessary and we do need to maintain vigilance.
Again I find we are texting you because you have been abusive and stormed out and refused to answer our teleconference calls. You have also stated that you will not be back so we will discuss your final pay with Civil. Regarding copies of payslips, again I can confirm they have been provided to you however we will ask CL to send further copies again this week with your final pay advice.
Regarding your complaint about your pay last week, we have checked with CL. You claimed 32 base hours plus 8 sick hours. You were approved and paid for exactly that.
We wish you well for the future.
HVC”
[24] At 9:44am on 25 August 2020 Mr Harman responded by text to Ms Mikellides. His response was brief. It consisted of a single word: “Bullshit”.
[25] Mr Harman did not make any other contact with the Respondent in the period from Wednesday, 26 August 2020 to Friday, 28 August 2020, nor did he provide his medical certificate to the Respondent during that period. I also accept Mr Harman’s evidence that he did not receive multiple missed calls from the Respondent during this period.
[26] Mr Harman should have notified the Respondent that he was unwell and would not be able to attend work from Wednesday, 26 August 2020 to Friday, 28 August 2020. However, I accept that Mr Harman was stressed during this period and he had told Mr Muddle on Tuesday, 25 August 2020 that he was stressed and was going to see his doctor.
[27] On Monday, 31 August 2020 Mr Harman attended the Respondent’s workplace. At that time he considered that he was still on sick leave pursuant to his medical certificate. Mr Harman’s purpose for attending the office was to provide a copy of his medical certificate to the Respondent and complete his timesheet for the previous week. Mr Muddle was not in his office when Mr Harman arrived. Mr Harman spoke to a female employee working in administration in the office. Mr Harman completed a timesheet for the working week from Monday, 24 August 2020 to Friday, 28 August 2020. Mr Harman recorded on his timesheet that he was on “sick leave” on Wednesday, 26 August 2020, Thursday, 27 August 2020, and Friday, 28 August 2020. Mr Harman also gave the female employee working in administration his medical certificate from Dr Trebble and asked her to make a copy of his timesheet and the medical certificate. The female employee made copies of those documents and gave Mr Harman a copy for his records. Mr Harman told the female employee that he would be back at work the next day. Mr Harman then left the workplace.
[28] On Tuesday, 1 September 2020 Mr Harman attended work at his usual commencement time. Mr Muddle saw Mr Harman and asked, “What are you doing here?”. Mr Harman responded by saying, “I work here. I was on stress leave last week”. Mr Muddle then asked Mr Harman to wait in the truck parking area, which he did. Mr Muddle came to see him 30 minutes later and told Mr Harman that he was no longer an employee of the company. Mr Muddle requested that Mr Harman leave. Mr Harman requested documentation to confirm that he had in fact been fired. Mr Muddle told Mr Harman that he would sort out the paperwork and send it on to him.
[29] At 5:59pm on Tuesday, 1 September 2020, Ms Mikkelides sent a text to Mr Harman in the following terms:
“Shane,
Again we are having to message you as you evidently not answering anyone’s calls. It has come to our attention that you were on our site today, you were seen removing documents from our office.
Following on from previous correspondence and your violent behaviour, you are again reminded that you are not to enter onto any of our sites for any reason. In circumstances where you quit and took all of your possessions last week, and smashed the office walls we insist you do not come onto our property for any reason. Your employer has been advised of your final approved payments according to our site records, they are finalising your pay this week. We do not intend to accept your attempts to claim sick leave for the past week in circumstances where your employment ended last week. We will advise CL of the same.
The Police have been to our Muswellbrook site and made a report of the damage and incident last week.”
[30] Mr Harman agrees that he attended the “Wild Office” on 1 September 2020 to obtain a copy of superannuation forms he completed and provided to the Respondent on the commencement of his employment. Mr Harman gave evidence, which I accept, that he did not “push past” the female employee in the office, nor did he remove any paperwork. Mr Harman asked the female employee to make a copy of his completed superannuation forms, which she did and provided a copy to Mr Harman.
[31] On about Wednesday, 2 September 2020 the Police attended Mr Harman’s house and spoke to him. He explained his version of events to the Police, who advised Mr Harman not to have any further contact with the Respondent. Mr Harman complied with that advice and commenced his unfair dismissal application in the Commission. Mr Harman says that no action was taken by the Police against him. That is consistent with Ms Mikellides’ email of 7 January 2021, where she stated that she “declined to press charges”.
Was Mr Harman dismissed?
[32] The question of when a person has been dismissed is governed by s 386 of the Fair Work Act 2009 (Cth) (Act):
“(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[33] A resignation does not need to be in writing, nor does it need to be formal or use the word “resign”.
[34] On the findings of fact I have made above, it is not open to find that Mr Harman resigned from his employment with the Respondent. It was Mr Muddle who suggested that Mr Harman leave work for the day because he was not in the right “head space”. Mr Harman did not say that he was “out of here”, “leaving this place of employment”, “finished with this place”, “quit”, “would not be back”, or anything of the sort. He told Mr Muddle that he was feeling stressed and was going to see his doctor. That is exactly what Mr Harman did. The fact that he saw Dr Trebble on the following day, 26 August 2020, or even two days later (assuming, contrary to my earlier finding, that the date of the medical appointment was 28 August 2020, rather than 26 August 2020) and obtained a medical certificate, which he then provided to the Respondent on Monday, 31 August 2020, supports Mr Harman’s case that he did not resign. Further, the fact that Mr Harman left a number of his personal possessions, including a CD, drink bottle, coffee cup, cutlery, and bowl at work on 25 August 2020 is consistent with Mr Harman’s case that he did not resign on 25 August 2020.
[35] Nor did Mr Harman abandon his employment with the Respondent. He left work on 25 August 2020 at the suggestion of Mr Muddle. He told Mr Muddle that he was stressed, and was going to see his doctor. Mr Harman obtained a medical certificate in respect of the period from 26 August 2020 to 31 August 2020 inclusive. He provided that certificate to the Respondent on 31 August 2020. In the period from Wednesday, 26 August 2020 to Friday, 28 August 2020, Mr Harman should have made contact with the Respondent and provided the Respondent with a copy of his medical certificate. The stress he was feeling during that time likely contributed to the fact that he did not make contact with the Respondent in those three days. In all the circumstances, it is apparent that Mr Harman did not abandon his employment with the Respondent. His conduct did not evince an unwillingness or inability to substantially perform his obligations under his (unwritten) employment contract with the Respondent.
[36] Following the hearing, Mr Hammond, on behalf of the Respondent, did not seek leave to re-open the Respondent’s evidentiary case; he simply sent an email to my Associate on 26 February 2021 (containing various assertions) and attached a separation certificate to his email. The separation certificate is dated 24 August 2020 and states the reason for separation as “misconduct as an employee … punched a hole in the wall and threatened other employees”. Two things may be said about the separation certificate: first, it contends that the reason for separation was misconduct on Mr Harman’s part. There is no suggestion in the separation certificate that Mr Harman ceased work voluntarily or abandoned his employment; secondly, the separation certificate is dated 24 August 2020 and refers to Mr Harman having “punched a hole in the wall”. It is clear from Mr Harman’s evidence and the text message sent to him by Ms Mikellides on 25 August 2020 that Mr Harman punched the wall on 25 August 2020. It follows that the separation certificate could not have been prepared on 24 August 2020. That is consistent with Mr Harman’s evidence, which I accept, that he was not provided with a separation certificate at any time after his dismissal. For these reasons, even if I granted the Respondent leave to re-open its evidentiary case and rely on the separation certificate, I would give the separation certificate very limited weight. It would not cause me to conclude that Mr Harman was not dismissed or that his dismissal took place on 24 August 2020.
[37] I find that Mr Harman’s employment with the Respondent was terminated on the Respondent’s initiative. The termination of the employment relationship took effect on Tuesday, 1 September 2020 when Mr Muddle told Mr Harman that he was no longer an employee of the company, and requested that Mr Harman leave. This termination clearly took place on the Respondent’s initiative.
[38] For the reasons given, Mr Harman was dismissed by the Respondent within the meaning of s 386(1)(a) of the Act.
Other preliminary matters
[39] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of Mr Harman’s unfair dismissal application.
[40] Having made a finding that Mr Harman was dismissed, there is no dispute between the parties and I am satisfied on the evidence that:
(a) Mr Harman’s unfair dismissal application was made within the period required in s 394(2) of the Act;
(b) Mr Harman was a person protected from unfair dismissal;
(c) the Small Business Fair Dismissal Code did not apply to Mr Harman’s dismissal; and
(d) Mr Harman’s dismissal was not a genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
[41] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Harman’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.
[42] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 8 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”9 and should not be “capricious, fanciful, spiteful or prejudiced.”10
[43] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 11 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).12 Capacity is the employee’s ability to do the job as required by the employer.13 Capacity also includes the employee’s ability to do the work they were employed to do.14
[44] The appropriate test for capacity is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively. 15
[45] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 16 The Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred or the performance was satisfactory.17
[46] Mr Harman’s conduct in speaking loudly in the meeting on 25 August 2020, or any other meeting at which workplace matters were discussed with Mr Harman, did not provide the Respondent with a sound, defensible or well-founded reason to terminate his employment. On the material before me I have found that Mr Harman did not yell, abuse, threaten, or curse anyone. Mr Harman naturally speaks with quite a loud voice, particularly so if he is frustrated. Mr Harman was – understandably – frustrated at the fact that his employer could not undertake the simple task of providing him with a payslip each and every week. The fact that he spoke loudly in a meeting about that sort of topic did not provide the Respondent with a valid reason to terminate his employment.
[47] I do, however, accept that the Respondent had a valid reason for the termination of Mr Harman’s employment as a result of his conduct in punching the plasterboard wall and damaging it. Even where an employee is rightly frustrated by an employer’s conduct, it is not appropriate for the employee to behave in reckless or, in this case, intentional way and damage the employer’s property. Such conduct gives an employer a sound, defensible and well-founded reason to terminate the employment relationship.
[48] Mr Harman was not notified of the reason for his dismissal, or given an opportunity to respond to that reason, before he was notified of his dismissal. That is because the Respondent took the view that Mr Harman had resigned or abandoned his employment. These factors (s 387(b) and (c)) weigh in favour of Mr Harman’s contention that his dismissal was unfair. However, the weight I attribute to these matters is limited in circumstances where Mr Harman admits that he punched the plasterboard wall and his response, if given prior to his dismissal, would have been limited to mitigating factors such as the extent of his frustration arising from the Respondent’s repeated failures to comply with its obligation to provide him with pay slips.
[49] Mr Harman did not request that a support person be present during any discussion relating to his dismissal. In those circumstances, I find there was no unreasonable refusal by the Respondent to allow Mr Harman to have a support person present to assist at any discussions relating to his dismissal.
[50] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, it is relevant to consider whether the employer warned the employee about the unsatisfactory performance before the dismissal.
[51] Mr Harman was not dismissed for unsatisfactory performance, so this criterion is not relevant.
[52] The Respondent claimed in its employer response form (F3) to only have had four employees at the time of Mr Harman’s dismissal. No evidence or other material was filed to support this contention. The Respondent did not contend that it complied with the Small Business Fair Dismissal Code in connection with Mr Harman’s dismissal.
[53] Even assuming that the Respondent was a small business at the relevant time, neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.
[54] There is no evidence to suggest that the Respondent had, at the time of Mr Harman’s dismissal, any dedicated human resource management specialists or expertise.
[55] In all the circumstances, I find that the absence of dedicated human resource management specialists in the Respondent’s enterprise had an impact on the procedures followed in effecting the dismissal because such specialists or experienced employees would have been likely to ensure that Mr Harman was afforded a fair process before any decision was made to terminate his employment. Such a process would have included communicating with Mr Harman by text message or other means of communication in the period from the departure from his workplace on 25 August 2020 until 31 August 2020 to find out whether he intended to return to work, and if he did, then giving him an opportunity to respond to the notion that his employment should be terminated on the basis of his conduct in punching the wall.
[56] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[57] There are a number of mitigating matters which are relevant to my assessment of the seriousness of Mr Harman’s conduct in punching the plasterboard wall of the lunch room on 25 August 2020. The first is that Mr Harman had been asking multiple managerial employees, on multiple occasions, during a significant period of time to provide him with payslips. The Respondent had consistently refused or failed to comply with its obligation to do so. Mr Harman was therefore justifiably frustrated and angry that his employer would not provide him with payslips on a regular basis. This does not excuse Mr Harman’s conduct in punching the wall, but it provides an explanation for the conduct that did occur. Secondly, at the meeting on 25 August 2020 Ms Mikellides called Mr Harman a liar and a moron. Ms Mikellides’ conduct in that regard was inappropriate and, I accept, contributed to Mr Harman’s feelings of frustration and anger. The Respondent had failed to comply with its obligation to provide payslips to Mr Harman. I accept that Mr Harman was being honest when he told Ms Mikellides that he had not received the payslips. There was no proper basis for Ms Mikellides to call Mr Harman a liar and a moron. Thirdly, Mr Harman’s conduct in punching the plasterboard wall was not premeditated and, on the material before the Commission, he did not engage in any other similar conduct during his employment with the Respondent.
[58] Save to the extent that some parts of Ms Mikellides’ text messages to Mr Harman on 7 August 2020 and 20 August 2020 may constitute warnings for conduct in which I have found that Mr Harman did not engage (e.g. yelling and being abusive), Mr Harman did not receive any written warnings during his employment with the Respondent. Mr Harman volunteered in his evidence, which I accept, that he received an oral warning about 6 months prior to his dismissal from Mr Patrick Wild for eating food while a truck was being loaded. Mr Wild told Mr Harman that he should have been undertaking other tasks while the truck was being loaded. I accept Mr Harman’s evidence that he did not receive any other oral or written warnings during his period of about 17 months’ employment with the Respondent. On the whole, Mr Harman’s employment record with the Respondent is a positive one and supports his contention that his dismissal was harsh.
[59] After considering and taking into account each of the matters specified in s 387 of the Act, my value judgment is that the Respondent’s dismissal of Mr Harman was harsh because it was disproportionate to the conduct in which Mr Harman engaged. The Respondent had a valid reason for Mr Harman’s dismissal, but its own conduct in failing to comply with its obligation to provide Mr Harman with payslips and calling Mr Harman a liar and a moron were the major contributing reasons why Mr Harman punched the wall. Further, the Respondent did not afford Mr Harman procedural fairness prior to his termination.
Compensation
[60] Having found that Mr Harman was protected from unfair dismissal, and that his dismissal was harsh, it is necessary to consider what, if any, remedy should be granted to him. Mr Harman did not seek the remedy of reinstatement and I accept that it would be inappropriate to reinstate Mr Harman in all the circumstances. Instead, Mr Harman seeks the remedy of compensation. As a result, I need to consider whether compensation is appropriate.
[61] Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied. 18
[62] Having regard to all the circumstances of the case, including the fact that Mr Harman has suffered financial loss as a result of his unfair dismissal, I consider that an order for payment of compensation to him is appropriate.
[63] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to Mr Harman. In assessing compensation, I am required by s 392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.
[64] I will use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket 19 and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases.20 The approach to calculating compensation in accordance with these authorities is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 5: Apply the legislative cap on compensation.
Remuneration Mr Harman would have received, or would have been likely to receive, if he had not been dismissed (s 392(2)(c))
[65] Like all calculations of damages or compensation, there is an element of speculation in determining an employee’s anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed. 21
[66] On the one hand, Mr Harman says that he enjoyed the work he did for the Respondent and full time jobs such as the one he had with the Respondent are hard to come by. Mr Harman also says he was recently told by Mr Wild that he had skills the Respondent needed and had a “job for life”. These matters weigh in support of Mr Harman’s contention that he would have been employed by the Respondent for a significant period of time if he had not been dismissed on 1 September 2020.
[67] On the other hand, there is no doubt that Mr Harman was becoming increasingly frustrated with the Respondent in relation to issues such as the non-provision of his payslips and directions concerning COVID-19. The Respondent was also becoming increasingly frustrated with Mr Harman in relation at least to those matters. The tension between the parties to the employment relationship was such that, in my view, it was likely to come to an end, either at the initiative of the Respondent or Mr Harman, in three months’ time.
[68] I reject the Respondent’s contention that it would have summarily dismissed Mr Harman if he had not resigned or abandoned his employment when he did. This contention was not supported by evidence. Further, in my opinion no employer acting reasonably would have dismissed Mr Harman for damaging a plasterboard wall in circumstances where the employer’s unreasonable actions and comments were the principal reasons for the employee’s frustration and anger. An employer acting reasonably would have issued Mr Harman with a written warning for damaging the wall and rectified its ongoing failure to provide Mr Harman with payslips on a regular basis.
[69] In all the circumstances and weighing up the likelihood of the various possibilities, my finding is that Mr Harman would have remained employed by the Respondent for a further three months had his employment not come to an end on 1 September 2020.
[70] Mr Harman gave evidence, which I accept, that he has been fit and able to work at all times since the termination of his employment with the Respondent, save for a period of a few days at the end of September 2020 when he injured his knee on a camping trip. Mr Harman would have been required to take a couple of days off work on sick leave had he still been employed by the Respondent at this time. I accept Mr Harman’s evidence that he had enough accrued and untaken sick leave to cover such an absence.
[71] Mr Harman’s gross average weekly remuneration in the financial year ending on 30 June 2020 was $1,384.23. I find that he would have continued to receive this gross average weekly level of remuneration had he not been dismissed on 1 September 2020. It follows that in the period from 2 September 2020 to 1 December 2020 (a period of three months) Mr Harman would have received $17,994.99 gross (13 weeks x $1,384.23 = $17,994.99). That is the remuneration that Mr Harman would have received, or would have been likely to receive, if he had not been dismissed.
Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))
[72] In respect of the period from 2 September 2020 until 1 December 2020, I accept Mr Harman’s evidence that he did not receive any remuneration from employment or other work; his only source of funds during that time was social security (JobSeeker) payments. Social security payments are not remuneration within the meaning of s 392(2)(e) or (f) of the Act. 22
[73] Accordingly, I find that the amount of any remuneration earned by Mr Harman from employment or other work during the period between the dismissal and the making of the order for compensation is zero (s 392(2)(e) of the Act). Because the compensation period I am looking at ended on 1 December 2020, it is not relevant to take into account the amount of any income reasonably likely to be earned by Mr Harman during the period between the making of the order for compensation and the actual compensation (s 392(2)(f) of the Act). In any event, that amount is zero in this case.
[74] Thus, my view is that $17,994.99 is the gross amount of remuneration Mr Harman would likely have earned had he not been dismissed by the Respondent and instead continued to be employed by the Respondent until 1 December 2020. This calculation is intended to put Mr Harman in the position he would have been in but for the termination of his employment. 23
Viability (s 392(2)(a))
[75] No evidence was adduced on behalf of the Respondent, and no submission was made, that any particular amount of compensation would affect the viability of the Respondent’s enterprise.
[76] My view is that no adjustment will be made on this account.
Length of service (s 392(2)(b))
[77] My view is that Mr Harman’s period of service with the Respondent (about 17 months) does not justify any adjustment to the amount of compensation.
Mitigation efforts (s 392(2)(d))
[78] The evidence establishes that Mr Harman made efforts to obtain alternative employment following his dismissal on 1 September 2020. In particular, Mr Harman gave oral evidence, which I accept, that he has made a number of efforts to obtain alternative work in the region in which he lives, but has not obtained or undertaken any employment or other work. He is hopeful that some casual work may become available in the near future. The Respondent did not adduce any evidence to support its contention that Mr Harman has worked since the cessation of his employment with the Respondent. I do not accept that contention.
[79] In all the circumstances, my view is that Mr Harman acted reasonably to mitigate the loss suffered by him because of the dismissal and I do not consider it appropriate to reduce the compensation on this account.
Any other relevant matter (s 392(2)(g))
[80] It is necessary to consider whether to discount the remaining amount ($17,994.99) for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which Mr Harman was subject might have brought about some change in earning capacity or earnings. 24 Positive considerations which might have resulted in advancement and increased earnings are also taken into account.
[81] The discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of the decision. 25
[82] Because I am looking in this matter at an anticipated period of employment which has already passed (2 September 2020 to 1 December 2020), there is no uncertainty about Mr Harman’s earnings, capacity or any other matters during that period of time.
[83] In all the circumstances, my view is that it is not appropriate to discount or increase the figure of $17,994.99 for contingencies.
[84] Save for the matters referred to in this decision, my view is that there are no other matters which I consider relevant to the task of determining an amount for the purposes of an order under s 392(1) of the Act.
[85] I have considered the impact of taxation, but my view is that I prefer to determine compensation as a gross amount and leave taxation for determination.
Misconduct (s 392(3))
[86] Section 392(3) of the Act provides that if the Commission is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the Commission must reduce the amount it would otherwise order under s 392(1) of the Act by an appropriate amount on account of the misconduct.
[87] I have found that Mr Harman did engage in misconduct that constituted a valid reason for his dismissal. I am satisfied that the misconduct by Mr Harman contributed to the Respondent’s decision to dismiss him. I consider it is appropriate to reduce the amount that I would otherwise order under s 392(1) by 25% on account of Mr Harman’s misconduct. As a result, the compensation amount is reduced to $13,496.24 ($17,994.99 – 25% = $13,496.24).
Shock, distress or humiliation, or other analogous hurt (s 392(4))
[88] I note that in accordance with s 392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.
Compensation cap (s 392(5)-(6))
[89] The amount of $13,496.24 is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which Mr Harman was entitled in his employment with the Respondent during the 26 weeks immediately before his dismissal. In those circumstances, my view is that there is no basis to reduce the amount of $13,496.24 by reason of s 392(5) of the Act.
Instalments (s 393)
[90] No application has been made by the Respondent for any amount of compensation awarded to be paid in the form of instalments.
[91] In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, my view is that there is no basis for me to reassess the assumptions made in reaching the amount of $13,496.24. 26
[92] For the reasons I have given, my view is that a remedy of compensation in the sum of $$13,496.24 (less taxation as required by law) in favour of Mr Harman is appropriate in the circumstances of this case. An order will be made to that effect [PR727550].
DEPUTY PRESIDENT
Appearances:
Mr S Harman on behalf of himself
Mr J Hammond on behalf of the Respondent
Hearing details:
2021.
Newcastle:
22 February.
Printed by authority of the Commonwealth Government Printer
<PR727549>
1 Ex R1
2 Ex R2
3 Ex R3
4 Ex R4
5 Ex R5
6 Ex R7
7 Ex R6
8 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8
9 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
10 Ibid
11 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
12 Ibid
13 Ibid at 684
14 Webb v RMIT University [2011] FWAFB 8336 (Drake SDP, Hamilton DP, Jones C, 8 December 2011) at [6]
15 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137 at [62]
16 Ibid
17 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]
18 Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17]
19 (1998) 88 IR 21
20 Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431
21 Double N Equipment Hire Pty Ltd v Humphries [2016] FWCFB 7206 at [16]-[17]
22 Sprigg v Paul’s Licensed Festival Supermarket Print R0235 (AIRCFB, Munro J, Duncan DP, Jones C, 24 December 1998) (1998) 88 IR 21 at [26]
23 Bowden at [24], citing Ellawala v Australian Postal Corporation Print S5109 at [35]
24 Ellawala v Australian Postal Corporation Print S5109 at [36]
25 Enhance Systems Pty Ltd v Cox PR910779 at [39]
26 Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32]