[2021] FWC 987
The attached document replaces the document previously issued with the above code on 23 February 2021:
• Paragraph numbering has been updated and the decision has been renumbered accordingly; and
• Change to citation in reference 1.
Associate to Deputy President Lake
Dated 24 February 2021
| [2021] FWC 987 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David Rode
v
Hinterland Motors Pty Ltd T/A Hinterland Toyota
(U2020/4317)
DEPUTY PRESIDENT LAKE |
BRISBANE, 23 FEBRUARY 2021 |
Application for an unfair dismissal remedy – alleged conduct not yet committed – dismissal considered to be unfair – compensation awarded.
[1] Mr David Rode (the Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which he seeks an unfair dismissal remedy with respect to his dismissal from his employment with Hinterland Motors Pty Ltd T/A Hinterland Toyota (the Respondent). The Applicant was employed as a casual truck driver. He was employed with the assistance of EPIC Assist, the Applicant’s disability employment service provider.
[2] In its Form F3 – Employer response to unfair dismissal application, the Respondent raised a jurisdictional objection on the ground that the Applicant was a ‘true irregular casual’. The Respondent also filed a Form F4 – Objection to unfair dismissal application further stating its objection to the application on the ground that the Applicant was an irregular casual.
[3] In a previous Decision, I found the Applicant’s casual employment to be regular and systematic in nature. 1 Subsequently, the Applicant’s jurisdictional objection was dismissed and I must now consider the merits of the application.
[4] The matter was listed for a conciliation before a Staff Conciliator, however it did not settle. The matter was then allocated to me.
[5] Directions were issued for filing of materials, and the matter was listed for hearing at Brisbane on 23 September 2020.
[6] The Applicant appeared on his own behalf at the hearing, and the Respondent was represented by Mr Ian Naylor of the Motor Trades Association of Queensland.
[7] It is not in dispute that:
• the application was made within time (s.396(b));
• the Small Business Fair Dismissal Code does not apply (s.396(c)); and
• the dismissal did not involve a genuine redundancy (s.396(d)).
[8] These matters were not raised by the parties and I find that these issues are not a point of contention.
[9] The Applicant filed a witness statement on his own behalf. For the Respondent, witness statements were filed by:
• Mr Michael Adamson, General Manager of the Respondent;
• Mr Daniel Hoad, Service Manager, Nerang Service Centre; and
• Mr Christopher Blayden, former Car Detailer at the Narang Service Centre.
Relevant facts
[10] On 24 March 2020, the Applicant finished his workday as normal and attended at Mr Hoad’s office on his request. Mr Hoad advised the Applicant that due to the COVID-19 pandemic and a downturn in work, he would not have any driving work for the Applicant until further notice. He stated that if there were any ‘day to day jobs’ that came up requiring the truck, he would contact the Applicant to come in and complete that work.
[11] The Applicant confirmed at the hearing, that he understood there would be no money coming in if he wasn’t at work; however, he stated as he was linked in with EPIC, he still reported to Centrelink and on his ‘downturn’ weeks would receive a ‘top up’. 2
[12] The Applicant states that following this meeting, he went to clean the cabin of his truck, and while getting out of the truck he slipped on the side of the driver’s seat and hit his tail bone on the trucks’ door locking bar.
[13] The Applicant states he sent a text to the Respondent’s mechanic, whom he reported to for his daily runs each day, stating: “Hey mate, I just signed off and put the keys up for you. Got my wallet out after cleaning the truck and slipped getting out fell straight down on my friggen tail bone lol … let me know when you need me and I’ll be down yeah :)”. 3
[14] The Applicant states he then attended at a Caltex service station before going home, where he bumped into the Respondent’s car detailer, Mr Christopher Blayden. He told Mr Blayden that he had no work until further notice, and relayed that he had just slipped and hit his tail bone, making a ‘jovial comment’ that it would be a good time to make a WorkCover claim, like Mr Blayden had. He says he and Mr Blayden laughed about this, and that Mr Blayden mentioned his concern about the likelihood of his own hours being reduced, stating words to the effect that he “should go and have another slide on [his] knee”. The Applicant and Mr Blayden laughed about this also, to which the Applicant responded “hopefully I am back at work soon” and they went their separate ways.
[15] Mr Blayden also provided a witness statement in these proceedings, where he states that the Applicant told him the Respondent had ‘let him go’. He states the Applicant also told him he had fallen out of his truck and hurt his back, and asked “If I put in a work cover claim would you say that you would witness the incident?” Mr Blayden did not agree to do so and he states there was no laughter between them. He states he was of the view the Applicant’s suggestion was inappropriate and he reported the incident to his supervisor following the conversation.
[16] At the hearing, Mr Blayden gave the following evidence regarding the discussions around a WorkCover claim:
“Mr Blayden, what was your, I guess, view? Did you take that request seriously? Did you dismiss it? How did you respond to - - -?---It was a little bit of both. Like, it was like, are you being serious right now? I'm like - so I don't know if he was being serious or not because I don't really know him out of work, so I don't know what he's joking about what he's not joking about.
Was there any suggestion that this sort of offer for you to join him in this sort of process of making a WorkCover claim, was there any sort of suggestion that it was jovial, that he was joking with you?---To me, not really.
And how did you form that view? Was it the way he carried himself, was it his tone of voice?---Tone, tone of voice, yes.
And what was that tone of voice?---Just like he was - seriously wanted to do it.
Okay. So did you respond?---I'm just like, "Really? You want to do that?"
…
Yes. So Mr Rode made a comment to you about suggesting that you'd sort of fraudulently put a WorkCover claim in, is that right?---He suggested that I could do it again and he'd back me up.
All right. And you're quite clear that was the intent of what he said to you?---Quite clear.” 4
[17] At the hearing in this matter, the Applicant denied having said that the Respondent let him go. He confirms he was told that he was stood down. He further reiterated his evidence that he and Mr Blayden had laughed and been jovial around the discussions of WorkCover claims; 5 denied ever asking Mr Blayden to be a witness for a WorkCover claim.6
[18] The Respondent states that on 25 March 2020, the car detailer and Mr Hoad had a meeting where Mr Hoad asked if Mr Blayden would be willing to provide a statutory declaration, which he subsequently did complete and submit to the Respondent.
[19] On 25 March 2020, Mr Hoad sent the Applicant an email as follows:
“To David,
It has been brought to our urgent attention that you are seeking to make a Work Cover claim for an alleged incident that occurred at Hinterland Toyota after you were told that your Casual Hours were being put on hold due to the slowdown and lockdown clause by the Covi-19 [sic] Virus. The information was brought to us by a staff member whom you have asked to participate and provide witness in the fraudulent claim. That staff member is extremely concerned about being involved in any such illegal business and is providing us with a written statutory declaration distancing himself from participating in your claim as well as providing details of what was said.
After hearing this new information we collected the video footage from our CCT and we have the whole incident on video.
We are taking your claim very seriously and are in the process of collating a Fraudulent Claim file on this matter to provide to all relative authorities.
Would you like to make a statement that we can provide to them with our Claim file?
Kind regards,
Daniel Hoad
Service Manager
Nerang Service Department”.
[20] The Applicant responded to the email on the same day, confirming he was not making a WorkCover claim and had not been to the doctors regarding anything stated in the email. The Applicant provided an explanation for how he hit his tail bone and confirmed his version of events regarding the conversation with the staff member at the Caltex. The Applicant’s evidence at hearing confirmed that he did not intend to file a claim, he had not done so, and he had not been to the doctors. He stated that “This has been blown out of proportion. And [he] tried to jump on that very quickly”. 7
[21] Text messages were exchanged between the Applicant and Mr Hoad, in relation to return of property and the alleged fraud matter. Mr Hoad also sent a further email to the Applicant on 27 March 2020, stating “Work related injuries are a serious matter and “joking” about these types of sensitive issues is not of an acceptable company standard”. 8
[22] Following these text and email exchanges, the Applicant believed the matter was “dealt with and finalised”. 9
[23] On 2 April 2020, the Applicant was contacted by Mr Hoad about returning to work to complete ‘alternative duties’ and receive the JobKeeper scheme. The Applicant stated that during a phone conversation with Mr Hoad, he confirmed he had not applied for the JobSeeker allowance, which Mr Hoad responded was good news as the Applicant was eligible for the JobKeeper allowance. The Applicant was then put on to Mr Adamson who advised that the Respondent was trying to ‘work out the job keeper allowance’ as it was not paid at $750 per week for the employees to just stay at home. Mr Adamson confirmed work was not available driving the truck, therefore they were looking for alternative work such as detailing and cleaning.
[24] The Applicant sent an email to Mr Hoad that morning, confirming he was happy to complete the alterative cleaning and detailing duties, but could not perform these duties on a full-time basis as he did not have the functional capacity to sustain that kind of work – this was due to his previous injury.
CCTV footage and decision to dismiss the Applicant
[25] The Respondent states that it acquired CCTV footage of the incident that occurred on 24 March 2020. It states that the footage was date stamped 24 March, and timestamped 15:09:24, coinciding with the Applicant’s alleged incident where he hurt his tailbone. The Respondent states however the CCTV footage does not show the Applicant needing to rub his back around his tailbone, or take any other remedial action that would be consistent with the injury he had described. Instead, the footage showed the Applicant walking around the vehicle and then walking to a rubbish bin, and later, walking past the camera ‘freely and unencumbered’. 10
[26] The Applicant disputes this evidence, stating he did not sustain any ‘injuries’, and in any event, the door locking bar that he hit his tailbone on is located inside the trucks’ door frame which would not be visible from the angle of the CCTV footage. He also noted due to his prior injuries, he has a high pain threshold and takes slow release pain medication.
[27] The Applicant was cross-examined regarding this medication at hearing as follows:
“What are they? Could you help myself and Deputy President Lake understand what those side effects could be?---They can - you can become - drowsiness at different points if you haven't eaten correctly.
THE DEPUTY PRESIDENT: Painkillers, I assume, or - - -
MR RODE: It's Titan, 20 over 10 milligram, which I have been seeing my doctor for ongoing four years. I have also got a letter clearing me of driving, so it doesn't affect my driving abilities, which I had for Toyota at the start of employment.
MR NAYLOR: The other side effects listed in the official documentation are it can cause blood oxygen levels to fall, resulting in possible dizziness, which you have just acknowledged, fainting or drowsiness, and a possible drop in blood pressure. Is it possible that the drugs that you are taking were the cause of you getting out of the vehicle awkwardly rather than you striking your tailbone, as you suggest?---I don't think so. I merely was cleaning the truck and slid back.
But it's possible, isn't it? You indicated what the side effects are, so it's possible that those side effects on that particular day could have resulted in you getting out of the vehicle awkwardly as opposed to you striking your tailbone. What do you say?---I don't believe that to be correct. I don't recall being drowsy.
But it's possible, isn't it?---I don't recall being drowsy.
But it's possible, isn't it?---I don't know how to answer that. I have answered his question. I don't recall being drowsy that afternoon.” 11
[28] The Applicant also clarified his evidence as to any “injury” occurring as follows:
“In this context, what's the difference between an injury and hurting your back?---I guess hard to put into words. An injury, I don't need to seek medical attention for. Hurting it is just something I hurt.
You say that you hurt your back getting out of the vehicle on some sort of device. Do you consider that to be a hazard?---Possibly. I mean, at the time I didn't question it.
Possibly. How is it - - -?---I had just been told I had been stood down due to a coronavirus. I had bigger things on my mind.
But you're in and out of the truck on a regular basis, aren't you? I am suggesting to you that you have just recognised it to be a hazard because you have hurt your back, injured your back or your tailbone. Is it not fair to say that that is a workplace hazard in your vehicle that you are in and out of all the time?---Yes, it could be seen as fair to say that.
Sorry?---I guess it could be seen as fair to say that.
Thank you. Given it's a hazard, and you are aware of your requirements, did you point that hazard to anyone?---No, I didn't.
Why not?---Because like I said just previously, I had bigger concerns on my mind about how I was going to be employed.
You claim that you injured your back getting out of the vehicle. Have you been consistent in that position that you have taken all along?---You just said that I injured my back while getting out of the - I didn't injure my back. I hurt my back.
You hurt your - - -?---I hurt my tailbone. I scraped it.” 12
[29] Under cross-examination the Applicant further stated:
“Can I just go back to where you say you hurt or injured, whatever the term is, your tailbone? Would it not be reasonable, even if you sort of hurt or injure yourself in what you describe as a minor way, that you would rub it or sort of reach for it?---I didn't need to.
But you have said you have hurt, injured your back. Isn't it a normal reaction that you would at least grab it?---Normal reaction for who? Are you saying that - - -
THE DEPUTY PRESIDENT: Just answer the question sort of simply and quickly and easily as you can. Just say yes, no, maybe, you don't understand.
MR RODE: No, I didn't. Didn't rub my back.” 13
[30] The Respondent’s evidence is that the decision to summarily dismiss the Applicant was based in part on the weight of information provided in the car detailer’s statutory declaration. Mr Adamson preferred and accepted the version of events as provided in the statutory declaration, over that of the Applicant who had not submitted a statutory declaration. The Respondent confirms Mr Adamson had regard to the CCTV footage, which, in its view, was enough to support the conclusion that the Applicant had engaged in serious misconduct. The Respondent states that the Applicant’s conversation with the car detailer on the day of ‘the incident’ was a convenient opportunity for the Applicant to invite the car detailer to be a part of the fraudulent scheme.
[31] Mr Adamson’s evidence is that he also had an ‘in depth conversation’ with the Motor Trades Association Queensland, regarding the occurrence and the information provided. He also had a conversation with Mr Hoad, who agreed to the decision to terminate the Applicant’s employment.
[32] The Respondent concedes that the allegations against the Applicant were put to him for response, and that the Applicant maintained a ‘consistent response’ of rejection and denial, stating he did not intend to lodge a false WorkCover claim, and noting his conversation with the car detailer was of a ‘jovial nature’. The Respondent’s evidence, however, is that it rejected this view on the information before it, and believed the Applicant had developed an ‘elaborate scheme’ to lodge a ‘fraudulent WorkCover claim’ in response to the downturn in business and the fact that the Respondent no longer required him to ‘temporarily drive the car carrier’.
Dismissal by email
[33] Mr Adamson confirmed that he believed the Applicant’s behaviour constituted an irrevocable breach of trust between the employee and employee, and that his conduct was wilful or deliberate and therefore inconsistent with a continuation of the Applicant’s contract of employment. He therefore exercised his “managerial prerogative” to summarily dismiss the Applicant. 14
[34] There is no dispute that on 3 April 2020, the Applicant was sent a termination of employment email, under the hand of Mr Michael Adamson, General Manager, which stated:
“David,
Thank you for your time on the phone yesterday.
It has come to my attention that you were allegedly about to attempt a fraudulent worker cover claim toward Hinterland Toyota. I am in possession of a statutory declaration. Any attempted fraudulent claim made by you on Hinterland Toyota to WorkCover may constitute a criminal act.
Given the evidence and information provided to me and having it directly affect the trust between Hinterland Toyota and yourself we are subsequently terminating your casual employment immediately.
Mike Adamson
Mike Adamson
General Manager”
Steps taken by the Applicant to dispute the dismissal
[35] Following receipt of the dismissal email, the Applicant states he attempted to contact Mr Adamson to explain his side of the story, however Mr Adamson advised the Applicant was not able to view the ‘evidence that was put forward’. The Applicant states he requested a face to face meeting with the dealer principal, which Mr Adamson responded was not warranted. The Applicant states Mr Adamson said words to the effect of “mate the trust is gone. Any further correspondence, you will have to do via email to myself. I have to go”, and Mr Adamson hung up.
[36] Mr Adamson concedes that he received a telephone call from the Applicant, where the Applicant requested to see the statutory declaration filed. Mr Adamson confirmed he indicated to the Applicant that he was not prepared to provide a copy of the statutory declaration, in order to protect the employee who made it. He states he advised the Applicant the trust between employee and employer was broken, and confirmed his decision as conveyed in the email. Mr Adamson confirms the Applicant requested to come and see him, to which he responded he would not change his decision and he stood by his email. Mr Adamson rejected the Applicant’s statement that he requested to “speak to the dealer principal face-to-face”. 15
[37] Mr Adamson confirms the Applicant’s evidence that he asked all further correspondence to be conducted via email, with Mr Adamson stating “the call went in circles [and] I did not want to be harassed on my mobile phone”. 16 He rejected however, that he hung up on the Applicant, stating that he politely and professionally terminated the call by stating: “David if there isn’t anything further, I do need to go, (no response) okay thanks, Goodbye”.17
[38] The Applicant says he sent an email at 5.15pm that day, to Mr Adamson, explaining his side of the story and asking questions regarding his dismissal. He stated that he would take the matter further if required, as be believed his dismissal was unfair.
[39] The Applicant states Mr Adamson did not reply to that email or attempt to contact him.
[40] The Respondent states in reply that there is some ‘conflict in the information provided’ by the Applicant regarding his follow-up discussion with Mr Adamson and Mr Adamson’s response.
[41] The Applicant’s evidence is that he was accused of an attempted fraudulent WorkCover claim against the Respondent, and disputes that this misconduct occurred.
[42] The Applicant concedes that he hurt himself at work, hitting his tail bone on a truck while decamping the vehicle, however he states he did not take any steps to make a WorkCover claim, and did not attend at a doctor’s surgery or report any injuries.
[43] The Applicant raised a ‘conflict of interest’ matter regarding the staff members’ statutory declaration being signed by a Justice of the Peace, who is employed by the Respondent as a payroll officer. He sought that this be taken into consideration as it formed part of the Respondent’s evidence in this matter.
SUBMISSIONS
Criteria under s.387
Valid reason
[44] For the above stated reasons, the Applicant submitted that the reason for his dismissal was not valid as he did not intend to, and did not, file a work cover claim, nor was he granted a proper investigation process regarding the allegation.
[45] The Applicant notes he was employed by the Respondent through a disability employment agency, and that his duties were restricted due to his functional capacity being limited in light of a previous injury where he sustained 14 broken bones. He notes he underwent years of rehabilitation and reconstructive surgeries as a result of those broken bones. The Applicant states the dismissal occurred immediately after him stating that he could not work in a physically demanding role, involving cleaning and car detailing, on a full-time basis in order to receive the JobKeeper allowance.
[46] The Applicant notes that he was dismissed by email, and the reasons provided were for an ‘already resolved’ matter. The Applicant reiterates that he was refused the right to speak with the dealer principal, and was hung up on by his manager, Mr Adamson, when he called to question his dismissal.
[47] The Applicant notes the Respondent has raised they don’t trust the Applicant as a result of the alleged fraud attempt, however the Applicant responds that he was treated as a ‘guilty person’ before being provided the opportunity to give his version of the events. The Applicant states that the Respondent failed to afford him a fair investigation into the matter before making the decision to terminate his employment. He states he was never asked to submit a statutory declaration nor was he told of an internal investigation taking place.
[48] The Applicant further raised at hearing that the Respondent’s guideline to disciplinary action provides:
"If behaviour is not of an acceptable standard, it shall be subject to counsel and disciplinary procedures. Conduct of a formal counselling session, then a first written warning, followed by final written warning, followed by termination. The immediate issue of a final warning, this shall only occur with the necessary authorisation." 18
[49] Further he submitted that as to dispute resolutions, the Respondent’s guideline provides:
"All employees' grievance should be resolved speedily and efficiently, informal between the parties involved, without the need for disruption of the workplace." 19
[50] As to these matters, the Applicant reiterated that he had responded to Mr Hoad in a speedy manner, and answered all relevant questions, however was never offered a formal opportunity to file a statutory declaration or otherwise invited to the Respondent’s premises to formally respond to the allegations against him. 20
[51] The Applicant submits that he feels victimised and targeted by the Respondent, and that his dismissal was due to him advising he could not work full-time in a physically demanding role.
[52] The Respondent confirmed that while the Applicant was informed of the allegations and allowed opportunities to respond, it was of the view that there was a valid reason for dismissal based on the CCTV footage and the weight of the car detailer’s statutory declaration, preferring this version over the Applicant’s. It submits that on the information and evidence available, the Applicant appears to have wilfully and deliberately set out to mislead and misguide the Respondent.
Opportunity to discuss the alleged misconduct, or respond to the reasons for the dismissal
[53] The Applicant submits that he was not afforded to meet and discuss the alleged misconduct as all discussions were via email exchange or text message. He states that he was not working at the time, as his casual hours were ‘on hold’ due to the Covid-19 pandemic.
[54] The Applicant submits that he requested to speak with the dealer principal regarding the dismissal, however the dealer principal declined the Applicant’s request, replied to the effect of: “I don’t think that it is warranted”. 21
[55] The Respondent submits that the Applicant was advised of the allegations against him and allowed sufficient time and opportunities to respond. It states the Applicant primarily responded in writing, via email exchanges. It states that further to this period allowed for exchange of correspondence, and in determining that sufficient time had elapsed, the decision to terminate the Applicant’s employment was then made.
Other matters
[56] The Applicant stated at hearing that he had never received any disciplinary action or written warnings during his employment with the Respondent. 22
[57] The Respondent conceded that no major concerns with the Applicant’s work had ever been raised, 23 and no warnings provided.24
Remedy
[58] The Applicant submitted that due to his functional capacity, and the current economic climate, it is difficult for him to find alternative employment. He notes he does not have a reference to account for his last two years of employment with the Respondent.
[59] The Applicant submitted there had not been any jobs advertised since his dismissal, that met his functional capacity. He submits that he has been checking for employment opportunities every day and concedes he had not been able to attend and speak with his disability employment service provider due to COVID-19 closures. He states he has not found any work since his dismissal.
[60] The Applicant seeks financial compensation of 26 weeks of pay equal to the JobKeeper allowance that he would have been entitled to if he remained in employment with the Respondent, being $19,500 ($750 x 26 weeks), as well as superannuation contributions for the period.
[61] At the hearing, the Applicant confirmed he wasn’t paid anything on termination, as he’d already been stood down from work some time and was no longer receiving pay from the Respondent; further, as a casual he had no annual leave owing. 25
[62] The Applicant states he applied for the JobSeeker payment following his dismissal, and from 3 April 2020 received $536.90 per fortnight. The Applicant notes this amount was increased due to Government incentive, from 1 May 2020, to $550 per fortnight. He submitted these amounts could cease at any time if the Government changes the ruling on the maximum partner earnings, as his de-facto partner earns over the usual maximum amount.
[63] While the Applicant also seeks an apology and positive written reference from the Respondent, I note that these are not matters that can be awarded in an unfair dismissal remedy under the Act.
[64] The Respondent’s submission confirms that if the incident had not occurred, and the Applicant not articulated his alleged intention to lodge a fraudulent WorkCover claim, and in the absence of some other event, the Applicant would have continued to be employed and paid under the JobKeeper wage subsidy scheme.
[65] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[66] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
“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.”
[67] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. I set out my consideration of each below.
s.387(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)
[68] The Respondent contends that the reason for the Applicant’s dismissal was that he intended to file a fraudulent WorkCover claim. This is problematic as the Applicant had not yet filed the fraudulent claim and asserts that he did not intend to do so. To dismiss an employee, on the basis of conduct that is almost certain but has not yet happened, is questionable. To dismiss someone for something of which there is no certainty, and which may never eventuate, is clearly unconscionable. Further to say that the trust with the employee has been irrevocably broken through an action that did not occur and is disputed whether the intention was ever going to be acted upon further stretches the boundary of fairness.
[69] The evidence of the purported act of a fraudulent claim was supported by a short affidavit. The witness making the statement regarding potential fraudulent conduct was unconvincing in his evidence and the statement lacked much detail.
[70] Whether the actions of the Applicant were part of a fraudulent scheme that upon reflection he did not pursue, or whether it was a simple workplace humour, the employer actions were presumptive and based on flimsy evidence provided by one employee and video evidence that did not indicate that a WorkCover claim was imminent. An attempt was made to bolster a highly speculative allegation of purported fraud which had not yet occurred, with a hasty and poorly conducted investigation. This cannot be classified as a valid reason for dismissal.
[71] The lodging of a WorkCover claim is an entitlement of any employee who is injured during the course of their work. Any claim that is made and the appropriate application completed is assessed by the agency and it is they who determine whether there is substance to the claim or not. For the employer to pre-emptively determine that the claim was bogus is overreach of a significant scale.
[72] The Applicant consistently denied the accusations of any intention to make a fraudulent claim and insisted that any comments to that effect were merely workplace humour that had been taken out of context.
[73] I find that there was not a valid reason for the termination of the Applicant’s employment.
(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
[74] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 26 and in explicit27 and plain and clear terms.28
[75] The Full Bench in Odgers provides recent commentary surrounding the application of s 387(c):
[40] In our determination of this matter, the observations of the Full Bench in Abdel-Karim Osman v Toyota Motor Corporation Australia Ltd are apposite. The Full Bench described the obligation to provide an opportunity to respond as requiring an employer to take reasonable steps to investigate the allegations and give the employee a fair chance of answering them. It adopted the observations of Wilcox CJ in Gibson v Bosmac Pty Limited, approved by Northrop J in Selvachandran v Peteron Plastics Pty Ltd, where Wilcox CJ said:
…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, common sense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employers 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.
[76] In the current case, as I am not satisfied there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.
(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
[77] The Act does not require that the Applicant have a support person, merely that there is no unreasonable refusal. I am satisfied that there was no unreasonable refusal.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[78] I am satisfied that the Respondent dismissed the Applicant for reasons relating to conduct, not performance. This criterion is not relevant.
(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
[79] I consider this factor to be neutral.
(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
[80] The Respondent had access to the services of the employer body for advice and they took the opportunity to take advise. I regard this factor as neutral.
(h) any other matters that the FWC considers relevant
[81] I have made my comments regarding the prosecution of a matter where the purported course of action did not eventuate; the employer struck in a pre-emptive matter, determining that they were convinced that the Applicant had planned a fraud with no more evidence than the word of another employee. I note that the employer had the benefit of government subsidies during much of the period that the Applicant was employed. I regard it as contemptable behaviour that an employer terminate an employee on weak and contested evidence. The Applicant had worked hard to gain employment and it was a severe blow to the Applicant to be terminated in this manner.
Conclusion on harsh, unjust and unreasonable
[82] After consideration of all the evidence and of each of the matters required under s387 of the Act, my view is that the dismissal of the Applicant by the Respondent was harsh. The employer did not have a valid reason for the Applicants dismissal, they acted in a pre-emptive manner and did not establish that any action of by the Applicant was fraudulent. They terminated him with respect to a future event that, on the evidence before me, most likely would not have occurred.
Compensation
[83] Having found that the Applicant was protected from unfair dismissal, and that his employment was unfairly dismissed, I must now consider what, if any, remedy should be granted to the Applicant. The Applicant did not seek reinstatement and given the circumstances where the Respondent has clearly indicated a loss of trust and confidence with the Applicant I find it would be inappropriate to consider reinstatement.
[84] The Applicant submits that he seeks financial compensation, equal to six months at a rate equivalent to JobKeeper payments, including superannuation contributions. I note the Applicant also sought an apology from the Respondent, and a positive written reference. However, these additional desires are not matters which I can consider in any award of remedy under the Act.
[85] Accordingly, I must consider the appropriateness of any award of compensation.
[86] The Commission may only issue an order for compensation if it is appropriate in all the circumstances s390(3)(b). I have considered all the relevant circumstances and determine that an order for payment of compensation to the Applicant is appropriate.
[87] The established approach to assessing compensation in unfair dismissal cases was set out in Sprigg v Paul Licensed Festival Supermarket 29 and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases.30 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.
[88] I now turn to each of the matters I need to have regard to in determining compensation.
Remuneration the Applicants would have received, or would likely have received, if they had not been dismissed (s 392(2)(c))
[89] As with any calculation of damages or compensation, this involves 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. 31
[90] The Applicant had been informed that as a result of the severe downturn in the business as a result of the COVID-19 pandemic, he would have been stood down without pay. He would have been entitled to JobKeeper payments in this situation.
[91] While the Respondent stated that if not for the ‘alleged fraud’, the Applicant would have remained employed on JobKeeper payments, there was no other indication that had the event leading to the dismissal not happened, how long his employment would have lasted. The Applicant had not had any warnings on performance, and given the business is currently operating it would have been possible that he would continue to be employed. In which case the Applicant would have been employed through the full 26 weeks the legislation provides for.
[92] At or around the time that the Applicant was dismissed, the Respondent was eligible for JobKeeper subsidies and accordingly the Applicant would have earned $750 per week for the period from his dismissal on 3 April 2020.
[93] I am satisfied that the remuneration that the Applicant would have received, or would have been likely to receive, if he had not been dismissed is 26 weeks’ pay at $750 per week, equalling $19,500.
Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))
[94] The Applicant was paid JobSeeker amounts for the period over which compensation has been assessed. I have decided not to make any deduction for these payments. JobSeeker is a unique unemployment benefits to combat the effects of COVID-19. The Full Bench of the Commission in McCullough v Calvary Health Care Adelaide articulated that deductions for social security payments are not made on the basis that such payments do not constitute remuneration earned from employment or other work for the purposes of s.392(2)(e). 32 There is was stated: 33
[32] The FWC, and its predecessors, have not deducted social security payments in the manner proposed by the respondent on the basis that such payments do not constitute ‘remuneration earned ... from employment or other work’ for the purposes of s.392(2)(d). This issue was specifically addressed in Kennedy and Cumnock No.1 Colliery Pty Ltd where the Full Bench said:
“We note that allowance is generally not made for social security payments in assessing an amount to be ordered in lieu of reinstatement pursuant to s.170CH(6): Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21; Australian Postal Commission v Ellawalla 17 April 2000, [Print S5109]. The relevant part of the decision in each of these cases was influenced to some extent by the decision in Shorten v Australian Meat Holdings Pty Ltd (1996) 70 IR 360.”
[33] The Full Bench then went on to say at [11]:
“It is not our intention that the remuneration lost should be discounted for social security payments which the applicant is required to repay. Equally we think it would be inequitable to permit recovery of lost remuneration from the employer when social security payments referable to loss of income could be retained.”
[34] The most recent consideration of this issue appears to have been in Kim Lee Jarvis v Crystal Pictures Pty Ltd in which Cloghan C declined to make any deduction on account of the receipt of Centrelink payments, for the following reasons:
“[74] I should note for the benefit of both parties that Ms Jarvis advised that during between her termination of employment and 15 April 2010, she received Centrelink payments. Ms Jarvis did not disclose the amount received. For my purposes under s.392(e) of the Act, I do not consider Centrelink payments as “…remuneration earned by [Ms Jarvis] from employment or work during the period between the dismissal and the making of the order for compensation”. Further, I do not consider it “relevant” for the purposes of s.392(g) of the Act, as it would be inappropriate for Australian taxpayers to effectively subsidise compensation (foregone wages) payable to an employee, where the employer has instantly dismissed that employee unfairly.
[75] Having said that, if the Centrelink payments received by Ms Jarvis have to be repaid or there is discretion for repayment, that is a matter between Ms Jarvis and the relevant Commonwealth officers.”
[35] Given the limited argument advanced in respect of this issue we do not propose to depart from previous authority and accordingly we will not make the deduction sought by the respondent. We have also proceeded on the assumption that the order we propose to make may mean that a proportion of the pension payments received by Mr McCulloch since his dismissal will have to be repaid to the Commonwealth.
[95] There was no evidence that in the following period Mr Rhode was able to earn any other remuneration. Therefore, I make no deduction on this factor.
Viability (s 392(2)(a))
[96] There was no evidence provided that would suggest that any order of compensation would affect the Respondent. They are a large car franchise and although the pandemic has had an impact on the business there is no serious suggestion that an award of compensation would seriously affect the viability of the business. Accordingly, no adjustment will be made on account of this.
Length of service (s 392(2)(b))
[97] The Applicant had been employed by the Respondent for just under 2 years. Given his short period of service I make a downward adjustment of 2 weeks.
Mitigation efforts (s 392(2)(d))
[98] Given the Applicants physical abilities and the fact that he had required assistance and a government grant to an employer to secure this role and further given the impact of the pandemic on the economy there is no evidence to suggest that he may have been able to secure employment within 6 months. I will not make any deduction on the basis that he did not mitigate his loss.
Any other relevant matter (s 392(2)(g))
[99] I must consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment. 34
[100] In this regard, I note that the Applicant’s employment would have been impacted by the COVID-19 pandemic. However, this has been addressed above, in light of the parties’ agreement that if the Applicant had remained employed, he would have been put on the JobKeeper payment scheme.
Any deduction for monies paid on term?
Misconduct (s 392(3))
[101] Following my determination that there was no misconduct by the Applicant, no deduction is required under s.393(3).
Shock, distress or humiliation, or other analogous hurt (s 392(4))
[102] 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))
[103] The amount of compensation that I propose is below the compensation cap.
Instalments (s 393)
[104] No application has been made to date by the Respondent for any amount of compensation awarded to be paid in the form of instalments.
Conclusion on compensation
[105] 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, there is no basis for me to reassess the assumptions made in reaching the amount of 24 weeks’ compensation. 35
[106] For the reasons I have given, my view is that a remedy of compensation in the sum of $18,000 (less taxation as required by law) to be paid to the Applicant and superannuation contributions to be paid into the Applicants’ nominated superannuation funds is appropriate in the circumstances of this case. I Order accordingly.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR727233>
1 Mr David Rode v Hinterland Motors Pty Ltd T/A Hinterland Toyota [2020] FWC 4243 (12 August 2020).
2 See transcript at PN56-59.
3 Applicant’s statement of evidence.
4 Transcript at PN736-747.
5 Transcript at PN118 and PN149-157.
6 Transcript at PN531.
7 Transcript at PN272.
8 Annexure to the Witness Statement of Mr Daniel Hoad – email correspondence of 27 March 2020.
9 Applicant’s Outline of arguments – merits, at 4d.
10 Respondent’s Outline of Submission at [22]-[25].
11 Transcript at PN547-553.
12 Transcript at PN453-461.
13 Transcript at PN477-480.
14 Witness Statement of Mr Michael Adamson, at [2.7].
15 Witness Statement of Mr Michael Adamson, at [2.13].
16 Witness Statement of Mr Michael Adamson, at [2.14].
17 Witness Statement of Mr Michael Adamson, at [2.15].
18 Transcript at PN412.
19 Transcript at PN416.
20 Transcript at PN416-418.
21 Applicant’s Outline of arguments – merits, at 4f.
22 Transcript at PN52.
23 Transcript at PN905-906.
24 Transcript at PN911.
25 Transcript at PN391-396.
26 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
27 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
28 Ibid.
29 (1998) 88 IR 21.
30 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
31 Double N Equipment Hire Pty Ltd v Humphries [2016] FWCFB 7206 at [16]-[17].
32 Mr Rhayne Cooper v The Trustee for Cleveland 24/7 Unit Trust [2020] FWC 6715, Deputy President Asbury summarising the approach adopted in McCullough v Calvary Health Care Adelaide [2015] FWCFB 2267, [32]-[35].
33 McCullough v Calvary Health Care Adelaide [2015] FWCFB 2267, [32]-[35].
34 Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].
35 Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32].