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[2019] FWC 4292
General information, not legal advice.
Fair Work Commission
2019-06-28
Original judgment source is linked above.
[18] Following his dismissal, the applicant has unsuccessfully sought alternative employment as replacement work for that in which he was engaged with the employer. However, the applicant has been able to mitigate some of the impact of the lost remuneration arising from his dismissal by increasing his engagements with another employer. The applicant has not sought reinstatement, but alternatively, monetary compensation as remedy for his alleged unfair dismissal.
[19] The applicant made verbal submissions in elaboration of documentary submissions material that had been filed. The applicant submitted that his dismissal was unfair. The applicant submitted that his employment was systematic, that he had been engaged on a systematic basis for over 12 months, and that normally, after 12 months work, his position would have been established to have been engagement that was regular and systematic.
[20] The applicant also stated that he had a problem with being notified of his dismissal over text message. The applicant said that to be notified of dismissal with a text message was disrespectful. Further, the applicant stated that dismissal by way of text message did not give him an opportunity to properly respond if there was anything to be discussed before dismissal. Further, the applicant said that he had never been given any warnings or anything like a warning prior to his dismissal.
[21] Mr Everett made verbal submissions on behalf of the employer during the Hearing. The verbal submissions of Mr Everett elaborated upon documentary submission material that had been filed.
[22] Mr Everett said that the applicant was employed as a casual employee and paid casual rates. Further, Mr Everett stated that the work that was performed by the applicant was done on a proposed roster. However, Mr Everett submitted that the three people involved in the roster had flexible arrangements such that they arranged their shifts themselves, and there was no consistency as to the particular day on which they would work. According to the submissions made by Mr Everett, the day on which the applicant and the other casual employees worked was arranged amongst the casual employees themselves.
[23] Mr Everett made further submissions which indicated that he had taken guidance from the "Fair Work website" because he had no experience in HR. Mr Everett said that the website stated that a casual employee does not have to have a firm commitment in advance from the employer about how long they will be employed for, or for the days or hours they work. Mr Everett submitted that the applicant, by his nature of work, and the regularity of his employment was not regular, nor was it systematic, nor did the applicant have any reasonable expectation of continuing employment on a regular and systematic basis.
[24] Mr Everett said that he was a Director of a very small company. Further, Mr Everett made a submission which reiterated that the applicant was paid for 12 hour shifts but by his own admission he did not necessarily work the full 12 hours.
[25] Mr Everett further submitted that the applicant has not been seeking work in the Security Industry and that would be the reason why he hadn't found work to replace the work that he had lost.
[26] The submissions made by Mr Everett also dealt with the issue of the applicant being dismissed by way of text message. Mr Everett said that text message was the normal method of communication with the company, and that as a generational thing, people don't use emails these days, and if they did, it would take a long time for people to respond. Mr Everett said that the applicant produced evidence that showed that text message was the method by which communications were made within the company.
[27] In this case the employer has asserted that the applicant was not a person who was protected from unfair dismissal because he was a casual employee who was not engaged on a regular systematic basis, and without reasonable expectation of continuing employment on a regular and systematic basis. This proposition as was advanced by the employer arises from the potential operation of the provisions of ss. 382, 383 and 384 of the Act.
[28] Section 382 of the Act contains what might be described as the prerequisites for someone to be protected from unfair dismissal, and it is in the following terms:
"382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold."
[29] It is clear from the terms of s. 382 that in order to be protected from unfair dismissal, an employee must, inter alia, have completed at least the minimum employment period. Section 383 of the Act provides for a meaning of minimum employment period and it is in the following terms:
"383 Meaning of minimum employment period
(a) if the employer is not a small business employer - 6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer - one year ending at that time."
[30] Consequently, in order to be protected from unfair dismissal, an employee must, amongst other things, have completed a minimum employment period of at least six months, or, in the case of a small business employer, a minimum employment period of at least one year.
[31] The period of employment is further clarified by s. 384 of the Act which relevantly includes mention of what constitutes a period of employment in respect to persons who are described as casual employees. Section 384 of the Act is in the following terms:
(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(a) a period of service as a casual employee does not count towards the employee's period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee's period of employment with the new employer."
[32] Relevantly, subsection 384 (2) (a) establishes that a period of service as a casual employee does not count towards the employee's period of employment unless the employment as a casual was on a regular and systematic basis, and that the employee had a reasonable expectation of continuing employment on a regular and systematic basis. Consequently, in this instance, as the applicant was described and paid as a casual, it has become necessary to examine the particular arrangements that applied to the engagement of the applicant in order to determine whether it was employment on a regular and systematic basis, and for which the applicant had a reasonable expectation of continuation of that employment.
[33] In this case, the determination of this question has been reasonably straightforward. The work that was performed by the applicant was the subject of regularly issued rosters. The rosters were issued by the employer on either a monthly or bi-monthly basis so the applicant, and the other Security Guards, would know in advance when they were rostered to work for either the next month or next two months. Although the applicant and the other Security Guards could swap rostered shifts, the method of engagement via regularly issued rosters means that the employment of the applicant was established on a regular and systematic basis.
[35] Consequently, although the employment of the applicant was described and paid as that of a casual employee, the employment was on a regular and systematic basis and the applicant had a reasonable expectation of continuing employment on that regular and systematic basis. Therefore, the applicant is a person protected from unfair dismissal as he had completed a period of employment with the employer of at least the minimum employment period which, in this instance of a small business employer, was one year.
[36] As the applicant was a person protected from unfair dismissal, further consideration as to whether the dismissal of the applicant was unfair has been required.
[37] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements can be identified in s. 385 which is in the following terms:
A person has been unfairly dismissed if the FWC is satisfied that:
(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."
[38] In this instance there was no dispute that the applicant had been dismissed, and that the dismissal was not a case of genuine redundancy. Consequently, only the provisions of subsections (b) and (c) of s. 385 of the Act have any relevance.
[39] There was no dispute that the employer was a small business employer as comprehended by the meaning of small business employer stipulated by the terms of s. 23 of the Act. Therefore, the provisions of subsection 385 (c) of the Act require consideration. Specifically, by way of operation of s. 388 of the Act, it is necessary to determine whether the dismissal of the applicant was or was not consistent with the Small Business Fair Dismissal Code (referred to as "the SBFD Code").
[40] Logically a determination of any application of the SBFD Code should precede any more general contemplation of whether the dismissal could have been considered to have been harsh, unjust or unreasonable. Further, in the event that the dismissal of the applicant is found to have been consistent with the SBFD Code, any further consideration as to whether the dismissal was harsh, unjust or unreasonable would become unnecessary.
[41] The SBFD Code is in the following terms:
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements."
[42] In this case, the applicant was dismissed without notice or warning when he received the text message advice; "Effective immediately we no longer require your services as a casual patrol guard with AFS Security". Consequently, the summary dismissal of the applicant is to be tested for compliance with the summary dismissal provisions of the SBFD Code.
[44] In this instance, the employer did not provide any suggestion that the dismissal of the applicant was connected with some serious misconduct or any belief held by the employer of any serious misconduct on the part of the applicant. It appeared from the evidence adduced in this matter that the employer simply believed that because the applicant was described and paid as a casual it could dispense with his services whenever it felt like it, and with or without any reason.
[45] The summary dismissal of the applicant was not consistent with the summary dismissal provisions of the SBFD Code as there were no reasonable grounds for any belief on the part of the employer that the applicant's conduct was sufficiently serious to justify his immediate dismissal. Further, to the extent that the dismissal of the applicant could be assessed against the other dismissal provisions of the SBFD Code, there was no warning given to the applicant of any reason that he was at risk of being dismissed, nor was he provided with any opportunity to respond to any warning. The dismissal of the applicant was unquestionably not consistent with the SBFD Code.
[46] As the dismissal of the applicant was not consistent with the SBFD Code, the matter has required further consideration in respect to that element contained in s. 385 (b) of the Act, being whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:
(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.
S. 387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct
[47] In this instance, the summary dismissal of the applicant was not connected with any discernible reason other than the employer's mistaken belief that it could dismiss the applicant as a casual employee with or without any articulated reason. The circumstances in this case have established that there was no sound, defensible or well-founded reason for the dismissal of the applicant. Instead, any reason that may have underpinned the decision to dismiss the applicant was capricious and ill-founded.
[48] There was no evidence upon which to properly establish the real reason for the dismissal of the applicant. The applicant seemed to think that the decision to dismiss was connected with his request to initiate discussions with the employer about rostering arrangements, and in particular, the concerns that he had about certain starting and finishing times of various shifts. It was also suggested that the motivation for the dismissal of the applicant may have been little more than the employer's desire to reduce the number of casual security guards from 3 to 2. Further, the employer mentioned that the applicant had apparently been verbally counselled on a number of occasions regarding performance concerns following complaints from customers. However, the employer did not provide any evidence of specific conduct or performance issues.
[49] The true motivation for the dismissal of the applicant must remain something of a mystery as the employer offered no other explanation for the reason for the dismissal of the applicant other than; "His services as a casual employee were no longer required." As a result, the reason for dismissal of the applicant was not sound, defensible or well-founded. There was not a valid reason for the dismissal of the applicant.
S. 387 (b) - Notification of Reason for Dismissal
[50] The employer notified the applicant of his summary dismissal by way of text message, and it did not provide any documentary confirmation of the notification of dismissal in the form of a termination of employment letter.
[51] Notification of dismissal should not be made by text message or other electronic communication. Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face. To do otherwise is unnecessarily callous. Even in circumstances where text message or other electronic communications are ordinarily used, the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation.
S. 387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct
[52] The employer did not provide any opportunity for the applicant to respond or provide any form of explanation for any of the performance or conduct issues that may have represented some undisclosed motivation for the dismissal.
S. 387 (d) - Unreasonable Refusal to Allow a Support Person to Assist
[53] There was no opportunity for the applicant to have a support person present during any meeting or other process that dealt with any issues surrounding the ongoing employment of the applicant. The employer made the decision to dismiss the applicant without any discussion or other communication with him, and instead it just sent him a text message to let him know the bad news.
S. 387 (e) - Warning about Unsatisfactory Performance
[54] The applicant was not provided with any identifiable warning in respect to any unsatisfactory performance that may have been relevant to the employer's decision to dismiss.
S. 387 (f) - Size of Enterprise Likely to Impact on Procedures
[55] The employer is a small business, and accommodation has been made for a significant level of informality to be provided in respect to employment related matters. However, such accommodation could not extend to any condonation of the repugnant process that was adopted by the employer whereby the applicant was advised of his dismissal by way of text message, and without prior discussion or indication that his employment was in any jeopardy.
S. 387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures
[56] As a small business, the employer understandably did not have any dedicated human resource management specialists or other expertise. Allowance for informality and a degree of flexibility with procedures regarding employment related matters has been provided. However, in circumstances where the employer acted with a perfunctory disregard for basic human dignity, no mitigation or justification for such manifest insensitivity could arise from the absence of specialists or expertise in human resource management.
[57] There were no other relevant matters identified as requiring consideration.
[58] This unfair dismissal claim has firstly required determination of the assertion that the applicant was not a person protected from unfair dismissal. The applicant was described and paid as a casual employee. However, for a period of about 2 years, the employment of the applicant was on a regular and systematic basis, and at the time of his dismissal, the applicant had reasonable expectation of continuing employment on a regular and systematic basis. Consequently, the Commission has determined that the applicant was a person protected from unfair dismissal in satisfaction of the requirements of s. 382 of the Act.
[59] The matter has subsequently involved consideration of the application of the Small Business Fair Dismissal Code (the SBFD Code). The applicant was dismissed via text message and with immediate effect. Upon analysis, there was no factual basis to establish reasonable grounds upon which the employer could hold any belief that the applicant had committed conduct that was sufficiently serious to justify his immediate dismissal.
[60] In such circumstances, I have determined that the summary dismissal of the applicant was not consistent with the relevant provisions of the SBFD Code. If it were applicable to the dismissal of the applicant, the dismissal was not consistent with the other dismissal provisions of the SBFD Code. Therefore, the dismissal of the applicant was not consistent with the SBFD Code.
[61] Further, in this case, the reason for the dismissal of the applicant could not be properly established beyond the notion that as a casual employee no explanation was required. Therefore, the reason for the dismissal of the applicant was not sound, defensible or well-founded. There was not a valid reason for the dismissal of the applicant related to his capacity or conduct.
[62] The procedure that the employer adopted whereby it advised the applicant of his dismissal by way of text message, and which was for undisclosed reason, was plainly unjust, unreasonable, harsh, and, unconscionably undignified. The dismissal of the applicant with such perfunctory disregard for basic human dignity reflects very poorly upon the character of the individual or individuals responsible.
[63] In summary, the applicant was a person protected from unfair dismissal, and the dismissal of the applicant was firstly, not consistent with the SBFD Code and secondly, without valid reason involving established misconduct or capacity inadequacy.
[64] Further, the dismissal involved a manifestly unjust and unreasonable process including the complete absence of any opportunity for the applicant to be heard before the decision to dismiss was made. Consequently, upon analysis of the various factors that are identified in s. 387 of the Act, an objective and balanced evaluation of all of the relevant circumstances has provided compelling basis to establish that the dismissal of the applicant was harsh, unjust and unreasonable. Therefore, the applicant's claim for unfair dismissal remedy has been established.
[65] The applicant has not sought reinstatement as a remedy for his unfair dismissal. In the circumstances, particularly as the employment of the applicant was irreparably damaged by the very regrettable circumstances surrounding the dismissal implemented by way of text message, reinstatement would not be an appropriate remedy.
[66] In the circumstances, I am satisfied that reinstatement of the applicant would be inappropriate, and that payment of compensation would represent an appropriate remedy for the applicant's unfair dismissal. I now turn to the factors which involve the quantification of any amount of compensation.
[68] Firstly, I confirm that an Order for payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.
[69] Secondly, in determining the amount of compensation that I Order, I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.
[70] There was no evidence provided which established that an Order of compensation may impact on the viability of the employer's enterprise. However, I have provided appropriate accommodation for the small size of the employer's business operation. Allowing for the size of the employer's business, together with some evidence of limitation on mitigation in the pursuit of alternative employment in the Security Industry, and other contingencies, any amount of compensation shall be further reduced by 25%.
[71] The applicant had been employed for a period of about two years. The applicant would have been likely to have received remuneration of approximately $959.00 per week if he had not been dismissed.
[72] There was no evidence to provide any basis to conclude that the employment of the applicant may not have continued for a significant period of time. Theoretically, the applicant would have been likely to have continued in employment for a period roughly equivalent to the length of service that he had achieved at the time of his dismissal, two years.
[73] For the purposes of calculation of remuneration that the applicant would have received or would have been likely to receive if he had not been dismissed, I have notionally considered that the employment of the applicant would have continued for at least a further 26 weeks. Therefore, the total remuneration that would have been received in the notional period of 26 weeks following dismissal amounted to a figure of $24,930.00.
[75] Thirdly, in this instance there was no established misconduct of the applicant, and consequently I have decided to make no reduction to the amount of compensation to be provided to the applicant on account of any established misconduct.
[76] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.
[77] Fifthly, the amount Ordered does not exceed the compensation cap as prescribed by s. 392 (5) of the Act.
[78] Consequently, for the reasons outlined above, taking into account all of the circumstances of the case, and having cognisance so as not to apply the approach taken in the Decision in Sprigg in a rigid, determinative manner, as was cautioned in the Decision in Pericich, I have decided that the amount of compensation to be provided to the applicant should be calculated by subtracting 25% from $16,620.00 ($24,930.00 minus $8,310.00); the resultant figure being: $12,465.00 gross.
[79] Accordingly, separate Orders [PR709545] providing for unfair dismissal remedy in these terms will be issued.
Mr B Everett, Director appeared for the employer.
Printed by authority of the Commonwealth Government Printer
Kurt Wallace
AFS Security 24/7 Pty Ltd [2019] FWC 4292
[1] This Decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Kurt Terrence Wallace (the applicant). The respondent employer is AFS Security 24/7 Pty Ltd ABN: 37147713157 (the employer).
[2] The application was filed on 17 February 2019, and it indicated that the date of the applicant's dismissal was 4 February 2019. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) (a) of the Act. The employer filed a response to the application dated 20 February 2019, and at that time the employer indicated that it did not have a representative.
[3] The file indicates that conciliation of the matter occurred on 15 March 2019. However, the matter was not resolved and it was listed for Pre-Hearing Conference on 22 March 2019.
[4] In a Decision [2019] FWC 3511 issued on 23 May 2019, the Fair Work Commission (the Commission) determined to refuse permission for the employer to be represented by lawyers or paid agents.
[5] The matter has proceeded to arbitration before the Commission in a Hearing conducted in Armidale on 29 May 2019. The Hearing dealt with evidence and submissions which encompassed both the substantive issues of the alleged unfair dismissal, together with aspects of the employer's defence of the matter which involved the issue of whether the applicant, as a casual employee, was a person protected from unfair dismissal. In addition, the Commission has been required to consider whether the dismissal of the applicant was consistent with the Small Business Fair Dismissal Code (the SBFD Code).
[6] At the Hearing, the applicant was not represented, and he provided evidence as the only witness called in support of the unfair dismissal claim. Mr Brian David Everett, the Director of the employer's business, appeared for the employer at the Hearing. Mr Everett was the only witness who provided evidence on behalf of the employer.