Manisha Kumar v Australia Personnel Global Pty Ltd [2017] FWC 5661 (3 November 2017)

[2017] FWC 5661

Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - labour hire arrangement - valid reason - dismissal harsh, unjust and unreasonable - reinstatement not appropriate - compensation awarded.

[1] On 30 June 2017, Ms Manisha Kumar lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by her former employer Australian Personnel Global Pty Ltd.

[2] APG is a labour provider and Ms Kumar was assigned to work at the premises of Baiada Poultry Pty Ltd (Baiada) at Wingfield, South Australia.

[3] Ms Kumar contends that she was engaged by APG as a casual employee on 21 January 2013 and was dismissed with effect from 24 June 2017 as a result of 'ongoing issues with punctuality and attendance'. Ms Kumar contends that she worked an average of 37.5 hours most weeks, sometimes in excess of this amount.

[4] APG contends that Ms Kumar is not entitled to bring this application on the basis that although Ms Kumar was employed on a regular and systematic basis, she did not have a reasonable expectation of ongoing employment, and that she had not met the minimum employment period required by s.382 of the Act.

[5] In the event Ms Kumar is protected from unfair dismissal, APG contends that Ms Kumar was not dismissed within the meaning of s.386 of the Act, and in the alternative that it was entitled to dismiss Ms Kumar as a result of her attending work late, leaving work early, not providing advice of absences and that Baiada had lost confidence and trust in Ms Kumar's capacity to carry out allocated tasks in accordance with APG's direction.

[6] APG contends that the decision to terminate Ms Kumar's assignment at Baiada was not harsh, unjust or unreasonable.

[7] On 18 August 2017, the Commission determined and advised the parties that it was of the view that it would be more efficient to hear the jurisdictional objections and the merits together.

[8] On 16 August 2017, APG made a request that pursuant to s.586 of the Act the respondent's name be amended from Australian Personnel Global Pty Ltd to Australia Personnel Global (ABN 24 135 632 235). On 18 August 2017, I exercised my discretion pursuant to s.586 of the Act and amended the application.

[9] On 22 August 2017, APG's representative advised that they had received further instructions and that the respondent's name should be Australia Personnel Global Pty Ltd (ACN 126 135 144) and requested that I exercise my discretion pursuant to s.586 of the Act to amend the name in this application. Having previously amended the name in this matter, I required further evidence to support the correct identity of the respondent. APG provided a copy of an ASIC document which supported its contention. Ms Kumar's representative, Mr Snowball of the National Workers' Union (NUW) did not object to the amendment. Accordingly, I have exercised my discretion under s.586 of the Act to amend the name of the respondent to Australia Personnel Global Pty Ltd (ACN 126 135 144).

[10] On 16 August 2017, APG made an application pursuant to s.404 of the Act for Ms Kumar to provide security for costs. Rule 55 of the Fair Work Commission Rules 2013 empowers the Commission to make an order of this nature.

[11] APG contended that a security for costs order against Ms Kumar and the NUW as her representative should be made on the basis that:

• Ms Kumar's application has no reasonable prospects of success as whilst her assignment with Baiada had ceased Ms Kumar remains as an active employee with APG and has not been dismissed.

• The remedy of reinstatement sought by Ms Kumar is satisfied and continuing the claim was futile.

• In the alternative APG contended that Ms Kumar has not completed the minimum employment period prescribed by s.384 of the Act.

• Based on the jurisdictional objections and the lack of merit, Ms Kumar has little (if any) prospects of success.

• APG sought that the amount of the security be $20,000.

[12] Ms Kumar and the NUW objected to the security for costs application on the basis that the application was not novel or exceptional, had a strong prospect of success on both the jurisdictional issues and the merits and that the following matters weighed against the granting of a security for costs order:

• the granting of the order would be a significant bar to the applicant pursuing her case at first instance;

• the application has not been made vexatiously or without proper cause;

• an order for costs at the conclusion is highly unlikely;

• the granting of an order would be contrary to the objects in Part 3-2 of the Act.

[13] The principles to be considered in exercising the discretion to award security for costs are found in Harris v Home Theatre Group as extracted below:

"[7] Principles relevant to the making of orders for security of costs can be summarised as follows. There is no absolute rule to control the exercise of the discretion to order security for costs, and what should be done in each case depends on the circumstances of the case with the governing consideration being what is required by the justice of the matter. The making of an order for security for costs should not be oppressive in that it would stifle a reasonably arguable claim.

[8] The financial position of the party against whom the order is sought, will be relevant in a number of circumstances. There is no absolute rule that impecuniosity of a party will entitle its opponent to an order for security for costs. There is also a general rule that poverty should not be a bar to a person prosecuting a claim at first instance. On appeal, the question of security is to be determined differently on the basis that the appellant has had his or her day in court, and should not be given a "free hit", particularly in circumstances where the costs of a proceeding below had not been paid by the appellant.

[9] In cases where the impecuniosity of the party against whom the order for security for costs is sought, it is relevant that the impecuniosity is itself a matter which the litigation may help to cure or arises from the conduct the party is complaining of. In such circumstances the party against whom the order is sought should not be shut out of litigation.

[10] The prospects of success and the strength of the case of the party resisting the order is relevant. In Merribee (Supra) Kirby J said (citations omitted):

"Another consideration that has sometimes been judged to be relevant is the strength of the case of the party resisting an order that it provide security for costs and evaluation (necessarily tentative) of its prospects of success. Thus, the fact that a party has secured special leave to argue its case on appeal has been thought a relevant consideration in some circumstances. Similarly, if a proceeding appeared hopeless and such as was bound to fail, the lack of apparent merit in a party's case might be a reason for ordering it to provide security for the costs to which, it appears, it is needlessly putting its opponent. Such a consideration would need to be exercised with care, given that the real merits of a case might not emerge until the final hearing or might not sufficiently emerge in the necessarily brief proceedings typically involved in an application for security of costs. Furthermore, if a party asserts that its opponent's proceedings are manifestly lacking in legal merit, other remedies are available to it to protect it from needless vexation."

[11] In relation to costs, it is relevant that the nature of a proceeding is such that, even if successful, an order for costs might not be made or might be limited. The inability of a party to meet the costs of an unsuccessful proceeding, or the risk that a cost order will not be satisfied is also relevant to the exercise of the discretion. Other related considerations are that a party is, or is likely to be absent from the jurisdiction when a decision is made and has no, or few assets within the jurisdiction.

[12] There may also be aspects of public interest which are relevant to the exercise of the discretion to make an order for security for costs, such as an application raising matters of general public importance, quite apart from the interests of the parties. Other matters that have been considered relevant are that a hearing of the proceedings is close at hand, or the party seeking the order has delayed its application for such an order. It may also be relevant that the parties, or some of them, are legally aided."

[14] The Full Bench in Zornada v St John Ambulance Australia (Western Australia) Inc[2] confirmed that cost orders in the Commission's jurisdiction are extraordinary and security for costs even more so, and that the Commission should award security for costs only in the rarest circumstances.

[15] On 31 August 2017, I determined that it was not appropriate to make a security for costs order on the basis that a preliminary review of the material submitted led me to conclude that:

• Ms Kumar's contention that she was dismissed was not without some merit;

• Ms Kumar's application did not appear to have no reasonable prospects of success; and

• the continued pursuit of the application by Ms Kumar was not an unreasonable act.

[16] On 1 September 2017, APG sought by way of lodging a Form F51 that the Commission issue an order for Mr Steven Parrish to attend as a witness in order to adduce evidence that Ms Kumar was counselled by APG. The application advised that Mr Parrish no longer worked for APG. No information was provided as to why it was necessary that Mr Parrish be summoned rather than attend of his own volition. The application was opposed by Ms Kumar's representative who contended that APG had ample time to make the application prior but waited until one day before the hearing to make the application and no reasons where offered to justify the late application. APG had an opportunity to deal with this issue when submitting its material in reply, and the granting of the application would prejudice Ms Kumar.

[17] On 1 September 2017, I refused to issue an order for Mr Parrish to attend the Commission to give evidence on the basis that no statement had been received from Mr Parrish, that there was no evidence that Mr Parrish would not attend in the absence of an order and because of the lateness of the application.

[18] The hearing was conducted on 4 and 5 September 2017.

[19] Mr Alex Snowball from the NUW represented Ms Kumar. Ms Anna Wells of counsel represented APG. Permission was granted pursuant to s.596(2)(a) of the Act on 25 August 2017.

[20] Ms Kumar provided a witness statement,[3] a further witness statement[4] and gave evidence on her own behalf. Ms Kumar also submitted a witness statement[5] of, and led evidence from, Mr Mark Whenan, NUW Organiser.

[21] APG provided witness statements and led evidence from Ms Elizabeth Chalmers, SA Industrial Relations Coordinator[6] and Ms Kelly Frost, Southern Regional Manager at APG.[7]

[22] APG had previously submitted statements of Ms Chessell and Ms McDonald, but those statements were withdrawn at the hearing.

[23] Ms Kumar's relevant evidence is summarised as follows.

[24] Ms Kumar commenced employment with APG on or about 21 January 2013 as a casual employee. In cross-examination Ms Kumar accepted that she was offered casual employment with no guarantee of ongoing work.[8]

[25] In the period between January 2013 and 23 June 2017, Ms Kumar was only assigned to work at Baiada at the Wingfield factory.

[26] Ms Kumar applied for and subsequently took maternity leave for 12 months commencing on 31 May 2014.[9] Her first child was born in June 2014. Just prior to her expected return, Ms Kumar fell pregnant again and took additional maternity leave with the second child born in April 2016. Ms Kumar disputed the entry in the Employee Notes and Contact History/Visitations[10] dated 2 June 2014 that a conversation occurred with Mr Jenkins in relation to the taking of 12 months leave and that she had been advised that when she was ready to come back she would need to reapply.[11]

[27] Ms Kumar next worked in November 2016 and attended an APG induction on 9 November 2016. She signed for an APG Employee Handbook[12] and on the following day attended a Baiada induction and signed the Baiada Processing Induction manual,[13] but contends she was not provided with an opportunity to review these documents before signing them.[14]

[28] Ms Kumar accepts that the need for punctuality was emphasised during the 2016 induction at Baiada, but with the proviso that they did not want her to attend work if she was sick.[15]

[29] Ms Kumar accepts that she may have been told of the need to work the full shift and that her employment would be at risk if she was late for work.[16]

[30] Ms Kumar's supervision predominantly came from Baiada Managers who provided start times by SMS, advised of the finish time during the shift and provided day to day supervision.

[55] Mr Whenan submitted a witness statement[31] and it was agreed that paragraph 11 onwards would be struck out.[32]

[56] Mr Whenan is employed by the NUW as an Organiser and is responsible for the NUW's activities at the Baiada site. Mr Whenan's relevant evidence is summarised as follows:

• Mr Whenan advised that the NUW regularly attends APG inductions to speak to new employees about the Union.

• Mr Whenan gave evidence of attending APG inductions on 22 June 2017, 13, 20 and 24 July 2017 and 2 and 3 August 2017 during which time 39 or more persons attended. The majority of these persons were assigned work at the Baiada factory.

• Mr Whenan advised that the overwhelming majority of APG's business in South Australia is at the Baiada site, and that to his knowledge Baiada only hold one other contract to supply labour with a waste management company.

• Mr Whenan gave evidence that when he attended the Baiada site as a Union Official the security guards were involved in his site access which could take up to 20 to 30 minutes to arrange.[33]

• Mr Whenan also gave evidence that the Baiada car parks were full on numerous occasions which required him to park some distance away from the site entrance.[34]

[57] Ms Elizabeth Chalmers is employed by Baiada as Industrial Relations Coordinator for South Australia.

[58] Ms Chalmers gave evidence that:

• Ms Kumar was engaged as an agency worker at Baiada for the period 15 November 2016 to 23 June 2017.

• Baiada informed Ms Kumar of her shifts on a day to day basis via text messages. Shifts are scheduled in accordance with live produce slaughter schedules. On some occasions shift times are changed. An ordinary shift was 7.6 hours in length.[35]

• Baiada workers are required to work their full allocated ordinary shifts and at times may be requested to work overtime. Shift finishing times are communicated once production requirements have been established. Before overtime is required to be worked agreement is sought with the employee.
• Agency workers are expected to be punctual and whilst they would be given a reasonable time to adjust to Baiada's expectations, their assignment will be terminated if they continually fail to meet the requirements of the job.
• Baiada conducts tool box meetings jointly with APG where issues such as attendance, punctuality and overall performance are discussed.
• Ms Kumar signed a copy of Baiada's disciplinary guidelines on 9 November 2016. These guidelines refer to the potential for employment to be terminated as a result of failing to report absences, lateness or poor timekeeping.
• During Ms Kumar's tenure at Baiada there were issues relating to poor time keeping and failing to attend her shifts at the required start time.
• Whilst Baiada displays leniency where a worker is a few minutes late, if it is a regular pattern Baiada will advise the labour hire company and request counselling to take place.
• Baiada's roll call and attendance sheets details that Ms Kumar was late for work on 22 occasions, left work early 6 times and was absent from work on 6 occasions.
• Baiada's business records indicate that APG was asked to counsel Ms Kumar on three occasions.

[59] On 22 June 2017 Baiada determined, based on punctuality and attendance issues, that Ms Kumar was unsuitable for further work and advised APG of this decision by email.

[60] In her supplementary statement, Ms Chalmers responded to an issue raised by Ms Kumar and stated that on 15 and 16 November 2016 Ms Kumar had issues accessing the site as a result of being issued a defective security card. Ms Chalmers disputed the length of delay that would have resulted. Ms Chalmers also stated that delays as a result of car parking were not the responsibility of Baiada but attributable to Ms Kumar.

[61] APG, through Ms Chalmers, tendered a redacted version of the Labour Supplier Agreement made between Baiada and APG.[36]

[62] Clause 3.3 of the Labour Supplier Agreement provides that "If requested by Baiada, APG shall promptly remove any personnel from the Business Premises."

[63] Clause 3.15 of the Labour Supplier Agreement provides that "APG shall promptly replace any Personnel removed at the request of Baiada from the Baiada premises with replacement personnel."

[64] APG tended a copy of Baiada's roll call and attendance sheets (also referred to as a service report) through Ms Chalmers.[37] Ms Chalmers said that employees were given leniency in relation to lateness of four minutes or less. Five minutes was regarded as lateness.[38]

[65] Ms Chalmers referred to two emails sent from Ms Ruth Bobyk (Baiada) to Mr Parrish (APG) requesting for Ms Kumar to be counselled. Mr Parrish told Ms Chalmers that the counselling occurred.[39]

[66] Ms Chalmers accepted that Ms Kumar had explained her lateness on 15 and 16 November 2016.[40]

[67] Ms Chalmers stated that agency employees need to notify the agency of their intention to have leave.[41]

[68] Ms Chalmers advised that the reference in her statement to 22 occasions that Ms Kumar was late included incidences of lateness from one minute to 30 minutes.

[75] Ms Kelly Frost is employed by APG as Southern Regional Manager.

[76] Ms Frost did not attend the hearing in person on 4 September 2017 with APG's solicitors advising the Commission by email at 8.17pm on Saturday 2 September 2017 that Ms Frost was ill with a bad case of gastro virus. A medical certificate from Dr Monique Bradley which referred to Ms Frost suffering from a medical condition was provided. On that basis the Commission adjourned the matter to the following day to allow Ms Frost to give evidence by video link.

[77] On 5 September 2017, APG's counsel submitted a medical certificate dated 4 September 2017 which indicated that Ms Martin (Frost) was examined on that day and was suffering from emotional distress related to a historical event.

[78] Ms Frost gave evidence by video link from a hearing room at the Sydney Commission. The video image was focussed on the witness box and the bar table was not visible. During her evidence I became aware of other persons conversing and it appeared that Ms Frost was being assisted by persons in the room. Upon investigation the persons in the room were Mr Kumar (APG's solicitor) and Glen (who was described as a support person but was also Ms Frost's immediate Supervisor). Whilst the provision of support to a witness in answering questions would be grossly inappropriate (particularly if a lawyer was involved), I have given the benefit of the doubt to Ms Frost that the information relayed to her was not intended to assist her in answering questions in the witness box, and I have not taken this into account in any decisions as to her credit.

[79] Ms Frost submitted a witness statement (including attachments)[48] and a supplementary statement.[49] Paragraph 10 of the witness statement and paragraphs 3 and 4 of the supplementary statement were struck out on the basis of the material being hearsay.[50]

[80] Ms Frost contended that APG employed approximately 3000 persons.[51] APG had provided up to 400 casual employees to Baiada at its Wingfield site and another client Integrated Waste Solutions.

• Given Ms Kumar's 'multiple attendance issues' at Baiada and her being given chances to improve but not doing so, there was nothing that APG could do to retain her role with Baiada.
• Ms Frost determined that Ms Kumar's conduct was unacceptable and not to the standard Baiada expects from an APG employee.

• The absences between 22 May 2017 and 22 June 2017 that she considered were those on 7, 8, 9 and 12 June 2017.[63]

• In cross-examination Ms Frost accepted that the records did not reveal any instances of lateness between 23 May 2017 and 22 June 2017.[64]

• After receiving advice from Baiada to end Ms Kumar's assignment APG did not ask Ms Kumar to respond to the allegations.[65] Ms Frost did not discuss the end of assignment with Ms Kumar.[66]

• She requested Ms Kumar's service reports after becoming aware that her assignment had ended.[67]

• APG continued to supply about 200 workers (with some fluctuation) to Baiada after Ms Kumar's assignment ended, including new employees.[68]

• Ms Frost contends that APG made endeavours to find alternative employment for Ms Kumar.

• Ms Frost said that no vacancy was found as a result of APG's other client base seeking more specialised licensing or trade qualifications, and APG understood Ms Kumar had another job with the NUW.[69] APG did not engage with Ms Kumar as to work between 22 May 2017 and 2 September 2017.[70]

• Ms Frost stated APG was looking for another role which would be relatively unskilled and would cater for someone who had a second role.

• APG had very recently been asked to supply a cleaner to Integrated Waste Solutions and had offered the role to Ms Kumar. Ms Frost rejected the contention that this offer was made to bolster APG's case.[71]

[82] Ms Frost's statement including the following attachments:

• An email dated 23 December 2016 from Ms Bobyk (Baiada Production Manager) seeking that she counsel Ms Kumar based on her attendance.

• An email to Mr Parrish from Ms Bobyk dated 22 February 2017 which stated that Ms Kumar was not working the full length of her shifts.[72]

• An email dated 23 December 2016 to follow up Ms Kumar on 'no notification of absence'.[73]

• A copy of a document titled 'Employee Notes and Contact History / Visitations' which contained dates and notes concerning contacts with Ms Kumar by Mr Parrish.[74] Ms Frost was not a witness at these discussions but contends she discussed a number of the entries with Mr Parrish.[75]

• A copy of a document titled 'Employee Notes and Contact History / Visitations' which contained dates and notes concerning contacts with Ms Kumar by Mr Jenkins.[76] One of the entries concerned taking 12 months off due to having a baby and that Ms Kumar had been advised that when she is ready to come back she will need to reapply.[77]

• Copies of notes of 'counselling sessions' that took place during toolbox meetings on 18 November 2016,[78] 13 December 2016[79] and 17 January 2017.[80]

• An email trail dated 22 June 2017 from Ms Chalmers to Ms Frost requesting that the assignment of a number of APG employees (including Ms Kumar) cease on 22 June 2017. Included was a response to a request by Ms Amanda Eichler, where Ms Chalmers advised that the reasons for the assignments ending related to 'Attendance and performance issues. Not reliable, not suitable".[81]

In accordance with the exception to the hearsay rule described in , these business records were received on the basis that such a record had been made but not as evidence of the facts contained therein.

[86] Ms Kumar contends that the she was dismissed and is entitled to seek an unfair dismissal remedy.

[87] APG contends that Ms Kumar was not dismissed and has not completed the minimum employment period.

[88] Based on the evidence of Ms Frost that there are approximately 3,000 employees at APG, I find that APG is not a small business employer within the meaning of s.23 of the Act and that the relevant minimum employment period is 6 months.

[89] Based on the evidence of Ms Chalmers and Ms Kumar, I find that Ms Kumar was regularly engaged to work at Baiada for five days per week for an average of 37.5 hours per week and that Ms Kumar had been employed on a regular and systematic basis for a period exceeding 6 months prior to 23 June 2017.

[90] Ms Kumar's work history (including frequency of engagement) combined with the requirement to advise APG and/or Baiada if she was unable to attend for work leads me to find that Ms Kumar had a reasonable expectation of continuing employment by APG on a regular and systematic basis.

[91] As a result of these findings, I determine that Ms Kumar has completed the minimum employment period required by s.382 of the Act.

[92] Ms Kumar submits that her employment is covered by the Poultry Processing Award 2010. This was not contested and in any event her annual rate of earnings is less than the high income threshold.

[93] I find pursuant to s.382 that Ms Kumar is a person protected from unfair dismissal.

[94] I have found that APG regularly and systematically engaged Ms Kumar until 23 June 2017 after which Ms Kumar has not worked for APG. APG did not offer Ms Kumar any further work until 2 September 2017, a clear departure from Ms Kumar's historical engagement.

[95] The effect of APG's conduct was to deny Ms Kumar further engagements.

[96] APG contend I should adopt the approach take in Tse v Ready Workforce (A division of Chandler Macleod) Pty Limited[84] and find that Ms Kumar was not dismissed. As will be evident from the discussion of the recent case law in employer, host employer and employee arrangements below, the law has developed further since 2010 and I do not propose to follow the approach recommended.

[97] Ms Wells also submitted that Sherwin v Adesse Pty Ltd[85]supported the proposition that with only 6 weeks having elapsed since Ms Kumar's last engagement it was too soon to determine that Ms Kumar has been dismissed. In that case there was a change in operational requirements that resulted in a reduction of hours, this was not the position in this matter where the evidence indicates that there was work available. In my view Adesse is distinguishable on the facts.

[98] I find that APG's conduct resulted in Ms Kumar's dismissal occurring on 23 June 2017.

[99] In Kool v Adecco Industrial Pty Ltd T/A Adecco[86] which also involved an employer, host employer and employee arrangements, the Commission found that:

• the contract which formed the relationship between the employer and the host employer was not before the Commission;

• the employer simply acquiesced in the removal of the employee from the host employer's site without having an independent view as to the capacity or conduct of the employee;

• the employer did not independently attempt to verify whether there was a valid reason for the removal of the employee from the host employer's site; and

• the Commission did not accept that there was a lack of alternative placements for the employee or that she unreasonably refused an alternative placement so that it could be said to constitute a valid reason for dismissal.

[100] Although some of circumstances of this matter can be distinguished from those in Adecco, it is useful to set out the general principles that arise from that decision:

"[48] Where managers of a host employer inform a labour hire employee that he or she is to be removed from site on the basis of conduct, capacity or work performance, the actions of the host employer may be tantamount to dismissal. This is particularly so where managers or supervisors of the host employer have also been involved in disciplining the labour hire employee. A labour hire employee seeking to contest such action by making an application for an unfair dismissal remedy, faces considerable difficulty, principally because the host employer is not the employer of the labour hire employee. It is also the case that a labour hire company may face considerable difficulty preventing a host employer from taking disciplinary action against an employee of the labour hire company.

[49] However, the contractual relationship between a labour hire company and a host employer cannot be used to defeat the rights of a dismissed employee seeking a remedy for unfair dismissal. Labour hire companies cannot use such relationships to abrogate their responsibilities to treat employees fairly. If actions and their consequences for an employee would be found to be unfair if carried out by the labour hire company directly, they do not automatically cease to be unfair because they are carried out by a third party to the employment relationship. If the Commission considers that a dismissal is unfair in all of the circumstances, it can be no defence that the employer was complying with the direction of another entity in effecting the dismissal. To hold otherwise would effectively allow labour hire employers to contract out of legislative provisions dealing with unfair dismissal."

[101] I note that the Full Bench in Pettifer v MODEC Management Services Pty Ltd[87] endorsed the principle as set out in paragraph 49 of Adecco.

[102] The facts in MODEC are summarised as follows:

• the contract which formed the relationship between the labour hire employer and the host employer was before the Commission and it provided a contractual right for the company representative to direct to have removed from the site any person employed in connection with the work under the contract whose involvement the company representative considered as not being in the best interests of the project;

• MODEC formed an independent conclusion and did not support the severity of the host employer's action of excluding the employee from the worksite; and

• MODEC endeavoured to obtain suitable alternative employment for the employee which included consideration of local and international employment opportunities and had discussions with the employee's Union to explore alternative roles.

[103] The Full Bench in MODEC found the following in relation to s.387(a) of the Act:

"[32] We have concluded that the BHPB instruction that Mr Pettifer was not permitted to work on the BHPB Site represented a matter which went to Mr Pettifer's capacity to work. Consequently, it was a matter that required consideration pursuant to subsection 387(a) to determine whether or not it was a valid reason for the termination of his employment. It has long been established that the Commission is required to consider and reach conclusions about each of the factors specified in section 387. In ALH Pty Ltd trading as a Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51], the Full Bench of the predecessor to the FWC (the Australian Industrial Relations Commission) said, in relation to section 170CG of the Workplace Relations Act 1996 (CTH) (WR Act), the precursor to section 387 of the FW Act, that:

"[51] Each of the paragraphs (a) to (d) of section 170CG(3) requires the Commission to have regard to 'whether' a circumstance existed. Whether it existed must then be taken into account, considered and given due weight as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. A consequence of this construction of section 170CG(3) is that the Commission is obliged to make a finding in respect each of the circumstances specified in subsection 170CG(3)(a) to (d) in so far as each of these paragraphs is relevant to the factual circumstances of a particular case."

[33] Consequently we have concluded that the Commissioner was in error in her conclusion that the circumstances of the termination of Mr Pettifer's employment did not give rise to valid reason considerations. Mr Pettifer's incapacity to work on the BHPB Site arose directly from the BHPB prohibition on his returning to work on that site, as distinct from any dispute over his conduct. As a consequence, Mr Pettifer was incapable of working on the BHPB Site in a manner which was akin to a bar or the loss of a form of licence, essential to his capacity to work. Hence Mr Pettifer's capacity was a factor which required a conclusion in terms of whether it represented a valid reason for the termination of his employment."

[104] In the recent Full Bench decision of Tasmanian Ports Corporation Pty Ltd t/a Tasports v Gee,[88] the Full Bench distinguished the employee, Mr Gee's, case from that in MODEC on the following basis:

"(1) Tasports, apparently as the result of a deliberate forensic decision on its part, did not provide the Commission with a copy of the contract between it and Grange Resources, and thus did not establish that Grange Resources in fact had a legal right to require Mr Gee's removal from the worksite or that Tasports had no recourse to preserve Mr Gee's employment at the site once that step had been taken. The demonstration of the existence of that legal right was, as earlier explained, critical to the Full Bench's conclusion in Pettifer that the employee was incapable of performing his substantive role.

(2) Tasports did not form its own independent conclusion as to whether Mr Gee had committed misconduct but instead essentially adopted the outcome of Grange Resources' procedurally unfair investigation. That it did so is demonstrable in two ways: first, Mr Ralston's email of 17 August 2015 indicated Tasports' immediate support for the decision to remove Mr Gee from the site based on his alleged misconduct, without taking any steps whatsoever to investigate the matter itself including by asking Mr Gee about it; and, second, the dismissal letter of 28 August 2015 stated that the decision to revoke Mr Gee's site access was "reasonably open" to Grange Resources based upon its findings of misconduct, a conclusion reached without any response to those findings having been obtained from Mr Gee. That is to be contrasted with Pettifer, where the labour hire employer formed the independent conclusion that removal from the worksite and dismissal was not justifiable on the basis of any conduct on the part of the employee. That meant that Mr Gee's dismissal was capable of being characterised as substantially related to his conduct, with its validity to be assessed on that basis. This was not, as Tasports submitted, a case of assessing whether Grange Resources had a valid reason, but whether Tasports' reasons for dismissal as stated in its own dismissal letter were valid.

(3) As the Deputy President found, and unlike the case in Pettifer, Tasports failed adequately to investigate options for Mr Gee's redeployment. This had greater significance given that Tasports is not actually a labour hire business as such, but runs ports and other businesses in its own right and employs persons for that purpose. Although Mr Gee's position description, which concerned his position as Port Latta, was put into evidence, what the actual terms of his employment contract were was left unclear. Insofar as the Deputy President referred in paragraph [54] of the Decision to Tasports having an obligation to "safeguard Mr Gee's interests" in respect of its review of alternative work opportunities, we consider this is to be understood as reference to the contractual duty to do what is reasonably necessary to facilitate the performance of the employment contract, including to do such things as is required to enable the other party to have the benefit of the contract. The implied duty to co-operate in employment contracts is recognised in Australian law." (citations omitted)

[105] The Full Bench in Tasports compared the differences in, and endorsed, the decisions of Adecco and MODEC and dismissed the contention that MODEC stood for the principle that a decision by a host employer in the context of a labour hire arrangement to have a worker supplied by a labour hire employer removed from its worksite meant that there was necessarily a valid reason for the worker's dismissal by the labour hire employer based on the worker's capacity for the purpose of s.387(a) of the Act. The Full Bench stated that this contention was "inconsistent with the statement of principle in Adecco which, like the Full Bench in Pettifer, we endorse."[89]

[106] The Labour Supplier Agreement between APG and Baiada gave Baiada the right to end Ms Kumar's assignment without reason.

[107] I find that Ms Kumar's employment ceased by way of capacity, in that Baiada's decision not to allow her to perform work at its Wingfield operation prevented APG from providing further assignments at Baiada at that location.

[108] I find that the reasons relied upon by Baiada (and in turn APG) to support the decision to cancel the assignment were not supported by the evidence before me.

[109] If the rules of evidence were strictly applied then most (if not all) of the evidence in respect to Ms Kumar's conduct would have been rejected on the basis of hearsay. Whilst s.591 of the Act provides that the Commission is not bound by the rules of evidence, they provide appropriate guidance.

[110] APG's allegations of lateness, leaving work early, and the issuing of warnings against Ms Kumar were not supported by any direct evidence and were disputed by Ms Kumar.

[111] In this matter the descriptions of the events contained in the records appears to be inaccurate. For example the complaints of leaving work early on 1 February 2017, 6 March 2017, 5 and 10 May 2017, are more accurately described as Ms Kumar not working as much overtime as other employees. In other cases, such as 15 and 16 November 2017, the lateness was either explained as a result of matters beyond Ms Kumar's control.

[112] Other incidents recorded on the form are simply records of matters which would not represent a breach of the employment obligations; for example leave due to a workplace injury between 23 and 25 January 2017, a head cold on 30 January 2017, suffering from a knee injury on 23 February 2017, performing light duties in the APG office between 27 February 2017 and 3 March 2017, a reoccurrence of the knee injury between 7 and 10 March 2017, 8 June 2017 illness, 9 June 2017 illness (medical certificate provided).

[113] When the records are evaluated and considered against this information, I find that it would be dangerous to rely upon them to support the allegations of 'ongoing issues with punctuality and attendance' made against Ms Kumar.

Was the dismissal harsh, unjust or unreasonable?

[122] Pursuant to s.387 of the Act, 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."

[123] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd[90] which requires the reason for termination to be 'sound, defensible or well founded.'

[124] I find that Ms Kumar was dismissed as a result of her incapacity to perform work at Baiada's Wingfield operation.

[125] I find that Ms Kumar was notified of the reason for her dismissal.

[126] I find that APG did not provide an opportunity for Ms Kumar to respond to the allegations.

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

[127] Whilst Ms Kumar did not request a support person the process prevented such a request from being made.

Warnings relative to unsatisfactory performance - s.387(e)

[128] I find that Ms Kumar was not subject to any warnings in respect of the alleged unsatisfactory performance. I do not regard general advice provided to team meetings about punctuality as a warning.

Size of the employer's enterprise and absence of dedicated human resources support - ss.387(g) and (f)

[129] APG does not have a dedicated human resources management specialist located in its South Australia branch. Any human resources management is conducted via its interstate branch.

[130] APG did not properly investigate the work performance allegations levelled against Ms Kumar, had they done so they would have found that most of the allegations could not be substantiated.

[131] APG did not take reasonable steps to engage with Ms Kumar and seek alternative work.

[132] The Explanatory Memorandum to the Act[91] explains the approach of the Commission in considering the elements of section 387:

"FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative."

[133] In Byrne and Frew v Australian Airlines Pty Ltd,[92] the following observations made by McHugh and Gummow JJ are relevant to my conclusion:

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

[134] Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Ms Kumar's employment was harsh, unjust and unreasonable.

[135] The relevant provisions of Division 4 of Part 3-2 of the Act state:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) the FWC may make the order only if the person has made an application under section 394.

(3) the FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's enterprise; and

(b) the length of the person's service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

(3) If the FWC is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations."

[136] The prerequisites contained in ss.390(1) and (2) of the Act have been met in this case.

[137] Ms Kumar did not seek reinstatement and I am satisfied that it is not appropriate in this case.

[138] Section 390 of the Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances.

[139] I now turn to whether compensation in lieu of reinstatement is appropriate.

[140] A Full Bench in McCulloch v Calvary Health Care Adelaide[93] confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg v Paul's Licensed Festival Supermarket[94] remains appropriate.

[141] Section 392(2) of the Act requires the Commission to take into account all of the circumstances of the case including the factors that are listed in subsections (a) to (g). Without detracting from the overall assessment required by the Act,[95] it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.

The effect of the order on the viability of the employer - s.392(a)

[142] There was no submission that any order of compensation would impact the viability of APG.

The length of Ms Kumar's service with the employer - s.392(b)

[143] Ms Kumar was employed for a period of four years and five months. I reject APG's contention that Ms Kumar resigned from her employment in the period where she contended she accessed maternity leave and had two children.

The remuneration Ms Kumar would have received, or would have been likely to receive, if she had not been dismissed - s.392(c)

[144] The allegations of poor attendance and punctuality made against Ms Kumar were not substantiated. Whilst the relationship deteriorated between Ms Kumar and APG, that occurred after her termination and arose from her protest at the way that she was treated and Ms Kumar's work as a NUW Organiser at the Baiada workplace she previously worked, adversely impacted on the relationship.

[145] Based on the evidence before me, there was work available at Baiada that was given to other employees, and at a later time work was available with another waste management employer.

[146] It was submitted that at the time of her dismissal, Ms Kumar earnt $26.56 per hour and that her average earnings were $888.87 per week.[96] This was not disputed by APG.

[147] In my view, it would be reasonable to assume that Ms Kumar would have remained in employment for a further 12 weeks.

The efforts of Ms Kumar to mitigate the loss suffered by her because of the dismissal - s.392(d)

[148] Ms Kumar secured casual employment after the dismissal.

Remuneration earned by Ms Kumar during the period between the dismissal and the making of the order for compensation and the amount of any income likely to be earned by Ms Kumar during the period between the making of the order for compensation and the actual compensation - ss.392(e) and (f)

[149] Ms Kumar earned $2069.13 as a casual employee up to the date of the hearing.

Any other matter that the Commission considers relevant and the remaining statutory parameters - s.392(g)

[150] There are no other relevant matters.

[151] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.

[152] The maximum compensation limit in this case would be the lesser of 26 weeks remuneration or half the high income threshold immediately before the dismissal.[97] The amount of compensation awarded is less than this limit.

[153] Taxation is to be paid on the amount determined.

[154] I believe that the compensation detailed below is appropriate having regard to all of the circumstances of this matter and the considerations specified by the Act.[98]

[155] I award compensation in the amount of $8,597.31, which represents the amount Ms Kumar would have been paid if she had continued to work at APG for a period of 12 weeks following the dismissal subtracting her post dismissal income.

[156] An Order[99] reflecting this decision will be issued.

A.Snowball of the National Union of Workers for the Applicant.

[1] [2011] FWA 2910

[2] [2013] FWCFB 8255 [36]

[5] Exhibit A5, noting that paragraphs 11-17 were struck out

[6] Original Statement Exhibit R12 and Supplementary Statement Exhibit R13

[7] Original Statement Exhibit R16, noting that paragraph 10 was struck out and Supplementary Statement Exhibit R1, noting that paragraphs 3 and 4 were struck out

[31] Exhibit A5, noting that paragraphs 11-17 were struck out

[48] Original Statement Exhibit R16, noting that paragraph 10 was struck out

[49] Exhibit R1 - noting that paragraphs 3 and 4 were struck out

[82] [1956] UKPC 21; [1956] W.L.R. 965

[84] [2010] FWA 8751

[85] [2008] AIRC 900

[86] [2016] FWC 925

[87] [2016] FWCFB 5243

[88] [2017] FWCFB 1714

[89] [2017] FWCFB 1714 [34]

[90] (1995) 62 IR 371 at 373

[91] Explanatory Memorandum to the Fair Work Bill 2008

[92] Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24

[93] [2015] FWCFB 873

[94] (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431

[95] Smith and Others v Moore Paragon Australia Ltd [2004] AIRC 57; (2004) 130 IR 446

[98] Smith and Others v Moore Paragon Australia Ltd [2004] AIRC 57; (2004) 130 IR 446 at par [32]

[99] PR597267

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