s.394 - Unfair dismissal

Application for relief from unfair dismissal - summary dismissal harsh - compensation ordered.

• [1] Mr Batchelor was employed by South Coast Superior Fabrication Pty Ltd (SCSF) as a Boilermaker from 22 January 2024 until mid-February 2025. Mr Batchelor was summarily dismissed by SCSF and alleges that his dismissal was harsh, unjust and unreasonable. SCSF denies those allegations and contends that its dismissal of Mr Batchelor was not in any way unfair.

• [2] Mr Batchelor gave evidence in support of his case, as did Mr Glen Pittman, a former colleague of Mr Batchelor at SCSF. Evidence was adduced by SCSF from Mr JJ Pretorius, owner of SCSF, Mr Stephen Higgins, Manager of SCSF, and Mr Rodney Evans, employee of SCSF.

• [3] As to the initial matters set out in section 396 of the Fair Work Act 2009 (Cth) (Act), I am satisfied that:

(a) Mr Batchelor's application was made within the period required in s 394(2) of the Act;

(b) Mr Batchelor was protected from unfair dismissal. He was first employed as a casual employee, from 22 January 2024 to 28 March 2024. During that time, he worked regularly (five days per week) and had a reasonable expectation of continuing employment by SCSF on a regular and systematic basis. Mr Batchelor was then employed on a full-time basis from 29 March 2024 until his dismissal in mid-February 2025;

(c) SCSF was a small business at the time of Mr Batchelor's dismissal. Accordingly, it is necessary to consider compliance with the Small Business Fair Dismissal Code. Although I am satisfied that Mr Pretorius believed that Mr Batchelor's conduct was sufficiently serious to justify immediate dismissal, Mr Pretorius accepts that he did not conduct any investigation before forming that belief. In light of there being no investigation and having regard to the nature and seriousness of the conduct involved (which I discuss below), I am not satisfied that there were reasonable grounds for the belief that Mr Batchelor's conduct was sufficiently serious to justify immediate dismissal; and

(d) Mr Batchelor's dismissal was not a genuine redundancy.

Was the dismissal harsh, unjust or unreasonable?

• [4] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Batchelor's dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.

• [5] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.[1] In order to be "valid", the reason for the dismissal should be "sound, defensible and well founded"[2] and should not be "capricious, fanciful, spiteful or prejudiced."[3]

• [6] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[4] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees).[5]

• [7] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.[6] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[7] In cases where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.[8]

• [8] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post as follows: [9]

"[35]... as indicated by Northrop J in Selvachandran, "valid reason" is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a "valid reason" where "valid" has its ordinary meaning of "sound, defensible or well founded". As Northrop J noted, the requirement for a "valid reason" should not impose a severe barrier to the right of an employer to dismiss an employee.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a "valid reason" for dismissal."

• [9] Allegations were made at the hearing that Mr Batchelor was leaving a work site in Manildra during work hours to spend time at home, attend the IGA Bomaderry Liquor Store, attend the IGA underground car park, and attend the Bomaderry Hotel. Mr Pretorius tendered screen shots from a tracking device placed in the work ute used by Mr Batchelor. These screen shots showed the work ute on 1 and 2 October 2024 at various locations in Bomaderry and at Mr Batchelor's home. However, Mr Batchelor gave evidence, which I accept, that (a) he and other employees of SCSF used the work ute to drive to Bomaderry to buy their lunch during a work shift at the Manildra site and (b) he took breaks at different times at the Manildra site, depending on the particular task being completed on the day in question. Accordingly, I am not satisfied, based on the tracking device screen shots alone and having regard to the Briginshaw standard, that Mr Batchelor was engaging in fraudulent behaviour by attending these sites in Bomaderry when he should have been working. I am also not satisfied that Mr Batchelor was spending any considerable time at home when he should have been working. I accept Mr Batchelor's evidence that in early October 2024 his 15 year old daughter was at home alone during the school holidays and he called in on her to make sure she was okay. I am, however, satisfied that Mr Batchelor did attend the IGA Bomaderry underground carpark during work hours with Mr Evans, on one occasion in January 2025, where they drank a beer before driving back to SCSF's workshop. Mr Evans gave evidence to this effect at the hearing. I accept that Mr Evans was a reliable witness. He has been friends with and known Mr Batchelor for a long period of time. Mr Evans gave a balanced account of Mr Batchelor's conduct at work. Further, I am satisfied on the basis of the consistent evidence given by Mr Evans, Mr Pretorius and Mr Higgins that on numerous occasions Mr Batchelor would return to SCSF's workshop and drink beer before the working day had concluded at 2pm. Mr Pretorius spoke to Mr Batchelor about this. Other employees drank beer at the workshop, but only after 2pm.

• [10] During the initial part of his employment with SCSF, Mr Batchelor was considered to be a valued employee and his colleagues enjoyed working with him. So much is clear from the fact that he was converted from casual employment to permanent employment, he was given the use of a work ute, and he was paid a bonus. But, as Mr Evans explained in his evidence, Mr Batchelor became crankier and crankier at work, such that other employees including Mr Evans did not want to turn up to work with Mr Batchelor. Mr Evans also gave evidence, which I accept, that working with Mr Batchelor became a situation of 'his way, or no way'.

• [11] Mr Batchelor's poor working relationship with Mr Pretorius and his colleagues came to a head in the week commencing Monday, 10 February 2025. I accept Mr Evans' evidence, which supports Mr Pretorius's account, that the following events unfolded during that week. On Monday, 10 February 2025, Mr Batchelor had a heated interaction with Mr Pretorius, who was trying to explain to Mr Batchelor that the job they were discussing had been undertaken correctly. Mr Batchelor disagreed and was argumentative. Mr Batchelor began shouting and swearing at Mr Pretorius. Mr Batchelor then said, "I'm over this shit" and left work for the day in the work ute. Mr Batchelor accepted in his evidence that he 'had the shits', could not deal with his work colleagues, and went home.

• [12] On Tuesday, 11 February 2025, a job had been tacked together and Mr Batchelor believed it was wrong. He became very angry and was yelling and swearing. Mr Pretorius said, "Don't start this again today". Mr Batchelor did not stop. Mr Pretorius then said, "I can't handle this anymore, I think it's better if you find a new job somewhere else". Mr Batchelor then proceeded to get into the work ute and left to go to the work site at Manildra, where he worked his normal shift. Mr Batchelor returned to the SCSF workshop at 1pm and acted like nothing had happened. Mr Pretorius gave evidence that he was surprised to see Mr Batchelor when he returned to the workshop at 1pm on 11 February 2025, because Mr Pretorius believed that he had dismissed Mr Batchelor earlier that morning and Mr Batchelor had gone to Manildra to collect his tools.

• [13] At about 5am on Wednesday, 12 February 2025, Mr Batchelor sent a text message to Mr Pretorius in the following terms:

"I won't be in today, got to make 1 more appointment, than [sic] I'll pop down with paper work, I'll need clam [sic] number, I don't want this ever jj, talk soon."

• [14] Mr Batchelor arrived at the workshop at about 9am on 12 February 2025 with workers' compensation forms. He gave those forms to Mr Pretorius, who asked him what happened. Mr Batchelor explained that he had hurt himself a few weeks ago. I do not accept that Mr Pretorius threw the forms on the table, as suggested by Mr Batchelor. Mr Higgins' evidence supports the evidence given by Mr Pretorius on this matter. Mr Pretorius then asked Mr Batchelor whether he had reported the injury, to which Mr Batchelor said words to the effect, "I'm not going to report everything that has happened to me".

• [15] On 13 February 2025, Mr Batchelor says that he attended work and was told by Mr Pretorius that he was no longer wanted, and his attitude was not welcome. Mr Pitman's statement says that Mr Batchelor informed him, on their way to work on 13 February 2025, that he was no longer wanted, but Mr Batchelor says that he told Mr Pitman about this after they attended work on that day.

• [16] At about 11am on Thursday, 13 February 2025, Mr Batchelor sent a text message to Mr Pretorius in the following terms:

"Send separation certificate, and reason for dismissal to my email please, thanks."

• [17] Mr Pretorius then prepared a termination letter and sent it to Mr Batchelor. It states:

"We Regret to inform you that, effective immediately, your employment with South Coast Superior Fabrication is terminated.

This decision follows multiple discussions regarding concerns about dishonesty. Specifically, on 12/02/2025, you attempted to submit a fraudulent workers' compensation claim without providing any evidence or incident reports to support your claim. This action is not only a violation of company policy, but also a breach of trust, and it has left us with no other option but to terminate your employment.

We have addressed this issue with you on previous occasions, and despite our efforts to resolve the matter, your actions indicate a pattern of behaviour that cannot be overlooked. As a result, the decision has been made to end your employment with the company.

Please ensure that you return any company property, including keys, equipment, or documents, at your earliest convenience. Your final pay check will be processed and provided to you in accordance with applicable laws.

• [18] The termination letter dated 13 February 2025 refers to Mr Batchelor's termination taking effect "immediately". It refers to alleged dishonesty on the part of Mr Batchelor on 12 February 2025. These aspects of the termination letter support a finding that the dismissal was communicated to Mr Batchelor on 13 February 2025, not 11 February 2025, as contended by Mr Pretorius. The relevant words stated by Mr Pretorius on 11 February 2025 are somewhat ambiguous. In particular, stating "I think it's better if you find a new job somewhere else" does not suggest that a definite decision had been made on 11 February 2025 to bring Mr Batchelor's employment to an immediate end. Coupled with the fact that Mr Batchelor went to work and completed his normal day's work (for which he was paid) after this discussion on 11 February 2025, would lead a reasonable person to conclude that Mr Batchelor was not informed of his immediate dismissal on 11 February 2025.

• [19] Mr Batchelor accepted in his evidence that he was aware of the requirement to inform SCSF if there was an incident, or he was injured, at work. He says that he strained his groin at work on 4 or 5 February 2025 while installing steelwork and he told Mr Pretorius and Mr Evans about this on 5 or 6 February 2025. Mr Pretorius denies being told about the incident or injury at any time prior to 12 February 2025. Mr Evans denies being told about the incident or injury at any time prior to 10 or 11 February 2025. I prefer the evidence given by each of Mr Pretorius and Mr Evans about when they were told by Mr Batchelor that he had injured his groin at work.

• [20] At the time of his dismissal on 13 February 2025, Mr Batchelor had 35.71 hours of accrued but untaken personal leave.

• [21] Mr Batchelor has not been fit to work since his dismissal on 13 February 2025. He had an operation on his groin on 1 May 2025 and expects it will take at least six weeks from 1 May 2025 to become fit enough to work. Mr Batchelor has not earned any income since his dismissal.

• [22] To date, Mr Batchelor has not made a workers' compensation claim in relation to the injury he says he suffered at work on 4 or 5 February 2025.

• [23] I am satisfied that SCSF had a sound, defensible and well-founded reason for the termination of Mr Batchelor's employment, in that (a) Mr Batchelor was, in the later stages of his employment with SCSF, angry, argumentative and very difficult to work with and (b) Mr Batchelor did not comply with the lawful and reasonable requirement to inform SCSF if he was injured at work. On that score, there was a delay of more than a week between the alleged injury on 4 or 5 February 2025 and when he told Mr Pretorius about it on 12 February 2025. In a very small business such as the one conducted by SCSF, it is necessary for an employee to not only be able to undertake the technical work required of them, but to be able to communicate with their employer in a respectful way and work through differences of views in a constructive manner. I am satisfied on the evidence that Mr Batchelor did not conduct himself in this way for some time in the period leading up to his dismissal.

• [24] The letter of termination refers to a fraudulent workers' compensation claim. On the evidence before the Commission, I do not accept that Mr Batchelor made such a fraudulent claim. The evidence of Mr Pittman, together with the medical certificates and other evidence adduced by Mr Batchelor, supports his claim that he was injured at work on 4 or 5 February 2025, notwithstanding that he failed to notify Mr Pretorius of the injury until 12 February 2025.

• [25] I do not accept Mr Batchelor's contention that he was dismissed because he wanted to make, or made inquiries about making, a workers' compensation claim. Mr Pretorius's denial of this contention was persuasive. Mr Pretorius's evidence has persuaded me that he was fed up with Mr Batchelor's argumentative and difficult conduct and this is what led to his decision to terminate Mr Batchelor's employment.

• [26] In all the circumstances I am satisfied that there was a valid reason for Mr Batchelor's dismissal. This weighs against a conclusion that his dismissal was unfair.

Was Batchelor notified of the reasons for his dismissal and given an opportunity to respond (s 387(b)&(c))?

• [27] It is necessary to consider and take into account whether Mr Batchelor was notified of any valid reason(s) for his dismissal and whether he was given an opportunity to respond to any reason(s) related to his conduct.

• [28] In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):

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

• [29] The criterion concerning whether an employee was provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity should be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[10]

• [30] I do not consider that Mr Batchelor was notified of, or given an opportunity to respond to, the valid reasons for his dismissal before his dismissal took effect. Mr Batchelor ought to have been aware from his interactions with Mr Pretorius that Mr Pretorius was not pleased with his attitude and communications with staff at work. However, Mr Batchelor was not put on notice that his employment was at risk, nor was he given a chance to respond to the prospect that his employment may be terminated for those reasons. This weighs in support of a conclusion that Mr Batchelor's dismissal was unfair.

Was there an unreasonable refusal to allow Batchelor to have a support person present (s 387(d))?

• [31] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, it is relevant to consider and take into account whether the employer unreasonably refused the support person being present.

• [32] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

"This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them."[11]

• [33] I am satisfied that there was no unreasonable refusal by SCSF to allow Mr Batchelor to have a support person present to assist at any discussions relating to his dismissal.

Warnings about unsatisfactory performance (s 387(e))

• [34] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal.

• [35] In this case, the reasons for dismissal related to Mr Batchelor's conduct, rather than his performance, so this consideration is not relevant.

Impact of size of SCSF and absence of dedicated human resource management specialists or expertise on procedures followed in effecting the dismissal (s 387(f)& (g))

• [36] SCSF is a small business employer. It does not have any human resource management specialists or expertise. I am satisfied that these factors likely impacted on the procedure followed in effecting Mr Batchelor's dismissal. However, they do not excuse a complete absence of procedural fairness.

Other relevant matters (s 387(h))

• [37] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

• [38] The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in _B, C and D v Australian Postal Corporation T/A Australia Post_in the following terms:[12]

"[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be "harsh, unjust or unreasonable" notwithstanding the existence of a "valid reason" for the dismissal": Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button [2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be "relevant matters" that do not bear upon whether there was a "valid reason" for the dismissal but do bear upon whether the dismissal was "harsh, unjust or unreasonable".

[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:

(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee's disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]

(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]

[43] The determination of whether there was a "valid reason" proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as "substantive fairness" from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was "harsh, unjust or unreasonable" notwithstanding the existence of a "valid reason".

[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):

"Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable."

[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer's policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13]."

Length and quality of Mr Batchelor's employment with SCSF

• [39] Mr Batchelor was employed by SCSF for about 13 months prior to his dismissal. The length and quality of Mr Batchelor's employment with SCSF does not lend much weight to his argument that his dismissal was harsh.

• [40] Mr Batchelor has not worked since his dismissal because he has been unfit to do so. He has been surviving on Centrelink benefits. The dismissal has clearly had a significant impact on Mr Batchelor's personal and economic circumstances. These matters must, however, be balanced against all other relevant circumstances, including the gravity of Mr Batchelor's conduct.

Summary dismissal and gravity of Mr Batchelor's conduct

• [41] Mr Batchelor was summarily dismissed by SCSF on grounds of serious misconduct. The proportionality of the summary nature of Mr Batchelor's dismissal must be weighed against the gravity of his misconduct in respect of which SCSF acted in deciding to dismiss him.[13]

• [42] In Sharp v BCS Infrastructure Support Pty Ltd,[14] a Full Bench of the Commission discussed the question of whether particular conduct by an employee warranted their summary dismissal as an "other relevant matter" within the meaning of s 387(h) of the Act (references omitted):

"[33] The relevance of the definition of "serious misconduct" in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of "serious misconduct" for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression "serious misconduct" is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression "serious misconduct" is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is "satisfied that the misconduct of a person contributed to the employer's decision to dismiss the person". However, it is clear that conduct may constitute "misconduct" for the purpose of s.392(3) without necessarily being "serious misconduct". The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.

[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee's conduct met a postulated standard of "serious misconduct". In Rankin v Marine Power International Pty Ltd Gillard J stated that "There is no rule of law that defines the degree of misconduct which would justify dismissal without notice" and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. "Serious misconduct" is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd Buchanan J said:

"[48] The terms 'misconduct', 'serious misconduct' and 'serious and wilful misconduct' are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term 'serious misconduct' is under consideration an evaluation of what conduct represents 'serious' misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2)."

[35] In the Decision, the Vice President, correctly, did not attempt to address the parties' submission concerning "serious misconduct" in the context of his consideration of whether there was a valid reason for the dismissal, but only as a relevant matter under s.387(h). His findings at paragraph [55] and [56] that Mr Sharp's conduct was "serious misconduct" was, we consider, responsive to the submission of BCS noted in the first sentence of paragraph [52] that "the Applicant's conduct constituted serious misconduct justifying immediate dismissal". That is, "serious misconduct" was used as a shorthand expression to described misconduct of a nature that justified summary dismissal. A finding of that nature was a matter which was open to be taken into account as relevant under s.387(h) because it involved an assessment of the seriousness of the conduct in question."

• [43] In my assessment, Mr Batchelor's conduct in the later stages of his employment with SCSF led to a tense workplace where Mr Batchelor was difficult to get on with and Mr Pretorius and other employees of SCSF did not enjoy working with Mr Batchelor, but I do not consider that his conduct was of such a grave nature as to be repugnant to the employment relationship. He did not engage in fraud or other similarly serious conduct.

• [44] After considering and taking into account each of the matters specified in section 387 of the Act, my value judgment is that SCSF's dismissal of Mr Batchelor was harsh, but was not unjust or unreasonable. I consider that the dismissal was harsh because, although there was a valid reason for Mr Batchelor's dismissal, his conduct did not warrant his summary dismissal and he was not notified of, and given an opportunity to respond to, the conduct which formed the valid reasons for his dismissal.

• [45] Having regard to all the circumstances, I am satisfied that reinstatement would be inappropriate in this case. It is clear from Mr Batchelor's evidence and the evidence given by Mr Pretorius that it would not be possible for them to have a viable and productive working relationship.

• [46] Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied.[15]

• [47] Having regard to all the circumstances of the case, including the fact that Mr Batchelor has suffered financial loss as a result of his unfair dismissal, I consider that an order for payment of compensation to him is appropriate.

• [48] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to Mr Batchelor. In assessing compensation, I am required by s 392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.

• [49] In undertaking this task, I shall use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases.[16] 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 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.

Remuneration Mr Batchelor would have received, or would have been likely to receive, if he had not been dismissed (s 392(2)(c))

• [50] Like all calculations of damages or compensation, there is an element of speculation in determining an employee's anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed.[17]

• [51] In light of my findings and conclusions in relation to the factors under s 387, including that SCSF had a valid reason for Mr Batchelor's dismissal but his conduct did not warrant summary dismissal, I find that had Mr Batchelor not been summarily dismissed on 13 February 2025, SCSF would have dismissed him on notice or by payment in lieu of notice. Mr Batchelor was employed by SCSF for just over 12 months. He was therefore entitled to two weeks' notice under s 117 of the Act. Accordingly, I find that Mr Batchelor's dismissal would have taken place two weeks after 13 February 2025 had he not been dismissed on that day.

• [52] If Mr Batchelor had remained employed from 14 February 2025 to 27 February 2025 (the two week notice period), he would have been unfit to work on account of the injury he sustained on 4 or 5 February 2025. As a result, he would in that two week period have received his 35.71 hours of accrued but untaken personal leave ($1,785.50)[18] and had the balance of the two week notice period as unpaid leave. It follows that the remuneration Mr Batchelor would have received, or would have been likely to receive, if he had not been dismissed would have been $1,785.50 gross.

Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f) and (g))

• [53] Mr Batchelor finished employment with SCSF on 13 February 2025. If he had remained in employment with SCSF for a further two weeks, his employment would have come to an end on 27 February 2025. Mr Batchelor did not earn any income in this two week period because he was injured and unable to work. Centrelink payments do not count as income.

• [54] It is necessary to consider whether to discount the remaining amount ($1,785.50) for "contingencies". This step is a means of taking into account the possibility that the occurrence of contingencies to which Mr Batchelor was subject might have brought about some change in earning capacity or earnings.[19] Positive considerations which might have resulted in advancement and increased earnings are also taken into account. Ordinarily, the discount for contingencies is only applied in respect to an "anticipated period of employment" that is not actually known.[20]

• [55] In the present case, there is no "anticipated period of employment" that is not actually known. That is, the evidence discloses the remuneration Mr Batchelor received in the two week period following his dismissal. In the circumstances, therefore, I will not discount the remaining amount for contingencies.

• [56] Save for the matters referred to above, there are no other matters which I consider relevant to the task of determining an amount for the purposes of an order under s 392(1) of the Act.

• [57] I have considered the impact of taxation, but I prefer to determine compensation as a gross amount and leave taxation for determination.

• [58] No submission was made nor was any evidence adduced on behalf of SCSF, that any particular amount of compensation would affect the viability of SCSF's business. No adjustment will be made on this account

• [59] In all the circumstances, I consider that Mr Batchelor's period of service with SCSF (just over 12 months) does not in all the circumstances justify any increase or reduction to any amount of compensation otherwise calculated.

• [60] I am satisfied that Mr Batchelor acted reasonably to mitigate his loss. His injury meant he was unable to work in the two week notice period.

• [61] Section 392(3) of the Act provides that if the Commission is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the Commission must reduce the amount it would otherwise order under s 392(1) of the Act by an appropriate amount on account of the misconduct.

• [62] For the reasons stated above, I am satisfied that Mr Batchelor engaged in misconduct and that his misconduct contributed to SCSF's decision to dismiss him. In my view, however, there is no appropriate amount by which I must reduce the amount of $1,785.50 on account of Mr Batchelor's misconduct in circumstances where I have already taken into account Mr Batchelor's misconduct and the fact that it gave SCSF a valid reason for his dismissal in determining that Mr Batchelor would have been employed for a further two weeks if he had not been summarily dismissed. To reduce the compensation figure of $1,785.50 by a further amount on account of Mr Batchelor's misconduct would have the effect of penalising him twice for the same conduct and thus, not accord Mr Batchelor with "a fair go all round" as required by section 381(2) of the Act. Further, I consider it is in the interests of justice that Mr Batchelor obtain an order for compensation reflecting the notice period he would have received had he been terminated on notice.[21]

Shock, distress or humiliation, or other analogous hurt (s 392(4))

• [63] 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.

• [64] The amount of $1,785.50 is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which Mr Batchelor was entitled in his employment with SCSF during the 26 weeks immediately before his dismissal. In those circumstances, I am satisfied that there is no basis to reduce the amount of $1,785.50 by reason of s 392(5) of the Act.

• [65] No application was made by SCSF for any amount of compensation awarded to be paid in the form of instalments.

• [66] In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate.

• [67] For the reasons I have given, I am satisfied that a remedy of compensation in the sum of $1,785.50 in favour of Mr Batchelor is appropriate in the circumstances of this case. I will issue an order PR787298 to that effect. The making of this order will not prevent Mr Batchelor from making a workers' compensation claim to recover the other income he has lost as a result of his injury.

[1] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8

[2] Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at 373

[4] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681 at 685

[6] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]

[8] Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J

[9] [2013] FWCFB 6191

[10] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1 at 14-15

[11] Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542].

[12] [2013] FWCFB 6191

[13] Johnson v Northwest Supermarkets Pty Ltd [2017] FWCFB 4453 at [5]; Sharp v BCS Infrastructure Support Pty Ltd [2015] FWCFB 1033 at [34]

[14] [2015] FWCFB 1033

[15] Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17]

[16] 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

[17] Double N Equipment Hire Pty Ltd v Humphries [2016] FWCFB 7206 at [16]- [17]

[19] Ellawala v Australian Postal Corporation Print S5109 at [36]

[20] Enhance Systems Pty Ltd v Cox PR910779 at [39]

[21] Johnson v Northwest Supermarkets Pty Ltd [2017] FWCFB 3897 at [24]

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