s.394 - Application for unfair dismissal remedy

Palmers Group Pty Ltd Trading AS Palmers Relocations

Application for an unfair dismissal remedy - Jurisdictional objection; casual employee and minimum employment period not served - Objection not sustained - Unfair dismissal found - Reinstatement not appropriate - Compensation appropriate - Compensation ordered.

• [1] This decision concerns an application for an unfair dismissal remedy made to the Fair Work Commission (the Commission) by Mr Mark Coats, in relation to the termination of his employment by Palmers Group Pty Ltd trading as Palmers Relocations (Palmers Relocations or the Respondent). Mr Coats claims his dismissal was unfair.

• [2] The matter was the subject of a short determinative conference held by me on Thursday, 6 March 2025 at which Mr Coats appeared and gave evidence on his own behalf. Mr Michael Dunstan, the Respondent's General Manager appeared and gave evidence on behalf of Palmers Relocations.

• [3] After consideration of the material before me, I find that at the time of his dismissal Mr Coats was a person protected from unfair dismissal; that he was dismissed unfairly; that reinstatement is not appropriate and that compensation is appropriate and is ordered for payment.

Section 396 - Initial matters

• [4] Section 396 of the FW Act requires the determination of four initial matters before consideration of the merits of the application. Those matters are, whether the application was made within the period required in s.394(2) of the FW Act, whether the person was protected from unfair dismissal, whether the dismissal was consistent with the Small Business Fair Dismissal Code, and whether the dismissal was a case of genuine redundancy.

• [5] In relation to these matters, I am satisfied that Mr Coats made his application within the period required in s.394(2). His dismissal took effect on 13 November 2024 and he lodged his unfair dismissal application the same day. As the Respondent is not a small business employer, the matter of consistency of Mr Coats' dismissal with the Code is not a relevant consideration. The other two initial matters, protection from unfair dismissal and genuine redundancy, require further consideration.

• [6] First, the Commission needs to determine whether Mr Coats is entitled to make this application. This question arises since the Respondent argues that, as a casual employee, Mr Coats has not completed the minimum employment period and is not a person protected from unfair dismissal.

• [7] Second, with reference to determination of the merits of Mr Coats' application, the Respondent argues that his dismissal came about because of a downturn in work and because he behaved in a threatening manner toward management. The first part of the Respondent's merits argument may be taken as a claim of genuine redundancy.

• [8] Mr Coats started working for Palmer's Relocations on or around 1 April 2021. He is vision impaired and is legally blind, however worked assisting in the loading and unloading of removal trucks. He was engaged and paid as a casual employee throughout his relationship with Palmers Relocations, working in some capacity for the company from the time of his first employment until being told on Wednesday, 13 November 2024 that no further work would be offered to him.

• [9] The Applicant put forward in his submissions the following table summarising his employment history;

* please note that I was away from work from 19 April 2024 until 30 May 2024 due to a torn ligament in my knee - however, it is my understanding from case law that an absence from work as a casual that is due to an illness or an injury does not break a period of continuous service. (Shortland v Smith Snackfood Co Ltd [2010] FWAFB, paragraph [13].

Also, there were three weeks between Nov 2023 and March 2024 that I was not rostered to work. These dates are:

• [10] Mr Coats argues, pertinent to completion of the minimum employment period, that he satisfies the timing requirement and that his employment was covered by the Road Transport and Distribution Award 2020. He argues that the above sequencing of employment amounts to a period of continuous service of not less than six months with Palmers relocation. While acknowledging the basis of his employment as a casual employee, he puts forward that his work as a casual was on a regular and systematic basis and that during the entirety of his service with Palmers Relocations he had a reasonable expectation of continuing employment.

• [11] His submissions on these matters go to the question of how he was provided with work;

"Based on Figure 1 above, I consider that all the periods of service listed should count toward my period of employment as they were all worked on a regular basis. Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6 states that the term " 'regular' implies a repetitive pattern and does not mean frequent, often, uniform or constant".

For every period of employment listed above I worked according to a repetitive pattern. I was engaged every week, usually for multiple shifts. There was also a 'system' involved in the way that work was offered to me: I would receive a text message from my supervisor at Palmers telling me when to come in and where to go. I also maintain that I had a reasonable expectation of continuing work as I was always and consistently re-engaged, even after my absences. I received nothing in writing nor was I told anything to the effect that I could not reasonably expect to be re-engaged after the end of every shift.

However, if the Commission does not consider that the periods of service from 7 April 2022 until 11 August 2022 can constitute periods of service toward my period of employment, I would argue that my period of service with Palmers from 9 September 2022 until 17 October 2024 most certainly can.

I worked on a regular and systematic basis from 9 September 2022 until 15 June 2023 (a period of 9 months and 7 days), after which I took two weeks off to deal with the death of my father. Then I worked from 30 June 2023 until 17 October 2024 (a period of 1 year and 3 months) after which I took pre-approved leave to visit my son in the UK.

As I have mentioned above, there was a period between 19 April to 30 May 2024 where I was away from work due to a torn ligament in my knee. However, I note that according to Shortland v Smiths Snackfood Co Ltd [2010] FWAFB 5709 an absence due to an injury or an illness does not break a period of continuous service [at paragraph 13]. So this would not break my period of service for the purposes of my period of employment.

As a result, the 9 month period of service between 9 September 2022 and 15 June 2023 should be considered as counting toward my period of employment for the purposes of protection from unfair dismissal. It is more than six months - which is the minimum employment period necessary for a medium to large business like Palmers. It was worked on a regular and systematic basis and during this time I had a reasonable expectation of continuing work based on the fact that I was consistently re-engaged and was not told that I could not or should not expect further shifts in the future."[2]

• [12] Palmers Relocations does not agree with Mr Coats' submission that the above history supports his claim of being a person protected from unfair dismissal, making these submissions about the casual character of Mr Coats' employment;

"Mark was employed as casual, his employment with Palmers was treated as such which worked both ways for both parties, Mark had the ability to not be available (or reject work) and was not available on many occasions over the period of his employment. We had no firm advance commitment to ongoing work with Mark taking into account our business model above.

Mark has also referred to his employment with Palmers as on a "casual" basis on more than one occasion."[3]

"Mark whilst has been with the company several years, was employed as a casual employee under casual conditions and this has not changed since his employment started. Mark chose to accept those conditions when they suited him and at other times didn't suit him, as an employer Palmers tried to support Mark at times even when we didn't have work at times. As seen in text messages with his direct report there was no certainty of work and our full belief is this what constitutes his casual employment"[4]

• [13] Palmers Relocations also submitted a spreadsheet of the hours worked by Mr Coats and the payments received by him.

HAS THE MINIMUM EMPLOYMENT PERIOD BEEN COMPLETED?

• [14] Determination of the Respondent's minimum employment period objection requires consideration of the nature of Mr Coats' engagement with Palmer Relocations, in particular whether periods of casual employment should be counted towards the Commission's determination of his period of employment.

• [15] A person is protected from unfair dismissal if they have "completed a period of service of at least the minimum employment period" and, so far as is relevant to this case, they are covered by a modern award (s.382). Mr Coats submitted that his employment was covered by the Road Transport and Distribution Award 2020, which was not contested by the Respondent. As a result, determination of whether he is a person protected from unfair dismissal turns on whether he had completed a period of continuous service of at least the minimum employment period.

• [16] The evidence before me about the number of people employed by the Respondent varies, however all evidence puts the number of employees above the small business employer threshold: the Form F3, the employer response form states 30 were employed when Mr Coats' employment ended, and in Mr Dunstan's evidence, who agreed this was about the number, "give or take", noting a lot of contractors were employed;[5] 65 is the number stated in the Respondent's submissions;[6]

• [17] Since Palmer Relocations employed more people than the small business employer threshold at the date nominated by Mr Coats as his date of dismissal, 13 November 2024, the relevant minimum employment period is 6 months.

• [18] In this regard, the FW Act provides a general meaning of "service" as set out in s.22:

"(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee's contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

• [19] Section 384 of the Act provides that the period of employment to be taken into account in determination of the minimum employment period is the period of continuous service the person had with the employer, but that certain casual employment is to be excluded. The section provides the following, so far as is relevant:

(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee's period of employment with the new employer.

• [20] Determination of the matters within s.384 requires an examination of the basis of a person's employment, with it being accepted that "[i]t is the employment which must be on a regular and systematic basis. This does not mean that the hours or days of work must be regular and systematic".[7] The provision applies as much to successive contracts and non-continuous periods of employment.[8] A conclusion that the employment was regular and systematic does not require identification of "a consistent pattern of engagement in the number of days worked each week, the days of the week worked and the duration of each shift".[9] A distinction is to be drawn between a period of service and a period of employment.[10]

• [21] Further, the following observations may be drawn about establishment of continuous service:

• • a person's continuous employment is broken only when the employer or the employee make it clear to the other that there will be no further engagements;[11]

• • the gaps between individual engagements do not necessarily interrupt the employee's continuous employment;[12]

• • a series of contiguous periods of service may count toward a single period of employment;[13]

• • contiguous periods of employment will only count toward the person's period of employment if the conditions within s.384(2)(a)(i) and (ii) are met;[14] further, in such assessment it is the engagement that must be regular and systematic, not the hours and that 'regularly' should be construed liberally, and that 'systematic' does not mean predictable;[15] however the hours of work are not unanalytically unimportant.[16]

• [22] The Applicant's submissions and evidence shows that over the period of his whole engagement by Palmers Relocations there were nine periods of absence as follows;

• 1. Three weeks in June 2022 at the Applicant's instigation when he undertook guide dog training. Mr Coats gave about 2 to 3 weeks' notice of his need for this absence.[17]

• 2. One week in July 2022 when Mr Coats needed to assist his mother who was in hospital. No notice was given of this as it related to an emergency hospitalisation.[18]

• 3. Four weeks in August and September 2022 when he travelled to the United Kingdom to visit his son. Mr Coats' recollection is that he gave about one month's notice of this absence.[19]

• 4. Two weeks in June 2023 after the sudden death of his father.[20]

1. One week in November 2023 when Palmer Relocations did not have work for him

1. A further week in late December 2023 when again there was insufficient work;

1. About one week in March 2024 when Palmer Relocations also had insufficient work for Mr Coats;

• 8. About six weeks in April and May 2024 associated with treatment for a torn ligament in his knee. Mr Coats' recollection is that he gave notice likely shortly prior to the absence.[21]

• 9. About four weeks from 17 October 2024 when Mr Coats again travelled to the UK to visit his son. Mr Coats notified Palmer Relocations of this absence in June with the absence being approved by Kieran O'Hara.[22]

• [23] The Respondent's spreadsheet of hours worked by Mr Coats largely demonstrates that Mr Coats worked regularly, albeit that the number of hours worked in each week fluctuated according to need.

• [24] I am satisfied from the evidence that the basis of Mr Coats employment, albeit as a casual employee, was on a regular and systematic basis. It was regular inasmuch as it was frequent, with work being performed in most weeks. His employment was also systematic, with Mr Coats being contacted by text message the afternoon of the day before the work was required, usually received between 4 PM and 5 PM. When work was required, Mr Coats' start time was always 6 AM, with the majority of days worked continuing to 2.30 or 3 PM.[23]

• [25] The periods in which work was not performed are in three categories: periods of pre-arranged holiday leave; periods for Mr Coats' own illnesses or for emergencies relating to his parents; and periods of short duration for which Palmers Relocations did not temporarily require Mr Coats' services. In no respect can it be found on the evidence before me that either side made it clear to the other in any of those circumstances that there would be no further engagements because of these breaks.

• [26] The final period of employment, from 30 June 2023, ultimately concluded with the termination text sent to Mr Coats on 13 November 2024. The period though was interrupted with several events;

1. The period between 19 April and 30 May 2024, when Mr Coats required treatment and rehabilitation for a torn ligament in his knee. This was a legitimate absence with Mr Coats' evidence being that he informed the Respondent of his absence prior to it commencing. There was no communication between the parties that the time required for recovery was to be treated as ending Mr Coats' employment. The time required for recovery is not to be treated as breaking his period of continuous service.

1. There were three periods in late 2023 and March 2024 in which Mr Coats was not rostered for work by Palmers Relocations. There is no evidence that these periods were to be treated as ending his employment with the Respondent and are not to be taken as breaking his period of continuous service.

• 3. Mr Coats was absent from 17 October 2024 for leave in order to see his son in the UK, with his uncontradicted evidence being that he notified his employer of the absence in June and that the leave was "approved".[24] This also did not end Mr Coats' employment or break his continuous service.

• [27] In the circumstances, none of these interruptions break Mr Coats' continuous service or his continuous employment. The work performed on either side of these gaps counts toward a single period of employment. It follows therefore that Mr Coats has completed a period of employment of at least the minimum employment period of six months, and that he was at the time of his termination of employment, a person protected from unfair dismissal.

• [28] Palmers Relocations put forward several reasons for Mr Coats termination of employment, one of which is a downturn in work and a reported unavailability of work. The Respondent also justifies Mr Coats' dismissal on the basis of him being threatening to his managers.

• [29] Mr Coats was informed of his dismissal by a text message from Mr Alvin Daniela, the Respondent's Operations Manager, on 13 November 2024. At the time Mr Coats was in the UK visiting his son and had been away from work since 17 October 2024.[25] Mr Daniela's message set out as follows;

• [30] The message implies two operative reasons for Mr Coats' termination of employment. First it is stated that "everyone has been getting minimal hours", with Mr Coats being told that "we will no longer require your services". Second it suggests there is another reason for his termination, connected with Mr Coats' conduct, with the author stating he was not going to go into details "but to be honest with you I don't appreciate all the messages you have sent".

• [31] The first of the operative reasons could be construed as a dismissal for reason of genuine redundancy or a redundancy nonetheless and the second as a dismissal for misconduct, when the text message from Mr Daniela is considered with the Respondent's submissions.

• [32] The term "genuine redundancy" is defined in s.389, which is in these terms;

(1) A person's dismissal was a case of genuine redundancy if:

(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(b) the enterprise of an associated entity of the employer."

• [33] The definition is in three parts; the continuing need for the person's job; consultation as may be required; and considerations of redeployment.

• [34] I am not satisfied that either of these essential elements have been met by the Respondent.

• [35] In relation to whether Palmer Relocations no longer required Mr Coats' job to be performed by anyone, the Respondent asserts with insufficient detail that its trading conditions from mid-2024 had deteriorated which led to its need for a reduced workforce. Some objective evidence is available to support the contention, being the fact that no work was offered to Mr Coats in three weeks between around November 2023 and March 2024. However, the periods in question are a long way from November 2024, when Pamer Relocations decided to dismiss Mr Coats. Mr O'Hara also referred to the situation in an email to Mr Coats shortly after the date of termination, however the reference is not connected with detail.

• [36] While it is possible the Respondent could establish its contention to a satisfactory standard, it has not done so in these proceedings.

• [37] Mr Coats' evidence is that, approximate to the time he was dismissed, there had been new people employed within the company. He draws from this that, rather than the Respondent reducing its overall labour force, which is the argument put to him, it was putting staff on.[26] Mr Dunstan did not accept this overall characterisation, instead maintaining that Palmers Relocations' revenue had declined substantially the previous year, as well as stating he had no knowledge of the Respondent engaging new employees;

"THE COMMISSIONER: Particularly about the reason for the termination. As best as you understand it, do you know why Mr Coats's employment ended?

MR DUNSTAN: Yeah, look, it's as per what Alvin has basically alluded to. We have had - we had had a downturn in work so we were about $2 million shy of revenue from the previous year. After this summer just gone, it will be a further million and a half down in revenue from the previous summer. So that's three or four million in revenue over two years pretty quickly that has gone down, so it has been a major downturn in our business. Yeah, it's - so - I'm (indistinct)."[27]

"THE COMMISSIONER: One of the things which Mr Coats says is that around about the time that his employment ended there were other people employed. Do you have any knowledge about that situation?

• [38] It could be expected that an employer relying upon a decision to dismiss an employee for reason of redundancy would put forward cogent evidence about its trading conditions or volumes and how decisions may have been made to reduce the number of its employees generally. No evidence of this type is before the Commission in these proceedings. The Respondent has not discharged its onus to establish its assertions on these matters.

• [39] In relation to the other elements of s.389, there is no evidence at all of consultation with Mr Coats as is required by the Road Transport and Distribution Award 2020 and there is no evidence there was consideration of the redeployment of Mr Coats, if such opportunities may have existed.

• [40] It follows that I cannot be satisfied that the Respondent's termination of Mr Coats' employment was a genuine redundancy as defined in s.389 of the FW Act.

• [41] I turn now to consideration of the merits of Mr Coats's application.

• [42] The legislative provisions relevant to this matter are set out in s.387 of the FW Act, which is as follows:

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."

• [43] So far as it is relevant to the circumstances of this case, a dismissal is unfair, in the case of a person protected from unfair dismissal, when that person is dismissed in a manner that was harsh, unjust or unreasonable, taking into account the criteria within s.387. I will deal with each of the criteria within s.387 in turn.

(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)

• [44] To be a valid reason, the reason must be "... sound, defensible or well-founded." A reason which is "... capricious, fanciful, spiteful or prejudiced ..." cannot be a valid reason.[29] The reason for termination must be defensible or justifiable on an objective analysis of the relevant facts.[30] The valid reason for termination is not to be judged by legal entitlement to terminate an employee, "... but [by] the existence of a reason for the exercise of that right" related to the facts of the matter.[31] Ascertainment of a valid reason involves a consideration of the overall context of the "practical sphere" of the employment relationship.[32]

• [45] Palmer Relocations argue two reasons for Mr Coats termination of employment; a downturn in work leading to a redundancy, and the parting of ways for reason of misconduct.

• [46] In relation to the first matter of redundancy, for the same reasons as referred to above, I do not accept that Palmer Relocations has established to the requisite standard that the termination of Mr Coats' employment came about for reason of redundancy caused by an insufficiency of work.

• [47] This is not a situation in which a finding can be made that a job had gone, but since the requirements of s.389 for consultation and consideration of redeployment have also not been met, the overall circumstances could not be characterised as a genuine redundancy. Instead, the situation is that, despite the contentions of the Respondent that the job has gone, its argument has not been established to a sufficient standard before me, again noting that I rely upon my reasoning above about the factual circumstances.

• [48] Importantly, because of Mr Coats' unrebutted evidence that other people had been employed around the time he was dismissed, I cannot be satisfied that the Respondent no longer wanted Mr Coats' job to be done by anyone, although I note that correspondence to Mr Coats from Mr O'Hara referred to information he had received from Mr Daniela that the business is quiet and there was not enough work to go around.[33] At best, Mr O'Hara's reply to Mr Coats, which was given after the dismissal had been notified, is a reference to general trading conditions and does not lead directly to a finding that Mr Coats' job was no longer required to be done by anyone.

• [49] In relation to its argument that Mr Coats was terminated for reason of misconduct the matter is first raised in Palmer Relocations' Form F3, the employer response form. Palmers Relocations argues that Mr Coats had been threatening towards management in such a way as to justify his termination of employment. In particular, relying upon a string of text messages in April of an unknown year and August 2023 and stating that Mr Coats was "often threatening towards management".[34]

• [50] It is said by the Respondent that "Alvin Daniela our Operations Manager was scared of Mark after being threatened on several occasions both directly and via text to others and personally".[35] However, in respect to events prior to dismissal, no particulars have been provided to the Commission about the occasions on which this may have occurred or the conduct of Mr Coats which is alleged to have been threatening. Further, Mr Daniela did not give evidence to the Commission.

• [51] With respect to conduct alleged after his termination, the contention is made by the Respondent that after being dismissed Mr Coats tried to find out Alvin's address. This is alleged to have occurred on 15 November 2024. The messages which support that contention are cut off and so I cannot be certain of the complete text, however sufficient is shown to verify Mr Coats had sought out this information; that someone from Palmer's challenged him about this on Friday, 15 November 2024; to which Mr Coats further responded;

• [52] In its submissions, Palmers Relocations argued with reference to the above message that "there were bullying behavioural issues with Mark which also led to the comment of "its best we part ways""[37] as well as that Mr Daniela was scared of Mr Coats. Those arguments are not supported in Palmers Relocations submissions and there is no witness evidence on the subject.

• [53] The person who initially responded to these proceedings on behalf of Palmers Relocations, Kieran O'Hara, a Director of the company, had left the business before Mr Coats' application proceeded to the need for response submissions and a determinative conference. Mr Michael Dunstan appeared at the determinative conference for the Respondent, however did not have much knowledge of the background to Mr Coats' dismissal. Neither Mr Daniela or Mr O'Hara gave evidence in these proceedings.

• [54] The Respondent put forward several text messages involving Mr Coats, however those messages do not lead to a finding about the bullying conduct in which it says Mr Coats engaged. There is no oral evidence about them or their context. They date from August 2023[38] and April in an undated year.[39] The words of the messages are plainly offensive, however it is unclear whether it was Mr Coats or the other party who typed the words. Given these uncertainties I do not reproduce the messages here.

• [55] Mr Coats says he and another employee, Kevin Singh, exchanged messages about Mr Daniela and;

"I did, however, on two occasions comment about his behaviour to another worker at Palmers, Mr Kevin Singh (Mr Singh). This was done as a means of 'blowing off steam' and was not intended to be taken seriously. I do not believe that Mr Daniela knew about these text messages until after I was dismissed".[40]

• [56] The Applicant also puts forward a claim that, in its decision to dismiss him, the Respondent discriminated against him for reason of his disability, saying "I am also legally blind and they have discriminated against me saying if I could drive or perform paper-based tasks I would still have work, despite me being able to carry out other tasks".[41] The claim was rejected by the Respondent.

• [57] The further claim is made by the Respondent that, on 15 November, Mr Coats sought out Mr Daniela's address and this was cause for the latter to be concerned about his safety. On Mr Coats' evidence, which was not contradicted by the Respondent, he tried to obtain Mr Daniela's email address and not his home address and this request came about after he had been dismissed. Mr Coats submissions to the Commission on this subject include the following

"I was very upset when I received the WhatsApp message from Mr Daniela on 13 November 2024. At the time I received the message I was still in the UK with my family. I am the sole income earner for my family.

When I received the message, I immediately tried to contact Mr Singh, as well as Mr Michael Dunstan (General Manager of Palmers) and Mr James Palmer (Director of Palmers). I has a text message exchange with Mr Palmer who told me that he knew nothing about my dismissal. Mr Singh subsequently rang me back. I told Mr Singh what had happened and asked him if he knew anything. I also asked him for Mr Daniela's email address. At no time did I ask for Mr Daniela's home address. I wanted Mr Daniela's email address so that I could draft an email to him formally disputing my dismissal. Mr Singh provided me with his work email address.

Following this, I also sent an email to Mr O'Hara. ..."[42]

• [58] The letter sent by the Applicant to Mr O'Hara seeks out greater information about his dismissal and is in respectful terms. The letter was responded to by Mr O'Hara, who accepts that the mode of termination "could have been handled better and not whilst you were away". Mr O'Hara also took the opportunity to reiterate information he received from Mr Daniela, that the business is quiet and there was not enough work to go around.[43]

• [59] The overall evidence before me does not support that Mr Coats was, at a time proximate to his termination of employment, making threats to management. Further, the material before me suggests that the text messages relied upon by the Respondent in these proceedings were drawn to management's attention only after Mr Coats had been terminated. Mr Coats denies asking for Mr Daniela's home address stating he sought only the latter's email address. In any event the request was made after Mr Coats had been dismissed.

• [60] On the basis of Mr Coats's evidence, which I accept, I do not find there was a valid reason for Mr Coats's dismissal. The contention that there had been a downturn in work requiring Mr Coats' redundancy is not made out in the evidence, and neither is the contention that Mr Coats had been threatening to his managers.

(b) whether the person was notified of that reason

• [61] It is well established that consideration of s.387(b) is directed to whether or not the dismissed person was notified of the valid reason for their termination, before the decision to dismiss them was made, with it being expected that the notification of the valid reason is in explicit terms.

• [62] As I have not found there was a valid reason, further consideration of this criterion is unnecessary.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

• [63] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal, there needs to be a finding that there is a valid reason for dismissal.[44] While so, it is also accepted that "an opportunity to respond" amounts to an opportunity to provide reasoning to a decision maker that would, all things being equal, allow a reasoned explanation to cause the decision maker to accept what is proffered and to change from their foreshadowed path.[45]

• [64] A provision in predecessor legislation, requiring there not be dismissal until "the employee has been given an opportunity to defend himself or herself against the allegations made", has been held to be a requirement not needing any particular formality, being "intended to be applied in a practical, common sense way so as to ensure that the affected employee is treated fairly.[46] Where the employee is aware of the precise nature of the employer's concern about his or his conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section".[47]

• [65] Mr Coats was notified of his dismissal when he was away from work and in the UK and had no opportunity to respond. Given that I have not found there was a valid reason for his termination of employment, consideration of this criterion is a neutral factor in my overall determination of whether hers was an unfair dismissal.

(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

• [66] There was no meeting to discuss Mr Coats' dismissal. This criterion is a neutral factor in my overall consideration.

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

• [67] While the Respondent puts forward matters of conduct on the part of Mr Coats as justifying his dismissal, his evidence is that at no stage was he warned or counselled about any aspect of his performance including matters of conduct.

(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

• [68] There is no evidence before me that would suggest the size of the employer's enterprise likely impacted or did impact on the procedures it followed in effecting Mr Coats's dismissal and so this criterion is a neutral consideration in my overall determination of whether his was an unfair dismissal.

(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

• [69] There is no evidence before me as to the absence or otherwise of dedicated human resource management specialists or expertise in the enterprise of Palmers Relocations and so this criterion is also a neutral consideration in my overall determination of whether Mr Coat's dismissal was an unfair dismissal.

(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

• [70] Aside from the matters above, I take into account that Mr Coats is a vision impaired person considered to be legally blind. The matter of Mr Coats' vision impairment is plainly something that means the impact of a dismissal on him will likely be disproportionately greater than for the broader population.

• [71] After considering each of the criteria within s.387, I am not satisfied there was a valid reason for Palmers Relocations' dismissal of Mr Coats.

• [72] The FW Act requires the Commission to consider whether a dismissal was harsh, unjust or unreasonable by taking into account the matters at ss.387 (a) to (h). The meaning of the term 'harsh, unjust or unreasonable' was considered by the High Court of Australia in the matter of Byrne and Frew v Australian Airlines Limited:

"It may be that the termination is harsh but not unjust or 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."[48]

• [73] It has been further held that a dismissal may be unjust, because the employee was not guilty of the misconduct on which the employer acted; unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct.[49]

• [74] I find that Mr Coats' dismissal was an unfair dismissal, being each of harsh, unjust and unreasonable. Mr Coats' dismissal was unjust and unreasonable on the basis that Palmers Relocations has not satisfied the Commission that his dismissal was either due to a downturn in work or matters of conduct. His dismissal was harsh because of the impact it would have on him has a vision impaired person.

• [75] The sections of the Act dealing with remedy once a finding of unfair dismissal has been made are set out in ss.390 to 393.

• [76] Pursuant to s.390(3), an order for the payment of compensation to a person must not be made unless the Commission "is satisfied that reinstatement of a person is inappropriate" and the Commission "considers an order for payment of compensation is appropriate in all the circumstances of the case."

• [77] Mr Coats does not argue that reinstatement should be considered by the Commission in the event of a finding of unfair dismissal. After reviewing the evidence and other material before the Commission I concur that in this case, reinstatement would be inappropriate.

Compensation - what must be taken into account in determining an amount?

• [78] Having determined that reinstatement is inappropriate, compensation may only be ordered if the Commission considers an order for payment of compensation is appropriate in the circumstances of the case (s.390(3)(b)). That is, an order for compensation is not automatic if reinstatement is found to be inappropriate, and is instead a discretion to be exercised, subject to certain further consideration. In this regard, s.392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the applicant in lieu of reinstatement, including:

"(a) the effect of the order on the viability of the Respondent's enterprise;

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

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

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

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

(g) any other matter that the Commission considers relevant."

• [79] I consider each of these criteria and the circumstances of the case below.

Effect of the order on the viability of the Respondent's enterprise

• [80] There is no material before me that would enable a finding of any type about the effect of an order for compensation on the viability of the Respondent's enterprise.

• [81] Mr Coats's employment with Palmers Relocations was between 1 April 2021 and 13 November 2024, a period of slightly more than 3 ½ years, with the breaks referred to earlier in this decision. This is neither exceptionally lengthy employment nor very short employment. Because of this, his length of employment does not compel a change in the amount of compensation I would order.

Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed

• [82] Determination of the anticipated period of remaining employment with the Respondent that the Applicant may have had in Mr Coats's case has some difficulties.

• [83] By late 2024 there had been three periods in the last year in which Mr Coats was not rostered owing to lack of sufficient work. Mr O'Hara's reply to Mr Coats on 13 November 2024 refers to there not being enough work to go around at that time. While these matters are not established in the evidence to a sufficient degree to allow a finding of redundancy, they do establish the Respondent was operating under some trading pressures, with likely further consequences for employees generally and Mr Coats in particular.

• [84] While misconduct on the part of Mr Coats is not established in the evidence, his criticism of his managers in text messages was unwise and it would likely only be a matter of time before the exchanges were discovered. If they were discovered, Mr Coats and others involved would probably be held to account with disciplinary action of some kind.

• [85] Overall, these matters do not suggest an employment relationship that would continue indefinitely. If Mr O'Hara's assessment of the lack of work proved accurate, a termination for reason of redundancy, properly implemented seems likely in the relatively near future.

• [86] In the circumstances, these considerations lead me to the view that the anticipated period of employment is 8 weeks; that is, until mid-January 2025. A longer period would suffer from a lack of recognition of what the company's managers (Mr Dunstan and Mr O'Hara) saw as trading pressures.

Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal

• [87] Mr Coats related to the Commission the effort he had taken to obtain further employment after being dismissed, which included registering for assistance with employment with a specialist disability employment service.[50] As at the date of the determinative conference Mr Coats had not been able to obtain replacement employment.

• [88] I am satisfied those efforts are sufficient for the purposes of the obligation he had to mitigate the loss he suffered because of his dismissal.

Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation

• [89] Mr Coats's evidence is that he has not obtained alternative employment since being dismissed by Palmers Relocations.

Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation

• [90] Mr Coats was not in alternative employment at the time of the determinative conference conducted by me, and I apprehend that as a vision impaired worker previously in low-skilled employment, it is likely obtaining further employment may take some time.

• [91] I consider it relevant for the purposes of determination of compensation that I take into account Mr Coats' vision impairment.

• [92] I also consider it relevant to take into account that Mr Coats' employment with Palmers Removals could only be regarded as semi-secure. While employed with the Respondent since April 2021 the basis of the employment was casual, and there were the three periods referred to earlier in this decision when work was not offered to him for reason of lack of work.

Compensation - how is the amount to be calculated?

• [93] The well-established approach to the assessment of compensation in unfair dismissal matters is to apply the 'Sprigg formula' derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul's Licensed Festival Supermarket (Sprigg).[51] The approach and Sprigg reasoning has been confirmed several times in Full Bench decisions, including in ERGT Australia Pty Ltd v Kevin Govender.[52]

• [94] The approach in Sprigg is as follows:

Step 1: Estimate the remuneration the Applicant 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 he would have received if they had continued in their employment.

• [95] At the time of his dismissal, the Road Transport and Distribution Award 2020 provided that the "Transport employees" schedule of the Award classified a "furniture remover's assistant" or a "Loader - other than freight forwarder" as a Transport Worker Grade 1. The rate of pay for a casual Grade 1 employee is $30.98 per hour,[53] while the rate paid to Mr Coats was $30 per hour.[54] A person in the Schedule A classifications and who "is a recognised furniture carter engaged in removing and/or delivering furniture" is also entitled to a weekly allowance of $25.27,[55] compared with the amount paid to Mr Coats as a "Furniture Allowance" of $23.03. I shall use the Award rates as the basis of calculation of compensation.

• [96] Between 30 June 2023 and 17 October 2024, (a period of about 68 weeks), Mr Coats worked 1,813 hours in total, which is an average of about 26.7 hours per week. On the basis of that average Mr Coats would have been paid about $852.44 per week (26.7 x $30,98 = $827.17, plus $25.27 = $852.44).

• [97] It follows that my estimation of the remuneration Mr Coats would have received or have been likely to have received if his employment had not been terminated is $6,819 for an 8 week period. Added to that amount is $784, being the amount of statutory superannuation contributions Mr Coats would have received for the anticipated period of employment on the basis that the applicable rate is 11.5% from 1 July 2024.

• [98] The second step in Sprigg requires the deduction of monies earned since termination, with the only exclusions being monies received from other sources and unrelated to work done. No deduction is required as Mr Coats has not been in employment since being dismissed.

• [99] It is necessary to consider the impact of both favourable and unfavourable contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment,[56] noting that it may not be appropriate to deduct contingencies if all of the projected period of continued employment has passed.[57] In Mr Coats' case, I find there are none that ought to be taken into account in this matter.

• [100] I have considered the impact of taxation but have elected to settle a gross amount as set out in the table below and the compensation to be ordered will be subject to taxation according to law.

• [101] Having applied the formula in Sprigg, I am nevertheless required to ensure that "the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case."[58]

• [102] I am satisfied that the compensation to be ordered by me is proportionate to the circumstances of the case. In this regard, I consider the total quantum to be appropriate, with no deductions either for efforts to obtain further employment, or post-termination earnings.

Compensation - is the amount to be reduced on account of misconduct?

• [103] If I am satisfied that misconduct of the Applicant contributed to the employer's decision to dismiss_,_ I am obliged by s.392(3) of the FW Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct. As I have not identified misconduct on the part of Mr Coats, no deduction is made for that purpose.

• [104] My calculation of the amount payable to Mr Coats is set out in the following table:

1. Estimate the amount the employee would have received or would have been likely to receive if the employment had not been terminated,

8 weeks projected lost income at the rate of $852.44 per week.

Employer superannuation contribution - 11.5% (as applicable after 1 July 2024)

• half of the employee's annual wage OR
• the compensation cap, which is $87,500 for 2024-25

In Mr Coats's case the compensation cap is estimated as $22,163 (26 weeks x $852.44 per week)

• [105] An order for compensation consistent with the above table will be issued by me at the same time as this decision.[59] The order will require a payment of wages in the amount of $6,819, to be taxed according to law, and of superannuation in the amount of $784, to be paid into Mr Coats' nominated superannuation fund, each to be paid within 14 days of the date of this decision.

[1] Applicant's Submissions in Response; Digital Hearing Book (DHB), pp.34-35.

[2] Applicant's Submissions in Response; DHB, pp.35-37.

[3] Respondent's Outline of Submissions; DHB, pp.160 - 161.

[5] Form F3 - Employer Response Form, [1.7]; DHB, p.142 & Transcript, PN 252.

[6] Respondent's Outline of Submissions; DHB, p.160.

[7] Ponce v DJT Staff Management Services Pty Ltd T/A Daly's Traffic [2010] FWA 2078, [66].

[8] Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6, 149 IR 339, [11].

[9] Angele Chandler v Bed Bath N' Table Pty Ltd [2020] FWCFB 306, [11].

[10] Shortland v Smiths Snackfood Co Ltd, [2010] FWAFB 5709.

[15] Ibid, [65] - [69]; adopted by the Full Bench in Bronze Hospitality Pty Ltd v Janell Hansson [2019] FWCFB 1099, [24].

[16] Bronze Hospitality Pty Ltd v Janell Hansson [2019] FWCFB 1099, [24].

[29] Selvachandran v Peteron Plastics [1995] IRCA 333; (1995) 62 IR 371, 373.

[30] Robe v Burwood Mitsubishi Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999).

[31] Miller v UNSW [2003] FCAFC 180 (Gray J), [13].

[32] Selvachandran v Peteron Plastics [1995] IRCA 333; (1995) 62 IR 371, 373.

[33] Applicant's Outline of Argument: Merits - Attachment MC - 5; DHB, pp.110 - 111.

[34] Form F3 - Employer Response; DHB, pp.145 & 148 - 155.

[35] Form F3 - Employer Response [3.1]; DHB, p.145.

[36] Form F3 - Employer Response - Annex 3; DHB, p.155.

[37] Respondent's Outline of Submissions; DHB, p.160.

[38] Form F3 - Employer Response - Annex 1; DHB, p.149.

[40] Applicant's Outline of Argument; DHB, p.97.

[41] Form F2 - Application Form [2.1]; DHB, p.5.

[42] Applicant's Outline of Argument; DHB, p.99.

[43] Ibid, Attachment MC - 5; DHB, pp.110 - 111.

[44] Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print S2679 [41].

[45] Wadey v YMCA Canberra [1996] IRCA 568 cited in Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544; (2010) 204 IR 399 at [85].

[46] Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1; [2010] FWAFB 1200 at [26] citing Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1 at 7 (Wilcox CJ).

[47] Gibson v Bosmac Pty Ltd [1995] IRCA 222 (5 May 1995); [1995] IRCA 222; (1995) 60 IR 1 at 7 (Wilcox CJ).

[48] [1995] HCA 24 (McHugh and Gummow JJ), [128].

[49] Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1,10 citing Byrne v Australian Airlines Ltd [1995] HCA 24 (McHugh and Gummow JJ), [128].

[51] [1998] AIRC 989; (1998) 88 IR 21.

[52] [2021] FWCFB 5389, [35].

[53] Road Transport and Distribution Award 2020, Schedule C, clause C.4.1.

[54] Form F3 - Employer Response [1.5]; DHB, p.142 & Applicant Payslip 17 October 2024; DHB, p.82.

[55] Road Transport and Distribution Award 2020, clause 19.3(d)(v).

[56] Enhance Systems Pty Ltd v Cox [2001] AIRC 1138, [39]

[57] Bowden v Ottrey Homes [2013] FWCFB 431, [54].

[58] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [17].

[59] PR786591.

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