Fair Work Act 2009

s.394 - Unfair dismissal

[1] On 15 May 2017, Mr Phillip Seitz (Mr Seitz) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Iron Bay Pty Ltd T/A City Beach IGA (City Beach IGA).

[2] On 7 June 2017, City Beach IGA lodged a Form F3 Employer Response noting it objected to the FWC's jurisdiction in determining the Application on the ground that City Beach IGA was a small business and the dismissal was consistent with the Small Business Fair Dismissal Code (Code). On 19 July 2017, City Beach IGA lodged a revised Form F3 Employer Response noting it also objected to the FWC's jurisdiction in determining the Application on the ground that Mr Seitz resigned and was not dismissed from his employment.

[3] The parties attended a conciliation conference before me on 11 August 2017, but the issues in dispute remained unresolved. At the conclusion of the conference, both parties were advised that directions would be issued for the hearing and determination of the jurisdictional objections and the merits of the Application.

[4] The Application was listed for hearing on 10 October 2017 (Hearing). Taking into account the parties circumstances, and their wishes, it was determined that a Determinative Conference would be the most effective and efficient way to determine the matter.

[5] Directions were issued on 17 August 2017 to ensure the efficient conduct of the Hearing (Directions). Those Directions required Mr Seitz and City Beach IGA to file and serve an outline of submissions, copies of authorities on which they proposed to rely at hearing, witness statements of any witnesses they proposed to call, and copies of any documents on which they sought to rely as evidence on or before close of business, 31 August 2017 and 14 September 2017 respectively. The Directions also required any party who sought to be represented by a lawyer or paid agent at the Hearing to file written submissions to this effect addressing the provisions of section 596(2) of the FW Act.

[6] On 31 August 2017, City Beach IGA sought permission to be represented at the Hearing.

[7] Section 596 of the Fair Work Act 2009 (Cth) (FW Act) provides as follows:

"596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

[8] Commissioner Cambridge in Karkamakar v Australian Campus Network Pty Ltd [2013] FWC 2340 made the following comments about section 596 of the FW Act:

"[9] These provisions represent a more stringent requirement for the granting of permission than existed under the predecessor provisions of the Workplace Relations Act 1996. There have been a number of Decisions of the Commission which have recognised the legislative intention to broadly restrict and limit the basis upon which permission would be granted for legal (and paid agent) representation in proceedings before the Commission as compared with the Australian Industrial Relations Commission. In this respect I refer, in particular, to the Decision of Harrison C in Rodney James Rogers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572, and the Decision of Lewin C in Chris Lekos v Zoological Parks and Gardens Board [2011] FWA 1520."

[9] City Beach IGA submitted that permission should be granted for it to be represented by Mr David Vilensky (Mr Vilensky) of Bowen Buchbinder Vilensky Lawyers at the Hearing because:

1. Mr Vilensky had prepared the materials filed in accordance with the Directions and his familiarly with the matter would enable the matter to be dealt with more efficiently.

2. City Beach IGA would otherwise be represented by Mr Yuhai (Jack) Cao (Mr Cao) who was not fluent in English and would be unable to make oral submissions which would be of assistance to the FWC.

3. The existence of a jurisdictional objection added an element of complexity to the matter.

4. There would be a denial of natural justice if Mr Cao was required to represent City Beach IGA because all the documents filed to date had been prepared by Mr Vilensky.

[10] The submissions in support of permission to be represented were not supported by reference to any relevant authorities. I have taken this into account when determining whether the granting of permission for Mr Vilensky to represent City Beach IGA would enable the matter to be dealt with more efficiently.

[11] The granting of permission to be represented to City Beach IGA was opposed by Mr Seitz, who did not seek leave to be represented at the Hearing. In his submissions objecting to the granting of leave filed on 18 September 2017, Mr Seitz asserted that:

1. Unlike City Beach IGA, he had prepared his materials without legal assistance and was therefore already at a disadvantage as compared to City Beach IGA.

2. Mr Cao's use of English in his running of the business demonstrated a sufficient proficiency in the English language.

3. The fact that City Beach IGA's materials had been prepared with legal assistance was not a basis for granting leave to be represented at the Hearing.

4. There would be unfairness as between him and City Beach IGA if leave to be represented was granted to City Beach IGA.

[12] Mr Seitz is a butcher by trade. He appeared on his own behalf at the Conference and did not seek permission to be represented at the Hearing. At the Conference and the Hearing he was supported by his son. During the Conference, Mr Seitz required the assistance of his son to articulate information he was having difficulty articulating independently. It was not a ground relied upon by City Beach IGA but, if it were, I am not satisfied that it is unfair not to grant permission for City Beach IGA to be represented taking into account fairness as between the parties based on my observations of the parties at the Conference and their communications with Chambers.

[13] The existence of complexity is not a separate ground for the granting of permission but instead a factor to take into account in determining whether the matter might be more efficiently dealt with if permission is granted. The jurisdictional objection relied upon by City Beach IGA as a basis for granting leave is that Mr Seitz resigned and was not dismissed. This is largely a question of fact. I am not satisfied that this jurisdictional objection makes the matter unduly complex or that the matter as a whole is excessively complex. Given that the question of whether the business is a small business was not contested and that the Code is specifically drafted to be accessible by the operators of small businesses, I am not satisfied that a jurisdictional objection on this ground makes the matter unduly complex.

[14] Notwithstanding that English is not Mr Cao's first language, it was apparent at the Conference that he could speak and comprehend English. I was satisfied that the provision of an interpreter at the Hearing without cost to City Beach IGA would enable City Beach IGA to represent itself effectively in the event Mr Cao appeared on its behalf. Subsequently, the evidence tendered at the Hearing in the form of text messages exchanged between Mr Cao and Mr Seitz indicated that Mr Cao had an equivalent grasp of the English language, at least in that form of written communication, as Mr Seitz.

[15] The fact that a party has chosen to engage the services of a legal practitioner to prepare its materials is not of itself a ground upon which permission to be represented might be granted pursuant to section 596 of the FW Act.

[16] In Warrell v the Commission [2013] FCA 291 at [24], the Federal Court held that:

"A decision to grant or refuse "permission" for a party to be represented by "a lawyer" pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party "in a matter before FWA" must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere "formal" act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted "only if" one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., "FWA may grant permission...". The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting "permission".

[17] In the circumstances, I was not satisfied that it was appropriate to exercise my discretion to grant permission for City Beach IGA to be represented at the Hearing. The parties were advised of my decision well in advance of the Hearing. Mr Vilensky then wrote to my Chambers requesting that I revisit my decision. Mr Vilensky was under the misapprehension that Mr Seitz had not objected to leave being granted for City Beach IGA to be represented. There was nothing contained in Mr Vilensky's letter which caused me to change my view that it was not appropriate to exercise my discretion to grant permission to City Beach IGA to be represented at the Hearing.

[18] At the Hearing, Mr Seitz represented himself and gave evidence in support of his Application. Mr Cao represented City Beach IGA and gave evidence on behalf of City Beach IGA. Mr Cao was assisted at the Hearing by an interpreter, Ms Xianwa Niu.

[19] The following matters were either agreed between the parties or not otherwise substantially contested:[1]

1. Mr Seitz commenced employment with City Beach IGA as a full time butcher on 1 December 2014.

2. On 25 January 2017, Mr Seitz tendered his resignation in writing.

3. Mr Seitz says that Mr Cao did not accept his resignation and he continued to remain employed as if his resignation had not been tendered. Mr Cao says that he accepted Mr Seitz's resignation but asked him to continue working for City Beach IGA until he could be replaced.

4. Mr Seitz went on sick leave on 17 April 2017. He was certified medically fit to return to work on Monday 8 May 2017 but did not return to work. Between Monday 17 April 2017 and Saturday 27 May 2017, Mr Seitz and Mr Cao exchanged a series of text messages.

5. Mr Seitz says that, in the course of the exchange of text messages, he was dismissed from his employment and that such dismissal was initiated by City Beach IGA. Mr Cao denies that Mr Seitz was dismissed by City Beach IGA.

6. Mr Seitz has since obtained a new job, commencing employment as a butcher with P Princi Food Services on 18 July 2017.

[20] Section 396 of the FW Act requires that the FWC decide four preliminary issues before considering the merits of an application for unfair dismissal:

"396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy."

[21] I am satisfied that the Application was made within the 21 day period required by subsection 394(2) of the FW Act. There is no assertion that Mr Seitz's dismissal involved redundancy.

[22] Section 382 sets out the circumstances that must exist for Mr Seitz to be protected from unfair dismissal:

"382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold."

[23] There is no dispute, and I am satisfied, that Mr Seitz had completed the minimum employment period[2] and that his annual rate of earnings was less than the high income threshold. Consequently, I am satisfied Mr Seitz was protected from unfair dismissal.

[24] Section 385 of the FW Act sets out the circumstances in which a dismissal will be considered unfair:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388."

[25] The parties conceded, and I am satisfied, that the dismissal was not a case of genuine redundancy.[3]

[26] It is contested whether Mr Seitz was dismissed or whether he brought his employment to an end at his own initiative.

[27] The term 'dismissed' is defined in section 386 of the FW Act as follows:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

• (i) to whom a training arrangement applied; and

• (ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

• (i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

• (ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part."

[28] Mr Seitz commenced employment with City Beach IGA as a full time butcher on 1 December 2014.[4]

[29] On 24 January 2017, Mr Seitz was involved in a verbal altercation with an employee of City Beach IGA whose employment had been terminated the same day or several days earlier. Mr Seitz was unhappy with the manner in which Mr Cao handled the incident and says he decided to resign in protest.[5]

[30] Mr Seitz and Mr Cao agree that Mr Seitz tendered a written resignation on 25 January 2017.[6]

[31] Mr Seitz says that Mr Cao did not accept the resignation he tendered on 25 January 2017 and he continued to remain employed as if his resignation had not been tendered. Mr Cao says that he accepted Mr Seitz's resignation, but asked him to continue working for City Beach IGA until he could make other arrangements.[7]

[32] Mr Seitz continued to work at City Beach IGA for a further three months before commencing sick leave on 18 April 2017.

[33] Mr Cao provided no evidence of any positive steps which had been taken to replace Mr Seitz in the three months after Mr Seitz tendered his resignation on 25 January 2017.[8] There is no evidence of any discussion of any termination date.[9] Statements made in text messages between Mr Cao and Mr Seitz are consistent with Mr Seitz's resignation of 25 January 2017 being withdrawn or revoked. See, for example, the following text exchanges on Wednesday 19 April 2017:

"MR CAO: Well Phil if working for me does not suit then i suggest you find employment elsewhere if you decide that you want to stay then conform to my policies don't text me again regarding this matter as it's pretty clear from my end.

MR SEITZ: that's fine as i said i haven't resigned im just asking u to review the amount of work u have me perform. I won't SMS you again as you request. I apologise if I've inconvenienced you.

MR CAO: Thanks, please drop shop keys to Martin, we discussed on the phone. Regards Jack

MR SEITZ: Should i pick up my knives? So asking for keys does that mean im finished up?

MR CAO: well im assuming if you are dropping off your keys and you have resigned because there is no other reason for you to do so. If there is another reason please feel free to enlighten me phil.

MR SEITZ: I haven't resigned. I never said that I thought martin would need a key plus with u writing me up i think it better i don't have responsibility of having your business keys.

MR CAO: Fine. Yes please send the key back you are correct." [10]

It is also consistent with Mr Cao's evidence under oath at the Hearing that Mr Seitz had previously tendered his resignation but had agreed to remain employed: "Because he resigned previously. Then I asked him to come back and this time, so I just believe it."[11]

[34] I am satisfied that Mr Cao did not accept the 24 January 2017 resignation and that the resignation was withdrawn by Mr Seitz.

[35] Mr Seitz asserts that, as a consequence of stress arising from unreasonable work demands imposed on him by Mr Cao, he subsequently became unwell and on 17 April 2017 informed Mr Cao that he was going to see a doctor.

[36] Between Monday 17 April 2017 and Saturday 27 May 2017, Mr Seitz and Mr Cao exchanged a series of text messages which were tendered by Mr Seitz.[12]

[37] During this text exchange, Mr Seitz ventilated a number of concerns he had about the manner in which Mr Cao operated the business and the way in which Mr Cao treated Mr Seitz and other employees.[13]

[38] On Tuesday 18 April 2017, Mr Seitz forwarded a medical certificate to Mr Cao certifying him unfit for work until 19 April 2017.[14]

[39] In a number of the text messages, Mr Seitz requests copies of his payslips and makes reference to emails and phone calls made by himself and his wife seeking the same to clarify his assertions that Mr Cao had underpaid him.[15]

[40] On Wednesday 26 April 2017, Mr Seitz forwarded a medical certificate to Mr Cao certifying him unfit for work from 19 April 2017 to 26 April 2017. The same doctor certified Mr Seitz unfit for work from 27 April 2017 until 30 April 2017.[16]

[41] On Sunday 30 April 2017, Mr Cao instructed Mr Seitz by text to commence three weeks annual leave. Mr Seitz responded by text declining to do so, asserting that he was still on sick leave and forwarding a medical certificate certifying him unfit for work from 1 May 2017 until 5 May 2017.[17]

[42] On Friday 5 May 2017, Mr Seitz advised Mr Cao by text that he would be fit to return to work on Monday 8 May 2017.[18]

[43] Later the same day, Mr Seitz on several occasions indicated to Mr Cao that he would be happy if Mr Cao terminated his employment and that he would prefer to be paid what he is owed and 'say goodbye'. Mr Cao did not take Mr Seitz up on his offer, so Mr Seitz endeavoured to confirm what time he should attend work on Monday morning. Mr Cao eventually advised Mr Seitz that he should attend at 11:00 am on Monday 8 May 2017 for a meeting.[19]

[44] Between 4:27 pm on Friday 5 May 2017 and 11:33 am on Sunday 7 May 2017, Mr Cao sent Mr Seitz 33 text messages. At best, in terms of content and/or repetition, the texts might be characterised as nuisance texts. At worst, as was asserted by Mr Seitz, they might be perceived as containing an implied threat. This included numerous texts overnight on Saturday and into the early hours of Sunday morning. On multiple occasions Mr Seitz asked Mr Cao to stop texting him.[20]

[45] On Monday morning at 7:32 am, Mr Seitz texted Mr Cao informing him that, due to the exchange of text messages over the weekend, he was not comfortable attending the meeting and that whatever Mr Cao wished to discuss he should put it in an email and send it to him:[21]

"Hi jack, due to the bizarre SMS ive received from you over the weekend i won't be attending iga city beach at 11 AM. Whatever you want to discuss needs to be in writing and emailed. I think after all thats happened it all needs to be documented. You can send me written warnings u have mentioned in phone calls. Im still waiting for payslips requested by my wife it's been three weeks. Holiday pay info etc. U demanded a doctor's certificate which ive sent. I Will re iterate one more time. Im not your friend you have never treated me like a friend till this point so i don't understand your ramblings. Im employed by you and your company as s butcher/Manager. THAT'S IT. Please email me at [redacted] Thank u Phil"

[46] Mr Cao responded with the following message: "Hi Phil, ok, I agree you resign request. Thanks Jack". At the Hearing, Mr Cao gave evidence that his reference to Mr Seitz resigning in this text was a reference to the written resignation Mr Seitz tendered on 25 January 2017.

[47] The following exchange then took place:[22]

"MR SEITZ: "No I haven't resigned, re read sms very carefully. At no time has that been said. I just don't feel comfortable coming to your office. So anything u have to say needs to be in writing.

MR SEITZ: I offered to come with my wife but u wont allow that either. I have rights.

MR CAO: Everything will be paid off on this Thursday, any further questions please send to account email, any other questions please contact me by email. I will pass to my lawyer give you some legal advice. Thanks Jack.

MR SEITZ: Ill say one more time I haven't resigned.

MR CAO: Sorry forgot tell you. Our account email is [redacted] My email is [redacted] Thanks Jack.

MR SEITZ: U never said if i dont it was resigning from employment.

MR SEITZ: Due to no response ill take it you have sacked me and ill, contact fair work this morning Just so u no, i was hoping for an amicable outcome. Just shows how much u haven't respected the hard work ive done for u and your business. AGAIN I DIDNT RESIGN. I just wanted what u have to say to b put in words.

MR SEITZ: As u now sacked me my wife will pick knives and other belongings.

MR CAO: Hi Phil, please provide a list of items which belongs to you, I will check it and let you know when we get ready, and also whoever come to pick up we need your permission letter with your signature. Thanks Jack.

MR SEITZ: U do realise i haven't resigned dont u.

MR SEITZ: I cant remember so ill come and go through and collect my belongings.

[48] It is submitted on behalf of City Beach IGA that, even if it is wrong in its assertion that Mr Seitz resigned on 25 January 2017, the facts are that Mr Seitz resigned a second time without notice and walked out of the business on 17 April 2017 without warning and never returned.[23]

[49] However, the evidence demonstrates the contrary. Mr Seitz informed his employer on 17 April 2017 that he was unwell and intending to take sick leave. Mr Seitz's absence from the workplace between 17 April 2017 and 5 May 2017 was supported by medical certificates which are unchallenged by City Beach IGA. In the text exchange which occurred on 8 May 2017, Mr Seitz repeatedly confirms that he does not intend to resign. When Mr Seitz asserts that he has been terminated, Mr Cao does not challenge this.

[50] I am not satisfied that Mr Seitz's message on the morning of 8 May 2017, in which he indicated that he was not comfortable attending the meeting scheduled for 11:00 am that day, amounted to an abandonment of his employment. It is clear from the surrounding texts that Mr Seitz wanted Mr Cao to clarify any concerns he had so that he had an opportunity to respond to them. Such an opportunity would be unnecessary if Mr Seitz planned to terminate his employment.

[51] Mr Seitz explained that his concerns about attending the meeting arose from the spam-like texting he had experienced from Mr Cao over the preceding two days, including texts sent in the early hours of the morning. He says he also interpreted Mr Cao's repeated messages that 'friends' were waiting for Mr Seitz on his return as a veiled threat. Mr Seitz says this was reinforced by Mr Cao's refusal to allow Mrs Seitz to attend the meeting as a support person. In all of these circumstances, it was not unreasonable for Mr Seitz to be reluctant to attend the meeting. Mr Cao did not press Mr Seitz to attend and did not make clear that his failure to attend would be treated as abandonment of employment or as a disciplinary matter.

[52] It was not unreasonable for Mr Seitz to have concerns about attending the meeting in light of the spam-like texts by Mr Cao over the preceding two days, including in the early hours of the morning.

[53] City Beach IGA asserts that, in a series of text messages prior to the text exchange on 8 May 2017, Mr Seitz initiated the termination of his own employment "and almost goaded the Respondent to terminate his employment". To support this assertion, City Beach IGA cite the following text messages sent by Mr Seitz on the following dates:

• 18 April 2017: "if u want to sack me thats up to u."

• 28 April 2017: "Both my wife and i tried contacting u. U do realise that ignoring is a form of being a bully... obviously you don't want me back... thats fine just pay me up. If u can't respond shows a very unprofessional attitude."

• 29 April 2017: "Do u want me to return or finish up jack?"

[54] When these text messages are read in context, Mr Seitz evidences an intention to continue in employment subject to Mr Cao deciding to terminate his employment. There is no language on Mr Seitz's part evincing an intention to resign. While an invitation to an employer to terminate an employee's employment might be tempting fate, it is not evidence that the employee has brought their own employment to an end.

[55] For example, when read in context, it is clear in the text exchange which occurred on Tuesday 18 April 2017 that Mr Seitz proposes to return to work when certified fit to do so:

"MR SEITZ: No im going to doctors. In not feeling well due to the stress you put me under. After I see the doctor ill get back my wife to call you and let you know when ill be back.

MR SEITZ: As i said. Ill b going to doctors. Then ill will get back to my wife to call you. If you want to sack me that's up too you."

[56] When the texts of Friday 28 April 2017 and Saturday 29 April 2017, relied upon by City Beach IGA, are read in the context of the text exchanges between Thursday 27 April 2017 and Sunday 30 April 2017, it is clear that Mr Cao does not treat either text as a resignation given that he directs Mr Seitz to take three weeks annual leave. This would be unnecessary if Mr Seitz had intended his text message to constitute a resignation and Mr Cao had understood it as such:

"MR SEITZ: We will need to talk at some point as , have said i have a bad attitude . This is a result of doing IGA city beach and Rickys order. Its too much and its contributing to my attitude. Im tired and over worked. Also fridges regularly breaking down plus my position being under constant reveiw as metcash want pre pack. Im doing more than is normal which has lead me to needing time off. I have always kept u inform with my depression and anxiety status over the years. I have asked for help and arent getting any. Then u want to judge my attitude. Im not resigning but i cant keep doing what u want as its affecting my health. Phil

MR SEITZ: Ive sent u a email. I need a reply thank u.

MR SEITZ: Both my wife and i Tried contacting u. U do realise that ignoring is a form of being a bully .... obviously u dont want me back..... thats fine just pay me up. If u cant respond shows a very unprofessional attitude.

MR SEITZ: Do u want me to return or finish up jack?

MR SEITZ: Hi Jack Will u look at reducing my workload ? so that i can return ? This will take the stress off me and allow me to not be stressed and argumentative due to the stress thats imposed on me as spoken about? Phil.

MR CAO: Hi Phil, Store is very quiet, you can take your holiday from tomorrow for 3 weeks, start tomorrow. Regards Jack."

[57] There is no evidence in the texts cited by City Beach IGA that Mr Cao has accepted a resignation if, in fact, Mr Seitz intended to resign. In fact, to the contrary, City Beach IGA's own submissions identify responses from Mr Cao in which he clearly contemplates and appears to encourage Mr Seitz to return to work. Furthermore, it is clear from Mr Seitz's response that he intends to return to work. See for example:

"MR SEITZ: Ill be able to return Monday. If u want to kerp butcher u have as u seem happy with him to ask me to take 3 weeks off. Im happy if u want to terminate me.

MR CAO: Hi Phil, good to know you are getting better, can you please provide me doctor certificate for you are able to work when you are able to work. Regards Jack.

MR CAO: I am waiting for doctor certificate for you are able to come back.

MR SEITZ: Its says after the 7th im able to work up to 38 hrs a week

MR SEITZ: Im not laughing. So are u going to replace me

MR CAO: Let me know when you are able to come back work, you are welcome.

[58] In the text exchanges which occurred between 17 April 2017 and 27 May 2017, Mr Seitz repeatedly confirms that he does not intend to resign. When Mr Seitz asserts that he has been terminated, Mr Cao does not challenge this. To the contrary, Mr Cao facilitates the termination by arranging the return of Mr Seitz's belongings.

[59] In all the circumstances, it appears that Mr Seitz did not resign and that his employment was terminated at the initiative of City Beach IGA. Consequently, I am satisfied Mr Seitz was dismissed within the meaning enunciated by section 386 of the FW Act, and therefore protected from unfair dismissal.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[60] In both the first and second Form F3 Employer Responses filed on behalf of City Beach IGA, the box indicating that City Beach IGA had a jurisdictional objection to the FWC determining the Application on the ground that City Beach IGA was a small business and the dismissal was consistent with the Code was ticked.

[61] However, the written submissions prepared by Bowen Buchbinder Vilensky and filed on City Beach IGA's behalf in accordance with the Directions contain no submissions in relation to this jurisdictional objection. The position maintained throughout the written submissions, and by Mr Cao at the Hearing, was that Mr Seitz resigned and was not dismissed by City Beach IGA.

[62] Section 388(2) of the FW Act provides that:

(2) A person's dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal."

[63] The term "small business" is defined in section 23 of the FW Act as follows:

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated."

[64] Mr Cao gave evidence that, immediately before Mr Seitz's dismissal, City Beach IGA employed five full time employees and five casual or part time employees. It was not contested, and I am satisfied, that City Beach IGA was a small business employer within the meaning of section 23 of the FW Act at the time of Mr Seitz's termination.[24]

[65] The Code was declared by the Minister for Employment and Workplace Relations on 24 June 2009 and provides as follows:

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements."

[66] At the Hearing, I invited Mr Cao to identify the reasons City Beach IGA sought to rely on to justify Mr Seitz's dismissal in the event I found that Mr Seitz had, in fact, been dismissed for the purposes of the FW Act. Mr Cao alleged that Mr Seitz had been stealing from the business. Mr Cao claimed to have viewed video footage of the theft. However, this evidence was not tendered at the Hearing. Mr Cao says that he reported the alleged theft to the police. Mr Cao conceded that he did not raise these allegations with Mr Seitz before he was dismissed. Mr Seitz says that he first became aware of these allegations when the F3 Employer Response was filed. Mr Seitz says that he has since contacted the Western Australian Police, who have told him he has no case to answer. This is confirmed by an email from Constable Ryan O'Driscoll of the Wembley Police Station which was tendered by Mr Seitz at the Hearing.[25]

[67] Any assertion that Mr Cao believed on reasonable grounds that the Mr Seitz's conduct was sufficiently serious to justify immediate dismissal is inconsistent with the submissions of City Beach IGA and the evidence of Mr Cao that Mr Cao was endeavouring to encourage Mr Seitz to return to the workplace. See for example, the Respondent's Supplementary Submissions on Jurisdictional Objection and Merits of the Application Pursuant to Paragraph 9 of the Directions of Deputy President Binet Dated 17 August 2017 at [11] which state that "[t]here is no evidence even remotely suggesting that the Applicant was not welcome to return to his employment if he was medically cleared to do so."

[68] An assertion that Mr Seitz's conduct justified immediate dismissal is particularly inconsistent with Mr Cao's evidence that he would like Mr Seitz to come back to work again.[26]

[69] Even if Mr Cao did, at the time of Mr Seitz's dismissal, believe there were grounds to justify Mr Seitz's immediate dismissal, there is insufficient evidence before me to satisfy me that Mr Cao's belief was reasonable.

[70] It is also conceded by Mr Cao that Mr Seitz was not informed of the allegations of theft before his employment with City Beach IGA ended.[27] Mr Seitz therefore did not have an opportunity to respond to the allegations and/or a reasonable chance to rectify the problem.

[71] In all the circumstances, I am satisfied the dismissal of Mr Seitz was not consistent with the Code.

Was Mr Seitz's dismissal harsh, unjust or unreasonable?

[72] Having been satisfied of each of subsections 385(a), (c) and (d) of the FW Act, it is necessary to determine whether the dismissal was harsh, unjust or unreasonable. The criteria to be taken into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at section 387 of the FW Act:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant."

[73] The ambit of the conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

".... 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."

[74] To determine whether Mr Seitz's dismissal was, in the circumstances, harsh, unjust or unreasonable, it is necessary to consider each of the criteria set out in section 387 of the FW Act.

Did City Beach IGA have a valid reason for dismissing Mr Seitz? (s.387(a))

[75] An employer must have a valid reason for the dismissal of an employee protected from unfair dismissal, although it need not be the reason given to the employee at the time of the dismissal.[28] The reasons should be 'sound, defensible and well founded'[29] and should not be 'capricious, fanciful, spiteful or prejudiced.'[30] The reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. The requirement to be reasonable must be applied in a practical common sense way to ensure that the employer and employee are each treated fairly.[31]

[76] Despite being described as "Respondent's Outline of Submissions on Jurisdictional Objection and Merits of the Application" and "Respondent's Supplementary Submissions on Jurisdictional Objection and Merits of the Application Pursuant to Paragraph 9 of the Directions of Deputy President Binet Dated 17 August 2017", respectively, the written submissions prepared by Bowen Buchbinder Vilensky and filed on City Beach IGA's behalf in accordance with the Directions contain no submissions in relation to the criteria set out in section 387. The position maintained throughout the written submissions, and by Mr Cao at the Hearing, was that Mr Seitz resigned and was not dismissed by City Beach IGA.

[77] As previously noted, at the Hearing I invited Mr Cao to identify the reasons City Beach IGA sought to rely on to justify Mr Seitz's dismissal in the event I found that Mr Seitz had, in fact, been dismissed for the purposes of FW Act. Mr Cao alleged that Mr Seitz had been stealing from the business. Mr Cao claimed to have viewed video footage of the theft. However, this evidence was not tendered at the Hearing. Mr Cao says that he reported the alleged theft to the police. Mr Cao conceded that he did not raise these allegations with Mr Seitz before he was dismissed. Mr Seitz says that he first became aware of these allegations when the Form F3 Employer Response was filed. Mr Seitz says he has since contacted the Western Australian Police, who have told him he has no case to answer. This is confirmed by an email from Constable Ryan O'Driscoll of the Wembley Police Station which was tendered by Mr Seitz.[32]

[78] There is no evidence before me to satisfy me that Mr Seitz stole from the business or engaged in conduct which might form the basis of a valid reason for his dismissal for stealing.

[79] Consequently, I find that there was not a valid reason for the dismissal.

Was Mr Seitz notified of the reason for his dismissal? (s.387(b))

[80] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[33] in explicit terms,[34] and in plain and clear terms.[35] In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151, a Full Bench of the Australian Industrial Relations Commission, dealing with a similar provision of the Workplace Relations Act 1996 (Cth), stated that:

"As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their 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."

[81] It is conceded by Mr Cao that Mr Seitz was not informed of the allegations of theft before his employment with City Beach IGA ended.[36]

[82] I find Mr Seitz was not notified of the reason for the dismissal.

Was Mr Seitz given an opportunity to respond? (s.387(c))

[83] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[37]

[84] As Mr Seitz was not notified of the theft allegations before he was dismissed, he did not have an opportunity to respond to them before the dismissal.

[85] I find that Mr Seitz was not given an opportunity to respond to the reason for the dismissal.

Was Mr Seitz unreasonably refused a support person? (s.387(d))

[86] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present. There is no positive obligation on an employer to offer an employee the opportunity to have a support person.[38]

[87] The text messages between Mr Cao and Mr Seitz indicate that Mr Cao declined Mr Seitz's request that his wife attend the meeting scheduled for 8 May 2017 as a support person, at which Mr Cao says he would have raised the stealing allegations.

[88] I find that Mr Cao unreasonably refused to allow Mr Seitz to have a support person present at discussions relating to the dismissal.

Was Mr Seitz given warnings regarding his unsatisfactory performance? ( s.387(e))

[89] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee's capacity than their conduct.[39]

[90] It is conceded by Mr Cao that Mr Seitz was not informed of the allegations of theft before his employment with City Beach IGA ended.[40]

[91] I find that City Beach IGA did not warn Mr Seitz about their concerns about his performance before the dismissal.

What is the impact of the size of City Beach IGA and the presence or absence of dedicated human resources management specialist/expertise on the procedures followed? (s.387(f) and s.387(g))?

[92] City Beach IGA is a small business.[41] English is not Mr Cao's first language. It is clear his understanding of Australian labour laws is limited. Mr Cao did have access to legal assistance in the preparation for the Hearing. It is unfortunate that he did not obtain legal advice before proceeding to treat Mr Seitz's departure from the business as a resignation.

[93] I find that the size of City Beach IGA and the absence of dedicated human resource management specialist did impact on the procedures followed in effecting the dismissal.

Are there any other relevant matters? (s.387(h))?

[94] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. The parties did not identify any other relevant matters and there is no evidence available to me which suggests that there are other matters relevant to the determination of whether the dismissal of the Applicant was harsh, unjust or unreasonable.

[95] Having considered each of the matters specified in section 387, I am satisfied the dismissal of Mr Seitz was harsh, unjust or unreasonable. Accordingly, I find that Mr Seitz's dismissal was unfair.

[96] Mr Seitz seeks compensation as the primary remedy. Regardless of the remedy sought by Mr Seitz, section 390 of the FW Act requires I first determine whether reinstatement is appropriate before I may consider an order for compensation.

[97] Section 390 of the FW Act sets out the circumstances in which an order for reinstatement or compensation may be made:

"390 When the FWC may order remedy for unfair dismissal

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

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

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

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

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

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

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

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

[98] I am satisfied that Mr Seitz was protected from unfair dismissal pursuant to section 382 of the FW Act and was dismissed unfairly.

[99] Reinstatement is the FW Act's primary remedy for unfair dismissal and must be ordered unless the FWC is satisfied on proper grounds that reinstatement is not appropriate. In DP World Sydney Limited v Lambley [2013] FWCFB 9230 at [138], the Full Bench of the FWC said "The language of s.390 makes the position pellucidly clear. The Commission "must" order reinstatement unless reinstatement of the person is inappropriate."

[100] In Regional Express Holdings Ltd T/A Rex Airlines [2010] FWAFB 8753 at [26], a Full Bench of Fair Work Australia considered what factors may be taken into account when considering if reinstatement is inappropriate under section 390(3)(a) of the FW Act:

"[26] Whenever an employer dismisses an employee for misconduct, assuming the employer is acting honestly, there is an implied loss of trust and confidence in the employee. If it is subsequently found that the termination was harsh, unjust or unreasonable it is appropriate to consider whether the relationship can be restored if the employee is reinstated. That question cannot be answered solely by reference to the views of management witnesses. All of the circumstances should be taken into account. In this case there is a number of relevant matters. They include the fact that not all of the conduct alleged against the respondent has been proven, the respondent's apparently unblemished record in the performance of his flying duties over a period of 14 years, the fact that the misconduct is not directly related to the performance of the respondent's professional duties as a first officer and Rex's failure to pursue any substantial disciplinary action against another pilot who, it is alleged, has been guilty of misconduct at least as serious as that of which the respondent was accused. The significance of the last consideration is that the pilot in question is still carrying out the full range of his duties, despite allegations of conduct of a kind which, in the respondent's case, is said to have led to an irrevocable loss of trust and confidence. Assuming a positive approach on both sides we find there is a reasonable chance that the employment relationship can be restored with the necessary level of mutual trust."

[101] Mr Seitz submits reinstatement is not appropriate because of the allegations made by City Beach IGA in the course of these proceedings that he was "lazy", "argumentative" and "a thief".

[102] Mr Cao submits reinstatement is appropriate provided Mr Seitz does not bully other employees, does his job properly and does not steal.

[103] Mr Seitz asserts that he has done none of these things. There was no evidence tendered to prove that he had. Mr Seitz was adamant throughout his evidence that he did not intend to resign from City Beach IGA and, but for the actions of Mr Cao, intended to remain employed. Having been vindicated of the allegations made against him, which clearly must have been accepted by Mr Cao given his evidence that he would welcome Mr Seitz back to work, I am not satisfied that reinstatement is not appropriate.

[104] Assuming a positive approach on both sides, I am satisfied that there is a reasonable chance that the employment relationship can be restored with the necessary level of mutual trust between Mr Seitz and his employer.

[105] In the circumstances I am satisfied that I should order reinstatement.

[106] Section 391 of the FW Act provides:

(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(b) the period of the person's continuous service with the employer, or (if subsection (1A) applies) the associated entity.

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

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

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement."

[107] I will make an order requiring Mr Seitz to be reinstated into the position in which he was employed immediately before his dismissal.

[108] Section 391(2) of the FW Act provides a discretion to the FWC to determine if it is appropriate for an order maintaining Mr Seitz's continuity of employment and continuous service with City Beach IGA. I consider it appropriate in the circumstances to make an order maintaining the continuity of the Mr Seitz's employment and continuous service with City Beach IGA.

[109] Section 391(3) of the FW Act provides the FWC with a discretion to determine if it is appropriate to make an order causing City Beach IGA to pay Mr Seitz an amount for the remuneration lost, or likely to be lost, by Mr Seitz because of the dismissal. Notwithstanding a finding that an employee has been unfairly dismissed, an order restoring lost remuneration may not be appropriate.[42] Mr Seitz has been employed on a casual basis for a period of time since his dismissal. His loss is therefore limited to the difference between what he has earned and what he would have earned but for the dismissal. Based on his evidence, this would equate to something in the range of $600.00 per week before tax. Given that Mr Seitz has been able to mitigate his loss to some extent, his conduct in repeatedly inviting Mr Cao to terminate his employment, and the impact of an order for back pay on the viability of a small business, I do not think it is appropriate to make an order restoring remuneration lost, or reasonably likely to be lost, by Mr Seitz because of the dismissal.

[110] I am satisfied that Mr Seitz was protected from unfair dismissal, that the dismissal was unfair and that a remedy of reinstatement is appropriate.

[111] An order to this effect (PR598976) will be issued with this decision.

[5] Exhibit A1 at [6]-[9] and Exhibit R1 at [9]-[11].

[7] Exhibit A1 at [9] and Exhibit R1 at [13].

[12] Exhibit A1 at Attachments PS8 and PS9.

[23] Respondent's Outline of Submissions on Jurisdictional Objection and Merits of the Application at [5].

[24] Transcript at PN130 and PN159-PN160.

[25] Transcript at PN245-PN309 and Exhibit A2.

[28] Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 at 373 and 377-378.

[29] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.

[32] Transcript at PN245-PN309 and Exhibit A2.

[33] Chubb Security Australia Pty Ltd v Thomas (Print S2679) at [41].

[34] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151.

[35] Previsic v Australian Quarantine Inspection Services (Print Q3730).

[37] RMIT v Asher (2010) 194 IR 1 at 14-15.

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

[39] Annetta v Ansett Australia Ltd (2000) 98 IR 233 at 237.

[42] Mt Arthur Coal t/a Mr Arthur Coal v Goodall [2016] FWCFB 5492 at [79].

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