Fair Work Act 2009

s.394 - Unfair dismissal

Playford City Soccer and Community Club Inc T/A Angle Vale Tavern

Application for an unfair dismissal remedy - redundancy not genuine - no valid reason - dismissal harsh, unjust or unreasonable - compensation awarded.

[1] On 29 March 2017, Mr Shane Fowler lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to termination of his employment with Playford City Soccer and Community Club Inc T/A Angle Vale Tavern (the Tavern) on 14 March 2017.

[2] The matter was arbitrated on 13 and 14 June 2017. Mr Blewett of United Voice represented Mr Fowler and Mr Krips of EMA Legal was granted permission pursuant to s.596(2) of the Act to represent the Tavern.

[3] There was no dispute that Mr Fowler was protected from unfair dismissal pursuant to s.382 of the Act.

[4] Mr Fowler provided a witness statement[1] and gave evidence on his own behalf. He also led evidence from:

• Ms Natasha Cruickshank - Industrial Officer at United Voice.

[5] The Tavern led evidence from:

• Mr William Cochrane - sole director of Hospitality Administration Team Pty Ltd and Board member of the Playford City Soccer and Community Club Inc;

• Ms Cherece Czerniakiewicz - Acting Venue Manager at the Tavern;

• Mr Joshua Callery - Acting Venue Manager at the Tavern; and

• Mr Keo Encinas - Chef at the Tavern.

[6] Mr Fowler contends that his dismissal was not a case of genuine redundancy as his job is still required to be performed and further that he was not properly consulted about the dismissal and was not offered appropriate redeployment.

[7] The Tavern, in its outline of submissions, contended that Mr Fowler's employment ceased as a result of the Tavern's decision to abolish the full time permanent Head Chef position and that Mr Fowler rejected an offer of on-going employment as a casual Chef and that these circumstances represented a genuine redundancy. In the alternative, the Tavern submitted that the dismissal could not be characterised as harsh, unjust or unreasonable.

[8] The Tavern submitted that Mr Fowler's performance was neither the reason the employment ceased nor relevant to the key enquiries as to whether the position still existed and the operational purpose of the changes implemented.

[9] At the hearing, the Tavern submitted that Mr Fowler's covert recording of two meetings with Mr Cochrane was a valid reason which could support the dismissal.

[10] Mr Fowler's relevant evidence can be summarised as follows.

[11] In September 2014, he had discussions with Mr Cochrane about working at the Tavern. At the time, Mr Fowler was working at another Hotel and had the benefit of some rostering arrangements to allow him to take time off to care for his children. Mr Fowler sought that the Tavern match those arrangements.[2]

[12] The terms of the employment were negotiated and it was agreed that Mr Fowler would not be required to work Tuesday and Friday nights to enable him to care for his children.[3]

[13] Mr Fowler commenced full time employment with the Tavern on 13 October 2014 as salaried Head Chef working a minimum of 38 hours per week, plus reasonable overtime.[4]

[14] His employment until late 2015 was uneventful.

[15] In early November 2015, he was advised by Ms Sue Hamms, Operations Manager, on behalf of Mr Cochrane, that he was no longer entitled to days off in lieu for public holidays that fell on his days off.[5]

[16] Mr Fowler contacted the Fair Work Ombudsman and Clubs SA who emailed him and advised that the advice provided to Mr Cochrane was incorrect and he was entitled to the day off in lieu. Mr Fowler was advised by Ms Hamms that Mr Cochrane was annoyed that Mr Fowler had sought advice on the matter, but he accepts it was possible that Mr Cochrane was annoyed at Clubs SA.[6]

[17] On 18 November 2015, Mr Cochrane and Mr Kildare from Clubs SA approached Mr Fowler and said that his contract of employment had been lost and that they would draft a new one. They advised that it would be a 12 month fixed term contract. Mr Fowler said he would not accept these terms. No formal contract was drafted.[7]

[18] On 24 April 2016, Mr Fowler was not rostered to work. He received a call from Ms Kylie Pobke, Assistant Manager, who advised him that one of the Chef's had called in sick and another Chef was also sick and wanted to go home, Ms Pobke had arranged for another staff member to bring his daughter in to help out. Mr Fowler advised he was not rostered to work until Tuesday.

[19] On ANZAC Day 2016, Mr Fowler was not rostered to work and was out with his family. In the afternoon he returned home to discover voicemails had been left on his landline by Mr Mark Warren, Venue Manager. Mr Fowler did not own a mobile phone and was therefore not contactable other than by his landline. Mr Fowler contacted the Tavern and was advised that Mr Warren had not been able to cover that night's shift. Mr Fowler attended work to cover the shift.

[20] On 27 April 2016, a person named Jackie advised him that she had been offered a role as Executive Chef at the Tavern and that he would be demoted. Mr Fowler contacted Mr Cochrane who said 'this is bullshit' and that he would discuss the matter with him. Mr Fowler believed that this action was connected to the ANZAC Day communications.[8]

[21] On 29 April 2016, Mr Fowler received a letter from Mr Cochrane stating that he was unhappy with his performance and lack of communication over the weekend.

[22] On 13 June 2016, Mr Fowler received a letter dated 10 June 2016 from Mr Warren[9] which enclosed:

• the 2016-2017 financial year budget including sales, wages, promotions and a gross profit percentage for his area;

• a Position Description;

• a new salary contract which was required to be signed and returned within 7 days; and

• an Achieve and Development Plan for 2016-2017 which was to be used in his internal appraisal for mid and end of year reviews.

[23] The letter also raised issues of concern to the Tavern including:

• training another Chef to complete food orders;

• completing kitchen rosters at least two weeks in advance;

• performance managing kitchen team members to address repeated incidences of tardiness, absences and poor performance in general;

• communication between team members; and

• an unwillingness/resistance to change the Tavern's menu.

[24] The letter of offer was much more detailed than Mr Fowler's current contract of employment. It contained a qualifying period of 6 months and required him to work a minimum of 42 hours per week plus reasonable additional hours. The covering letter indicated that Mr Fowler did not need to work Sunday except where a major event was planned (e.g Mother's Day) and advised that he would be required to work Friday evenings. Mr Fowler was advised that he would be rostered on Friday and Saturday evenings as a regular requirement from the week ending 10 July 2016. Mr Fowler was advised that failure to comply with this directive would result in disciplinary action.

[25] Mr Fowler refused to sign the new contract of employment.

[26] On or about 8 September 2016, Mr Warren had a discussion with Mr Fowler about rostering and budget issues. Mr Warren advised that Mr Cochrane wanted reductions in wage costs. Mr Fowler submitted that he was operating within the agreed budget. The discussion was detailed in a 'Record of Discussion' dated 8 September 2016.[10]

[27] On 24 September 2016, Mr Fowler received information which caused him to believe that an ex-employee, Mr Andrew Lord, had been offered his job. On 27 September 2016, Mr Lord, via text message, advised Mr Fowler that Mr Cochrane had contacted him and said words to the effect that if the job became available, would he be interested in it.[11]

[28] On Sunday 18 December 2016, the kitchen had a busy night. Mr Fowler understands that the Tavern tried to contact him but he did not receive any telephone calls.

[29] On 21 December 2016, Mr Cochrane approached Mr Fowler at work without prior notice and had a discussion with him. This was the first time the two had spoken for 12-18 months.[12] Mr Cochrane blamed Mr Fowler for not rostering enough staff on 18 December 2016 and indicated that the kitchen was not operating at a profit. Mr Fowler disputed this contention and showed him figures on his iPad[13] which suggested his part of the Tavern was operating at a profit and was meeting budget. The discussion moved to Mr Fowler's time and availability, Mr Cochrane wanted Mr Fowler to be contactable on his days off. Mr Fowler covertly recorded the conversation on his iPad without consideration of any legal implications.[14] Mr Fowler was concerned that his job was going to be made redundant and that he would be replaced.[15]

[30] On 23 December 2016, Mr Fowler was issued with a 'notice of discussion' which he refused to sign, as he thought it was inaccurate and Mr Cochrane had said he would review Mr Fowler's budget reporting which suggested the kitchen was operating at a profit but had not followed this up with him.[16]

[31] On 24 December 2016, Mr Fowler was advised by an ex-employee Mr T (de-identified) that he had been contacted by Mr Cochrane on 22 December 2016 asking how his new job was and asking him to call back.

[32] On 11 February 2017, the Tavern was short staffed as one employee had resigned and another was injured. Mr Fowler worked overtime that week.

[33] Mr Callery, Venue Manager, asked Mr Fowler to work extra shifts on the evening of Valentine's Day and the Sunday which represented a further 12 hours overtime. Mr Fowler advised he could not do the Tuesday night as he had to look after his children. He advised that he had previously offered to work on Valentine's Day when the rosters were prepared but was told he was not required. He offered to work on the Sunday at penalty rates, the Tavern wanted him to take time off in lieu. Mr Fowler advised he already had five days in lieu owing. Mr Fowler declined to work Valentine's Day.

[34] On 14 February 2017, Mr Fowler received a telephone call from Mr T advising that Mr Cochrane had just offered him Mr Fowler's position.

[35] On 15 February 2017, Mr Cochrane advised Mr Fowler in writing that the Board of Directors and senior management had decided to commence a 'restructuring exercise'. It had "become necessary to commence an organisation restructure which will inevitable (sic) affect certain, employees, including the possibility of redundancies".[17] Mr Fowler was the only employee to receive such a letter.[18]

[36] On 18 February 2017, Mr Fowler was advised by Mr Callery that the Tavern would interview new staff on 20 February 2017. The Tavern offered employment to a new Chef but she decided not to accept the offer.

[37] In support of his contention that post dismissal his role was undertaken by others, Mr Fowler submitted an email exchange between himself and Mr Graeme Cocks, Account Manager - John Lewis Foodservice, which indicated that the Tavern orders were now being undertaken by Mr Encinas,[19] and an email exchange with Ashley Lawson from Holco who advised that Mr Encinas was the Tavern's contact point.[20]

[38] On 14 March 2017, Mr Fowler attended a meeting with Mr Cochrane and Mr Callery accompanied by Ms Cruickshank from United Voice. Mr Fowler had an expectation that he would be made redundant or dismissed at the meeting.[21] Mr Cochrane advised that Mr Fowler would be made redundant and that two casual Chefs had been hired. Mr Cochrane offered him a casual role at 20 hours per week. Ms Cruickshank asked if those hours could be guaranteed by Mr Cochrane who said he could not do that.[22] Mr Fowler covertly recorded this meeting so as to have an accurate record.[23]

[39] Mr Fowler rejected the role of casual employment as the hours were not enough and it did not provide him with sufficient security.[24] Mr Cochrane said if there was to be a redundancy, he could finish up that day.[25]

[40] Mr Fowler and Ms Cruickshank then left the meeting.

[41] Mr Fowler contends he met the budget targets and submitted a reconciliation he had prepared in support of this contention.[26]

[42] At the time of dismissal, Mr Fowler was paid a salary of $65,000 per annum.

[43] In response to the Tavern's suggestion that it restructured the dining area, Mr Fowler suggests that putting the two partitions across the room, had no real effect as it did not prevent customers from walking around them and eating their meal in the bar area or otherwise.[27]

[44] Mr Fowler contends that the work performed by Mr Encinas was substantially the same as his role but accepts that Mr Encinas is employed on a casual basis.[28]

[45] After his dismissal, Mr Fowler waited before seeking alternative employment as he thought reinstatement was a possibility. He applied for five positions, initially seeking full time employment as a Chef and then accepted a casual engagement. From 7 June 2017 he secured employment for approximately 30 hours per week where he is paid $30.92 per hour or $927.60 per week.[29]

[46] Mr Fowler does not seek reinstatement.

[47] Sometime after the conclusion of Mr Fowler's evidence, the parties agreed that I should hear the covert recording. The recording has passages where the conversation was not recorded possibly due to the volume being too low to trigger the recording device. As a result, some of the conversation may not have been recorded or some words clipped. I have determined to ignore the contents of the recording in the determination of this matter.[30]

[48] Ms Cruickshank tendered a statement[31] and her relevant evidence can be summarised as follows.

[49] In mid-2016, Ms Cruickshank worked in the United Voice Members Rights Centre and advised Mr Fowler on some issues concerning his contract of employment.

[50] In March 2017, Ms Cruickshank provided advice and representation in meetings which led up to Mr Fowler's dismissal.

[51] On 14 March 2017, Ms Cruickshank attended a meeting with Mr Fowler.

[52] Ms Cruickshank's recollection of the meeting between Mr Cochrane, Mr Callery and Mr Fowler on 14 March 2017 is as follows:

• Mr Cochrane referred to a letter provided to Mr Fowler in February 2017.

• Mr Cochrane advised that the Board had decided to make some changes, changing the menu, making the dining room smaller and that they had already removed rostering duties from Mr Fowler.

• Mr Cochrane said the role of Head Chef was no longer required and Mr Fowler would be made redundant.

• Mr Cochrane said they would only operate with casual employees in the future, and they had some casual work they wanted to offer Mr Fowler.

• Mr Cochrane believed that Mr Fowler's actions in removing his knives meant that he did not want to continue working for the Tavern, and accordingly they would finish him up that day and pay his redundancy.

• Ms Cruickshank confirmed the entitlement to six weeks redundancy pay.

• Ms Cruickshank was concerned that there were two casual Chefs who were going to be brought in to work the hours, which was conflicting with Mr Cochrane's advice that there were not enough hours available.

• Ms Cruickshank further discussed the casual offer and sought a guaranteed number of hours per week. Mr Cochrane said they could not do this.

• Mr Fowler said he could work the rest of the week. Mr Cochrane said they already had cover for Mr Fowler.

• Ms Cruickshank then questioned if the redundancy was genuine. Mr Cochrane disagreed.

• In front of the others, Ms Cruickshank advised Mr Fowler to at least go away and think about the alternative casual employment.

[53] Ms Cruickshank and Mr Fowler then left the meeting.

[54] On 14 March 2017, Mr Cochrane rang Ms Cruickshank and left a voice message asking for a response in relation to the offer of casual employment. He seemed angry as there was some disagreement as to whether Ms Cruickshank and Mr Fowler had left the meeting or were coming back.[32]

[55] Ms Cruickshank and Mr Cochrane spoke a few days later, around 16 March 2017. At the end of the telephone call, Mr Cochrane said the Tavern would pay the redundancy when Mr Fowler returned his keys and some other property to the Tavern.

[56] Mr Cochrane submitted a statement[33] and a supplementary statement[34] and his relevant evidence is summarised below.

[57] Mr Cochrane provides management services to the Tavern as a contractor.

[58] The Tavern is operated by the Playford City Soccer and Community Club and Mr Cochrane has been a member of the Club's Board since September 2016.

[59] The Tavern faced a number of challenges in that it had less floor space than what was required, it had been planned to have 40 gaming machines but did not have the permission to operate them and the overheads, including rent and gaming machines, were high.

[60] Mr Cochrane felt that food and dining yielded little or no profit compared to bar and gaming operations.

[61] Mr Cochrane advised that Club and Tavern operating costs continued to rise in 2015 and 2016 particularly in relation to electricity and lighting costs for outdoor playing fields.

[62] In September 2014, Mr Cochrane met with Mr Fowler who was subsequently engaged as Head Chef in October 2014. Mr Cochrane prepared the contract of employment but others engaged Mr Fowler.

[63] Mr Cochrane reached agreement that Mr Fowler would have every Friday night off to enable him to meet his family commitments provided that the Tavern was running well.[35]

[64] In relation to the dispute over Mr Fowler's entitlements to public holidays, Mr Cochrane said he was annoyed about the matter but that this was directed to the inconsistent advice provided by Clubs SA.[36]

[65] After Mr Cochrane was unable to secure Mr Fowler's agreement to vary his contract of employment and Mr Fowler's desire to have the Union present at all discussions, he decided he would leave the direct management of Mr Fowler to others.[37]

[66] In early 2016, Mr Cochrane spoke to Mr Fowler about the need for greater flexibility in his position. United Voice became involved and submitted that it had been agreed that Mr Fowler was not required to work Fridays. There were numerous discussions and in some cases arguments about that issue. Agreement to change the arrangements was not reached.

[67] In April 2016, Mr Cochrane was disappointed that the Tavern was unable to get in contact with Mr Fowler on his day off.[38] This incident prompted Mr Cochrane to write to Mr Fowler, by letter dated 29 April 2016.[39] The letter expressed Mr Cochrane's disappointment about Mr Fowler's performance.[40] Whilst the letter referred to setting a time for an in-depth discussion about Mr Fowler's performance, this never eventuated.[41]

[68] Mr Cochrane considered the Tavern was overstaffed in May 2016. At that time, Mr Warren was in charge of rostering. Mr Warren left the employ of the Tavern in November 2016 and was not replaced. Mr Callery and Ms Czerniakiewicz were subsequently appointed as Venue Managers. Casual employees who resigned were not replaced.

[69] Despite being a recipient of an email from Mr Warren dated 29 May 2016 which contained the sentence "Please find attached some documentation that will help performance manage Shane in the right direction or the direction out the door",[42] Mr Cochrane did not recall receiving it. He further did not recall reviewing Mr Fowler's budgets that were prepared by Mr Warren and contained as an attachment in the same email.[43]

[70] On or about 10 June 2016, Mr Cochrane instructed Mr Warren, who supervised Mr Fowler, to ensure that the best Chefs were working on the busiest day, aware that this would result in Mr Fowler working at a time where he had previously not been required to work.[44]

[71] Mr Cochrane denied any knowledge of a new contract of employment which was proposed by Mr Warren to Mr Fowler on 10 June 2016.[45]

[72] Mr Cochrane states he received a letter from the Union protesting about the proposed contract of employment dated 10 June 2016 but took no action.[46]

[73] Mr Cochrane accepted that an offer of new employment to an additional Chef in September 2016 was inconsistent with his email of 1 September 2016 but could not explain why it would have occurred, or whose job was being offered.[47]

[74] On 21 December 2016, Mr Cochrane approached Mr Fowler at work and had a discussion with him. Mr Cochrane discussed rostering, Mr Fowler's availability and budgeting. Mr Fowler presented figures which Mr Cochrane accepts indicated he was meeting budget. Mr Cochrane advised he would get the figures checked and come back to him, but never did.[48] Mr Cochrane prepared a note of the discussion[49] and asked Mr Fowler to sign it. Mr Fowler refused.[50]

[75] On 27 December 2016, Mr Cochrane rang Mr T, a former Tavern Chef, and said words to the effect of 'we may have a job.' Mr Cochrane denies he was offering a job to Mr T. Mr Cochrane's evidence on this point was confusing.[51]

[76] Mr Cochrane considered that Mr Fowler utilised his time poorly. Mr Cochrane noted that Mr Fowler was more expensive to employ than the other kitchen staff and felt his position was adding little value.

[77] By the end of 2016, Mr Fowler had achieved savings of $400 per week from staffing but Mr Cochrane believed that there had been little or no improvement in wage costs in the kitchen and that the saving was not enough and was smaller than savings achieved in the bar, front of house and gaming areas through attrition and better rostering practices.

[78] On 19 January 2017, Mr Cochrane participated in a Board meeting of the Playford City Soccer and Community Club. The minutes of the meeting indicated a number of matters were discussed including:

• Concerns in relation to the Tavern's leaking septic and extremely high rent and that these matters were being reviewed by lawyers who were pursuing a rent reduction and compensation as a result of the impact on trade for the previous 22 months.

• The Tavern's viability, in particular the Tavern's operations needed to be reviewed. The direction of the Tavern, inefficiencies, profitability and cost controls needed to be identified.

• Under the heading of staffing matters the following was recorded "The head chef is still not complying with requests. The matter is to be addressed."[52]

[79] In late January 2017, Mr Cochrane spoke briefly to two Board members during a football game about abolishing Mr Fowler's role.[53]

[80] On 13 February 2017, Mr Cochrane participated in another Board meeting and the minutes recorded that:

"Venue operations were reviewed again, profitability of each area reviewed - gaming, bar and food trade. After a lengthy discussion and the analysis of the profit and loss it was unanimously decided in an attempt to increase profitability to change the focus of the venue towards gaming and bar trade. Salaried and supervisory roles were reviewed and evaluated. The role of head chef has already been reviewed and change with responsibilities such as managing staff performance and rostering already being centralised and now done by Josh and Cherece. The bistro staff roles will be reviewed as the focus moves towards bar roles."[54]

[81] Following the Board decision to focus on gaming and bar operations, Mr Cochrane re-configured the space to reduce the dining area and increase the bar. Mr Fowler said this was achieved by erecting a partition in the dining/bar area and by adding a pool table to the bar area and moving out some dining booths.[55]

[82] On Valentine's Day 2017, a situation arose where Mr Fowler was not rostered to work, despite Mr Cochrane's view that it was one of the busiest mid-week days of the year. Another cook was rostered to work but called in sick at late notice. The kitchen was short staffed. When asked to cover the shortfall, Mr Fowler said "It's not my problem." Mr Cochrane considered this was disappointing as he was the salaried Head Chef and responsible for kitchen rostering.

[83] Soon after, Mr Cochrane decided the Tavern no longer needed Mr Fowler's role.[56]

[84] Mr Cochrane determined that Mr Fowler's responsibilities would be reallocated as follows:

• His cooking duties would be performed by a pool of casual cooks with rosters to be determined weekly having regard to trading conditions.

• Whilst Mr Fowler's rostering responsibility had already been removed and reallocated it 'theoretically remained part of his duties' and would be reallocated to Mr Callery and Ms Czerniakiewicz.[57]

• The responsibilities for overseeing the purchasing of ingredients, stocktakes and determination of menus and specials by the Chefs would be allocated to Mr Callery and Ms Czerniakiewicz.

[85] Mr Cochrane determined that Mr Fowler would be offered on-going employment as one of the pool of casual Chefs.[58]

[86] Mr Cochrane then submits he had made a preliminary decision that the Tavern no longer required a salaried Head Chef.[59]

[87] On 15 February 2017, Mr Cochrane describes the proposal as being subject to a decision to implement.[60]

[88] Mr Cochrane was overseas from 15 February 2017 to 7 March 2017. Whilst he could not recall the precise terms used, prior to leaving, he directed Mr Callery or Ms Czerniakiewicz to seek out other Chefs.[61]

[89] On 7 March 2017, Mr Cochrane advised Mr Fowler that he wanted to meet with him on 14 March 2017.

[90] On 13 March 2017, Mr Cochrane was advised by Mr Callery that Mr Fowler had removed his knives and materials from the kitchen.

[91] Mr Cochrane appears to have considered the possibility that Mr Fowler might choose not to work after the scheduled meeting and asked Mr Callery to make arrangements to ensure there was enough staff after the meeting.

[92] At 10:00am on 14 March 2017, Mr Fowler and Ms Cruickshank from United Voice met with Mr Cochrane. Mr Cochrane contends that the outcome of this meeting was not pre-conceived, 'it was sit down, discuss it, let them know what my problems are from the venue's point of view, and find out what Shane's problems were from his point of view'.[62] Mr Cochrane enquired as to why Mr Fowler had removed the items from the kitchen, Ms Cruickshank advised that the equipment was in Mr Fowler's car and that he can start work.

[93] Mr Cochrane repeated the question and Mr Fowler said "I can see what you are trying to do".

[94] Mr Cochrane responded by referring to the Tavern's desire to change the kitchen's wages and operation to make it more profitable.

[95] Ms Cruickshank asked why Mr Fowler was the only one to get the notice, Mr Cochrane responded that he was the only full time employee employed in the Tavern and kitchen area where they had been pushing for change and it had not happened.

[96] Ms Cruickshank asked if Mr Fowler was being made redundant. Mr Cochrane said that Mr Fowler had withdrawn all his equipment and stepped back from us, and that it had been his intention to have a chat and determine the position. Ms Cruickshank said "So, you are making him redundant" and Mr Cochrane said "In the circumstances, we are considering that and making him redundant".

[97] Ms Cruickshank asked about redeployment and was advised that the Tavern could provide casual employment as a Chef for 20-30 hours per week. When asked to be more definitive as to the number of hours offered, Mr Cochrane said they needed flexibility.

[98] Mr Fowler and Ms Cruickshank then left the premises.

[99] In cross-examination Mr Cochrane accepted he may have said there was the need for Mr Fowler to be more flexible, work on different days and different hours.[63] Mr Cochrane denied these were the reasons for the redundancy.[64]

[100] Further discussions were held concerning the offer of casual employment. Mr Cochrane expected Mr Fowler's employment to continue as a casual.

[101] On 21 March 2017, Ms Cruickshank advised she considered the dismissal as unfair and asked if the Tavern was making Mr Fowler redundant. Mr Cochrane said the Tavern would make him redundant as at Tuesday 14 March 2017 and that his redundancy entitlements would be paid. Ms Cruickshank requested confirmation in writing which was provided by letter dated 22 March 2017.[65]

[102] This letter advised that the Board and senior management had considered the proposal put forward in the meeting held on 14 March 2017 and confirmed that Mr Fowler's position had been made redundant.

[103] Post Mr Fowler's dismissal, the Tavern had in its employ five casual Chefs (including Mr Encinas).

[104] Mr Encinas was employed as a result of Mr Fowler's refusal to accept the casual role. Mr Encinas hours of work vary but are in the order of 35 to 42 hours per week. Mr Encinas was Team Leader when he was working.[66]

[105] A number of Mr Fowler's responsibilities have been reallocated. Specials are determined collaboratively by the Chefs with approval by Mr Callery and Ms Czerniakiewicz. The menus are determined collaboratively with approval by Mr Cochrane, Mr Callery and Ms Czerniakiewicz.

[106] Mr Callery, Ms Czerniakiewicz and Mr Encinas work collaboratively on ordering meat and produce, with Mr Callery making the final decision.

[107] Rostering is now undertaken by the Office as had been the case immediately prior to the dismissal.

[108] Ms Czerniakiewicz tendered a statement[67] and her relevant evidence is summarised as follows.

[109] Ms Czerniakiewicz has worked for the Tavern since late 2014 and around Christmas 2015 was appointed as one of two acting Venue Managers, from that point Mr Fowler reported to Ms Czerniakiewicz.

[110] Mr Fowler's responsibilities included cost control, rostering and coming up with specials for the menu. Ms Czerniakiewicz had observed Mr Fowler's work in the last three months of his employment and was critical of his work performance.[68]

[111] With respect to cost control, Mr Fowler's response was normally "I'm on budget" and that he did not need to make any changes.

[112] Ms Czerniakiewicz had heard from others that there was an attempt to cut back from three to two Chefs on Tuesdays which Mr Fowler resisted and that there was concern that he rostered two dishwashers on Saturday nights when only one was required.

[113] Rostering was removed from Mr Fowler's responsibilities by Mr Cochrane around December 2016 or January 2017 and given to Mr Callery. Mr Cochrane told Mr Callery words to the effect 'You work out the best way to roster kitchen staff, make sure they get the right amount of hours and reduce costs' and Mr Fowler said words to the effect 'Well good luck with that, it's not going to work'.

[114] Ms Czerniakiewicz recalled asking Mr Fowler to change to a different meat supplier to save costs but Mr Fowler dismissed the suggestion.

[115] Ms Czerniakiewicz believed that Mr Fowler failed to change suppliers when they increased their rates.

[116] Ms Czerniakiewicz had the view that Mr Fowler was inflexible with his working hours, but accepted that this was not due to his salaried arrangement.[69]

[117] Ms Czerniakiewicz was not involved in any restructure[70] or the dismissal of Mr Fowler.[71]

[118] On or about 12 March 2017, Ms Czerniakiewicz was advised by Mr Cochrane that he had made a decision in conjunction with the Board and that Mr Fowler's position, as Head Chef, would be removed and he would be offered a casual role.[72]

[119] Prior to Mr Fowler's dismissal another Chef, Mr Dearing, who was working about 27-28 hours per week, left the business and had not been replaced which placed pressure on the kitchen.[73] There was a gap of about 70 Chef's hours per week that needed to be filled.[74]

[120] When Mr Fowler was dismissed the Tavern needed to find another Chef to take up casual on-going employment.

[121] Ms Czerniakiewicz and Mr Callery knew about a week before Mr Fowler's dismissal that he would be let go and a discussion was had with Mr Encinas to work at the Tavern as a Chef.[75] Mr Encinas signed his employment contract on or about 22 March 2017, eight days after the meeting with Mr Fowler. On 14 March 2017, Mr Encinas recommended another employee, Corey, for the Tavern to consider engaging. In cross-examination Ms Czerniakiewicz's evidence on the dates conversations were had about engaging Corey was inconsistent.[76]

[122] Ms Czerniakiewicz and Mr Callery continue to be responsible for kitchen rostering, approving produce orders, menus and specials, in consultation with the Chefs.

[123] Mr Callery tendered a statement[77] and a supplementary statement,[78] and his relevant evidence is summarised as follows.

[124] He commenced employment at the Tavern in June 2016 as one of two Acting Managers.

[125] The Tavern has a bar area, a gaming area and a dining area, which includes the kitchen.

[126] Mr Fowler was the Head Chef, but not the only person who was employed to perform cooking duties. There were four other persons who ran the kitchen when Mr Fowler was not there.

[127] Mr Fowler was responsible for determining the 'specials' but in his opinion was dismissive or unresponsive to changes based on customer feedback.

[128] Mr Fowler was responsible for ordering food produce, including overseeing orders made by others.

[129] Mr Callery was aware that the Tavern's costs were of concern to Mr Cochrane.

[130] Mr Cochrane raised the issue of the amount of profit being earned for meals sold taking into account the cost of ingredients and preparation wage costs. Mr Callery and Mr Cochrane shared the view that the wage component of those costs needed to be reduced.

[131] From December 2016, Mr Callery was responsible for working with Mr Fowler to reduce wage costs. At this time, Mr Cochrane took Mr Fowler's responsibility for rostering of kitchen staff. Mr Callery, Ms Czerniakiewicz and Mr Cochrane held the view that more staff than were needed were being rostered and made changes to the roster, Mr Fowler objected.

[132] The creation of a new menu was an issue from June 2016. Mr Callery raised it with Mr Fowler in December 2016. Mr Fowler said he did not have time. It was intended that a new summer menu be created but this task was not completed by Mr Fowler.

[133] On 14 February 2017, Mr Fowler was not rostered to work. Mr Callery expected Valentine's Day would be busy in the kitchen. One of the other Chef's had resigned in early February 2017 and Mr Callery was concerned that the Tavern might be short staffed. Mr Callery asked Mr Fowler to work on the Sunday before Valentine's Day, Mr Fowler advised he would work if the Tavern paid him overtime. Mr Callery offered to give him a day in lieu, but Mr Fowler said he already had five days in lieu and that if they wanted him to work they would have to pay him overtime rates. Mr Callery contacted Mr Cochrane who advised that they would not pay overtime and suggested that if Mr Fowler was not available he should find someone else to work on that day. Mr Callery told Mr Fowler not to worry about it.[79]

[134] Mr Callery then asked Mr Fowler to work on the evening of Valentine's Day, Mr Fowler advised he had something on. Mr Callery spoke to Mr Cochrane who was angry about Mr Fowler's refusal to work.[80] Mr Callery completed an incident report and noted 'so our Head Chef can't help us'[81] Mr Cochrane said he would take the matter up with Mr Fowler.

[135] Mr Callery was aware that Mr Fowler was to meet with Mr Cochrane on 14 March 2017.

[136] On the evening before the meeting, Mr Callery saw Mr Fowler packing up his knives. He asked Mr Fowler what he was doing and Mr Fowler said "I am just getting my gear because I know what's going to happen. I am not going to come in and pack my shit on the day." Mr Callery reported his observations to Mr Cochrane.

[137] Mr Callery attended the meeting between Mr Cochrane and Mr Fowler who was accompanied by Ms Cruickshank, but he did not have a clear recollection of the conversation.[82]

[138] Mr Callery recalls Mr Cochrane saying words to the effect 'We are not replacing the Head Chef, we are changing the venue around making dining smaller. There's still casual hours for Shane here. I'm offering casual persons about 20 to 30 hours per week'.

[139] As a result of Mr Fowler's departure and one other Chef, the kitchen was short staffed. Mr Callery discussed with Mr Cochrane offering Mr Encinas a regular job. Mr Encinas accepted a casual role and his hours have varied between 35-42 hours per week depending on how busy the Tavern is. Mr Callery considered Mr Encinas as the Team Leader.[83]

[140] Mr Encinas tendered a statement[84] and his relevant evidence is summarised as follows.

[141] A few days before 12 March 2017, he received a call from Mr Callery about working at the Tavern as a Chef. He regarded himself as the Team Leader.[85]

[142] He commenced as a casual Chef on 27 March 2017. Prior to this employment, he worked at the Tavern on 14 February 2017 to cover a shift.

[143] He was initially advised that the ordering of produce was required to go through Mr Callery, Ms Czerniakiewicz or Mr Cochrane. He now orders produce when he is rostered on, Mr Callery or Ms Czerniakiewicz review non-standard orders.[86]

[144] His hours vary from week to week. He generally is rostered to work around 38 hours per week, but has worked as little as 33 and as much as 42 hours per week.[87]

[145] He does not have responsibility for the rostering of staff, or managing the kitchen staff.[88]

[146] He has made some suggestions to add items to the menu which have been adopted.[89]

[147] He has met Mr Cocks from John Lewis Foodservice once and has had some contact with Mr Lawson from Holco.

[148] Mr Cochrane was an unconvincing witness. His evidence was inconsistent on a number of matters including:

• The offer of new employment to an additional Chef in September 2016 which flew in the face of his email of 1 September 2016.[90]

• Whether Mr T was offered a role in a telephone discussion in December 2016 with Mr T about working at the Tavern.[91]

• What was discussed with fellow Tavern Directors at a football game in January 2017.[92]

[149] During his cross-examination, Mr Cochrane appeared confused and at times appeared to be evasive. In my view, Mr Cochrane understated his dissatisfaction for Mr Fowler.

[150] I prefer the evidence of Mr Fowler and the other witnesses called by the Tavern where they conflict with Mr Cochrane's evidence.

[151] My adverse view of Mr Cochrane's credit is significant in that his evidence is relied upon to establish the operational reason for the redundancy, consultation and offer of redeployment.

[152] I make the following factual findings.

[153] Prior to Mr Fowler's engagement, Mr Cochrane reached agreement about the days on which Mr Fowler would not work, in the terms expressed by Mr Fowler.

[154] Mr Cochrane became dissatisfied with Mr Fowler from November 2015 due to Mr Fowler:

• seeking to apply the agreement concerning the days he would not work in order to meet his child care obligations;

• refusing to agree to vary his contract of employment;

• not being available on the telephone when rostered off;

• refusing to reduce the head count in the kitchen;

• not accommodating the Tavern's needs at short notice; and

• rejecting the need to reduce costs on the basis that he was meeting the previously agreed budget.

[155] The proposal to replace Mr Fowler with casual Chefs would not have reduced the Tavern's labour costs but may have improved rostering flexibility.

[156] I find that the decision to remove Mr Fowler's role, made prior to the meeting on 14 March 2017, was not a preliminary one but a firm decision and would not have been changed as a result of the matters discussed at the meeting. In doing so, I accept Ms Czerniakiewicz's testimony that Mr Cochrane advised her that Mr Fowler would be dismissed a few days prior to the meeting, and Mr Cochrane's view of Mr Fowler after the Valentine's Day incident where he said "Well, he was too lazy, he wasn't going to work, we had to find a replacement."[93]

[157] I accept that Mr Cochrane tasked Mr Callery and Ms Czerniakiewicz to seek out other Chefs before he went on leave on 15 February 2017.[94]

[158] I find that Mr Cochrane rang Mr T to enquire as to his ability to work at the Tavern as a Chef on the day he made a preliminary decision to abolish Mr Fowler's role.

[159] Mr Encinas was employed as a Chef and is considered as the Team Leader whilst working and performs most, but not all, of the duties performed by Mr Fowler.

[160] Mr Cochrane's evidence was that there was 'more than enough work to keep multiple cooks engaged'. I find that at the time of the dismissal there was sufficient casual Chef work at the Tavern to support Mr Fowler being offered 38 hours per week, and that such an offer was not made to Mr Fowler.

[161] Section 385 of the Act states:

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."

(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."

[163] Mr Fowler was covered by the Registered and Licensed Clubs Award 2010 [MA000058]. Clause 8 relevantly states:

8.1 Consultation regarding major workplace change

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer's workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer's interests.

[164] The Tavern suggests that it restructured the Tavern by installing a petition dividing the bar and food areas. It appears that this petition had little effect in practice and does not represent a major structural reform so as to provide a basis to restructure the Tavern's labour requirements.

[165] The Tavern also suggests that the motivator for the termination of Mr Fowler's employment was the need to have rostering flexibility and not to be bound by a full time salaried arrangement.

[166] The Tavern stated that it needed to reduce labour costs but this is not borne out by the engagement of additional casual Chefs who essentially worked full time hours.

[167] The Tavern clearly also had concerns about Mr Fowler's work performance, including the perceived failure to vary the rosters to reduce wage costs, the failure to revise the menu, the failure to take into account customer feedback and a failure to reduce food input costs by changing suppliers or negotiating costs. These were matters that the Tavern could have addressed through a performance management process, and it appears that such a process was started in late May 2016 and later abandoned in favour of a redundancy. Perhaps this is what was meant by the Board's minutes in January 2017 which referred to the need for the matter to be addressed.

[168] The 13 February 2017 Board minutes refers to the salaried roles having been reviewed, and the role of Head Chef being reviewed further. Soon after 14 February 2017, when Mr Cochrane was angry about Mr Fowler's failure to change his arrangements to allow the Tavern to meet its labour requirements, it was decided that the Tavern no longer needed a salaried full time Head Chef and the position would be abolished.

[169] I am not persuaded that the Tavern no longer required Mr Fowler's job to be performed by anyone because of changes in the operational requirements (emphasis added). It appears to me that the decision to dismiss Mr Fowler was primarily based on Mr Cochrane's dissatisfaction with Mr Fowler's conduct and/or work performance as detailed in paragraph 154.

[170] The notion of consultation implies that the proposed outcome may be impacted by an exchange of information and/or views.

[171] The meeting which took place on 14 March 2017 was directive in nature as opposed to being consultative. This may have been as a result of Mr Cochrane having the erroneous belief that Mr Fowler had decided to leave the Tavern as a result of the removal of his tools of trade.

[172] It appears that the decision to make Mr Fowler's role redundant was made in advance of the meeting on 14 March 2017. Support for this view can be found in the evidence of Ms Czerniakiewicz who was advised some days prior and the inconsistent accounts of the timeline by Mr Cochrane.

[173] It appears that the consultation in this matter was an illusion. I find that the Tavern did not comply with the obligation in clause 8.1(b)(i) of the Award.

[174] Finally it appears to me that there were considerably more casual working hours, for a Chef, available than what was offered to Mr Fowler by way of redeployment. It appears that the Tavern was in a position to offer 38 hours casual employment to Mr Fowler, and that it would have been reasonable in the circumstances for Mr Fowler to be redeployed on that basis at the Tavern.

[175] I also find that the Tavern has failed to meet the requirements of s.389(1)(b) and/or s.389(2)(a) of the Act and as a result the dismissal cannot be regarded as a genuine redundancy.

[176] I now turn to consider whether the dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act.

Was the dismissal harsh, unjust or unreasonable?

[177] Pursuant to s.387 of the Act, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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."

[178] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd[95] which requires the reason for termination to be "sound, defensible or well founded."

[179] The Tavern submitted that the reason for Mr Fowler's dismissal was solely related to the operational requirements of the business, no reliance was placed on Mr Fowler's work performance. As a result, it cannot be said that Mr Fowler's dismissal arose due to his conduct or performance.

[180] For the reason previously detailed, I do not accept that the reason for Mr Fowler's dismissal was because of changes in the operational requirements of the business.

[181] During the hearing the Tavern submitted that Mr Fowler's conduct in covertly recording two meetings with Mr Cochrane was a breach of s.4 of the Listening and Surveillance Devices Act 1972 (SA) and of its own was sufficient to form a valid reason for dismissal.[96] I accept that the Tavern was not aware of this conduct prior to the dismissal, and pre-dismissal conduct which the employer was not aware of can in some circumstances be relied upon to support a dismissal.

[182] Mr Fowler submits his conduct was excused by s.7(1) as it was in the public interest or for the protection of his lawful interests. The Tavern submits that the desire to have an accurate record of the conversation will not enliven Mr Fowler's lawful interests.[97]

[183] Whilst I accept that Mr Fowler's covert recording of two meetings he had with Mr Cochrane represent misconduct on his behalf, there are mitigating circumstances in that Mr Fowler had a distrust of Mr Cochrane, he was provided with only five minutes' notice of the first meeting, and therefore had no opportunity to have a support person and his desire to have an accurate record of the conversation. With respect to the second recording, Mr Fowler's heightened emotional state and expectation that he was about to be dismissed explains his desire to have an accurate account of the meeting.

[184] It is not the Commission's task to determine if a breach of the Listening and Surveillance Devices Act 1972 (SA) has occurred.

[185] When the circumstances in this case are considered, I do not believe that this conduct is so serious as to provide, on its own, a valid reason for the dismissal. Mr Fowler's conduct is not condoned, however, is a matter which would damage any on-going employment relationship and represents misconduct on the part of Mr Fowler.

Notification of valid reason and opportunity to respond - s.387(b) and (c)

[186] The matters in s.387(b) and (c) of the Act deal with whether there was procedural fairness in respect of a dismissal related to capacity or conduct. The Tavern contended that Mr Fowler's dismissal was not related to his work performance. Mr Fowler was not notified of or given an opportunity to respond to the reason for his dismissal related to his capacity or conduct.

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

[187] The Tavern allowed Mr Fowler to have a support person attend the meeting on 14 March 2017.

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

[188] Mr Fowler's dismissal was based on the operational requirements of the business and therefore, this matter is not relevant to my consideration.

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

[189] The Tavern did not submit that its size impacted on the procedures followed and, whilst it had no internal human resource management capability at the time of the dismissal, it contended that it followed the advice provided by Clubs SA as to process.

[190] Mr Fowler's decision to covertly record the two meetings with Mr Cochrane was a poor one and falls within the meaning of misconduct. It is a factor which weighs against a finding that the dismissal was harsh, unjust or unreasonable.

[191] I have found that the Tavern failed to consult with Mr Fowler in the manner required by clause 8.1(b)(i) of the Award.

[192] I have found that the Tavern has failed to meet the requirements of s.389(1)(b) and/or s.389(2)(a) of the Act

[193] The Explanatory Memorandum to the Act[98] explains the approach of the Commission in considering the elements of section 387:

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

[194] In Byrne and Frew v Australian Airlines Pty Ltd, [99] the following observations made by McHugh and Gummow JJ are relevant to my conclusion:

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

[195] Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Mr Fowler's employment was harsh, unjust or unreasonable.

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

390 When the FWC may order remedy for unfair dismissal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[197] The prerequisites contained in ss.390(1) and (2) have been met in this case.

[198] Mr Fowler did not seek reinstatement and I am satisfied that it is not appropriate in this case.

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

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

[201] A recent Full Bench in McCulloch v Calvary Health Care Adelaide[100] confirmed, in general terms, that the approach to the assessment of compensation, as undertaken in cases such as Sprigg v Paul's Licensed Festival Supermarket,[101] remains appropriate.

[202] Section 392(2) of the Act requires the Commission to take into account all of the circumstances of the case including the factors that are listed in paragraphs (a) to (g). Without detracting from the overall assessment required by the Act,[102] it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.

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

[203] There is no material before me which suggests that the viability of the Tavern would be affected by an award of compensation.

The length of Mr Fowler's service with the employer - s.392(b)

[204] Mr Fowler was employed by the Tavern for 2 years and 5 months.

The remuneration Mr Fowler would have received, or would have been likely to receive if he had not been dismissed - s.392(c)

[205] This involves, in part, a consideration of the likely duration of Mr Fowler's employment in the absence of what I have found to be an unfair dismissal.

[206] There were a number of issues concerning Mr Fowler's work performance that were taken up with him and left unaddressed which would have adversely impacted on his continued employment.

[207] The working relationship between Mr Fowler and senior employees commenced to deteriorate from November 2015 and that deterioration escalated in 2017. Mr Fowler is not blameless in this regard, as a senior employee he needed to take a more proactive stance in dealing with the issues the Tavern faced.

[208] In the circumstances, it is reasonable to assess compensation in this matter on the basis that Mr Fowler would have remained in employment for a further period of 12 weeks.

The efforts of Mr Fowler to mitigate the loss suffered by him because of the dismissal - s.392(d)

[209] Mr Fowler was successful in seeking alternative employment after 11 weeks. I accept that in the initial stages Mr Fowler rejected offers of casual employment as a result of seeking the security of full time employment of a nature he had with the Tavern. I do not draw an adverse inference as a result.

Remuneration earned by Mr Fowler during the period between the dismissal and the making of the order for compensation s.392(e)

[210] At the time of the dismissal, Mr Fowler was paid a six week redundancy payment ($7,500) and notice. No reduction in respect of notice arises as he would have been required to be provided with notice had he been dismissed for any reason other than summary dismissal.

[211] Mr Fowler earned $927.60 in the period between the dismissal and the hearing.

[212] Mr Fowler's new employment resulted in his average earnings being $322.40 a week less than the weekly wage he received at the Tavern.

The amount of any income likely to be earned by Mr Fowler during the period between the making of the order for compensation and the actual compensation s.392(f)

[213] The period over which the compensation has been calculated expired prior to the making of the order for compensation and, accordingly, whilst Mr Fowler may have received additional income it is not appropriate to further discount the award.

Any other matter that the FWC considers relevant s.392(g)

[214] As a result of Mr Fowler's misconduct in covertly recording the two meetings, and recognising his mitigation, I will discount the amount awarded by 10%. This approach was adopted in Evered v AHG Services (Vic) Pty Ltd T/A Coffey Ford.[103]

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

[216] The maximum compensation limit in this case would be the lesser of 26 weeks remuneration or $68,350.[104] The amount of compensation awarded is less than that amount.

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

[218] The compensation confirmed below is also appropriate having regard to all of the circumstances of this matter and the considerations specified by the Act.[105]

[219] I award compensation in the amount of $5,072.40 (this amount represents 12 additional weeks employment at $1,250 per week, less the 10% discount for misconduct, less 6 weeks redundancy payment ($7,500), less $927.60 which was earned in the period since the dismissal) to be paid within 14 days.

[220] An Order[106] reflecting this decision will be issued.

Mr S.Blewett of United Voice on behalf of the Applicant.

Mr D.Krips of counsel on behalf of the Respondent.

[77] Exhibit R12 including attachment JC1

[95] (1995) 62 IR 371 at 373

[96] Schwenke v Silcar Pty Ltd T/A Silcar Energy Solutions [2013] FWC 4513. This decision was upheld on Appeal by [2013] FWCFB 9842

[97] Thomas v Nash [2010] SASC 153; Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266

[98] Explanatory Memorandum to the Fair Work Bill 2008

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

[100] [2015] FWCFB 873

[101] (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431

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

[103] [2013] FWC 9609, albeit that the discount in that case was assessed at 15%

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

[106] PR595544

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