Fair Work Act 2009_

s.394 - Unfair dismissal

[1] This matter concerns an application made by Mr Shaun Tamehana (Mr Tamehana or the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent identified on the application is Contraflow Pty Ltd (the respondent).

[2] In this matter the applicant was represented by his wife Mrs Zorica Tamehana (Mrs Tamehana) and the respondent was represented by Mr Paul Hood (Mr Hood) who is a Director.

[3] Evidence was given by the applicant and his wife and by Mr Hood.

[4] Considering that evidence I find that the applicant commenced employment in January 2014 until his dismissal in September 2014. His tasks included repairing and maintaining concrete footpaths and curbing.

[5] During the nine months of his employment the applicant was regularly absent. The applicant was absent for thirteen days of annual leave and five days paid sick leave but in addition to this there were additional unpaid absences which on the respondent's evidence, which I accept, meant that of the hours he was obligated to work he worked less than 50% of the time.

[6] I accept the evidence of the respondent that this was disruptive to the business. Because of the frequency of the applicant's absences the respondent could not rely on the applicant attending to carry out his duties. Often the applicant would be assigned to work in a two-person team. On those occasions when the applicant was absent this meant the work that the team were tasked to undertake could not be completed. The frequent absences of the applicant cause the respondent to incur additional costs.

[7] The respondent viewed the applicant's absence on the 8th, 9th and 10th of September 2014 as the last straw. Mr Hood's evidence was that the applicant did not notify his supervisor on any of these days that he would not attend for work on these days and that he did not return the respondent's calls when the respondent's staff rang to establish why he was not present at work. It was this that triggered the respondent's decision to dismiss the applicant.

[8] Mr Hood's evidence to this effect however was based on what he had been told previously by the applicant's supervisor, Des. Mr Hood was not involved himself in attempting to contact the applicant on these days. Mr Hood's evidence on this point is hearsay. The respondent did not call Des to give evidence and advised that he is no longer an employee of the respondent.

[9] The applicant to the contrary gave evidence that he did indeed send text messages to his supervisor Des advising on each of these days, well before start time in the morning, that he would not be able to attend for work. Mrs Tamehana gave evidence confirming this was the case as she was home with the applicant on each of these days and assisted him to send these messages.

[10] There is a direct conflict in evidence between the respondent and the applicant on this issue. In the absence of evidence from the applicant's supervisor Des I am obliged to accept the direct evidence of Mr and Mrs Tamehana on this point over the hearsay evidence of Mr Hood. Consequently I find that on these days in September 2014 the applicant had notified the respondent before his shift commenced by text message to his supervisor that he was unwell and unable to attend for work.

[11] Section 387 of the Act which is set out below details the criteria for considering whether a dismissal was harsh, unjust or unreasonable.

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."

[12] Considering the facts above I am satisfied the applicant's frequent absenteeism made him an unreliable employee. This history by itself however was not what caused the respondent to dismiss the applicant. Rather it was what the respondent viewed as the last straw, which was his failure to notify them of his absences on the 8th, 9th and 10th of September 2014, which was the reason for his dismissal. This was not a valid reason for his dismissal because as I have found above he did notify his employer on those days that he was unwell and unable to attend for work.

[13] The applicant was not notified of the reason he was dismissed before the dismissal was effected. Consequently the applicant was not given an opportunity to respond to the reasons the employer dismissed him.

[14] There were no discussions relating to the dismissal and so there was no unreasonable refusal by the employer to allow the applicant to have a support person present.

[15] The complaint the respondent had with the applicant was not about the performance of his duties.

[16] The employer has approximately 150 employees. As such the employer is a medium-sized employer and would be expected to have appropriate procedures in place when taking dismissal action against an employer however that does not seem to have occurred.

[17] There is no evidence before the Commission as to whether the respondent has dedicated human resource specialists or expertise in the business.

[18] The hearsay evidence of Mr Hood is that the applicant's supervisor gave him verbal warnings about his absenteeism however the direct evidence of the applicant is that this did not occur other than in one instance when he was suspended because he failed to notify his employer of a one-day absence. What is clear is that there were no documented warnings provided to the applicant notwithstanding the respondent's complaint that he had on repeated occasions failed to attend for work.

[19] If the respondent had provided the applicant with proper warnings, preferably in writing, that his frequent absences were disruptive to the business and meant his employer could not rely on him being at work and if this continued it would lead to his dismissal then the applicant would have no reason to complain if after further absences he was dismissed.

[20] This is not however what occurred. The applicant's absences on the 8th, 9th and 10th of September 2014 were not a valid reason for the applicant's dismissal. No warnings were given to the applicant that future absenteeism could mean he was dismissed. The dismissal procedure did not allow the applicant to explain his version of what occurred on these days. For these reasons the dismissal was unjust and unreasonable. I find that the applicant was unfairly dismissed.

[21] The matters the Commission must take into account when determining an amount for the purposes of a compensation order are set out in section 392 of the Act below.

(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."

[22] The applicant advises that he has now chosen to pursue a new career path. In the circumstances reinstatement is in my view not appropriate.

[23] I now turn to consider the question of compensation as a remedy.

[24] There is no suggestion that an order of compensation would affect the viability of the respondent. The applicant was employed for only nine months. In my view the record of attendance of the applicant was so poor and the respondent's concerns quite real that if he had not been dismissed as he was he would have in all likelihood been dismissed from his employment in the near term in any event and so would not have continued to be employed for more than a further six weeks.

[25] The applicant did take appropriate steps to mitigate his loss and gained alternative employment within two weeks of his dismissal. This new employment lasted for two weeks and another job he obtained immediately thereafter also lasted only two weeks. The applicant therefore worked for four weeks' out of the first six weeks after his dismissal.

[26] Considering the above then I would make an order for compensation of two weeks' pay.

[27] An order to that effect will be issued in conjunction with this decision and the respondent is required to pay the monies within 21days.

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