Fair Work Act 2009_

s.394 - Application for unfair dismissal remedy

Summary: whether unfair dismissal - performance issues - appearance - finding that the Applicant was dismissed harshly unjustly or unreasonably - remedy ordered - reinstatement not sought - compensation awarded.

[1] Mr Dale Taylor ("the Applicant") filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 ("the Act") on 3 July 2013 following his dismissal from C-Tech Laser Pty Ltd ("the Company") on 21 June 2013.

[2] The letter of termination was signed by Mr Kym Vu, Managing Director of the Company.

[3] The letter of termination read, in part, as follows:

This letter confirms that your employment with C Tech Laser Proprietary Limited is dismissed effective immediately on Friday, 21 June 2013.

We refer to several meetings and discussions with you and management and advised of your continuous poor performance in reference to your position as frontline Assistant Manager/sales representative. In attempt to address this issue over the past four months, it is determined that your performance remains unsatisfactory with no evidence of improving results. The decision to terminate your employment your per action is inconsistent with the continuation of your contract job description of employment. (sic)

[4] On the evidence before me the Applicant is a person who is protected from unfair dismissal; the Company is a national system employer and there are no jurisdictional or other statutory bars to the application being dealt with by the Commission. For example, the Company is not a small business employer for purposes of s.23 of the Act and it is not argued that the Applicant had not served the minimum period of employment.

[5] The application was subject to a conciliation conference listed on 8 August 2013. At that conference, the Applicant appeared in his own capacity. The Company was unable to be contacted at the listed time. No conciliation took place, as a consequence.

[6] The file was subsequently listed for arbitration.

[7] Directions for the hearing were issued on 13 September 2013 by the Melbourne-based unfair dismissal team, and the matter was set down for determination on Monday 11 November 2013 as part of the Fair Work Commission Brisbane arbitration roster.

[8] The file indicates that the unfair dismissal team wrote to Mr Vu at his e-mail address on 10 September 2013 advising him that the application was to be listed for arbitration hearing but that it had not as yet received an employer's response to the application. A further copy of the relevant form was attached to that e-mail correspondence.

[9] The e-mail correspondence also indicated that if there was no response from Mr Vu or the Company by 16 September 2013 the matter would be listed for an arbitration hearing.

[10] No response from the Company appears to have resulted from this correspondence.

[11] In any event, it appears the application was listed on 13 September 2013 (a few days prior to the deadline set for the Company to provide its employer's response). Nothing turns on this however as the Company did not respond to the above e-mail in any event.

[12] The notice of listing indicated that the Applicant had to file his materials no later than Monday 7 October 2013. The notice also indicated that the Company had to file its materials in reply by no later than Monday 28 October 2013.

[13] It appears from the file that the Applicant filed submissions on 6 October 2013. These materials were forwarded to Mr Vu on 7 October 2013 by e-mail.

[14] On 10 October 2013 the unfair dismissal team attempted to make telephone contact with Mr Vu. It was advised by a Company representative that an e-mail could be sent to Mr Vu in preference to attempting to contact him by telephone. The purpose of the telephone call is undisclosed and there was no e-mail follow-up that is evident in the file.

[15] On 29 October 2013, a telephone message was subsequently left by the unfair dismissal team with the reception at the Company's place of business, asking for Mr Vu to contact the Commission urgently "as we have still not heard anything from him regarding the upcoming hearing and his submissions are now overdue" (sic)

[16] There appears to have been no response to this message.

[17] Upon the application being allocated to me an e-mail was directed to Mr Vu at his place of work on 1 November 2013.

[18] That e-mail indicated that should no material be received from the Company in response to the application by 5 November 2013 future material may not be taken into consideration. The following comment was also made:

If you do not intend to defend your interests in the application findings may be made exclusively on the Applicants materials in evidence.

You must act promptly to file your statements etc as per the directions to ensure your interests are defended.

If you do not intend to file materials please indicate promptly.

If you do not intend to attend the proceedings as listed, please also indicate promptly.

[19] No response to this correspondence was received.

[20] On 5 November 2013, a telephone message was left at Mr Vu's place of work requesting him to "call chambers ASAP".

[21] On 6 November 2013 a further message was left with reception asking Mr Vu to "call chambers ASAP in regards to the late filing of his material - reiterated that this was urgent".

[22] No response was received to this telephone message.

[23] The Company did not appear at the hearing as had been listed and as conducted on 11 November 2013. A telephone call was made to the Company's place of business and a message was left with reception advising Mr Vu of the hearing and his right to appear. No return call was received over the course of the hearing or the rest of that day.

[24] At the time of the publication of this decision, the Company still had made no contact with the Commission of any kind.

[25] It is, I think, abundantly clear that the Company does not seek to defend its interests in this matter. As a consequence I can only rely upon the Applicant's materials, which are uncontested (other than where there might be any obvious consideration that might give me cause to question the genuineness or otherwise of the Applicant's evidence).

[26] The Applicant contends that he was a sales representative for the Company and visited, he says, over 800 businesses bringing in new work. He also worked on potential clients or peak work from existing clients. He performed these duties between 3 September 2012 and February 2013.

[27] After that time, the Applicant began training as a manager with the existing manager. The training was conducted over a period of some six weeks.

[28] The Applicant was thereafter promoted to the position of Assistant Manager, at the beginning of March 2013.

[29] The Applicant claims that he had complete management of the Brisbane branch of the Company's business from 9 April 2013 to 20 May 2013.

[30] On 4 June 2013 the Applicant was instructed to hand over his management tasks to another person (whom the Company had assigned to the Brisbane branch) and to return to his sales representative function, that he had originally held. The Applicant maintained his title of Assistant Manager until his dismissal, however.

[31] The Applicant claims that he was never made aware of any specific performance issues in the course of his employment and had no appreciation that his position was under threat.

[32] If there were any issues concerning his performance, he contended that they were due to the very short period of training and the inadequacy of that training and the absence of support once he was in the management role.

[33] The Applicant also contended that any performance issues would have been affected by the high workload and stress associated with his position and not because of any performance issue as such.

[34] The Applicant contends that he was not given any opportunity to improve his performance based on any articulated concerns, let alone afforded any additional training or assistance.

[35] Notwithstanding these claims, the Applicant did concede that he received some "abusive" phone calls from Kym Vu, comparing the performance of the Brisbane and Melbourne branches and complaining that "... I am not a charity..." The Applicant conceded that he had made mistakes in areas such as costings (but put this down to the lack of support, the volume of work in that time of the year, and the fact that the Brisbane branch was not an established business).

[36] When the Applicant was informed of his dismissal at the meeting on 19 June 2013, he was given no precise indication, he says, of what performance issues were in question (let alone any opportunity to rectify those apparent concerns).

[37] The Applicant contended that he was not seeking to be reinstated to his former position and that he had found a different career direction in any event.

[38] The Applicant sought compensation as a remedy.

[39] The Applicant also sought a retraction of the reasons for his dismissal in a letter of apology from Mr Vu.

[40] Section 387 of the Act reads as follows:

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

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

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

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

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

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

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

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

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

(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)

[41] The Applicant was not dismissed for reasons of conduct. This is apparent from the letter of termination as cited above. The Applicant was dismissed for reasons of performance (though that may be a function of capacity in some circumstances). Should the dismissal have been for reasons of performance arising from capacity, then no case has been made out to that extent or point. This is because the Company did not challenge the Applicant's evidence or lead any evidence in respect of its own decision-making.

[42] Consequently there can be no valid reason for the dismissal based on capacity, which affected the Applicant's performance of his duties.

(b) whether the person was notified of that reason

[43] So far as "that reason" as referred to in s.387(b) of the Act refers to the capacity or conduct referred to in s.387(a) of the Act, no notice was given to the Applicant.

[44] Should it be contended that the reference to notice in s.387(b) of the Act extends to any issue of performance (so far as the reference to capacity in s.387(a) of the Act may impact on performance), then the outcome is the same. In either respect, the Applicant was not notified in advance of his dismissal of the reason for the dismissal.

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

[45] On the Applicant's evidence he appears not to have been given any opportunity to respond to any reason that may have been related to his capacity (in so far as any capacity issues may have affected the Company's view of the Applicant's performance).

(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

[46] The Applicant led no evidence in respect of s.387(d) of the Act. The circumstances of the dismissal do not appear to have given rise to a situation in which this matter would have fallen into contest in any event.

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

[47] On the Applicant's evidence he was not given any warning in relation to his unsatisfactory performance prior to his dismissal. No doubt, however, on the Applicant's own evidence he would have been alerted to Mr Vu's unfavourable view of the relative performance between the Brisbane and Melbourne branches; his observation that he (Mr Vu) was "not a charity"; and the admitted mistakes that were made in the course of his duties.

[48] The Applicant would have been sufficiently aware that all was not well in his position and that Mr Vu was in a state of discontentment. But I can take the matter no further than this on the evidence before me.

[49] It does not appear that the Applicant was advised with any specificity as to his performance deficiencies or given any warnings in respect of those particular deficiencies.

(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

[50] There is no evidence before me as to whether or not the size of the employer's enterprise in some manner impacted on the procedures in effecting the dismissal. The Company did not lead any evidence in this regard.

(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

[51] Nor did the Company lead any evidence in respect of whether or not the absence of dedicated human resource management specialists or expertise in its enterprise impacted on the procedures effecting the dismissal.

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

[52] There are no other issues in the evidence that warrant my attention, other than to observe that the Applicant was not a longstanding employee and he had some awareness that his employer was not entirely happy with the current business circumstances.

[53] I have subjected the Applicant's evidence to examination. I have found him to be genuine and candid about his claims. He readily made concessions about his performance which were contrary to his direct interests, which assisted my assessment of his credibility.

[54] As I have set out above, the Company has not elected to defend its interests in this matter. It has been contacted extensively over some period of time in an effort to garner its responses to the Applicant's materials. The Company was warned expressly that reliance would be placed on the Applicant's materials in the event that it did not seek to defend the case.

[55] Despite the Company not having sought to defend the case, it is necessary that the appropriate regard be had to the statutory provisions nonetheless. The finding as to whether or not a dismissal was harsh unjust or unreasonable cannot be made absent the Commission taking into account the various matters set out at s.387 of the Act (as cited above).

[56] In my view on the uncontested evidence before me, the Applicant was dismissed harshly unjustly and unreasonably. The case for the under-performance of the Applicant was not made out, nor was he proven incapable of rectifying any notified deficiencies in that performance (within a reasonable time). Conversely, the Applicant was not notified of the Company's particular concerns with his performance and was given no opportunity to address those concerns, as they may have been.

[57] An order to remedy should therefore follow.

[58] The Applicant expressly did not seek to be reinstated in any capacity or in any location. As mentioned above the Applicant is content that his career has taken a different direction since his dismissal. In circumstances in which the Applicant does not seek reinstatement or re-employment, the Applicant's disposition is a sure guide to the Commission as to whether or not it would be appropriate to reinstate or re-employ the Applicant. To act contrary to the Applicant's desired position in this respect would be to give effect to an order that may not yield a productive or cooperative workplace.

[59] Consequently, the issue arises as to the compensation in lieu of reinstatement that should apply in the circumstances.

[60] Section 392 of the Act provides as follows:

(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.

[61] In respect of the above matters that I must take into account I find as follows:

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

[62] There is no evidence that any order I might make for compensation would in some manner affect the Company's viability.

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

[63] The Applicant was employed with the Company for a period of some nine months. This is not a lengthy period of time.

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

[64] On the evidence available to me, and the Applicant concurs, it is reasonable in the circumstances to consider that the Applicant would have continued to be an employee with the Company for a further five weeks. In reaching this evaluation I have had regard to the difficulties the Applicant on his own admission was experiencing in that position (with stress and high workloads and mistakes) as well as the admitted discontent on the part of Mr Vu.

[65] The Applicant concurred with my judgment in this regard.

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

[66] The Applicant took steps to obtain employment in the mining sector immediately following his dismissal. When that did not yield an outcome, he entered a traineeship program to improve his employability.

(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.

[67] The Applicant has had no earnings or remuneration in the anticipated period of employment.

(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

[68] This is not a matter that requires any consideration as it is irrelevant to these proceedings.

(g) any other matter that the FWC considers relevant

[69] I indicate that I make no deduction for contingencies as I do not see them as being relevant in these circumstances. There is no evidence that the Applicant was otherwise exposed to loss of income over the period of anticipated employment. Sickness, accident, unemployment and industrial disputes are the main contingencies. I see no reason to apply any discount arising from such contingencies in the anticipated period of employment (as I have found it to be). There is no evidence such considerations may have applied to the Applicant, and that they would have reduced his income in the ordinary course.

[70] Section 392(3) of the Act provides as follows:

(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.

[71] There is no misconduct in evidence in these proceedings.

[72] Section 392(4) of the Act provides as follows:

(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.

[73] My order for compensation makes no allowance for the above proscribed matters or considerations.

[74] Section 392(5) of the Act provides as follows:

(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.

[75] Section 392(6) of the Act provides as follows:

(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.

[76] The order that I propose to make does not need to take into account the statutory cap.

[77] Section 393 of the Act provides as follows:

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.

[78] The Company has made no application to pay any amount I may order to be paid as compensation in instalments.

[79] I order that the Applicant be paid by the Company an amount equivalent to five weeks of his usual remuneration. This amount must be inclusive of superannuation payable for that same period.

[80] The amount ordered to be paid must be paid to the Applicant's usual bank account within 14 calendar days of the date of this decision (12 November 2013).

[81] An order to the above effect will issue along with this decision.

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