s.394 - Unfair dismissal

• [1] On 12 September 2024, Mr Thor Dewar (Mr Dewar or the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he has been unfairly dismissed from his employment with Pek Care (Pek or the Respondent).

• [2] Pek objects to the application on the grounds that Mr Dewar was not dismissed. In the alternative, Pek submits that the employment of Mr Dewar came to an end due to serious misconduct and, consistent with the Small Business Fair Dismissal Code (SBFDC),[1] was therefore not unfair.

• [3] Mr Dewar is a person protected from unfair dismissal, having been employed under a Modern Award,[2] and was employed with the Respondent for greater than 12 months. Mr Dewar filed his application within 21 days. Mr Dewar's employment did not end by way of genuine redundancy.

• [4] The Respondent asserts that it is a small business within the meaning of the Act. Therefore, the Respondent submits that the SBFDC applies in this matter, and that it was complied with. Pek submits it is a small business for the purposes of the Act, having three (3) employees, with the rest of the organisation made up of volunteers. Mr Dewar did not dispute that Pek was a small business.

• [5] The SBFDC is only relevant if the employer is a small business as defined in section 23 of the Act. That section provides that "[a] national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time".

• [6] I am satisfied that the Respondent was a small business employer within the meaning of section 23 of the Act at the relevant time, having fewer than 15 employees. It is therefore necessary to consider whether the Respondent complied with the SBFDC if the first objection is dismissed.

• [7] For the reasons outlined in further in this decision, I have made the following determinations in relation to the application:

• Mr Dewar was dismissed within the meaning of the Act; and

• The dismissal was consistent with the SBFDC; therefore, the application must be dismissed.

• [8] Mr Dewar asserts that he did not resign from his employment with Pek and that he was dismissed by Pek during a meeting on 6 September 2024.

• [9] Mr Dewar submits that, after being called to attend the meeting on 6 September 2024, he decided to confront Mr Nicholas Schwehr (Mr Schwehr), Manager of the Respondent, in relation to comments he allegedly made on 14 February 2023. Mr Dewar states he was advised by his ex-girlfriend (Ms Rebekah Adams) that Mr Schwehr made comments implying he was concerned that Mr Dewar would rape or sexually assault her. A copy of a message exchange between Mr Dewar and Ms Rebekah Adams, from 14 February 2023, was entered into evidence which references the alleged comments from Mr Schwehr.

• [10] It was the evidence of Mr Dewar that, during the meeting, Mr Martin Muriuki (Mr Muriuki), Corporate Manager of the Respondent, started shouting at him and called him a liar. Mr Dewar states that Mr Muriuki asked for the keys to the shop and warehouse to be returned. Mr Dewar states that the meeting was then very heated and he decided to remove himself to avoid any form of physical confrontation.

• [11] Mr Dewar acknowledges that he returned to the premises and demanded back payment for lunch breaks and underpayments.

• [12] Mr Dewar states he later sent a text to Mr Muriuki about returning to work; however, Mr Muriuki informed him that he had resigned during the meeting. Mr Dewar denies resigning and asserts that he was terminated by Pek.

• [13] Mr Dewar provided evidence about his experience at Pek generally, stating that it was as if nothing he said would be believed, due to his previous incarceration, and that he felt undervalued and underappreciated as an employee. When asked whether he disliked Pek's management, Mr Dewar stated that he had a lot of respect for them which was lost after their final interactions. Mr Dewar was pressed on why he would remain in employment at an organisation he disliked so much, to which he noted financial pressures and obligations requiring that he maintain employment. Mr Dewar concedes to using the female toilets at work, conduct of which he was accused, citing the poor condition of the men's toilets.

• [14] Ms Julie Arvidson (Ms Arvidson) is the mother of Mr Dewar. Ms Arvidson attended the meeting on 6 September 2024 as Mr Dewar's support person.

• [15] Ms Arvidson states that Mr Dewar wanted to discuss the alleged comments regarding sexual assault and that Mr Muriuki then started to scream and told Mr Dewar to get out and leave his keys.

• [16] Ms Arvidson confirms that unpleasant things were said by all parties (Mr Dewar, Mr Muriuki, and Mr Schwehr) during the meeting. Ms Arvidson states that Mr Muriuki and Mr Schwehr were laughing at Mr Dewar and told him that no one would believe him due to his past.

• [17] Ms Arvidson gave evidence that she did not recall them explicitly stating Mr Dewar was fired, but that they demanded the keys be returned, would not directly answer Mr Dewar when he asked if they were firing him, and insinuated that he had quit. Ms Arvidson states her impression was that they did not want him back, hence the request for the keys.

• [18] Mr Rebekah Adams (Ms Adams) gave evidence on behalf of Mr Dewar. Her evidence mainly related to the incident on 14 February 2023, when Mr Dewar gave her flowers, which they then had an argument about.

• [19] Ms Adams directed complaints regarding the incident to Mr Schwehr. Mr Dewar was sent home from work early following the argument.

• [20] Mr Dewar states that the couple were trying to sort things out in the relationship at the point in time he gave her the flowers.

• [21] Ms Adams states that she informed Mr Schwehr of her concerns over Mr Dewar possibly assaulting her "with his anger" and, in response, that Mr Schwehr had made comments about being more concerned that he might sexually assault her.

• [22] Ms Adams gave evidence that Mr Schwehr made numerous inappropriate comments to both herself and Mr Dewar in her presence.

• [23] Ms Adams was not present at the meeting of 6 September 2024.

• [24] Ms Adams stated that Mr Dewar would get angry at work, "cos it's frustrating, that place".

• [25] Mr Antony Willemsen (Mr Willemsen) was a former volunteer at Pek. Mr Willemsen provided evidence in relation to his time as a volunteer at Pek. This evidence was mainly focused on his issues with Mr Muriuki, Mr Schwehr, and Pek as an organisation.

• [26] It is evident that Mr Willemsen has a very low opinion of the people involved in Pek and generally for the organisation as a whole. Mr Willemsen was not present at the meeting of 6 September 2024.

• [27] The below persons gave evidence on behalf of Pek:

• Mr Martin Muriuki (volunteer - Corporate Manager)

• [28] Pek submits that, on 6 September 2024, a customer made a complaint to Pek about the conduct of Mr Dewar.

• [29] Pek submits that it had previously provided Mr Dewar informal verbal feedback and warnings in relation to his conduct and performance issues.

• [30] Pek decided that, after the most recent complaint from the customer, the issues with the Applicant's conduct and performance needed to be addressed in a more formal setting and that a formal written warning would likely be required.

• [31] Pek directed Mr Dewar to attend a meeting, on the afternoon of 6 September 2024, to discuss the performance issues.

• [32] The performance and conduct concerns are as outlined below:

• Mr Dewar watching and playing inappropriate music and demonic videos during trading hours whilst at work.

• Mr Dewar using the female toilets despite being requested not to.

• Mr Dewar making statements about a fellow co-worker, that the co-worker was using drugs, gambling, and having sexual relations with numerous men.

• Mr Dewar making statements to fellow co-workers that he had been in jail with a volunteer and that the volunteer had been in jail for murder.

• Ms Adam's complaint regarding the unwanted flowers in 2023.

• Mr Dewar operating a forklift while later confirming that he would not pass a drug test.

• [33] Pek submits that, whilst the above conduct and performance issues would generally justify summary dismissal, it is a charity organisation whose values include providing second chances and attempting to rehabilitate staff members rather than dismissing them from employment.

• [34] Pek submits that they were going to issue Mr Dewar with a warning and provide him with the opportunity to improve his performance and conduct at work prior to making any decision to terminate his employment.

• [35] Pek submits that the meeting on 6 September 2024 did not proceed as planned, as Mr Dewar hijacked the conversation and resigned from his employment during the conversation, instead of allowing Pek the ability to outline the performance and conduct concerns and provide him with the warning as planned.

• [36] Pek submits that, during the conversation, Mr Dewar made the following statements, or statements to the following effect:

• Pek should pay him $10,000 or he would lodge a claim with the Commission.

• [37] It is also alleged by Pek that Mr Dewar made threatening hand gestures (i.e. making a clenched fist) which made Mr Schwehr and Mr Muriuki feel concerned that he was going to physically assault them.

• [38] Pek submits that, due to the conduct of Mr Dewar, both Mr Schwehr and Mr Muriuki were concerned for their personal safety.

• [39] Pek submits that, at the conclusion of the meeting, Mr Dewar made statements to the effect of "I wouldn't do this", "I'm done", "I'm out of here", which the witnesses took to be a resignation from Mr Dewar. Mr Dewar was asked for his keys and, after collecting his personal items, Pek asserts he threw the keys at the managers.

• [40] It was the consistent evidence of witnesses that neither Mr Schwehr or Mr Muriuki, who attended the meeting on behalf of Pek, had the authority to dismiss Mr Dewar's employment. Instead, this could only be done by Mr David Mashua. Mr Schwehr and Muriuki confirmed that they were going to provide Mr Dewar with a warning in relation to the performance and conduct concerns Pek had and, if this did not improve, they would then have recommended termination of employment to Mr David Mashua later.

• [41] It was the evidence of Mr David Mashua that, following the conduct of Mr Dewar on the day in question, if Mr Dewar did not resign, Pek would have terminated his employment for serious misconduct due to the conduct at the meeting on 6 September 2024, noting the threats made towards Mr Schwehr and Mr Muriuki.

• [42] From the evidence before the Commission, it is clear that the meeting on 6 September 2024 was heated and did not proceed how the representatives of Pek had planned.

• [43] On the evidence before me, it appears likely that, during the meeting, the agenda was hijacked by Mr Dewar. It then appears that, at the conclusion of the meeting, Mr Dewar likely resigned. However, I am satisfied this was done in the heat of the moment.

• [44] It is established that, although a resignation may usually be taken as is, in some circumstances (including when a resignation occurs in the heat of the moment), there arises a duty to clarify a resignation.[3]

• [45] It has been noted that Mr Dewar reached out to the Respondent after the meeting, seeking clarification on whether he was fired, to which the Respondent replied that he had resigned.

• [46] Having resigned in the heat of the moment, Pek should have provided Mr Dewar with the opportunity clarify the resignation, after having the opportunity to cool down from what was a heated conversation, rather than immediately accepting.

• [47] If I have erred in the conclusion that Mr Dewar did resign in the heat of moment, noting the competing evidence on this point, I would still be satisfied there was a dismissal at the Respondent's initiative.

• [48] Accordingly, I am satisfied that Mr Dewar was dismissed, as defined in the Act.[4]

• [49] That being said, I have considered the evidence and submissions of the parties in relation to the events that occurred on 6 September 2024, and I have determined that Pek had a reasonable belief on reasonable grounds that the conduct of Mr Dewar was serious enough to warrant immediate dismissal.

• [50] The SBFDC provides the following regarding summary dismissal in the context of serious misconduct:

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

• [51] From the evidence before the Commission, I am satisfied that Mr Dewar's conduct during the meeting amounts to serious misconduct.

• [52] Mr Dewar made direct threats to the personal safety of Mr Schwehr and Mr Muriuki at the meeting on 6 September 2024. Mr Dewar conducted himself in such a way that it was reasonable for both Mr Schwehr and Mr Muriuki to be concerned for their personal wellbeing. Even if Mr Dewar did not intend to make good on his threats towards the representatives of Pek, the threats alone justify the summary dismissal of his employment in accordance with the SBFDC.

• [53] Accordingly, I am satisfied that the dismissal was consistent with the SBFDC and therefore the Applicant was not unfairly dismissed. Consequently, the application must be dismissed, an Order to that effect has been issued.[5]

J Richards of King & Wood Mallesons for the Respondent.

[1] Fair Work Act 2009, Declaration under s 388(1) - Small Business Fair Dismissal Code.

[2] [MA000004].

[3] Canh K. Ngo v Link Printing Pty Ltd (Print R7005).

[4] Fair Work Act 2009 (Cth), s 386(1)(a).

[5] [PR788776].

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