Andrew Maywald v Big Poppa Enterprises Pty Ltd [2023] FWC 2213

1 Fair Work Act 2009 s.394—Unfair dismissal Andrew Maywald v Big Poppa Enterprises Pty Ltd (U2023/1808) COMMISSIONER MATHESON SYDNEY, 1 SEPTEMBER 2023 Application for an unfair dismissal remedy [1] Mr Andrew Maywald (Applicant) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Big Poppa Enterprises Pty Ltd (Respondent). The Applicant seeks financial compensation. When can the Commission order a remedy for unfair dismissal? [2] Section 390 of the FW Act provides that the Commission may order a remedy if: (a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and (b) the Applicant has been unfairly dismissed. [3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed. When is a person protected from unfair dismissal? [4] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed: (a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and (b) one or more of the following apply: (i) a modern award covers the person; (ii) an enterprise agreement applies to the person in relation to the employment; [2023] FWC 2213 DECISION -- 1 of 31 -- [2023] FWC 2213 2 (iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold. When has a person been unfairly dismissed? [5] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that: (a) the person has been dismissed; and (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. Background [6] The uncontested factual background to the matter is as follows: • The Applicant commenced working for the Respondent in October 2021 and was employed as a Senior Sous Chef on a full-time basis. • In his role as Senior Sous Chef the Applicant’s responsibilities included: o preparing for food service; o cooking food during service; o supervising a team of cooks in completing their duties; o ensuring sufficient food preparation was completed each day before service; o ensuring food was cooked and presented to the required standard; o overseeing the operation of the kitchen throughout his rostered shift. • On Sunday 12 February 2023 the Applicant was suspended from work and told he would be required to attend a meeting the following day. • The Applicant attended the meeting at 4pm on 13 February 2023 with Executive Chef Liam Driscoll and Mr Max Butterfield, General Manager of the Respondent in attendance. The Applicant was dismissed that day during meeting held at 4.30pm. • The Respondent provided the Applicant with a letter of termination dated 21 February 2023, confirming the termination of his employment on 13 February 2023 and referring to other events pre-dating and leading up to the termination of the Respondent’s employment. [7] The Applicant alleges that his dismissal was unfair and the Respondent disputes this. [8] Question 3.2 of the Form F2 asks why the dismissal was unfair. In response the Applicant has referred to Attachment A of his Form F2 in which the Applicant indicates he: • feels the Respondent did not take into account a serious incident that occurred involving his daughter which was reported to senior management; -- 2 of 31 -- [2023] FWC 2213 3 • made management aware that he was under psychological stress and mental anguish regarding the incident, suffering a panic attack in one instance; • was reassured that he had management’s support and that there was an understanding as to his requirements as a father during that time; • discussed with management “needing to leave suddenly, unexpectedly and even without warning” as he needed to prioritise his daughter, this was acknowledged by management and even though he agreed that communication would be beneficial, he also stated that he could only attempt this, not guarantee it completely in every situation; • believed he and management were “on the same page”; • was reassured that he had the support of management in dealing with the numerous issues and obstacles that may arise; • attempted to continue working through a busy time of year (December, Christmas, New Years) and in circumstances of the resignation of the Head Chef, sought to minimise impact to the kitchen and workplace. [9] In its Form F3 the Respondent has responded to the Applicant’s contentions and by way of summary alleges: • Within the Applicant’s first few months of employment, he was already showing concerning inconsistency in his attendance, not showing up to work on time and being uncontactable by phone. The Respondent alleges that this sometimes involved “missing an entire rostered shift and being uncontactable for longer than 48 hours”. • In January 2022 the applicant admitted to drug use on premises and the Respondent elected to issue a final warning and support the Applicant, offering a second chance. The Applicant was provided with resources to help him manage his drug use and consultation with management to discuss schedule options and responsibilities that would work best for him. • Over the following year the Applicant’s attendance continued to be “severely unreliable”. When rostered for daytime preparation shifts the Applicant would arrive hours late to work, resulting in the kitchen being unprepared for service. On service shifts the Applicant would arrive hours late, resulting in kitchen short staffing, impacting service quality. On these days, other staff members would stay late to cover his absence. • Kitchen staff members would be left waiting outside the venue for hours to start their shift because they couldn’t gain access without the Applicant to let them in and they would eventually go home. [10] In its Form F3 the Respondent submits that while the Applicant’s application focuses mainly on the incident that occurred on 11 February 2023, the dismissal was due to a repeated pattern of behaviour over the 16 months the Applicant was employed, through which the Applicant was given both support and a very clear indication of the need to improve his attendance. The conference [11] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing. -- 3 of 31 -- [2023] FWC 2213 4 [12] The matter was listed for mention and directions hearing on 5 May 2023. The Applicant did not attend. On 5 May 2023 the Commission sent the Applicant an email confirming that a notice of listing and directions had been issued and seeking reasons for the Applicant’s non- attendance. On 9 May 2023 the Applicant sent the Commission an email indicating that he was working nightshift and fell asleep just before 10am prior to the commencement of the mention and directions hearing. [13] Both parties were self-represented and, taking into account the parties’ circumstances, I considered it appropriate to hold a conference as the most effective and efficient way to resolve the matter (s.399 of the FW Act). The conference was held on 15 June 2023. The Applicant appeared for himself during the conference and Mr Butterfield of the Respondent appeared for the Respondent. The materials before the Commission [14] Directions were issued to the parties on 5 May 2023. The Applicant was directed to file his materials by no later than 4pm on 19 May 2023 and the Respondent was directed to file its materials by no later than 4pm on 2 June 2023. Neither party filed materials in accordance with these directions or sought extensions and during conferences convened to understand why this was the case, both parties indicated they did not intend to file materials beyond what had already been filed. [15] The Commission’s records indicate the Application was made on 6 March 2023. The materials filed by the Applicant included: • a Form F2 – Unfair dismissal application (Form F2); • a one-page Microsoft Word document entitled ‘Document.docx’ which outlines the Applicant’s version of various events between 11 February and 13 February and includes a description by the Applicant of personal circumstances he says were impacting him and that have not been taken into account by the Respondent; • a copy of a letter from Liam Driscoll dated 21 February 2021 referring to the termination of his employment and other events (Termination Letter). [16] The materials filed by the Respondent included a Form F3 employer response (Form F3) and supporting documents filed on 30 March 2023 which included: • an email from Mr Butterfield to the Applicant dated 29 January 2022 entitled ‘Confidential Letter’ and attaching a PDF document entitled ‘Andrew Maywald – Final Warning.pdf’. That letter is dated 27 January 2021 and is a warning letter concerning drug usage (2021 Warning Letter); • an email from the Respondent’s Venue Manager, Rowan McKay, to various employees of the Respondent, including Mr Butterfield and which alleges that the Applicant was three hours late for his shift and left early without explanation on 12 February 2023 (Email of Rowan McKay dated 12 February 2023) • an email from Mr Butterfield to Liam Driscoll, Jared Merlino and Rowan McKay of the Respondent which appear to be Mr Butterfield’s notes in relation to a meeting with the Applicant on 13 February 2023. The email indicates that the outcome of that meeting -- 4 of 31 -- [2023] FWC 2213 5 was the termination of the Applicant’s employment (Butterfield’s Notes of the Meeting on 13 February 2023); • 11 images being screen shots of text messages; • 3 images being notes of other meetings Mr Butterfield appears to have recorded on his phone. [17] On 2 May 2023 the Respondent also filed an amended Form F3, correcting the name of the Respondent (Form F3). Witnesses [18] In the circumstances of this matter and given that the parties did not wish to file further materials in accordance with the directions, I put the parties on notice that I would be asking Mr Maywald and Mr Butterfield to take an oath or affirmation at the commencement of the determinative conference and that I intended to ask questions of the parties that may be relevant to the considerations in the Act that I need to have regard to. As such, during the determinative conference the Applicant gave evidence on his own behalf and Mr Butterfield gave evidence on behalf of the Respondent. Has the Applicant been dismissed? [19] A threshold issue to determine is whether the Applicant has been dismissed from their employment. [20] Section 386(1) of the FW Act provides that the Applicant has been dismissed if: (a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or (b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent. [21] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. [22] There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent. [23] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act. Initial matters [24] Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application: (a) whether the application was made within the period required in subsection 394(2); -- 5 of 31 -- [2023] FWC 2213 6 (b) whether the person was protected from unfair dismissal; (c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; (d) whether the dismissal was a case of genuine redundancy. Was the application made within the period required? [25] Section 394(2) requires an application to be made within 21 days after the dismissal took effect. [26] The Commission’s records indicate the application was made on 6 March 2023. It is not disputed, and I find that the Applicant was dismissed from his employment on 13 February 2023. I am therefore satisfied that the application was made within the period required in subsection 394(2). Was the Applicant protected from unfair dismissal at the time of dismissal? [27] I have set out above when a person is protected from unfair dismissal. Minimum employment period [28] It was not in dispute, and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time. [29] It was not in dispute, and I find that the Applicant was an employee, who commenced their employment with the Respondent in October 2021 and was dismissed on 13 February 2023, a period in excess of 6 months. [30] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period. Modern award coverage [31] It was not in dispute, and I find that, at the time of dismissal, the Applicant was covered by an award, being the Restaurant Industry Award 2020 [MA0001190]. [32] I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal. Was the dismissal consistent with the Small Business Fair Dismissal Code? [33] Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if: -- 6 of 31 -- [2023] FWC 2213 7 (a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and (b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal. [34] As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis). [35] I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act. Was the dismissal a case of genuine redundancy? [36] Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if: (a) the 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. [37] It was not in dispute, and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise. [38] I am therefore satisfied that the dismissal was not a case of genuine redundancy. [39] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application. Was the dismissal harsh, unjust or unreasonable? [40] Section 387 of the FW Act provides that, 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 -- 7 of 31 -- [2023] FWC 2213 8 (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. [41] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.1 [42] I set out my consideration of each below. Section 387(a) - Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct? [43] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced.”3 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.4 [44] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.5 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”6 The Applicant’s position and evidence [45] In the Applicant’s Form F2, the Applicant stated that the reason given by the Respondent for the dismissal was: ‘Showing up late for shifts and leaving the kitchen whilst on shift for extended periods of time with no explanation or notice to management.’ [46] In Attachment A of the Form F2 the Applicant also provided his account of events in the lead up to and at the time of his dismissal. In particular, the Applicant says on Saturday 11 February 2023: • he received an urgent message from his daughter; -- 8 of 31 -- [2023] FWC 2213 9 • the kitchen “wasn’t that busy” so he briefed the kitchen that he would need to leave for a while, made sure they were aware of what needed to be done and that they could contact him if necessary; • he informed them that he could be back in 5 – 10 minutes if required and not to hesitate to contact him if the need arose; • he then walked straight out the front door and, as he didn’t see a manager on his way out, did not inform anyone else; • he checked in periodically with the kitchen for the rest of his shift and, “as they had it all under control and [he] was needed to stay with [his] daughter”, he did not return. [47] The Applicant filed the Termination Letter with his application. The contents of the Termination Letter are not disputed by the Respondent and, by way of summary state: • that the Applicant had a meeting with Mr Butterfield and another person on 27 January 2023 and that in that meeting: o the Applicant was advised that “being under the influence of drugs in the workplace is deemed serious misconduct and as such is grounds for instant dismissal”; o the Applicant was issued with a “formal final warning letter”; • since that meeting, and in relation to concerns about being late shifts and leaving the kitchen for extended periods of time with no explanation or notice to management: o the Applicant has “been given multiple verbal warnings”; and o “has been present at kitchen meetings where these issues were raised, as recorded in emails and shift reports”; • that the Applicant attended a meeting with Mr Butterfield and Liam Driscoll, the Respondent’s Executive Chef, on 13 February 2023 and in that meeting: o the Respondent’s investigation into the Applicant’s failure to communicate why he was late for his rostered start time and why he left the kitchen mid shift was discussed; o it was explained that the conduct was in breach of required behaviour for the Applicant’s role of Senior Sous Chef and that this amounted to: ▪ “Failure to respond to required performance improvement”; and ▪ “Failure to follow reasonable instruction and perform key tasks of position”; o the Applicant was terminated immediately following the meeting as a result of the above failures. [48] In Attachment A of his Form F2 the Applicant indicates he: • made management aware that he was under psychological stress and mental anguish regarding an incident that occurred, suffering a panic attack in one instance; • was reassured that he had management’s support and that there was an understanding as to his requirements as a father during that time; • discussed with management “needing to leave suddenly, unexpectedly and even without warning” as he needed to prioritise his daughter, this was acknowledged by management and even though he agreed that communication would be beneficial, he also stated that he could only attempt this, not guarantee it completely in every situation; • believed he and management were “on the same page. -- 9 of 31 -- [2023] FWC 2213 10 [49] The Applicant’s evidence7 and Attachment A of his application suggests he believed he had an understanding with the Respondent about his work absences in light of his personal circumstances and did not believe that his actions on 11 February 2023 warranted his dismissal. The Respondent’s position and evidence [50] In its Form F3 the Respondent submits that while the Applicant’s application focuses mainly on the incident that occurred on 11 February 2023, the dismissal was due to a repeated pattern of behaviour over the 16 months the Applicant was employed. [51] In its Form F3, the Respondent set out the reasons for the dismissal as being that: • the Applicant had failed to respond to reasonable instruction; • the Applicant’s reliability and level of communication was not sufficient for the position; • the Respondent had taken all reasonable steps to assist the Applicant in succeeding in his role; • the Applicant continuing in the role would result in further negative impact on the business and the team. [52] The Respondent’s Form F3, elaborates further on this, submitting that: • The dismissal was due to a repeating pattern of behaviour throughout which the Applicant was given support and clear indication of the need to improve his attendance. • During the first few months of the Applicant’s employment his attendance was inconsistent as he would not show up to work on time, would be uncontactable by phone and would sometimes miss an entire rostered shift and had been uncontactable for longer than 48 hours. • Over the following year the Applicant’s attendance continued to be severely unreliable and when rostered for daytime preparation shifts he would arrive hours late for work, resulting in the kitchen being underprepared for service. • On service shifts, the Applicant would arrive hours late, resulting in kitchen short staffing, impacting service quality and on these days, other staff member would stay late to cover his absence. • On day shifts, other kitchen staff members would be left waiting outside the venue for hours to start their shift because they couldn’t gain access without the Applicant letting them in and they would eventually go home. [53] Screen shots of text messages filed by the Respondent suggest communications between employees of the Respondent about the Applicant’s non-attendance or late attendance for work. [54] Mr Butterfield gave evidence that was broadly consistent with the matters raised in relation to the Applicant’s attendance in the Form F3. In particular, Mr Butterfield’s evidence was that in January 2022 the Applicant was discovered using a drug on the premises while in service and that after an investigation it was decided that the Applicant would be given a written warning rather as an alternative to termination.8 Mr Butterfield’s evidence was that this decision -- 10 of 31 -- [2023] FWC 2213 11 was made taking into consideration the Applicant’s personal circumstances as the Applicant explained he was going through a difficult time.9 [55] Mr Butterfield’s evidence was that a pattern of behaviour over the following year gave rise to concerns. This involved the Applicant being late to work without notice and being uncontactable, sometimes for days at a time. Mr Butterfield’s evidence was that the behaviour or similar behaviour would improve for a short while then resurface. Mr Butterfield went on to say: PN39 A few times through the year, following that first incident where he was issued final notice, final written warning, we could have been stricter with our determination, but each time we met with him, informally, to discuss the issue, there was a new development in his life, which led us to decide to support him through it, as we felt we could see an outcome on the other side that would benefit both parties. PN40 We felt like if Andrew was given a bit more support for a little bit longer, we would help him turn a corner and things would improve in his personal life and we would have an even stronger bond with our employee because we would have helped him through it. A lot of the issue, I understood, was to do with his home environment and that his - someone in his home was turning off his alarms so he wouldn’t hear them. PN41 We had to consider that the pattern of behaviour still strongly resembled that of the first instant that we issued the final written warning for. PN42 Towards the end of 2022 Andrew, I understand, the business understands, went through a very difficult personal situation and extra consideration was given at this time as well. The issue of lateness and needing to - the issue of lateness and leaving shifts without notice was at its peak at Christmas time 2022, certainly November/December. PN43 We communicated to Andrew that we understood why he would need time off unexpectedly, without notice, but the thing we required from him was communication around it. As much notice as possible for us to be able to make preparations so as to mitigate any harm to the business and if he needed to leave in the middle of a shift, in the middle of service, to communicate that so we would be aware and to have discussions with us around the reasons, without going into personal detail but just to help us understand what the business could do to provide around it, so that it would not impact on the business and it’s other staff. PN44 We offered Andrew, as well, to take time off during that time, if that was helpful. Andrew opted to stay with his normal schedule. We offered to discuss different schedules around it. PN45 Ultimately, after Christmas, some time had passed since the initial presentation of the personal problem and the issues were not going away. We were still seeing lateness, not showing up for shifts and then, ultimately, disappearing from a shift, halfway through, on a Saturday night, the busiest night of the week, and leaving the kitchen in the hands of a very junior staff member who had only worked there a couple of weeks, which was a health and safety hazard, above everything, -- 11 of 31 -- [2023] FWC 2213 12 which on previous occasions as well had to call in full-time staff on their days off, who drove to work and then had to drive home again. We had to pick up casual staff members that came at a very high rate to the business and, again, part way through the shift Andrew would show up and I’d have to send that staff member home, so it came at a financial cost to the business, a risk to the health and safety of the team and, ultimately, an impact to our product and customers as well. PN46 It was determined that if we continued to roster Andrew for more shifts it would very likely negatively impact the business and the team working on those shifts. Findings [56] It was not disputed that there were times the Applicant did not present for shifts on time or for some shifts at all. I sought to understand why this was the case from the Applicant who referred to some personal circumstances he was trying to navigate: PN63 MR MAYWALD: This is - I know the way that it was presented before, it does appear that there was - during that time there was another thing that would come up and then another thing that would come up, but to me these things that came up, they were a massive impact on my life that happened over this period that I had to deal with and I thought I would do these things. PN64 It appears that, you know, a lot of times that I let them down, in that sense, but I think the big part was that when it was a serious misconduct I didn’t feel that that was quite correct, in the essence. Yes, I don’t think there was like trying to affect the business that way of like, for example, I’d be up all over the night, for example, with my daughter, dealing with the issue there, and then I might fall asleep coming into the morning and then I’d end up sleeping in. Obviously I feel bad for that and try and get there as fast as I could. … PN71 MR MAYWALD: I’m trying to think as to when. When we had the big - we had the major meeting at work about the - the drug use, after that I had a real problem with like being awake basically, especially the shifts I do. That was a bit of a learning curve, I guess, learning how to fit a pattern in, that was hard. PN72 There was someone that was living with me that was very strange and she’d just turn my alarm off and I’d try and ask her, ‘Why don’t you wake me up if you’re going to turn my alarm off’, sort of thing. She actually was hearing voices or something and said that she was concerned about that, it was very hard to deal with, but I’d done something about that and got her out of my life as well. [57] The Applicant’s evidence suggests that the reasons for his attendance problems were related to his personal circumstances and disturbed sleep but that he didn’t see this as serious misconduct. The Applicant also indicated that he understood the reasons for his dismissal10 however did not seem to share the same assessment as the Respondent regarding the impact of his attendance issues, saying: -- 12 of 31 -- [2023] FWC 2213 13 PN76 MR MAYWALD: I can sort of see an impact like when I’m not there, but then, as I say, when it comes to the whole termination thing, if - on the night that I left and didn’t tell anyone and didn’t come back, I live five minutes down the road and I did say to the guys that they could get me to come back. I was in touch with them, I wasn’t just walking out and (indistinct) that was it, I was still in communication with them throughout the night. [58] It is not in dispute that the Applicant has expressed to management that he was going through a difficult time. [59] However, Mr Butterfield’s evidence was that while he understood why the Applicant would need time off unexpectedly without notice, communication was required. In particular, Mr Butterfield’s evidence suggests that the Respondent needed as “much notice as possible” to be able to prepare and mitigate harm to the business and manage impacts to other employees and that if the Applicant needed to leave in the middle of a shift he would need to communicate that.11 [60] iCloud notes filed by the Respondent suggest that various discussions were had with the Applicant about attendance issues and communication. A meeting note dated 23 November 2022, while reflecting both positive and negative feedback, includes the following statements: • ‘No more tardiness, 10 minutes is acceptable 4 hours is not’. • ‘Any issues need to be clearly communicated’. • ‘Clearly communicate any issues that arise wether (sic) they are personal or work related so any said issues can be worked through & resolved professionally’. • ‘Need to professionally problem solve, not threaten to walk out when things aren’t going well.’ [61] Earlier meeting notes titled ‘Kitchen Meeting’ and ‘Kitchen Meeting 04/07/2022’ are more pointed, including the following statements: • ‘Stick to scheduled hours.’ • ‘No sleep ins, late starts or favours. you need to manage your own affairs outside of work hours.’ • ‘Be at work ON TIME EVERY SHIFT!!’. [62] I accept that the Applicant communicated to management, at some stage prior to his dismissal, that he was experiencing personal circumstances and that, to some extent, the Respondent expressed an understanding that the Applicant had a need to leave work to deal with those circumstances from time to time. However, I do not accept that this understanding went so far as to allow the Applicant to present to work late, not present to work at all or to leave work before the end of the shift without any communication to management. [63] Mr Butterfield’s evidence was that some time had passed since the initial presentation of the personal problems and the Applicant was still late to or not showing up for shifts and then, ultimately, left half-way through a shift on a busy on a Saturday night. Mr Butterfield described negative staffing impacts and indicated that the Applicant’s actions “came at a -- 13 of 31 -- [2023] FWC 2213 14 financial cost to the business, a risk to the health and safety of the team and, ultimately, an impact to [the Respondent’s] product and customers as well”.12 [64] Mr Butterfield’s Meeting Notes in relation to the meeting with the Applicant on 13 February state, in relation to the decision to dismiss the Applicant: “Disciplinary Hearing 13.02.23 4.30pm Left kitchen understaffed and unsupervised without notice or communication to any management. Left junior member of team alone, not fully trained on all dishes, during busiest night of the week. Previously given multiple warnings regarding communication if running late or unable to attend work so management can mitigate the impact to service. Outcome: Termination effective immediately Grounds: Failure to respond to performance improvement, follow reasonable instruction and perform key tasks of position. Senior Sous chef position is responsible for managing the kitchen team and communicate effectively. The business believes there is no other course of action without continued risk of negative impact on the service, product and team.” [65] While it is apparent that the Respondent had tried to be supportive in the context of the Applicant’s personal circumstances in the past, it seems that there came a point at which the Applicant’s attendance issues became untenable for it. I accept that the failure of the Applicant to communicate to management his need to be absent, late or leave early created risks for the Respondent. It was the Applicant’s conduct on the evening of Saturday 11 February 2023 in leaving his shift early on a busy night of the week that was “the straw that broke the camel’s back”. While the Applicant says he informed the kitchen that he could be back in 5 – 10 minutes if required and contact him without hesitation if the need arose, he also said he didn’t inform a manager because he did not see one on his way out. It is clear that the Applicant was able to receive contact from others and was able to report back if needed but did he not contact a manager proactively regarding his need to leave so a discussion could be had about this and impacts managed accordingly. [66] I find that the reason for the Applicant’s dismissal was a pattern of behaviour involving instances of the Applicant of not attending for his rostered shift, attending late for work or leaving his shift without notice or adequate communication. I am satisfied that, considering the nature of the Applicant’s role and responsibilities, these attendance issues had a negative impact for the business and other staff members. Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to the Applicant’s conduct. Section 387(b) - Was the Applicant notified of the valid reason? -- 14 of 31 -- [2023] FWC 2213 15 [67] Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).13 [68] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,14 and in explicit15 and plain and clear terms.16 The Applicant’s position and evidence [69] The Applicant provided an account of the procedure followed in the lead up to and in effecting his dismissal. In particular, the Applicant submitted that on Sunday 12 February 2023: • he came to work for his rostered shift; • after 1-2 hours he was told that he needed to have a meeting the following day; • he was told by someone else that he could “take the night off”; • he explained that he was alone in the kitchen at that point and would need to wait for another chef to get back from their break; • after waiting for the chef on break to return, he was told that he was actually being suspended, the “catch up meeting was now going to be a formal one” and he would be informed of the time. [70] The Applicant submitted that on Monday 13 February 2023: • he was sent a notice at around 12pm or 1pm of the 4pm meeting time and he received this just before 3pm; • he informed the Respondent that he needed to know some details and didn’t have any time to prepare for it; • he explained that he would find it difficult to explain or defend himself due to confidentiality but was told the meeting would still go ahead at 4pm as planned; • at the meeting he answered the questions as well as he could; • at the meeting he was told the Respondent would conduct an investigation and that there would be another meeting to discuss management’s findings and decisions; • he left the meeting and received a phone call five minutes later informing him that management had finished their investigation; • he returned for the next meeting and was told his employment was terminated effective immediately. [71] The Termination Letter dated 21 February 2023 states that the Applicant attended a meeting with Mr Butterfield and Liam Driscoll, the Respondent’s Executive Chef, on 13 February 2023 and in that meeting: • the Respondent’s investigation into the Applicant’s failure to communicate why he was late for his rostered start time and why he left the kitchen mid shift was discussed; • it was explained that the conduct was in breach of required behaviour for the Applicant’s role of Senior Sous Chef and that this amounted to: o “Failure to respond to required performance improvement”; and o “Failure to follow reasonable instruction and perform key tasks of position”; -- 15 of 31 -- [2023] FWC 2213 16 • the Applicant was terminated immediately following the meeting as a result of the above failures. The Respondent’s position and evidence [72] The Respondent submitted that:17 • on 12 February 2023, the Applicant was suspended pending investigation and was invited to a meeting to be held at 4pm on 13 February 2023; • at 3pm on Monday 13 February 2023 the Applicant requested further information about the meeting which was provided via email, that the Applicant acknowledged this and accepted the meeting for 4pm and did not request to reschedule the meeting at any time; • the Applicant attended the meeting; • the meeting notes were reviewed with the Applicant who was asked if he would like to add or change anything and he did not do so; • following the investigation meeting the Applicant was advised that he would be contacted once an outcome was reached and invited to return for a disciplinary meeting with the possible outcomes of the meeting explained; • once a conclusion was reached, the Applicant was contacted and given multiple options for the date of the disciplinary meeting, including the same afternoon; • the Applicant requested to return the same afternoon for the meeting. [73] Mr Butterfield gave evidence that he chose to instigate a disciplinary process and invite the Applicant to a meeting and that he asked Mr McKay to explain the process. Mr Butterfield said: PN103 MR BUTTERFIELD: I think I understood that there had been some confusion around the process of the invitation to the disciplinary process. I first became aware of the incident on the Sunday, after reading the report email by Rohan McKay. PN104 Rohan and Liam both had conversations with Andrew. I chose to instigate the disciplinary process and invite Andrew Maywald to a meeting. I asked Rohan McKay to use clear terminology around the process of a disciplinary meeting, making sure that Andrew understand that until then he’s suspended without pay. That he’ll be invited to an investigation meeting and then, at a separate time, be invited to a disciplinary meeting for the outcome and that he’d be allowed to bring a support person with him. [74] Mr Butterfield’s evidence suggests that he understood, after hearing from the Applicant on Monday 13 February 2023, that the Applicant wasn’t clear on the reasons for the meeting and so he emailed the Applicant with the reasons for the meeting18 at 3pm on Monday 13 February 202319, with the meeting to be held at 4pm.20 Neither party provided a copy of the email from Mr Butterfield to the Applicant notifying him of the reasons for the meeting. [75] Mr Butterfield’s Notes of the Meeting on 13 February 2023 were emailed to other employees of the Respondent, are described as “rough minutes of the investigation and disciplinary meetings” and state: Investigation: -- 16 of 31 -- [2023] FWC 2213 17 13.02.23 pm Sat rostered 4pm Rowan called, no answer Y AM range Alex around 6:50pm to say on the way Arrived 7pm Y Sent Kaysha home 7.30pm, Communicated this to manager? N Kaysha ran into ROwan and let him know I left Andrew left 11pm Communicated this to manager? N, spoke to Ritesh and Bishal Rostered until 3am Returned to work? N Informed manager not returning? N Did you inform anyone the next day that you had to leave early? Michelle, next day on Sunday 4pm Why did you leave? Had to attend to Kaysha, personal reasons Checked in with Bish and Ritesh around 12:30, 1am, then again about 2.30, maybe another time too. Is there a reason you didn’t alert a manager at any point? N Didn’t realise how long I’d be Disciplinary Hearing 13.02.23 4.30pm Left kitchen understaffed and unsupervised without notice or communication to any management. Left junior member of team alone, not fully trained on all dishes, during busiest night of the week. Previously given multiple warnings regarding communication if running late or unable to attend work so management can mitigate the impact to service. Outcome: Termination effective immediately Grounds: Failure to respond to performance improvement, follow reasonable instruction and perform key tasks of position. Seniour Sous chef position is responsible for managing the kitchen team and communicate effectively. The business believes there is no other course of action without continued risk of negative impact on the service, product and team Findings [76] I am satisfied that as at the time of the investigation meeting at 4pm on 13 February 2023, and possibly as early as 3pm, the Applicant was advised that his conduct on Saturday 11 February 2023 would be the subject of an investigation and disciplinary process. However, I am not satisfied that, prior to being notified of his termination at the meeting that followed half an hour later, that he was notified of the reason that I have found as being a valid reason for the Applicant’s dismissal. As noted above, I have found that the valid reason for the dismissal was a pattern of behaviour involving instances of the Applicant of not attending for his rostered shift, attending late for work or leaving his shift without notice or adequate communication. [77] As explained above, notification of a valid reason for termination must be given before the decision is made to terminate employment,21 and in explicit22 and plain and clear terms.23While Mr Butterfield’s Notes of the Meeting on 13 February 2023 suggest the -- 17 of 31 -- [2023] FWC 2213 18 investigation focused on the Applicant’s conduct on 11 February 2023, I have no evidence of the Applicant being notified that his pattern of behaviour involving events prior to 11 February 2023 was the reason for dismissal until such time as the Applicant was dismissed at the meeting that took place at 4.30pm on 13 February 2023, the date of the Applicant’s dismissal. At this stage, the decision to dismiss the Applicant had already been made. [78] Having regard to the matters referred to above, I find that the Applicant was not notified of the reason for his dismissal, in explicit and plain and clear terms, prior to the decision to dismiss being made. Section 387(c) - Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct? [79] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.24 [80] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.25 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.26 [81] In order to be given an opportunity to respond, the employee must be made aware of allegations concerning the employee’s conduct so as to be able to respond to them and must be given an opportunity to defend themself. As Justice Moore has stated, “the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That… does not constitute an opportunity to defend.”27 The Applicant’s position [82] The Applicant submitted that he believes that on Monday 13 February 2023 he was sent notice of the meeting to be held at 4pm at around midday or 1pm and received this just before 3.00pm. The Applicant submitted that he informed the Respondent that he “needed to know some details and didn’t really have any time to prepare for this” and explained “he would find it difficult to explain or defend [himself] due to confidentiality”, but was told the meeting would still go ahead at 4.00pm as planned. Findings [83] I have earlier referred to Mr Butterfield’s evidence that he understood, after hearing from the Applicant on Monday 13 February 2023, that the Applicant wasn’t clear on the reasons for the meeting and so he emailed the Applicant with the reasons for the meeting28 at 3pm on Monday 13 February 202329, with the meeting to be held at 4pm.30 I accept the Applicant’s -- 18 of 31 -- [2023] FWC 2213 19 evidence that he informed the Respondent that he didn’t have any time to prepare for the meeting on 13 February 2023. [84] While the Applicant may not have expressly asked that the meeting be rescheduled, the meeting, described as an investigation meeting by the Respondent, proceeded to take place on the same day that the Applicant raised his concerns about having insufficient time to prepare and being unclear about the subject of the meeting. [85] Mr Butterfield’s Notes of the Meeting on 13 February 2023 suggest that the ‘investigation meeting’ at 4pm focused on the Applicant’s conduct on Saturday 11 February 2023, and that the Applicant was asked a series of questions about that. It is apparent that during this meeting the Respondent’s broader concerns about the Applicant’s pattern of behaviour were not the subject of the discussion and there is no evidence that the Applicant was invited to respond to those broader concerns as an overarching reason for potential dismissal or was even aware that his employment may be at risk at that point. During the determinative conference Mr Maywald’s evidence was that even at the last meeting held on 13 February 2023, he did not expect to ‘get fired’ and that he answered questions honesty and at that point in time there were things, presumably of a personal nature, that he was unable to disclose.31 Had Mr Maywald been aware of the gravity of the situation and the potential termination of his employment he may not have agreed to proceed with the meetings at the times proposed by the Respondent so he could adequately prepare. [86] Mr Butterfield’s Notes of the Meeting on 13 February 2023 suggest that the meeting that followed at 4.30pm involved communication of the dismissal and grounds but they do not demonstrate that the Applicant was given an opportunity defend himself before the decision was made. [87] Having regard to the matters referred to above, I find that the Applicant was not given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss him being made. Section 387 (d) - Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal? [88] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. [89] There is no positive obligation on an employer to offer an employee the opportunity to have a support person: “This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”32 -- 19 of 31 -- [2023] FWC 2213 20 [90] During the determinative conference the Applicant confirmed that his daughter was present as a support person during the meeting relating to his dismissal on 13 February 2023. [91] In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal. Section 387 (e) - Was the Applicant warned about unsatisfactory performance before the dismissal? [92] I have found above that the reason for the Applicant’s dismissal was a pattern of behaviour involving instances of the Applicant of not attending for his rostered shift, attending late for work or leaving his shift without notice or adequate communication. I consider that this reason relates more to the Applicant’s conduct rather than unsatisfactory performance, however I note there can be a fine line between this distinction and the Respondent has itself stated in the Termination Letter that the behaviour amounted to failure to respond to required performance improvement. As such I have considered the question of whether warnings were given below. [93] A mere exhortation for an employee to improve their performance would not be a sufficient warning. A warning must: • identify the relevant aspect of the employee’s performance which is of concern to the employer; and • make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.33 [94] It is clear and not disputed that the Applicant was warned in January 2022 about drug use and intoxication in connection that he may be dismissed for use of drugs during or before work, intoxication affecting work or bringing drugs or drug equipment into the workplace. However, there is no evidence before me that the Applicant engaged in behaviour relating to drug usage after having received this warning and ultimately it was the Applicant’s attendance issues that were the basis for his dismissal. The evidence does not lead to a conclusion that the attendance issues were related to drug usage. [95] It is apparent to me that discussions were had with the Applicant about his attendance issues in the past. iCloud notes filed by the Respondent suggest that various discussions were had with the Applicant about attendance issues and communication and a meeting note dated 23 November 2022, while reflecting both positive and negative feedback, includes the following statements: • ‘No more tardiness, 10 minutes is acceptable 4 hours is not’. • ‘Any issues need to be clearly communicated’. • ‘Clearly communicate any issues that arise wether (sic) they are personal or work related so any said issues can be worked through & resolved professionally’. • ‘Need to professionally problem solve, not threaten to walk out when things aren’t going well.’ -- 20 of 31 -- [2023] FWC 2213 21 [96] Earlier meeting notes titled ‘Kitchen Meeting’ and ‘Kitchen Meeting 04/07/2022’ are more pointed, including the following statements: • ‘Stick to scheduled hours.’ • ‘No sleep ins, late starts or favours. you need to manage your own affairs outside of work hours.’ • ‘Be at work ON TIME EVERY SHIFT!!’. [97] In relation to these meetings, Mr Butterfield said: PN161 MR BUTTERFIELD: Yes. Around these meetings as well, and the times I don’t have documented, there were times in here where I’ve issued verbal warnings to Andrew, in the presence of the head chef Jace and Ron McKay, making clear that improvement was needed otherwise we’d have to move to a formal process. These were verbal warnings from the business. PN162 The thing I thought I made clear was that there points of very good performance in Andrew’s history, but they were never going to offset repeated performance issues which were impacting the business, as we could see, as I’ve detailed and as became evident, for example, in the very last instance. I made clear that performance improvement was needed. That’s all. [98] When I enquired about the content of the verbal warnings Mr Butterfield said: PN166 MR BUTTERFIELD: The main impact - the main impact stemmed from attendance to the business. So each time Andrew was unable to work a shift or didn’t show up for a shift, without any notice, we’d have to make very last minute adjustments to the rostering and find replacement staff, which would cause another staff member to work additional hours, or we’d have to find staff from the last minute resources, like finding - posting out on Facebook, in chef groups, to find last minute staff, which then would be someone very, perhaps, junior or not being trained in the business. PN167 Days where Andrew did show up to work but was very late for work would have an impact on the set of the kitchen, so the kitchen would not be prepared for service and the stress levels of the staff members, again, would be impacted. So Andrew’s abilities to perform the key parts of his role were affected by his attendance because he wasn’t able to fully manage the kitchen or organise the kitchen. PN168 So the ongoing issues were about leading the kitchen team, ensuring that procedures were in place and the kitchen was running nominally, in the absence of the head chef. Andrew is second to the head chef so he was to make sure that anytime the head chef wasn’t around that things were running smoothly. Attendance was a huge part of that, but it wasn’t the only part, but I’d say it’s the main part. [99] When I enquired about how many times the Applicant was given warnings Mr Butterfield said: PN174 MR BUTTERFIELD: - - - that resulted in this feedback? I think, over the space of 2022, being Andrew started just before that, the end of 2021, and then up to the start of 2023, I can think of three to four times, though the year, that we sat down, and please correct me if I’m wrong, that we sat down with Jace and Rohan to -- 21 of 31 -- [2023] FWC 2213 22 discuss together, just the four of us, why we were still not - why we were still - well, in the beginning, having these issues coming up, what the cause for them were, what the solutions could be. We discussed changes of schedule. We did change your schedule a few times, schedules that you elected to try to see if it helped, and reviewed when we’d last discussed and then where we were up to now and that these issues were still happening. So I think, over the space of a year, about three to four times that we discussed, constructively, but also explained that this needed to improve or we weren’t going to be able to keep moving forward. [100] The Applicant confirmed that this broadly accorded with his understanding. [101] I sought to clarify from Mr Butterfield what he told the Applicant the consequence would be if he did not improve and Mr Butterfield said: PN180 MR BUTTERFIELD: It’s difficult to remember exactly what I said, but I’m fairly sure I said we’d have to move to a formal process or a disciplinary process, or something like that, which is how it likely would have led - how I typically would have led it. [102] I asked Mr Butterfield if he ever put the Applicant on notice that his employment was at risk if it didn’t improve to which Mr Butterfield replied: PN253 MR BUTTERFIELD: Only insofar as improvement was needed to avoid going to formal process and that formal process, which Andrew is aware of, from the first disciplinary process, can result in termination as an outcome. In terms of saying, ‘If you keep being late I’m going to fire you’, I never put anything bluntly, but I did refer to the next step to being a formal process, at which point, yes. [103] I accept that various discussions were had with the Applicant about his attendance and that he was told he needed to improve. However, it is not apparent based on the evidence before me that it was made clear to the Applicant that if his attendance issues did not improve, he was at risk of dismissal. The Respondent had, up until the point of the Applicant’s dismissal, been very understanding and forgiving in relation to the Applicant’s personal challenges and attendance issues and Mr Maywald’s evidence suggests he believed that he and management were ‘on the same page’. While Mr Butterfield pointed to a ‘formal process’, I do not consider that this made it clear to Mr Maywald that he was at risk of dismissal if he did not address his attendance issues. Indeed, the fact that the Respondent had been so supportive in the past likely resulted in Mr Maywald proceeding under a false assumption that his persistent attendance issues would not result in his dismissal. [104] As noted above, a warning must make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.34 [105] Having regard to the matters above, I find that the Applicant was not warned of his unsatisfactory performance before dismissal. Section 387(f) - To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? -- 22 of 31 -- [2023] FWC 2213 23 [106] Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact. Section 387 (g) - To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? [107] Neither party made submissions about impacts arising from the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise and I consider it a neutral factor. What other matters are relevant? [108] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. [109] The Applicant submissions suggest he believes that the following other matters are relevant to the Commission’s consideration: • he feels the Respondent did not take into account a serious incident that occurred involving his daughter which was reported to senior management; • he made management aware that he was under psychological stress and mental anguish regarding the incident, suffering a panic attack in one instance; • he was reassured that he had management’s support and that there was an understanding as to his requirements as a father during that time; • he discussed with management “needing to leave suddenly, unexpectedly and even without warning” as he needed to prioritise his daughter, this was acknowledged by management and even though he agreed that communication would be beneficial, he also stated that he could only attempt this, not guarantee it completely in every situation; • he believed he and management were “on the same page”; • he was reassured that he had the support of management in dealing with the numerous issues and obstacles that may arise; • he attempted to continue working through a busy time of year (December, Christmas, New Years) and in circumstances of the resignation of the Head Chef, sought to minimise impact to the kitchen and workplace. [110] The Applicant’s evidence also suggests that, unlike the Respondent, he didn’t feel his conduct was serious misconduct. During the conference the Applicant said: PN259 MR MAYWALD: I respect Max and he’s reasonably clear and concise about what he does. I just - I don’t feel that I’ve done anything to warrant a - I’m just trying to find words, my brain is not working. I don’t feel that what I’ve done is enough to be a serious misconduct. Serious misconduct is a malicious sort of act, and there was none of that going on. I feel like work’s a family environment, I don’t like working for someone where I don’t know the owner, don’t know the people I work for. -- 23 of 31 -- [2023] FWC 2213 24 PN260 Poppa’s has always been a place that I felt we could really take that further and it felt like a family, right up until December really. Then there were cracks and then the whole thing sort of came down after that and I - I think that’s the main part. PN261 As I said, I’m not disputing the decision made, I’m disputing that I don’t believe it to be a serious misconduct that I’ve done. I have been told about this and I’ve tried to rectify it and I’m not sure if I need to tell you about the seriousness of things that happened. Like I said to you, it’s not a situation where, ‘This has come up and that’s something else’, this is like an intensive - it’s basically that nothing you can even dream of happening. [111] Mr Butterfield responded to this saying: PN268 MR BUTTERFIELD: I feel like I should say I did take the - consideration of the outcome and the possible options very seriously before reaching a decision. I can confidently say I’ve never had to terminate someone in a full-time position before, and I’ve worked in the industry for quite a long time, in management, for about 14 years in management positions. I’ve only every had to cease employment with a handful of casuals over that time, so this is a very weighty process and decision PN269 All the more for the points Andrew just made, which is that the business really does feel like a family to, I think, all the staff there, and Andrew had been with us for a short time, it had been over the year, and seen the business through some really tough times as well. It was all very well considered and it wasn’t a decision taken lightly. [112] The Applicant also indicated that he felt the business was better for him being there in some capacity rather than not at all given the time of year and resignation of the Head Chef. Mr Maywald said: PN234 MR MAYWALD: If I look - looking back, I feel that I shouldn’t have been there at all. I should have been on leave and not - but the head chef had just resigned and pretty much left to me for a bit and then Liam came in as head chef in the business. It was a lot to take on over that time and I figured, being December/January, it would have impacted them a lot if I wasn’t there. [113] The Applicant also indicated that he felt that he should have received notice of termination, that the termination came as a shock to him and because he was out of work for a time his utilities were disconnected and he received eviction notices which could have been avoided.35 [114] I accept that the Applicant was experiencing difficult personal circumstances throughout his tenure with the Respondent and that the termination of his employment would have exacerbated these difficulties. [115] It is apparent to me that the Respondent was a supportive and forgiving employer across the Applicant’s tenure. I have earlier found that the Applicant’s pattern of behaviour constituted a valid reason for the dismissal and that his conduct on 11 February 2023 was the straw that broke the camel’s back. However both parties agreed that the business feels like a family environment and I accept that the Applicant’s dismissal came as a shock to him.36 It is likely -- 24 of 31 -- [2023] FWC 2213 25 that this was a consequence of the Respondent’s highly supportive and forgiving approach in the past.37 I accept that the Applicant experienced negative effects as a result of the abrupt nature of his termination, having been dismissed without notice, with the Applicant indicating that he was out of work for six or seven weeks and that his phone and internet was disconnected and that this could have been avoided with some notice.38 Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable? [116] I have made findings in relation to each matter specified in section 387 as relevant. [117] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.39 [118] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was harsh because of the abrupt nature in which the dismissal was affected. It is apparent that the Applicant’s attendance issues were negatively impacting the business and its employees and that there was a valid reason for the dismissal. However, the Respondent did not, prior to the Applicant’s dismissal, make clear that his employment was at risk of termination if he did not improve his attendance issues. The Applicant acknowledged that, on refection, he should not have tried to continue working and it is difficult to see how any discussions could have changed this given the challenges in the Applicant’s personal life. However, given the previously supportive approach of the Respondent, the instant nature of the dismissal came as a shock to the Applicant and did not afford him time to get his affairs in order or provide an opportunity for him to negotiate a transition out of his role. This exacerbated the impact of the dismissal upon the Applicant at a time when he was experiencing personal challenges. Conclusion [119] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. Remedy [120] Being satisfied that the Applicant: • made an application for an order granting a remedy under section 394; • was a person protected from unfair dismissal; and • was unfairly dismissed within the meaning of section 385 of the FW Act, I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant. [121] Under section 390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless: (a) I am satisfied that reinstatement of the Applicant is inappropriate; and -- 25 of 31 -- [2023] FWC 2213 26 (b) I consider an order for payment of compensation is appropriate in all the circumstances of the case. Is reinstatement of the Applicant inappropriate? [122] The Applicant has secured a role on comparable remuneration tohis previous role and commenced working in that role on 10 March 2023. As such, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances. Is an order for payment of compensation appropriate in all the circumstances of the case? [123] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”40 [124] Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.41 [125] As noted above, the abrupt nature of the dismissal came as a shock to the Applicant who was unemployed between 14 February 2023 and 10 March 2023 when he commenced his new role. I am satisfied that the Applicant incurred financial loss during this period and in these circumstances I am satisfied that some compensation is appropriate. Compensation – what must be taken into account in determining an amount? [126] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including: (a) the effect of the order on the viability of the Respondent’s enterprise; (b) the length of the Applicant’s service; (c) the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed; (d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal; (e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation; -- 26 of 31 -- [2023] FWC 2213 27 (f) the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and (g) any other matter that the Commission considers relevant. [127] I consider all the circumstances of the case below. Effect of the order on the viability of the Respondent’s enterprise [128] I do not have any evidence before me that would indicate that an order for compensation would have an effect on the viability of the employer’s enterprise and have regarded this as a neutral factor in the calculation of compensation. Length of the Applicant’s service [129] The Applicant’s length of service was not particularly long with the Applicant commencing in October 2021 and having been dismissed on 13 February 2023, a period of approximately 16 months. [130] I consider that the Applicant’s length of service does not support reducing or increasing the amount of compensation ordered. Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed [131] As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”42 [132] It is apparent to me that as a result of the Applicant’s personal challenges, his attendance issues were unlikely to have been resolved and that it is very likely his employment would have likely been brought to an end within a short time after his actual dismissal. However I accept that if the Applicant had more time to prepare for the conversation about his dismissal and had fully comprehended that his employment was at risk he would have been better able to plan for the end of his employment and would likely have been able to negotiate an exit that would enable him to get his affairs in better order. While the attendance issues had become untenable for the Respondent, given the Respondent’s supportive approach in the past, I consider it likely that the Applicant would have been able to have a constructive discussion about his transition out of the business and that this would have resulted in the Applicant remaining employed for a further two weeks as a result of this. -- 27 of 31 -- [2023] FWC 2213 28 [133] However given the likelihood that the Applicant would have needed to have been absent from the business for at least some of this time to attend to his personal affairs, I have some doubt as to whether he would have been working consistently across this period. Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal [134] I am satisfied that the Applicant took reasonable steps to mitigate his loss as evidenced by his ability to secure alternative employment shortly after his dismissal. Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation and amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation [135] The Applicant’s evidence is that the Applicant has, from 10 March 2023 earned at least what he was earning from employment he has attained since the dismissal and I am satisfied that the Applicant will continue to do so between the making of the order for compensation and the payment of compensation. Compensation – how is the amount to be calculated? [136] As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).43 This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages44.”45 [137] The approach in Sprigg is as follows: Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost). Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered. Step 3: Discount the remaining amount for contingencies. Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment. [138] The Applicant was earning a salary of $95,000. I have found that the Applicant would likely have remained in employment for a further period of two weeks. Applying a divisor of 52, two weeks pay is $3,653.85. While a question arises around whether the Applicant would have been able to work a full two weeks across this period, I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the -- 28 of 31 -- [2023] FWC 2213 29 Respondent had provided notice and not terminated the employment immediately to be $3,653.85. [139] The Applicant did not earn any income in the two weeks following his dismissal and was not paid in lieu of notice of termination. [140] No adjustment has been made for contingencies. I have considered the impact of taxation but have elected to settle a gross amount of $3,653.85 and leave taxation for determination. [141] Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case. 46 I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the FW Act. Compensation – is the amount to be reduced on account of misconduct? [142] If I am satisfied that misconduct of the Applicant contributed to the employer’s decision to dismiss, I am obliged by section 392(3) of the FW Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct. [143] I am satisfied that the misconduct of the Applicant, involving instances of the Applicant of not attending for his rostered shift, attending late for work or leaving his shift without notice or adequate communication, contributed to the employer’s decision to dismiss. I accept that the impacts of the misconduct had negative ramifications for the business and its employees given the key nature of the Applicant’s role in that business. [144] In all the circumstances, I am satisfied that the appropriate amount by which to reduce the amount of the order for compensation on account of misconduct is 50%. [145] Applying this reduction to the amount determined at step 4 above, the gross amount of compensation to be ordered is $1,826.92. [146] In light of the above, I will make an order that the Respondent pay $1,826.92 gross less taxation as required by law to the Applicant in lieu of reinstatement within 14 days of the date of this decision. COMMISSIONER -- 29 of 31 -- [2023] FWC 2213 30 Appearances: Mr A Maywald on his own behalf. Mr T Butterfield appearing on behalf of the Respondent. Hearing details: 2023. Sydney (by telephone) 7 June 2023 15 June 2023. Printed by authority of the Commonwealth Government Printer <PR765776> 1 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69]. 2 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373. 3 Ibid. 4 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685. 5 Edwards v Justice Giudice [1999] FCA 1836, [7]. 6 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]. 7 See Transcript of Proceedings dated 15 June 2023, PN 30. 8 Transcript of Proceedings dated 15 June 2023, PNs 36 – 37. 9 Transcript of Proceedings dated 15 June 2023, PN 37. 10 Transcript of Proceedings dated 15 June 2023, PN79. 11 Transcript of Proceedings dated 15 June 2023, PN46. 12 Transcript of Proceedings dated 15 June 2023, PN46. 13 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55]. 14 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151. 15 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998). 16 Ibid. 17 Form F3 – Employer response to unfair dismissal application, p. 9. 18 Transcript of Proceedings dated 15 June 2023, PN105. 19 Transcript of Proceedings dated 15 June 2023, PN113. 20 Transcript of Proceedings dated 15 June 2023, PN115. 21 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151. 22 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998). 23 Ibid. 24 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75]. 25 RMIT v Asher (2010) 194 IR 1, 14-15. 26 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7. 27 Wadey v YMCA Canberra [1996] IRCA 568. 28 Transcript of Proceedings dated 15 June 2023, PN105. -- 30 of 31 -- [2023] FWC 2213 31 29 Transcript of Proceedings dated 15 June 2023, PN113. 30 Transcript of Proceedings dated 15 June 2023, PN115. 31 Transcript of Proceedings dated 15 June 2023, PN225. 32 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542]. 33 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44]. 34 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44]. 35 Transcript of Proceedings dated 15 June 2023, PNs 272 - 275. 36 Transcript of Proceedings dated 15 June 2023, PN 274. 37 Transcript of Proceedings dated 15 June 2023, PNs 259, 269. 38 Transcript of Proceedings dated 15 June 2023, PN 275. 39 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7]. 40 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9]. 41 Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7]. 42 He v Lewin [2004] FCAFC 161, [58]. 43 (1998) 88 IR 21. 44 [2013] FWCFB 431. 45 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16]. 46 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [17]. -- 31 of 31 --