Andrew Doronila v J Functions and Catering Pty Ltd [2021] FWC 3250

1 Fair Work Act 2009 s.394—Unfair dismissal Andrew Doronila v J Functions and Catering Pty Ltd (U2020/14777) DEPUTY PRESIDENT DEAN CANBERRA, 7 JUNE 2021 Application for an unfair dismissal remedy – not unfair – application dismissed. [1] Mr Andrew Doronila was employed by J Functions and Catering Pty Ltd (JFC) until his employment was terminated on 22 October 2020. He made an application pursuant to s.394 of the Fair Work Act 2009 claiming that he was unfairly dismissed. [2] JFC objects to the application on the basis that it is a small business and that the dismissal was consistent with the Small Business Fair Dismissal Code (the Code). [3] The application was heard by video on 10 and 11 March 2021. At the hearing, Mr Doronila was self-represented and was supported by his partner, Ms Lim. JFC was represented by Mr T Jacob, son of the owner of JFC. [4] For the reasons set out below, I have decided that Mr Doronila was not unfairly dismissed and will dismiss his application. Background [5] JFC operates the Red Rock Bistro (the Bistro) within the Vikings Club Lanyon. [6] Mr Doronila commenced employment with JFC on 26 September 2019 as a Front of House staff member of the Bistro. [7] JFC and the Vikings Club closed due to COVID on 26 March 2020 and re-opened on 10 August 2020. During this time period, Mr Doronila was stood down and did not perform work. [8] Mr Doronila was verbally advised of his dismissal on 8 October 2020, which took effect on 22 October 2020. This was followed up by an email of the same date which reads: [2021] FWC 3250 DECISION -- 1 of 18 -- [2021] FWC 3250 2 “Hi Andrew Further to our conversation regarding the aggressive and abusive behaviours towards 4 kitchen staff on 2 occasions (already addressed verbally and writing warnings). Viking staff and the management also raised the same issue on this matter and the Viking management issued a letter for their concerns. Based on your time working the notice period is 2 weeks. This means your last day will be 22/10/2020. Thank you for your hard work for the last one year in our business and please don’t hesitate to contact me for any help. Regards, Jacob Thomas Manager red rock bistro” [9] JFC said that it had provided numerous warnings to Mr Doronila not to harass or behave aggressively towards staff members of JFC and Vikings. Despite the warnings, Mr Doronila continued to exhibit abusive and aggressive behaviour towards fellow employees in the workplace and was dismissed as a result. Preliminary matters [10] There is no dispute and I am satisfied that Mr Doronila is a person protected from unfair dismissal by virtue of s.382 of the Act. [11] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following: 385 What is an unfair dismissal A person has been unfairly dismissed if the FWC 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. Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388. [12] There is no dispute that Mr Doronila was dismissed, and that his dismissal was not a case of genuine redundancy. -- 2 of 18 -- [2021] FWC 3250 3 [13] The matters for determination then are whether the dismissal was consistent with the Code or otherwise whether the dismissal was harsh, unjust or unreasonable. The case for JFC [14] Evidence was given by the following persons for JFC:  Binesh Manandhar  Caleb Budd  Anand Malige  Gordon Le Couter  Ella Badam  Xavier Maximilian Carr  Jacob Thomas  Veena Rajashekar Reddy [15] Witness statements were also filed on behalf of Ms Kya Roeton, Mr Grady Oglivie and Ms Samantha Williams but their statements were not admitted into evidence as these witnesses were not available for cross examination. [16] JFC relied on four separate complaints made against Mr Doronila by Vikings staff during his employment between December 2019 and October 2020, collectively referred to as the Vikings Incidents. (a) 9 December 2019 - It was alleged that Mr Doronila made inappropriate comments to a Vikings staff member regarding his weight, and that Mr Doronila made inappropriate comments to another Vikings staff member regarding his sex life. (b) 29 August 2020 –Mr Doronila was alleged to have caused issues for the Vikings team by arguing with Vikings staff about a dinner reservation. (c) 6 September 2020 - Complaints were made by Kya Roeton (supervisor) that Mr Doronila made patronizing and inappropriate comments to her during a busy service period about an issue with a dinner reservation being taken after the cut off time. He did this despite having been previously warned not to harass Vikings staff, and he was ‘extremely argumentative’ and shouted at Kya. (d) 7 October 2020 – Mr Doronila made ‘agitating comments’ to a Vikings staff member which were said to be inappropriate and made that staff member uncomfortable. A supervisor, Catherine, also reported inappropriate behaviour of Mr Doronila that made her uncomfortable. [17] On 8 October 2020, the Vikings Venue Manager, Mr Budd, wrote a letter of complaint about Mr Doronila to Mr Thomas, the owner and manager of JFC, which referenced the Vikings Incidents and reads in part as follows: -- 3 of 18 -- [2021] FWC 3250 4 “We have had numerous complaints from staff regarding his behaviour that you and I have discussed over the last 11 months … Jacob, these incidents show a pattern of poor conduct, some of which could be considered serious misconduct. The manner in which Andrew has spoken to the Supervisors Catherine and Kya has bordered on harassment and bullying. I request that you take action regarding these incidents.” [18] In addition to the Vikings Incidents, JFC relied on a number of witness statements from its own current and former staff in which various allegations of inappropriate workplace behaviour on the part of Mr Doronila were made. [19] JFC said it warned Mr Doronila in relation to his inappropriate behaviour. In addition to verbal warnings, it issued two written warnings. The first was an all-staff memo dated 7 September 2020 (the September warning) which was given to all front of house staff. The September warning required JFC staff to talk directly with Mr Thomas and not Vikings staff if there were any ‘internal issues’ that needed to be addressed and set out an expectation that staff stay within the bistro area (thereby not engaging with Vikings staff) for the duration of their shift. [20] The second warning was given on 3 October 2020, when all JFC staff were asked to sign the following letter which was placed on the staff noticeboard (the October warning): “All staff Aggressive or abusive behaviours in the kitchen or inside the restaurant will no longer be tolerated and should NEVER be occurring. Action will be taken if such behaviours occur/continue in the future inside our premises. This is a final warning to all staff. Thank you for your cooperation.” [21] Most staff signed the October warning. Mr Doronila does not contend he was unaware of the October warning or its contents. Mr Manandhar [22] Mr Manandhar is a full time Chef with JFC. He gave evidence of two events in which he said Mr Doronila became argumentative and aggressive towards him. He had provided a letter of complaint to Mr Thomas in relation to the two incidents. Mr Budd [23] Mr Budd is the Vikings Venue Manager and has held this position since September 2019. He gave evidence as to the Vikings Incidents specifically and also gave evidence more generally as to Mr Doronila’s conduct in the workplace. -- 4 of 18 -- [2021] FWC 3250 5 [24] In relation to the allegations that Mr Doronila made inappropriate comments to a staff member on 9 December 2019, Mr Budd’s evidence was that Mr Doronila was made aware of the complaints in a timely manner, as well as who had made the complaints. The complainant ‘Dave’ was a member and patron of the Club, not a staff member as referred to by Mr Doronila. Mr Budd gave evidence that Mr Doronila was given the opportunity to respond to him regarding the complaints and did not, in his opinion, offer a satisfactory response to the complaints. As such, Mr Doronila was requested in future to refrain from discussing the physical appearance and sex lives of other staff members or patrons. [25] In relation to the incident on 29 August 2020 Mr Budd gave evidence that it was reported to him by Catherine, a Vikings Customer Service Supervisor, that the venue was over booked and Mr Doronila had approached Vikings staff wishing to discuss the issue, and by doing so was disrupting the work of those Vikings staff. JFC staff were eventually able to rectify the issue without the intervention of Vikings staff. He said he clearly advised Mr Doronila that he was not to act outside of process by raising issues in the first instance with Vikings staff rather than JFC staff, as is required by their standard operating procedure. [26] As to the incident on 7 October 2020, Mr Budd said the Vikings staff member reported to him that Mr Doronila made him uncomfortable by saying “Shouldn’t you be sitting on him, not leaving it to a customer?” with the context being that the staff member should have been assisting to detain the customer causing the disruption rather than another patron. [27] Mr Budd said that contrary to Mr Doronila’s statement, Vikings staff made statements to him that reflected that they made multiple requests for Mr Doronila to not discuss the incident which occurred on 7 October 2020 and that Mr Doronila repeatedly ignored these requests. His unwillingness to listen to the Vikings staff members’ requests and continued questioning of the incident made the Vikings staff members uncomfortable. [28] Mr Budd contested Mr Doronila’s claim that he made a ‘concerted effort’ to facilitate his dismissal by cooperating with JFC who made him write the letter of 8 October 2020. He gave evidence that his involvement extended to verbal meetings with Mr Doronila and when the identified issues were not being resolved, he wrote the letter to JFC on 8 October 2020 which detailed concerns he had regarding Mr Doronila’s behaviour and reports of inappropriate conduct. [29] Mr Budd denied that there is a culture of bulling and harassment prevalent throughout the Vikings Club, as alleged by Mr Doronila. Regarding the allegation by Mr Doronila that he did not undertake a comprehensive and impartial investigation of the incidents reported to him, Mr Budd said that that level of action in these instances was not comparable to the matters raised with him and further a concerted investigation would have been excessive and inappropriate. He instead, on each occasion and in accordance with the accepted practice, had a verbal discussion with Mr Doronila and then raised these issues with JFC. Further, contrary to Mr Doronila’s assertion that he had not been offered the opportunity to provide a response, -- 5 of 18 -- [2021] FWC 3250 6 Mr Budd noted on each occasion during his discussions with Mr Doronila he was provided the opportunity to respond to the incident. Mr Malige [30] Mr Malige is also a full time Chef with JFC. He gave evidence of an incident that occurred on a busy night in December 2019 where Mr Doronila began shouting at him and another employee. He said he asked Mr Doronila to stop shouting and to deliver meals to the customers. Mr Doronila became aggressive, and Mr Malige said he had no choice but to contact Mr Thomas who was overseas in India at the time. After explaining what had occurred to Mr Thomas, he handed the phone to Mr Doronila and they spoke for around 20 minutes. Mr Malige said a number of staff witnessed this incident. Mr Malige subsequently provided a written complaint to Mr Thomas regarding the incident. Mr Le Couter [31] Mr Le Couter is a part time supervisor with JFC. He gave evidence that he had serious concerns about Mr Doronila’s behaviour in that he bullied staff and was disrespectful towards them. He said Mr Doronila’s harassment of other staff led to at least one casual staff member leaving and lodging a written complaint about Mr Doronila. Mr Le Couter said that often when he arrived at work he would be asked by Vikings staff at the bar and reception whether Mr Doronila was working that day and if so, could Mr Le Couter try to keep Mr Doronila in the bistro area as they feared being harassed by him. He said he received this request from Vikings staff regularly. [32] In cross examination, Mr Le Couter said that Mr Doronila became argumentative on at least 80% of the shifts they worked together. Ms Badam [33] Ms Badam was employed by JFC as a casual front of house employee. [34] She gave evidence that she experienced multiple issues working with Mr Doronila, and witnessed many incidents between Mr Doronila and other staff. She also gave evidence that she witnessed him yell and become aggressive towards other staff, and he was the instigator of conflict within the workplace. [35] In cross examination, she recounted particular incidents where Mr Doronilla shouted at her and pointed his finger at her in an aggressive way. She said Mr Doronila had a very aggressive demeanour and she did not like working with him. She also recounted an incident in which Mr Doronila made a comment about her taking off her shirt, and he touched her leg which made her feel very uncomfortable. Mr Carr -- 6 of 18 -- [2021] FWC 3250 7 [36] Mr Carr was also a casual employee with JFC. He gave evidence that Mr Doronila constantly spoke to him in an aggressive tone. After a few months of this occurring regularly, he said he reached a point where he broke down and cried at work due to the stress caused by Mr Doronila. He also described an occasion where Mr Doronila was shouting at Mr Thomas. Mr Carr was unable to move away from them as he was at the end of a hallway. The event caused him to have a panic attack. He was cross examined by Mr Doronila about this incident. Mr Carr confirmed Mr Thomas subsequently comforted him and checked up on him regularly to ensure he was ok. Mr Thomas [37] Mr Thomas is the owner of JFC. He gave evidence that he had witnessed numerous occasions where Mr Doronila had been extremely rude, argumentative and aggressive with employees of both JFC and Vikings staff. [38] He said it was very difficult to have a proper conversation with Mr Doronila about incidents when they occurred because Mr Doronila constantly interrupted him or shouted at him. [39] In terms of what Mr Thomas described as ‘major incidents’, he said he had warned Mr Doronila about his behaviour, and in particular that he must stop engaging in such an aggressive and rude way and must stop harassing Vikings staff. [40] Mr Thomas said that Mr Budd told him he had received numerous complaints from Vikings staff about Mr Doronila’s aggressive and/or rude behaviour, including the Vikings Incidents. [41] In relation to the 9 December 2019 incident, Mr Thomas said he left it to Mr Budd to deal with that matter because he did not witness the incident. [42] In relation to the 29 August 2020 incident, Mr Thomas said that after Mr Budd spoke with Mr Doronila, he also spoke to Mr Doronila. He said he gave Mr Doronila the opportunity to explain his side of the story. He said he was often scared to talk to Mr Doronila because he so often became aggressive. He said he did, however, warn him not to harass Vikings staff and that any issues Mr Doronila had should be raised directly with Mr Thomas. [43] In relation to the 6 September 2020 incident, Mr Thomas said that after Mr Doronila had a conversation with Mr Budd, he spoke with Mr Doronila and again reminded him that he should not be having altercations with Vikings staff and warned him that he must follow this rules or further disciplinary action may be taken. Mr Thomas said he decided to write the October warning letter because his verbal instructions did not seem to be getting through to Mr Doronila. He placed a copy of the October warning on the staff noticeboard and asked that all staff sign it. This included Mr Doronila. -- 7 of 18 -- [2021] FWC 3250 8 [44] In relation to the 7 October 2020 incident, Mr Thomas said that after Mr Budd spoke with Mr Doronila about the incident, Mr Thomas spoke to him and referenced the two previous warnings given to him about not harassing Vikings staff. He told Mr Doronila he could not keep harassing Vikings staff as there were a lot of people getting very angry with him. [45] Mr Thomas gave evidence that he witnessed one of the incidents referred to by Mr Manandhar, in which he observed Mr Doronila become extremely aggressive. He also said Mr Doronila threatened Mr Manandhar saying he was going to punch him in the face. At this point Mr Thomas intervened and asked him to be quiet. Mr Doronila then continued to argue with Mr Thomas. Mr Thomas said he gave Mr Doronila the opportunity to explain what had caused the issue from his perspective, but Mr Doronila spent most of the time shouting at him and abusing him. Mr Thomas gave evidence that he was scared to continue the discussion with Mr Doronila because of how aggressive he had become. [46] In terms of Mr Doronila’s dismissal on 8 October 2020, Mr Thomas gave evidence that he had met with Mr Budd and the General Manager of the Vikings Club that morning (at their request) to discuss Mr Doronila’s behaviour in the workplace. They told Mr Thomas that Mr Doronila’s behaviour was unacceptable and asked him to explain what he was doing to stop the behaviour from occurring again. [47] After this meeting Mr Thomas called Mr Doronila into his office and told him that the Vikings senior management were not happy with his behaviour in the workplace. Mr Thomas said that Mr Doronila immediately began shouting at him and became extremely aggressive. He said he feared for his safety. Mr Thomas said he felt he had no choice but to dismiss Mr Doronila and he typed a termination letter at that time, which he said Mr Doronila refused to accept. As a result, he subsequently sent him an email confirming his dismissal. [48] Mr Thomas gave evidence that the reason he gave Mr Doronila two weeks’ notice when he dismissed him was because he wanted to give him the opportunity to find another job and because he was of the understanding that he was required to give him this notice. Mr Reddy [49] Mr Reddy is a kitchen staff of JFC. He gave evidence that Mr Doronila was rude and aggressive at times and he was always scared to talk to him. He said he witnessed a number of occasions where Mr Doronila became aggressive and shouted at other staff. Submissions [50] JFC submitted that it had dismissed Mr Doronila in accordance with the Code and had provided him with numerous verbal and written warnings making it clear he was not to harass Vikings staff or act in a manner that was aggressive or abusive towards employees of JFC or -- 8 of 18 -- [2021] FWC 3250 9 Vikings. Further, Mr Doronila was clearly advised that such behaviour would not be tolerated in the workplace. [51] It contended that even if it had not given the appropriate warnings, JFC were within their rights to dismiss him summarily given that Mr Doronila had threatened employees with violence during his period of employment, and a number of employees were fearful for their safety in the workplace as a result of his behaviour. [52] JFC contended that on each of the occasions referenced as part of the Vikings Incidents, Mr Doronila was given the opportunity to provide a response both to Mr Budd and later to Mr Thomas (with the exception of the first incident). Further, he was given clear instructions about not harassing Vikings staff and given many opportunities to follow these instructions. Instead, he continued to disregard what he had been instructed to do, that being to raise any issues with his manager and not Vikings staff. [53] When Mr Thomas again sought to talk to Mr Doronila on 8 October 2020, Mr Thomas formed the view that further warnings or discussions with Mr Doronila were futile as he was incapable of following instructions or moderating his behaviour. His conduct in the workplace was well below standard in that he had abused almost every JFC staff member over the course of his employment. He was often extremely aggressive and argumentative, and his behaviour had not improved. [54] JFC contended that to the extent that there was a dispute as to events, the evidence of the witnesses for JFC should be preferred. Some of the witnesses were not JFC employees, or were former employees, and accordingly it could not be said that they had anything to gain by giving evidence against for JFC. Many of the events described by its witnesses were corroborated by other witnesses. Additionally, there were 11 people who were willing to give evidence about Mr Doronila’s inappropriate conduct in the workplace. By comparison, no employee of JFC or Vikings staff provided evidence in support of Mr Doronila. The case for Mr Doronila [55] Mr Doronila gave evidence and called evidence from his wife, Ms Hazel Lim. A character reference provided by Ismail Salam in support of Mr Doronila’s application was also admitted into evidence. Mr Salam was not required for cross examination. [56] Mr Doronila provided detailed written submissions and extensive documentation in support of his claim, all of which I have carefully considered but have not repeated in full here. [57] Mr Doronila said that he was shocked by the allegations made against him of aggressive and abusive behaviour towards other staff. -- 9 of 18 -- [2021] FWC 3250 10 [58] Mr Doronila denied all aspects of the complaints against him and contended that none of the complaints were ever investigated by JFC and he was never afforded an opportunity to put his side of the story. He also said that JFC failed to set out the particulars of allegations as required by law and he was denied a chance to respond to the allegations. [59] Mr Doronila denied having received any verbal and written warnings. Mr Doronila contended that the October warning was not specifically addressed to him and accordingly was not a warning given to him. Mr Doronila gave evidence that to the extent Mr Thomas spoke with him about inappropriate behaviour, either the behaviour in his view was not actually inappropriate or were all “one way accusations and coercions to admit something I had not done”. [60] He challenged almost every aspect of the evidence given by JFC’s witnesses. [61] In summary, it was Mr Doronila’s case that:  he was forced to admit to an aggressive behaviour towards other employees and coerced to sign the all-staff memo;  he was never abusive or aggressive to other staff;  he was treated differently by Viking staff;  he was subjected to false accusations by employees who made the complaints against him;  there was no objective/impartial investigation and his side of the story was not heard;  the complaints were not brought to his attention at the time when they occurred, the particulars of the complaints were not clearly and explicitly discussed with him, and he was not given any chance to explain himself; and  Mr Budd’s concerns letter was handed to him at the same time as he was given the dismissal letter and did not provide specifics of the alleged aggressive and abusive behaviour. He was unaware of who those four kitchen staff were that he purportedly treated in an aggressive and abusive way. [62] Mr Doronila alleged he was threatened by Mr Thomas that he would lose his job in June 2020 after he made enquiries about when he could receive the JobKeeper payment. [63] Mr Doronila referred to certain incidents that occurred with other employees as ‘disagreements’, which he said arose from ‘misunderstandings’. He said that apart from these disagreements, he was treated differently by Vikings staff when he needed their assistance. He alleged he was subjected to false accusations by Mr Malige, Mr Manandhar, Mr Le Couter, Ms Williams and Mr Thomas. [64] Mr Doronila acknowledged he was aware of the October warning. He said Mr Thomas tried to coerce him to sign the warning. He contended that there were three versions of the -- 10 of 18 -- [2021] FWC 3250 11 October warning, the one he took a photo of on 8 October 2020, and two others attached to F3 which have different signatures. He suggested that this piece of evidence was crafted after his dismissal. [65] Mr Doronila argued that out of the four complaints from Vikings staff, only the 9 December incident was brought to his attention. Mr Doronila contended it was ludicrous to describe any of his discussions with Vikings staff as harassment. [66] In terms of his dismissal on 8 October 2020, Mr Doronila recorded part of the conversation between him and Mr Thomas in which Mr Thomas advised him of his dismissal. He said Mr Thomas consented to the recording, and it was provided to the Commission as part of Mr Doronila’s evidence. [67] Mr Doronila argued that his alleged misconduct was not as serious as theft, fraud or assault and was therefore not serious misconduct warranting immediate dismissal. Further, there was no fair process employed by JFC to establish ‘reasonable belief’ that he indeed committed serious misconduct. [68] Mr Doronila argued that the tone of the dismissal email indicated that Mr Thomas felt bad for him since he was a victim of group bullying and that he could not do anything about it. It was Mr Doronila’s evidence that he was in fact the victim of bullying and physical attacks, verbal abuse and differential treatment during his employment with JFC. [69] The strong focus of Mr Doronila’s submissions was the “lack of proof” that existed to demonstrate that any warnings were actually given to him or that his behaviour was ever aggressive. He also contended that he followed the September warning instructions and there was no objective and verifiable evidence that he did otherwise. [70] Mr Doronila submitted that his dismissal was harsh as the action was disproportionate to the gravity of the alleged misconduct. The JFC had failed to consider his personal and economic situation (55 yrs old and hard to find work). It was unjust as he was not guilty of the alleged misconduct. There was no reasonable basis for believing that the alleged incidents occurred as reported. Mr Thomas did not witness any of the incidents and never asked him for his side of the story. It was unreasonable as it was decided upon inferences which could not reasonably have been drawn from the material before the employer. Ms Lim [71] Ms Lim gave evidence in support of her husband. Her evidence was mostly hearsay or otherwise not directly relevant to the matters I need to decide. She outlined overhearing part of a conversation between Mr Doronila and Mr Thomas about the JobKeeper payment. She relayed conversations she and Mr Doronila had about his workplace. She suggested that he was treated differently by the JFC and Vikings staff because he received more positive -- 11 of 18 -- [2021] FWC 3250 12 reviews on social media than they did. She said that Mr Doronila had on occasions been the target of bullying in the past because of the positive customer reviews he regularly received. Consideration of the evidence and submissions [72] I have carefully considered the evidence and submissions that have been made, and to the extent there is a dispute between the witnesses of JFC and Mr Doronila, I prefer the evidence of the JFC witnesses. Eleven people were prepared to give evidence about Mr Doronila’s inappropriate behaviour. Three were unavailable for cross examination and so their statements were not admitted into evidence. The remaining eight witnesses were all cross examined by Mr Doronila or his wife, and all were unmoved in the evidence they gave. [73] I can find no good reason why these witnesses would give the evidence they have given about Mr Doronila unless it was truly reflective of their experiences with him. Their evidence overwhelmingly supports a finding that Mr Doronila regularly engaged in aggressive, intimidating and argumentative behaviour in the workplace. His behaviour had a significant negative effect on some of his co-workers including Mr Le Couter and Ms Badam. [74] To the extent Mr Doronila suggested that the witnesses made up their evidence because they were unhappy with the positive social media reviews he received, I reject this suggestion. It’s simply not plausible that this was the reason 11 current or former employees of JFC or Vikings would give the evidence they have given. [75] I am satisfied that Mr Doronila was made aware that his behaviour was not acceptable. I accept the evidence of Mr Budd as to his conversations with Mr Doronila after each of the Vikings Incidents. As with all of the witnesses, Mr Budd has no motivation make up these issues about an employee of JFC. I am also satisfied that Mr Thomas had spoken with Mr Doronila about his behaviour and about raising any issues he had directly with Mr Thomas and not Vikings staff. I do consider that Mr Thomas may not have been completely clear in every conversation he had with Mr Doronila about behavioural expectations. This was in part a result of not being able to have a measured conversation without Mr Doronila becoming aggressive, and because Mr Thomas was scared of Mr Doronila. In any event, Mr Doronila ought to have been very clear by the time the October warning was issued that aggressive behaviour etc would not be tolerated in the workplace. Notwithstanding the October warning, when Mr Thomas tried to have a conversation with Mr Doronila on 8 October, I accept Mr Doronila again became aggressive and as a result Mr Thomas made a decision to dismiss him. [76] Mr Doronila argues that the recording he made of part of that conversation shows he was not aggressive. I agree that Mr Doronila does not sound aggressive in the recording. I accept Mr Thomas’ evidence that the conversation between Mr Doronila and Mr Thomas had commenced some time before Mr Doronila commenced recording. I also consider that it would be highly unlikely that Mr Doronila would record himself being argumentative or aggressive, and so I place little weight on the recording as demonstrative of what had occurred in the earlier part of the conversation or indeed on any other occasion. -- 12 of 18 -- [2021] FWC 3250 13 Was the dismissal consistent with the Code? [77] Section 388 of the Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code (the Code) if: (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. [78] The Code relevantly reads as follows: Summary dismissal 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. Other dismissal In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations. Procedural matters In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity. A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to the Fair Work Commission, including evidence that a warning has been given (except in cases of -- 13 of 18 -- [2021] FWC 3250 14 summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements. [79] I am satisfied and find that JFC was a small business based on the evidence of Mr Thomas. [80] Mr Doronila was dismissed with notice and I am satisfied the summary dismissal section of the Code therefore does not apply. [81] For a finding that Mr Doronila’s dismissal was consistent with the Code, the Commission must be satisfied that Mr Doronila: a. was provided with a valid reason, based on his capacity or conduct, as to why he was at risk of being dismissed; b. was warned verbally or in writing that he risked being dismissed if there was no improvement; and c. Mr Doronila was given the opportunity to respond to the warning and given a reasonable chance to rectify the problem. [82] I am satisfied that Mr Doronila was provided with a valid reason as to why he was at risk of being dismissed. The reasons were a failure to follow instructions about not leaving the bistro area and engaging with Vikings staff, rather than raising any internal issues with Mr Thomas, and the inappropriate manner in which he engaged with many staff of both Vikings and JFC. [83] I am satisfied on the evidence before me that Mr Doronila was warned verbally and in writing that he risked being dismissed. While the October warning was not addressed specifically to Mr Doronila, it was a warning nonetheless. [84] I am satisfied Mr Doronila was given the opportunity to respond and given a reasonable chance to rectify his behaviour. He was given the opportunity to respond to the incidents either raised by Mr Budd and/or Mr Thomas. [85] Accordingly, I am satisfied the dismissal was consistent with the Code. Was the dismissal otherwise unfair? [86] If I am wrong about Mr Doronila’s dismissal being consistent with the Code, I would have found that his dismissal was not otherwise unfair, in that it was not harsh, unjust or unreasonable for the reasons set out below. [87] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account: -- 14 of 18 -- [2021] FWC 3250 15 (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that the FWC considers relevant. [88] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd1 as follows: ‘... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’ Valid reason - s.387(a) [89] 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 [90] 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 -- 15 of 18 -- [2021] FWC 3250 16 [91] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable. [92] Mr Doronila was dismissed after JFC formed the view that he was not following clear instructions given to him to cease harassing Vikings staff and because it considered he was engaging in inappropriate workplace conduct. For the reasons set out earlier, I am satisfied that there was a valid reason for Mr Doronila’ dismissal, in that he engaged in inappropriate conduct in the workplace and this conduct justified his dismissal. Notification of the valid reason and opportunity to respond - s.387(b) and (c) [93] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,7 in explicit terms8 and in plain and clear terms.9 In Crozier v Palazzo Corporation Pty Ltd10 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following: “[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”11 [94] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied 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.12 This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.13 [95] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr Doronila before his dismissal was effected. [96] On the evidence before me, and for the reasons set out earlier, I am satisfied that Mr Doronila was notified of the reason for his dismissal and was given an opportunity to respond to the reason. -- 16 of 18 -- [2021] FWC 3250 17 Unreasonable refusal by the employer to allow a support person - s.387(d) [97] 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. [98] 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.”14 [99] There is no evidence to suggest that Mr Doronila was refused a support person. Warnings regarding unsatisfactory performance - s.387(e) [100] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances. Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g)) [101] JFC is a small employer with no dedicated human resource management expertise. [102] I am satisfied that its size and lack of dedicated human resource expertise impacted on the procedures followed by it in effecting the dismissal. Other relevant matters - s.387(h) [103] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant. [104] I have taken into consideration Mr Doronila’s personal circumstances in deciding this matter. I do not consider there are other relevant matters that have not already been considered. Conclusion -- 17 of 18 -- [2021] FWC 3250 18 [105] Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I am satisfied that the dismissal of Mr Doronila was not unfair. Accordingly, the application is dismissed. DEPUTY PRESIDENT Appearances: A Doronila on his own behalf. K Jacob for J Functions and Catering Pty Ltd. Hearing details: 2021. Canberra and Sydney (By video): March 10, 11. Printed by authority of the Commonwealth Government Printer <PR730498> 1 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ. 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 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]. 8 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151. 9 Previsic v Australian Quarantine Inspection Services Print Q3730. 10 (2000) 98 IR 137. 11 Ibid at 151. 12 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7. 13 RMIT v Asher (2010) 194 IR 1, 14-15. 14 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542]. -- 18 of 18 --