Joshua Doran v SSKK HOLDINGS PTY LTD ATF SKA

Joshua Doran v SSKK HOLDINGS PTY LTD ATF

SKA [2022] FWC 1799 (11 July 2022)

Last Updated: 11 July 2022

Fair Work Act 2009

s.394—Unfair dismissal

Joshua Doran

v

SSKK HOLDINGS PTY LTD ATF SKA

(U2021/11489)

DEPUTY PRESIDENT ASBURY BRISBANE, 11 JULY 2022

Application for an unfair dismissal remedy – Small business employer – Employment

terminated for underperformance and failure to comply with the vaccination policy of the

Respondent – Respondent did not establish that it had a vaccination policy or that

vaccination requirement was properly communicated – Finding that the dismissal was not

consistent with the Small Business Fair Dismissal Code – Finding that the dismissal was

harsh, unjust and unreasonable – compensation awarded.

Overview

• [1] Mr Joshua Doran (the Applicant) applies under s.394 of the Fair Work Act 2009

(the FW Act) for an unfair dismissal remedy in respect of his dismissal by SSKK

Holdings Pty Ltd as trustee for SKA trading as Cold Food Logistics (the Respondent). In

his Form F2 Application for an unfair dismissal remedy, the Applicant originally named

his employer as Cold Food Logistics. With the consent of the Respondent, permission

was given to the Applicant to amend his application.

• [2] The Respondent’s business is described in the Response to be a logistic company

delivering food to customers operating aged care facilities, schools, supermarkets, cafés

and restaurants. The Respondent has customers in Queensland and New South Wales.

• [3] The Applicant was employed by the Respondent primarily as a food delivery driver,

from August 2015 until his dismissal, which took effect on 8 December 2021. The

Applicant’s uncontested evidence is that he was initially employed on a casual basis but

was offered a permanent position from October 2016.

• [4] There is no dispute between the parties, and I am satisfied on the evidence that:

1. the Application was made within the period required in s.394(2) of the FW Act;

2. the Applicant is a person protected from unfair dismissal;

3. the Respondent was a small business employer at the relevant time; and

4. the dismissal was not on the grounds of redundancy and was therefore not a case of

genuine redundancy.

• [5] I decided that it was appropriate to hold a hearing in this matter. In making that

decision, I had regard to the views of the parties together with the fact that a hearing

would be the most effective and efficient way to resolve this matter. The hearing was

conducted by video on 8 April 2022.

• [6] The Applicant was assisted at the hearing by his father, Mr James Doran, and gave

evidence on his own behalf. Witness statements for Mr James Doran (the Applicant’s

father) and Ms Debra Blackman (the mother of the Applicant’s partner) were tendered

without objection and neither witness was required for cross-examination. The

Respondent was represented by Xiao (Shaun) Long, who also gave evidence on behalf of

the Respondent.

• [7] At the request of the Applicant, I issued a notice requiring production of documents

by the Respondent relating to its COVID – 19 Policy including screenshots establishing

when it was created and updated, records of the Policy being shared with the Applicant

and documents given to and signed by staff in relation to the Policy. The notice also

required the Respondent to produce CCTV footage of conversations on 27 October and 9

November 2021 and pay slips for the period 23 – 29 August and 8 – 14 November 2021.

• [8] On 6 April 2022, in response to the Order of production of documents, Mr Long

provided, by email, two payroll advice slips for the pay periods from 23 to 29 August

2021 and from 8 to 14 November 2021, a screenshot of the file properties of a PDF

document, named “Vac Policy” captured from a Window desktop on a computer and a

photograph depicting a document, headed “COVID – 19 vaccination policy”, which

appeared to be hanging on a wall.

• [9] I also issued notices requiring attendance at the hearing of two employees of the

Respondent at the hearing – Mr Rodney Arnold and Mr Matthew Fleming. On 5 April

2022, the Applicant contacted my Chambers by email alleging that Mr Long had

interfered with the Applicant’s witnesses by instructing them not to communicate with

him or they would lose their jobs. On 5 April 2022, I caused my Associate to email the

parties indicating that this was a serious allegation, and if substantiated could render Mr

Long liable to penalties under the FW Act. Mr Long responded by email denying the

allegations. On 6 April 2022 I conducted a hearing to deal with the issues surrounding

the attendance of Mr Fleming and Mr Arnold.

• [10] At the hearing on 6 April 2022, both Mr Arnold and Mr Fleming denied that they

had been threatened by Mr Long. Mr Arnold indicated that he would make himself

available for the substantive hearing on 8 April 2022 whereas Mr Fleming stated that he

did not want to have anything to do with the matter on the basis that he might lose

income from having to attend the hearing and being absent from work. Mr Fleming also

said that any statements he had made expressing concerns about participating in a

hearing were his own views and had not been made because of any discussions with Mr

Long. It was agreed with Mr Fleming that he would give evidence by telephone at a time

outside his ordinary working hours.

• [11] At the conclusion of the Applicant’s evidentiary case, the Applicant stated that he

did not wish to call either Mr Arnold or Mr Fleming to give evidence because he was

concerned they might “turn hostile”. At the conclusion of the Respondent’s evidentiary

case, Mr Long indicated that he wanted to question Mr Arnold and Mr Fleming. I

determined that I would not allow Mr Long to call further evidence on the basis that the

Directions I issued for the hearing of this matter had provided the Respondent with an

opportunity to call witnesses. In response to the Directions, the Respondent filed a

statement from Mr Long and did not file statements from any other witnesses. There

was no reason the Respondent could not have called Mr Arnold and/or Mr Fleming in

accordance with the Directions and to allow the Respondent to call them at the

conclusion of its case, after the Applicant had closed his case, would have been unfair. In

any event, given the conclusions I have reached in this matter, the evidence of either

employee would not have changed the outcome.

• [12] The issues for determination in this case are:

1. Whether the dismissal was consistent with the Small Business Fair Dismissal Code (the

Code);

2. If not, whether the dismissal was unfair;

3. If the dismissal was unfair, whether a remedy should be granted; and

4. If a remedy is granted, what remedy is appropriate.

• [13] I turn first to consider the evidence and submissions of the parties.

Evidence and submissions

The Applicant

• [14] The Applicant’s evidence was that he commenced employment with the

Respondent in approximately August 2015. The Applicant was initially employed as a

casual in the kitchen facility but was offered employment with the Respondent on a

permanent basis from October 2016. The Applicant states that after he was made a

permanent employee, he requested on several occasions that the Respondent provide a

written employment contract formally setting out his hourly rate and entitlements but

did not receive a response to this request.

• [15] On 2 November 2021, the Applicant received a text message from his co-worker, Mr

Rodney Arnold, informing the Applicant that:

“Had a meeting with [Mr Long] today. Told me no job if I’m not vaccinated. Clock is ticking.

Asked me about you, I said that he has to talk with you. Just a heads up.”

• [16] On Sunday 7 November 2021, the Applicant sent text messages to his Manager

advising that the Applicant’s partner was in hospital and that the Applicant would be

unable to attend work.

• [17] On 9 November 2021, the Applicant attended work at approximately 4.30 am but

advised his Manager that he might be required to leave early that day to attend to his

partner urgently at the hospital should her condition deteriorate. At approximately 9.49

am, the Applicant received a phone call from his mother-in-law regarding his partner’s

condition. Following this telephone conversation, the Applicant said he “punched out” at

about 10.20 am and while he was walking downstairs to inform his Manager that he was

leaving, Mr Long was standing in the meat room with another co-worker, Mr Matthew

Fleming.

• [18] The Applicant said that he told Mr Long that his partner was in hospital and that he

needed to leave work early. Mr Long responded by stating: “if you haven’t been

vaccinated you don’t have a job”. The Applicant said that in reply he stated: “email

everything you have on it and I will get back to you, I need to go.”

• [19] On 9 November 2021, while he was at the hospital with his partner, the Applicant

had a text message exchange with Mr Long. The Applicant said that he thought that it

would be appropriate to provide Mr Long with an update, given his early departure from

work that day and that he might not be able to attend work for the rest of the week due

to the requirement to look after his partner. The text messages, copies of which were

tendered by the Applicant, were as follows

“At 5.28 pm, Applicant: I will not be in for the rest of the week.

At 6.00 pm, Shaun Long: Ok. Reasons?

At 6.07 pm, Shaun Long: You need a proper reason to apply for leave, simply a message

without a reason doesn’t mean I approve you not to work tomorrow. Please respond with a

proper reason for leave approval. Otherwise your employment terminate tomorrow.

At 6.15 pm, Applicant: Please don’t threaten me. My reason is carer’s medical leave.

At 6.16 pm, Applicant: Please let me know if you require me to confirm this via a phone call.

Thanks.

At 6.40 pm Shaun Long: It’s not a threaten (sic), it is just reminder of the consequences of

taking unapproved leave. You didn’t provide me the reason with the first message. And I

require you to be at work tomorrow with the reason given. I believe the message would be

good evidence for both of us if you choose to dispute my decision in the future.”

• [20] On 10 November 2021 at 1.19 pm, the Applicant sent an email to Mr Long

requesting carer’s leave for the remainder of that week and provided a medical certificate

dated 10 November 2021 for the period from Monday, 8 November, to Friday, 12

November 2021. The medical certificate stated that the Applicant had been caring for his

partner from 8 to 12 November 2021, and that his partner was suffering a medical

illness. At 1.57 pm on the same date, an email was sent by the Respondent to the

Applicant with the subject line, termination letter, attaching a letter in the following

terms:

“Dear Joshua Doran

Termination letter

I am writing to you about the termination of your employment with cold food logistics (the

employer) on 8thDec2021.

• Underperformance

• Refuse to comply with company covid-19 vaccination policy

I propose that we meet again on 10.00am 15Nov2021 to review your progress. If you wish to

respond to this termination letter please do so by contacting me on [phone number] or by

replying in writing.”

• [21] On 12 November 2021, the Applicant replied to the email as follows:

I’m writing to acknowledge receipt of your email, with regard to termination of my permanent

employment with Cold Food Logistics.

I disagree with the stated grounds and allegations (2) you list in the termination of my

permanent employment with Cold Food Logistics. Please confirm the Termination Date and

reasons for said Termination Date.

In relation to the meeting you proposed for Monday 15 November 2021, at 10:00am to “review

my progress”. I request that all matters of discussion and communication at this point in time

occur via written correspondence.”

• [22] On 15 November 2021, Mr Long responded to the Applicant’s email dated 12

November 2021 in the following terms:

I confirm the Termination reason and Termination date. Am happy to discuss more via

written correspondence.

We request the reason for not coming to work for 15Nov2021.”

• [23] From 11 to 25 November 2021, the Applicant did not attend work and was on a

period of sick leave. Medical certificates from Dr Khan dated respectively 11 and 18

November 2021 were provided to the Respondent by email. The certificates, tendered by

the Applicant, indicate that he was unfit to continue his usual occupation during that

period. However, while the Applicant was on personal leave, the Applicant attended

WorkSafe training centre in Strathpine on 20 and 21 November 2021 and completed the

training components to obtain a forklift license. On 24 November 2021, while on

personal leave, the Applicant attended Brisbane Truck Driving School to receive training

for the purpose of obtaining an Open Heavy Rigid Truck Licence. At the hearing, the

Applicant said, in response to questions from me about undertaking such activities

during a period of personal leave, that:

PN85

Right, and it seems that you were doing a forklift course while you were on sick leave, is that

the case? Yes, on the weekend.

PN86

Right, what was the basis you were doing that? Well, I thought it would be handy to have a

forklift ticket.

PN87

So, you weren’t sick on the weekend, but you were sick for the rest of the time. You can agree

or disagree with this. There was a period of sick leave before the weekend and a period of sick

leave after the weekend? It was actually carer’s leave, so I wasn’t actually sick, I was caring for

my partner and her parents - her mother does not work on weekends, so I had her looking

after my daughter Koa while I went and got a forklift ticket, because I thought this could end

badly, so.

• [24] On 26 November 2021, the Applicant returned to work and said that he had a

conversation with his co-workers, Mr Darryl and Mr Arnold, who asked him why he was

back and when the Applicant said that he was there to work, they informed him that Mr

Long had told them he was fired and was not allowed back on the premises. On 29

November 2021, the Applicant said that he attended work but was approached and

asked by a co-worker: “what are you doing back here?” The Applicant replied stating

that: “I am here to work”. Also on that date, the Applicant said that Mr Long arrived at

work at approximately 8.45 am and treated him differently from other staff members by

greeting them and not responding to the Applicant’s greeting. The Applicant said that he

felt embarrassed and singled out by Mr Long.

• [25] According to the Applicant, Mr Long continued with this conduct on 30 November

2021. On 1 December 2021, following a delivery to a customer of the Respondent, the

Applicant was questioned by the customer, who stated: “Hey, what are you doing here?

I heard you got terminated”. The Applicant responded, “I’m here doing my job and

working, have a great day”. The Applicant said that he felt embarrassed that personal

and confidential information about his termination had been shared with the customer.

• [26] On 1 December 2021, the Applicant sent an email to Mr Long raising his concerns

about unfair treatment and breach of confidentiality by Mr Long, as follows:

I’m writing to formally raise concerns regarding unfair treatment by yourself (Shaun) and

breach of confidentiality by Kelvin and yourself (Shaun).

Since my arrival back from sick leave on Friday 26th November, I have been approached by 3

staff members on separate occasions: asking:

• “Why are you back here?”

• “Shaun called Kelvin and told him you are not allowed back on the premises?”

• “You are fired and not meant to be here?”

I feel this is a gross breach of confidentiality regarding my termination and that you have both

not followed due process. In that other staff had been told things that have not been discussed

with me regarding my employment. I have not been formally advised that you were not

allowing me back on the premises and feel embarrassed by these comments made directly to

me. This has left me struggling to attend the workplace each day for fear of ongoing

embarrassment, exclusion, my rights to privacy breached. This is impacting on my

relationships with my other colleagues commenting on things that have been shared by

yourself and Kelvin regarding my employment and you both have not had direct conversations

with me.

Shaun on two occasions, Monday 29th and Tuesday 30th you have treated me differently than

normal and that of other employees. I have acknowledged you and greeted you with

“morning” as per typical and as per other’s greetings to you and you have ignored me and

walked off, though I have noticed that you have responded to other worker’s morning greeting

as would be typical. This has resulted in other staff acknowledging your behaviour and

commenting “that was rude” to me.

1 feel that your actions and behaviours has created an intimidating, hostile environment for

me to work within, you have conducted yourself in a purposeful manner by ignoring me in

front of other staff, sharing details of my termination, withholding the new code for the front

door, requiring me to wait and make several phone calls to yourself and Kelvin which you were

apprehensive on the phone call giving the code to me. I feel discriminated against and bullied

by you due to the above interactions and environment at the workplace, I feel this has caused

me sever (sic) embarrassment and humiliation, feeling less than, undervalued and as though I

have done things wrong. I have now since developed anxiety when coming to work and this is

impacting on my sleep.

I am open if you wish to respond with the things that are driving these behaviours from you

toward myself to ensure that my performance is meeting the mark to ensure that due process

of providing and allowing me to address these concerns or justifying actions.”

• [27] On 6 December 2021, the Applicant wrote to Mr Long requesting that he be

provided with the following documents, to be collected on 7 December 2021:

• a Separation Certificate for Centrelink purposes;

• details of remaining entitlements noting that the days of the Applicant’s carer’s leave had

been deducted from his holiday leave rather than his sick or personal leave;

• copies of the Applicant’s employment contracts setting out the periods of employment

when the Applicant was employed as a casual and when the Applicant was employed on

a permanent basis, and information necessary to calculate an hourly rate with reference

to an applicable Award;

• copies of documents showing when the Applicant was approved for the processing and

handling of Queensland Yogurt and Prime Wagyu products;

• copies and details of any written warnings provided to the Applicant including details of

how the warnings were brought to the Applicant’s attention;

• information on how superannuation was calculated, especially in the last five payslips;

• information on how the business’s Covid Safe Plan was provided to the Applicant since

the start of the pandemic including:

- records of when formal Covid Safe training occurred and was reviewed;

- records of the handling, storage and supply of meat and seafood products for the business

Prime Wagyu for Queensland and New South Wales; and

-

written records of the provision of any mandatory vaccination regulations for Cold Food

Logistic or Prime Wagyu to the Applicant.

• [28] On 7 December 2021, the Applicant received a text message from Mr Long stating

that the separation certificate would be provided to him within 14 days. On that day, the

Applicant attended a meeting with Mr Long for the purpose of collecting the requested

documents from Mr Long. Mrs Kristy Long was also in attendance at the meeting. The

Applicant recorded the conversation without the knowledge of Mr or Mrs Long and

provided a transcript as follows:

“Applicant: Howdy Doo Dee.

Mr Long: Hey...

Applicant: Money bags.

Mr Long: I received your message. I will send email.

Applicant: Yeah, yeah. Is that all of it? So you have nothing for me?

Mr Long: Ugh.

Applicant: You got nothing for me?

Mr Long: No.

Applicant: Yeah, yeah.

Mr Long: No.”

Applicant: No?

Mr Long: I will send everything together...full package.

Applicant: So how do I get on Centrelink then? I have to wait and get it.

Applicant: Too easy, mate.

Mr Long: All good.

Applicant: Cheers for the opportunities

Mr Long: If you want to give me a call to talk or if you want to have a chat let me know, or

send you by email

• [29] On 10 December 2021, as the list of documents and the final pay out had not been

provided by Mr Long, the Applicant contacted the Fair Work Ombudsman to make

enquiries about the outstanding separation certificate, wages, payslips and pay-out

figures. On 14 December 2021, the Applicant emailed Mr and Mrs Long stating:

“I’m following up on the requested information as per my email on Monday 6 December.

Urgently requesting:

Outstanding payslips

Pay-out figure

I have been advised by the Fair Trade Ombudsman, that you ARE to provided (sic) my payout

and separation certificate WITHIN seven (7) days of my employment end date. I believe you

are not following due process and also have not kept me up to date with current payslips.

Please update me as per my previous email & requests.”

• [30] On 15 December 2021, the Applicant received 14 outstanding payslips. On 5

January 2022, the Applicant exchanged a series of Facebook messages with his previous

co-worker, Mr Rodney Arnold who disclosed that he remained in employment with the

Respondent despite not being vaccinated. The Applicant tendered the following

Facebook message exchange with Mr Arnold:

“Mr Arnold: As of last night I am not allowed to see my kids anymore cause I am not

vaccinated. Fuckn (sic) hurts me bro. So im not going to talk to you until I’m sacked. Ok. Then

I will come see you. Ok. Time to go dark.

Applicant: Did you get in trouble for talking to me again.

Mr Arnold: Yes.

Applicant: Fuck Shaun you are able to talk to anyone out side of work.

Mr Arnold: Let’s play the game, im sacked. I need money.

Applicant: Did the new bloke tell on you. Stop telling him you are talking to me then. He will

keep you until he gets in trouble for unvaccinated people being the[re] which really is not that

long away...

Applicant: So that means you are still employed.

Mr Arnold: 3 days with me and my replacement fucked off. I should not be talking to you.

Soon ok. I will come see you.”

• [31] The Applicant also tendered the following text message exchange he had with Mr

Arnold on 20 January 2022:

“Mr Arnold: You told Shaun on Monday that you had spoken to me.

Applicant: No mate is said I know of 3 people there that are not vaccinated...If you look at

your previous calls we did not speak until Tuesday so he is lying and I did not mention any

names.

Mr Arnold: Ok.

Applicant: He is trying to manipulate you. Just say nothing. He was given no names of persons

(we stated that CFL are still employing 3 people unvaccinated and follow no covid safe plan).”

• [32] In relation to the allegation of underperformance in the letter advising the

Applicant of the termination of his employment, the Applicant said that he had never

been spoken to by Mr Long, Mrs Long or his Manager about issues relating to his

performance. The Applicant maintained that his purported underperformance was a

false allegation created by Mr Long in order to terminate the Applicant’s employment.

The Applicant states that prior to the issue of his termination letter by Mr Long:

• he was never warned either verbally or in writing that he was doing the job poorly and

that he would have to improve his performance or otherwise be terminated;

• if he had been underperforming, he was never afforded an opportunity to respond to any

reasons related to his capacity, conduct or performance;

• he was never provided reasonable amount of time to improve performance or conduct;

• he was never provided training or opportunity to develop his skills; and

• he was never provided feedback.

• [33] The Applicant also said that he has never been formally advised in a meeting or

provided a copy of the Company’s policy requiring him to be full vaccinated. At the time

of the Applicant being provided with the termination letter on 10 November 2021 and

when his dismissal took effect on 8 December 2021, there were no legal or mandatory

requirements in relation to vaccination and vaccination status for his position, the work

he carried out and the locations he attended. Further, the Applicant said that at the date

of his dismissal there were three staff who were not vaccinated: Ms Kirsty Long (Owner),

Mr Rodney Arnold (Driver) and Mr Marshall (Kitchen hand). The Applicant contended

that he received a telephone call from Mr Arnold advising that he had also received a

termination letter for refusal to comply with the Company’s vaccination policy, but that

Mr Long had later torn the letter up and told Mr Arnold that he would keep him

employed for as long as possible. Mr Arnold also told the Applicant that Mr Marshall

and Mrs Long were not vaccinated.

• [34] In a witness statement in reply filed by the Applicant on 21 February 2022, the

Applicant pointed out the Respondent had filed two versions of the Small Business Fair

Dismissal Code Checklist, and that there was a discrepancy between answers provided

by the Respondent at Question 8 in relation to whether the dismissal was due to the

Applicant’s unsatisfactory conduct or performance.

• [35] Further, the Applicant said the Respondent did not follow a proper process in

addressing and managing the Applicant’s performance notwithstanding the responses

provided to the sub-questions under Question 8 of the Checklist dated 8 December 2021.

The Applicant submitted the Respondent has never supplied a role or job description for

him to ensure that he was meeting the requirements of his role, he was not provided

with training opportunities to ensure his performance was up to standard, the

Respondent made no attempts to provide warnings for any alleged underperformance

issues and the Applicant was not afforded any opportunity to respond to or put forward

his perspective with respect to assertions concerning his performance. Further, the

Applicant submits that Respondent had provided no evidence of the Applicant’s

underperformance or how that performance was addressed or managed. On that basis, it

is alleged by the Applicant that the Respondent has supplied a “false and misleading

document”.

• [36] On the issue of the company COVID – 19 vaccination policy, the Applicant’s

evidence is that the first time he became aware that the Respondent had a COVID – 19

vaccination policy was on 12 November 2021. The Applicant said he had never received a

copy of the policy from the Respondent, had not been asked by the Respondent to meet

and discuss the policy prior to his termination and had never been consulted or provided

with an explanation with respect to the implementation of a vaccination policy. The

Applicant said the first time he saw the actual COVID – 19 vaccination policy document

was when Mr Long provided the document as part his witness statement, and in

response to an email from the Commission. The Applicant alleges that the policy

document provided by Mr Long was fabricated as there is no evidence that verifies the

date of its creation and there is no documentation or record showing how the policy was

shared with employees.

• [37] The Applicant said that the policy document was not made using company letter

head and it contained considerable grammatical errors. The Applicant also said that

there is no evidence of how the policy was developed and determined; it made no

reference to any relevant Public Health Directions; and it made no reference to any

considerations by the Respondent of the relevant Public Health Directions enforced at

the time or of the risks posed by COVID – 19 to the Respondent’s operational

requirements. Further, there is no evidence that any consultation with Unions or

relevant entities was conducted; the policy did not provide the Respondent with a right

to require existing or prospective employees to produce their vaccination status; it made

no mention of how personal information of employees was to be collected and stored;

and it made no mention of the consequences, including the ceasing of employment, for

employees who fail to comply with the policy. The Applicant questioned how the

implementation of this policy directly relates to the functions or activities of the

company or to the prevention and management of COVID – 19.

• [38] Under cross-examination, the Applicant denied that he had a conversation with Mr

Long on 27 October in relation to vaccination requirements or his intentions in this

regard. The Applicant also maintained that he had not seen the vaccination policy before

it was provided by the Respondent following a request from Chambers. The Applicant’s

position is that the first time he heard about any vaccination requirement was in the text

[1]

message from Mr Arnold on 2 November 2021. The Applicant’s version of the

exchange with Mr Long on 9 November 2021 was that he informed Mr Long that he had

an emergency due to his partner’s medical condition and that he needed to go to the

hospital to care for his partner. The Applicant said that was the context within which he

[2]

made the comment, “Ok I gonna go”.

• [39] The Applicant denied that Mr Long informed him on that date that the

Respondent’s customers would require all persons to be double vaccinated before

entering their premises and that he could not work there if he was not vaccinated, and

said that before he left the workplace on 9 November, he told Mr Long “to email

everything that he has on it and he has done nothing”. The Applicant also denied that

he refused to attend a meeting offered to him by Mr Long and said that he was caring for

his partner who was ill and had sent an email on 12 November 2021 attaching a medical

certificate in this regard.

• [40] The Applicant agreed that he would have seen the Vaccination policy if it was

hanging in Mr Long’s office but denied that it was displayed in this way. In response to

questions from Mr Long as to how he knew that other staff were not vaccinated, the

Applicant said that Mr Arnold told him in a Facebook message on 5 January 2022 that

he was unvaccinated, despite the Respondent’s policy allegedly requiring staff to be

double vaccinated by December 2021. The Applicant also said that Mr Arnold was

employed by the Respondent at that time. The Applicant was also questioned by Mr

Long about whether he had been required in his role as a driver to cross the border

between Queensland and New South Wales to travel to Byron Bay. The Applicant first

said that Mr Long had told him he needed to be vaccinated to keep his job and then said

that he was not required to cross the border because two other employees who were

vaccinated did that work. The Applicant agreed that he could not service the

Respondent’s Byron Bay customers but maintained that he had not been required to do

[3]

so and was not doing those areas.

• [41] In response to questions from me, the Applicant agreed that he worked in Brisbane

and on the Gold Coast and delivered to Coles, Woolworths, city restaurants and a

childcare centre. The Applicant maintained that he did contactless deliveries where he

would drop product at a door and it would be collected by the customer. The Applicant

said that he had not done a delivery to an aged care facility in over three years but agreed

[4]

that the Respondent has customers who operate aged care facilities.

• [42] In oral closing submissions, the Applicant maintained that he was dismissed

because he took personal carers leave to care for his daughter while his partner was in

hospital. The Applicant said that he provided a medical certificate to Mr Long who chose

to reject the certificate and terminate the Applicant’s employment. Mr Long claimed the

Applicant failed to follow a COVID – 19 vaccination policy, but at the same time, other

employees who were not vaccinated, were retained in employment.

• [43] The Applicant’s evidence in relation to remedy was that he does not seek

reinstatement, and instead, seeks compensation for his unfair dismissal. The Applicant

detailed that he had applied for numerous positions including as a driver, a Ranger with

the Moreton Bay North Regional Council, a youth worker at a detention centre, yard

hand, landscaper, cleaner and kitchen hand. The Applicant also gave evidence of

delivering his resume to various businesses.

• [44] At the time the application was heard the Applicant had not obtained alternative

employment. The Applicant said that he would have received a vaccination had Mr Long

gone about implementing a vaccination policy properly and that he would still be

employed with the Respondent. The Applicant also said that if Mr Arnold is still

employed then he would still be employed, given that Mr Arnold is not vaccinated. The

Applicant sought compensation in the maximum amount allowable or until the date his

application was determined by the Commission.

• [45] At the time he was dismissed, the Applicant’s annual gross salary was

approximately $57,000 or a $1096.16 per week. The Employment Separation Certificate

supplied by the Respondent to the Applicant indicated that his accrued annual leave

entitlement amounted to $2,614.00. In his Form F2 Application, the Applicant also

sought compensation for lost long service leave and unpaid wages entitlements said to

be payable over the period of his employment. Further, the Applicant sought the costs of

retraining and the truck and forklift licences he had obtained and compensation for a

range of matters including the effect of dismissal on his mental health, breaches of

confidentiality and the embarrassing hostile work environment.

• [46] Mr James Doran’s witness statement dealt with various ASIC searches he

conducted in relation to the ownership of the Respondent in an endeavour to establish

that Mr Long was not a Director of the Respondent and that Mr Long did not have

permission to represent the Respondent from the owner, Xiao (Kirsty)Long. This

proposition was not put to Mr Long when he gave his evidence. Further, in response to

questions from me, Mr Long confirmed that he was authorised to represent the

Company at the hearing. It is also apparent from the Applicant’s evidence that Mr Long

was involved in the management of the Respondent and that the Ms Blackman’s

evidence confirmed that at 9.24 am on 9 November she had called an ambulance for her

daughter, Ms Tshinta Blackman and had then contacted the Applicant at 9.49 am on

that date to advise him of this and that Ms Tshinta Blackman’s condition had

deteriorated. Neither Mr James Doran nor Ms Debra Blackman were required for cross-

examination by Mr Long.

• [47] On 21 December 2021, Mr Long filed on behalf of the Respondent a Form F3

Employer Response to the application. Attached to the Response was a Small Business

Fair Dismissal Code Checklist dated 21 December 2021, an Employment Separation

Certificate dated 20 December 2021 and the letter of termination issued to the Applicant

on 10 November 2021.

• [48] In the Form F3 Response, Mr Long provided only one reason for the dismissal

which was said to be refusal by the Applicant to comply with company vaccination

policy. It was also stated that:

“• We have follow (sic) the right procedure when we make the vaccination policy and we have

notify the staff when the policy take effective. We also confirmed with Workplace Health &

Safety Queensland that we do the right thing.

• Josh was given 4 weeks of notice for termination.

• As a logistics company delivering food, it is basic requirement for all the team member

to be vaccinated. The dismissal is irrelevant to all the other points Joshua raised.”

• [49] The Employment Separation Certificate also stated that the reason for separation

was “Fail to comply with Company vaccination policy”. It should be noted that in the

Small Business Fair Dismissal Code Checklist dated 21 December 2021, the Respondent

put “No” as a response to Questions 3, 5 and 8 indicating that the Applicant was not

dismissed because the job was not required to be done by anyone, that the dismissal was

not for serious misconduct and that the Applicant was not dismissed because of

unsatisfactory conduct, performance or capacity to do the job. The reason for dismissal

was said to be: “fail to comply with company vaccination policy.”

• [50] On 14 February 2022, the Respondent filed a witness statement by Mr Long

attaching another version of the Small Business Fair Dismissal Code Checklist, dated 8

December 2021. That version maintains the position in the Checklist dated 21 December

that the dismissal was not because the job was not required to be done by anyone nor for

serious misconduct. Boxes underneath question 8 have also been ticked to answer “Yes”

to the following questions:

“a. Did you clearly warn the employee (either verbally or in writing) that the employee was not

doing the job properly and would have to improve his or her conduct or performance, or

otherwise be dismissed?

b. Did you provide the employee with a reasonable amount of time to improve his or her

performance or conduct?

If yes, how much time was given?

c. Did you offer to provide the employee with any training or opportunity develop his or

her skills?

d. Did the employee subsequently improve his or her performance or conduct?

e. Before you dismissed the employee, did you tell the employee the reason for the

dismissal and give him or her an opportunity to respond?

f. Did you keep any records of warning(s) made to the employee or of discussions on how

his or her conduct or performance could be improved?

Please attach any supporting documentation.”

• [51] There is no response to the second part of b. in relation to how much time is said to

have been allowed to the Applicant to improve his performance or conduct. In response

to Question 9 in relation to the other reason for dismissal, the following statement

appears: “Refuse to comply with Covid – 19 Vaccinations Policy”. On 14 February 2022,

I caused my Associate to email Mr Long raising the issue that the COVID-19 vaccination

policy referred to in Mr Long’s witness statement, was not appended to the statement. In

response, Mr Long forwarded a document in the following terms, dated 25 October

2021:

“COVID-19 vaccination policy

• By 08Nov2021 all the staff numbers for cold food logistics are required to be double

vaccinated/have a plan to get double vaccinated to continue the job.

• If you have any concerns regarding to getting vaccination in relation to your role please

contact Shaun Long.

• Any solutions that can keep you safe & address your concerns please contact Shaun

Long.”

• [52] In his witness statement filed on 14 February 2022, Mr Long describes 4 separate

exchanges with the Applicant as follows:

• On 27 October, Mr Long asked the Applicant whether the Applicant had been vaccinated

and the Applicant said, “not yet”. Mr Long responded by saying that all staff members

would need to be double vaccinated to carry out deliveries next month when the

Respondent’s customers require double vaccination for entry into their premises. The

Applicant then purportedly said, “OK but I won’t do it”.

• On 9 November 2021, Mr Long asked the Applicant whether the Applicant was planning

to be vaccinated because the Respondent’s restaurant and café customers would require

double vaccination for entry into their premises from December 2021. The Applicant

said, “Probably not” and Mr Long responded by telling the Applicant that he “can’t let

[him] work here if [he doesn’t] do vaccination.” The Applicant responded with “Ok I

gonna go”.

• On 10 November, Mr Long sent a letter to the Applicant notifying the Applicant that his

employment would be terminated in 4 weeks for failing to comply with the company’s

COVID-19 vaccination policy. In that letter, Mr Long proposed a meeting to discuss any

concerns the Applicant might have with respect to the vaccination policy.

• On 12 November, the Applicant confirmed receipt of the termination letter but the

Applicant disagreed with the letter and refused to attend the proposed meeting.

• [53] On 21 February 2022, Mr Long filed an outline of submissions on behalf of the

Respondent contending that:

“1. As a logistics company we must comply with the government regulation and the customer

requirement to request the driver to be vaccinated to carry on the job. Our customers include

age care, childcare, restaurants, cafes etc. etc.

2. Mr. Joshua Doran was consulted and notified both orally and in written with weeks

regarding to the vaccination policy.

3. Mr. Joshua Doran was given opportunities in the termination letter to respond to the

concerns of the vaccination policy.

4. We allowed Mr. Joshua Doran to have a support person present to assist at any

discussions relating to dismissal.

5. We can’t discuss performance with Mr. Joshua Doran before we discussed vaccination

policy first. Because of without being vaccinated Mr. Joshua Doran simply can’t be in the

place he required him to be to deliver the product for our business.

6. We are small business with only 8 employees, only me and my wife work in the office

doing the order taking, bookkeeping & admin, we can’t afford accounting or HR

specialist work in the business.

7. We required all the new employee to be double vaccinated.

8. Mr. Joshua Doran was given the opportunities to work with the condition he agree to get

his vaccination done during the conciliation. But he refused due to feel awkward.

9. We need to pay the cost to hire and train new staff who got double vaccinated.

10. Most of the food and logistics related business have a vaccination policy in place for

workplace health and safety concerns.”

• [54] When given an opportunity to provide further oral evidence-in-chief, Mr Long

questioned how the Applicant knew whether his workers were vaccinated. In response to

a question from me as to whether it was Mr Long’s evidence that his workers are all

vaccinated, Mr Long said that he would have to double-check, but they had agreed to be

vaccinated. In response to a proposition from me that Mr Long had not provided any

evidence of having given the Applicant a written notice or warning in relation to the

requirement to be vaccinated against COVID – 19, Mr Long agreed but said that the

Respondent has only eight staff and is a family business and that a lot of things are done

orally. Mr Long said that he did not know whether all his workers were vaccinated as at

the date of the hearing.

• [55] Under cross-examination, Mr Long said that the review of the Applicant’s progress

outlined in the termination letter did not occur on 15 November 2021 because the

Applicant did not contact Mr Long as requested. In response to the proposition that the

Applicant had responded by email and sought that all communication from the

Respondent be in writing, Mr Long agreed but said that he did not respond to the

Applicant’s email. In response to the proposition that he threatened the Applicant with

termination of employment when he took carer’s leave to care for his partner, Mr Long

said that he did not threaten the Applicant but simply wanted him to provide a reason

for the leave. Mr Long also said that he did not refuse the leave and the Applicant was

paid for it after the Applicant had told Mr Long the reason for the leave. Further, Mr

Long said that he stated in a text message on 9 November 2021 that the Applicant was

required to be at work the next day because the Applicant did not provide a reason for

not attending work in his first text message.

• [56] Mr Long agreed that at 1.19 pm on 10 November 2021 the Applicant emailed a

medical certificate to the Respondent to support his request for personal carer’s leave.

Mr Long also agreed that the letter, which advised the Applicant that his employment

would be terminated with effect from 8 December 2021, was emailed to the Applicant at

1.57 pm on 10 November 2021. Mr Long maintained that he did not see the Applicant’s

email before he sent the termination letter. Mr Long maintained that there was no

relationship between the two matters and the Applicant was dismissed because he was

not vaccinated and vaccination was required to do his job.

• [57] In relation to the two versions of the Small Business Fair Dismissal Code Checklist,

Mr Long said that he did not understand the form and thought he was answering

questions about vaccination. Mr Long also said that the form dated 21 December 2021 is

correct and that the Applicant was not dismissed for conduct, capacity or work

performance. Mr Long further stated that the two versions of the Checklist are different

because his English is not good and his understanding was that the fact that the

Applicant was not vaccinated meant that he could not do his job. Mr Long agreed that he

had not attached any warnings or supporting documents to the Checklist.

• [58] In response to a question as to why he did not respond to Mr Doran’s email of 6

December 2021 requesting various documents including the Respondent’s COVID Safe

Plan, Mr Long said that he wanted to discuss whether the Applicant was vaccinated or

planned to be vaccinated and did not see anything in the Applicant’s email that was

relevant to these issues, and accordingly, did not respond to the email.

• [59] In response to questions from me as to whether he had a meeting with all

employees about the introduction of a vaccination policy, Mr Long maintained that the

policy was posted on the wall in his office at all relevant times, and that he met

individually with each employee to discuss the matter. Mr Long conceded that he had no

evidence of having provided the policy to the applicant. In relation to the policy, Mr

Long could not explain why the first file sent by the Respondent at the request of the

Commission is named “Vaccination policy”, and the second file sent in response to the

Applicant’s notice to produce documents, is named “Vac policy”. Later Mr Long said

that the policy may have been saved in different places on different computers. Mr Long

agreed that the policy had not been emailed to staff.

• [60] In submissions responding to the Applicant’s evidence that he would have

remained in employment until at least the date of the hearing and for the next six

months, Mr Long asserted that the Applicant had been requested many times to do the

Byron Bay run and had refused because of his vaccination status. Mr Long accepted that

he had not provided any evidence of such refusal on the part of the Applicant.

• [61] Mr Long also asserted that he dismissed Mr Arnold for not being vaccinated but

agreed that Mr Arnold had returned to work. Mr Long said that in January 2022 he had

been short of staff and Mr Long said that he would wear a mask. Mr Long also said that

Mr Arnold is doing the Applicant’s job. In response to a question as to why the Applicant

could not have put on a mask and returned to work, Mr Long said that the Applicant had

not requested to come back to work and Mr Arnold kept coming back and put a lot of

effort into saving his job. Further, Mr Long said that Mr Arnold returned to work on a

casual basis and the agreement was that he could be “let go” at any time. In relation to

position of the Applicant and Mr Arnold, Mr Long said, in an exchange with me:

“PN665

The Deputy President: So one came back and one didn't.

PN666

Because Josh didn't requested to come back. Say, ‘Look, I want to do this - talk about the

vaccination issue.’ Rodney keep coming back and say, ‘Look, I can do the job. This is my offer.

This is my agreement. This is the reason why’, and he come back with a lot of, you know, effort

to say how he can do the job even though, you know, he - even he say he might think about to

get vaccinated.

PN667

Josh, he sent an email and he say he’s not happy here, he’s discriminated here. He never put

any effort to even say how he can do the job. There's no vaccination or his concerns about

vaccination, any effort to carry on the job in this status. Rodney, he come back and he say,

‘Look, Sean, I really need an income. I can do this kind of thing with this or that.’ He put a lot

of effort to save the job, I can say, and he wasn’t - Rodney wasn't employed as full time, he was

employed as a casual before. I only give two days starting with and because we go to the area,

we don’t - I don't think we need a vaccination.

PN668

Casual and full time is totally different and I didn’t give Rodney a full time job. He's only

casual work, a couple of days on the go. I can let him go any time I want. That’s the agreement.

PN669

The Deputy President: All right.”

• [62] Mr Long also emphasised that the Respondent is a small business and that he had

only been in Australia for ten years and did not understand much about paperwork. Mr

Long maintained that he implemented a policy in relation to vaccination by putting a

notice on his office wall and telling people that there is a policy. Mr Long pointed to the

fact that he gave the Applicant four weeks’ written notice saying, “Look, you need to be

vaccinated to be here” and asserted that the Applicant knew of this requirement and did

not comply.

• [63] In unfair dismissal cases where the employer is a small business employer, the

Commission must first consider whether the dismissal was consistent with the Code. The

Code has two limbs: “summary dismissal” upon the ground of serious misconduct; and

“other dismissal” based on the employee’s conduct or capacity to do the job. The Code is

not located in the FW Act or the Regulations. Rather it is governed by a Ministerial

Declaration pursuant to s.388(1) of the Act. The terms of the Code are as follows:

“Small Business Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

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 Fair Work Australia, including evidence

that a warning has been given (except in cases of summary dismissal). Evidence may include a

completed checklist, copies of written warning(s), a statement of termination or signed

witness statements.”

• [64] In the terms of the Code dealing with “Other Dismissal” the drafters included a

reference to “valid reason”. The first sentence of this part of the Code requires that the

employee be “...given a reason why he or she is at risk of dismissal”. The second

sentence requires that “[t]he reason must be a valid reason based on the employee’s

conduct or capacity to do the job.” Consideration of whether a reason is valid is a

separate consideration to the requirement that the employee be given a reason for

dismissal although the reference to valid reason is a reference to the reason given to the

employee.

• [65] In relation to the reason being given to the employee, the language in the first

sentence of the Code explicitly requires that this occur before a decision to dismiss has

been made. That sentence refers to the employee being given a reason why he or she is

“at risk of being dismissed”. These provisions can be contrasted with those which apply

when the fairness of a dismissal is being assessed under s.387 of the FW Act. Whether an

employee is notified of a reason for dismissal as provided in s.387(b) is a consideration

that is weighed in the overall assessment of whether a dismissal was unfair and a finding

that this step was not taken will not necessarily be fatal to a finding that the dismissal

was fair.

• [66] It appears from the terms of the Code dealing with “Other Dismissal” that if the

employee is not given a valid reason for dismissal based on the employee’s conduct or

capacity to do the job, prior to being dismissed, the dismissal will not be consistent with

the Code. It is axiomatic that an employee cannot respond to a reason for dismissal if he

or she is not informed of that reason before the dismissal is carried out and given an

opportunity to respond. The requirement that the reason be given before a dismissal is

carried out is consistent with the later requirements of the Code in relation to warnings

and opportunity to respond. The effect is that under the Code the employer is stuck with

the reason given to the employee before the dismissal is carried out and cannot rely on

another reason including a reason which may not have been known at the time of the

dismissal. This can be contrasted with consideration of whether there was a valid reason

for dismissal as provided in s.387(a) of the FW Act where, in finding that there was a

valid reason for dismissal, the Commission is not limited to the reason relied on by the

[5]

employer.

• [67] It is also the case that the requirement in the Code that the reason is a valid reason

based on the employee’s conduct or capacity to do a job is not expressed subjectively,

based on the view or belief of the employer on reasonable grounds. This can be

contrasted with the “Summary Dismissal” provisions of the Code which refer to the

belief of the employer on reasonable grounds that the employee engaged in conduct that

justified summary dismissal (a subjective consideration) rather than whether the

conduct occurred and was of sufficient gravity or seriousness such as to justify dismissal

as a sound, defensible or well-founded response (an objective consideration).

• [68] The terms “valid reason”, “capacity” and “conduct” have well-established

meanings in the context of legislation governing unfair dismissal and have been used in

legislation which pre-dates the Code. I can see no basis for giving these terms a different

meaning in the application of the Code. The absence of reference in the “Other

Dismissals” section of the Code to the reasonable belief of the employer as to the validity

of the reason for dismissal is a further indication that the term should be given the same

meaning as it has in s.387(a) of the FW Act – a reason that is objectively sound,

defensible and well founded and which justifies dismissal. Such a construction is not

inconsistent with the legislative intent of the Code as evidenced by the Object of Part 3-2

of the FW Act in which the Code appears, which includes the needs of employers and

[6]

employees and the intention to afford a “fair go all round”.

[7]

• [69] “Capacity” is the employee’s ability to do the job required by the employer

[8]

including the work the employee was employed to do. Capacity is assessed objectively

based on whether the work was performed satisfactorily and not whether the employee

[9]

is working as well as could be expected or to the employee’s personal best.

• [70] The requirements in the Code that there be a valid reason for dismissal and that

the employee is informed of that reason before dismissal also imply that any response

provided by the employee is required to be considered by the employer before deciding

to dismiss the employee. Where an employer cannot provide evidence that the response

was considered, there may be difficulty in establishing the validity of a reason for

dismissal particularly where the response provides an explanation for the conduct or

capacity which led to the dismissal. This is also consistent with the provisions of the

Code in relation to warnings which state that any response to a warning made by the

employee should be a matter to which the employer has regard.

• [71] I proceed on the basis that the provisions of the Code relating to “Other Dismissal”

require that:

1. Before dismissing an employee for reasons of conduct or capacity (other than those

justifying summary dismissal) the employer must give the employee a reason why he or

she is at risk of being dismissed.

2. The reason must be a valid reason (in the sense that it is sound, defensible and well

founded and justifies dismissal) based on the employee’s conduct or capacity.

[10]

• 3. Conduct includes an omission

and capacity is the employee’s ability to do the job

[11]

as required by the employer

and includes the employee’s ability to do the work he or

[12]

she was employed to do.

4. The employer must give the employee an opportunity to respond to the reason for

dismissal before dismissing the employee.

5. The requirement that there be a valid reason for dismissal means that some

consideration should be given to the response the employee provides. This will generally

be required when the Commission is assessing whether the reason for dismissal was

valid.

6. The employee must have been warned that he or she is at risk of being dismissed either

for similar conduct or capacity issues or that the issue that is the subject of the warning

has generally placed the employee’s employment at risk and that any repetition or

further conduct or capacity issues will result in dismissal.

7. If the employee has previously engaged in conduct that has placed his or her

employment at risk and has been warned in relation to it there is no requirement that a

further warning be given and it will be sufficient if the employee is notified that the

employer believes that the same conduct or further conduct that places the employee’s

employment at risk has occurred and gives the employee an opportunity to respond

before dismissing the employee.

8. The employee must have been given a reasonable opportunity to improve his or her

performance prior to the dismissal being carried out which may include the employer

providing additional training and ensuring that the employee knows the employer’s job

expectations.

9. An employee may request to have another person present to assist in discussions in

circumstances where dismissal is possible, provided the person is not a lawyer acting in

a professional capacity. The employer is not required to offer a support person.

• [72] If a dismissal was consistent with the Code then the dismissal is not unfair and

does not fall to be considered against the criteria in s.387 of the FW Act. If the

Commission is not satisfied that the dismissal was consistent with the Code, the

Commission must then consider whether the dismissal was unfair because it was harsh,

unjust or unreasonable on the basis of the criteria in s.387 of the FW Act as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the

FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s

capacity or conduct (including its effect on the safety and welfare of other

employees); and

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

(c) whether the person was given an opportunity to respond to any reason related

to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support

person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether

the person had been warned about that unsatisfactory performance before the

dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to

impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management

specialists or expertise in the enterprise would be likely to impact on the

procedures followed in effecting the dismissal; and

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

• [73] Applying those criteria, a dismissal may be:

• Harsh - because of its consequences for the personal and economic situation of the

employee, or because it is disproportionate to the gravity of the misconduct;

• Unjust - because the employee was not guilty of the misconduct on which the employer

acted; and/or

• • Unreasonable - because it was decided on inferences that could not reasonably have

[13]

been drawn from the material before the employer.

Was the Applicant’s dismissal consistent with the Code?

• [74] The letter dated 10 November 2021, notifying the Applicant of “the termination of

his employment on 8 December 2021”, states two reasons being “Underperformance”

and “Refuse to comply with company covid-19 vaccination policy”. Somewhat

confusingly, after informing the Applicant that his employment will end on 8 December,

the letter states that Mr Long proposes that he and the Applicant “meet again on 15

November 2021 to review your progress” and concludes by inviting the Applicant to

respond to the “termination letter” if he wishes to do so. Although the Applicant took

personal leave for some of the period between 10 November and 8 December 2021, it is

not in dispute that he remained employed and worked for part of that period.

• [75] Accordingly, the reason for the Applicant’s dismissal was not conduct of the kind

listed in the provisions of the Code as justifying summary dismissal, but rather was for a

reason caught by the “Other Dismissal” provisions of the Code. On the face of the letter

informing the Applicant of his dismissal, the reason for the dismissal was associated

with the Applicant’s conduct and his capacity to do the job because of his vaccination

status. The failure of the Respondent to call evidence at the hearing sufficient to

establish the validity of the reasons for dismissal, means that I am unable to be satisfied

that these matters were a valid reason for dismissal.

• [76] Firstly, there was no evidence of any underperformance on the part of the

Applicant. Secondly, I am not satisfied that the Respondent had a COVID – 19

vaccination policy, much less that the Applicant’s conduct was a refusal to comply with

such a policy.

• [77] It is well established that employees have an obligation to follow the lawful and

reasonable directions of their employer. Such a term may be specifically provided for in

a contract of employment or implied, by law, in the absence of a contrary intention by

[14]

the parties.

Accordingly, a refusal of an employee to comply with a lawful and

reasonable direction of an employer is prima facie a valid reason for dismissal.

• [78] A policy is a course of action or principle adopted or proposed by an organisation.

Implicitly a policy is required to be promulgated in some manner appropriate to the

context in which it is to operate. A policy may operate as a direction such that failure to

comply may render an employee liable for discipline. If an employee is disciplined or

dismissed for failure to comply with a policy that is not promulgated in a manner that

properly explains the policy and the implications of failing to comply, it will be difficult

to establish that non-compliance constitutes a failure to follow a lawful and reasonable

direction. In addition to the subject matter being lawful and reasonable, it is axiomatic

that a direction requires a person to do something and the implications for failure to

comply must be clear.

• [79] In Construction, Forestry, Maritime, Mining and Energy Union, Matthew

[15]

Howard v Mt Arthur Coal Pty Ltd

(Mt Arthur Coal), a Full Bench of the Commission

considered whether a direction in the form of a site access requirement that all workers

at the mine must be vaccinated against COVID – 19 by a particular date as a condition of

site entry was lawful and reasonable. The Full Bench had regard to various matters,

including whether consultation requirements in industrial instruments and workplace

health and safety legislation had been met. It was held by the Full Bench that the site

access requirement was prima facie lawful because it fell within the scope of

employment and because there is nothing illegal or unlawful about becoming vaccinated.

The Full Bench in Mt Arthur Coal did not express a concluded view about whether a

failure to comply with consultation requirements in workplace health and safety

legislation was relevant to the lawfulness of a direction, but rather, focused on whether

such failure was relevant to its reasonableness. The Full Bench concluded that the site

access requirement was not reasonable because the employer had not consulted

employees in accordance with its obligations under workplace health and safety

legislation. The Full Bench also observed that had the employer conducted a meaningful

consultation process, other considerations in the case would have provided a strong

basis for a conclusion that the Site Access Requirement was a reasonable direction.

• [80] In the present case, the following matters are not in dispute. The respondent is in

the business of delivering food products to businesses or facilities including childcare

centres, aged care facilities, restaurants, and supermarkets. Some of the deliveries

undertaken by the Respondent’s employees required them to cross the border between

Queensland and New South Wales. Further, at or around the time the Applicant was

dismissed, those businesses and facilities were subject to restrictions in relation to entry

to premises by persons who were not vaccinated against COVID – 19. The restrictions

were imposed either through Government health directives or policies implemented by

the businesses or facilities. There were also vaccination requirements for persons

crossing the border from Queensland to New South Wales.

• [81] In those circumstances it would have been entirely appropriate for the Respondent

to have a vaccination policy and it is probable that if such a policy were properly

implemented, it would constitute a lawful and reasonable direction such that a failure to

comply could render an employee liable to be dismissed. However, as I have found, the

Respondent has failed to establish that it had such a policy, much less that it was

properly implemented.

• [82] The provenance of the document tendered by Mr Long is unclear. Mr Long’s

evidence about why the PDF versions of the document had two different names was not

convincing. It was not established when the document came into existence and when it

was put up on a wall in Mr Long’s office. The terms of the document are unclear, and it

provides no meaningful information to employees and does not direct employees to any

source of information about vaccination generally or the rationale for the employer

implementing a vaccination policy. Significantly, for the purposes of determining

whether the fact that the Applicant was not vaccinated was a valid reason for the

termination of his employment based on his conduct or capacity to do the job, it is not

clear from the document tendered by Mr Long that this was a requirement. The

document states that employees are required to be double vaccinated by 8 November

2021 or have a plan to be vaccinated “to continue the job”. Accordingly, the cut-off date

by which employees must be vaccinated is not absolute. Further confusion is created by

the fact that the document concludes by stating: “Any solutions that can keep you safe

and address your concerns please contact Shaun Long.” This implies that Mr Long is

open to alternatives to vaccination.

• [83] The document contains no information about the repercussions for employees who

are not vaccinated by the stipulated date. There is also no mechanism for employees to

inform the Respondent of their vaccination status and no advice about how that

information will be collected and held securely. Mr Long could not state that all the

Respondent’s employees have been vaccinated, further indicating that there was no

policy or that it was not consistently implemented. Further, there is no evidence that Mr

Long, or any representative of the Respondent, had a discussion with the Applicant to

inform him of the alleged requirement, much less that the Applicant or other employees

were consulted. The Applicant’s uncontested evidence, which I accept, is that he was

informed about the requirement to be vaccinated by a work colleague and had not seen

the document purporting to set out the policy prior to Mr Long tendering it in these

proceedings.

• [84] Significantly, Mr Long conceded that he gave work that had previously been done

by the Applicant to another employee – Mr Arnold – in circumstances where he was

unable to state that Mr Arnold had been vaccinated at the time and there was evidence

before the Commission in terms of text messages exchanged between the Applicant and

Mr Arnold, making it clear that Mr Arnold had not been vaccinated at a point after the

cut-off date in the alleged policy. This evidence is a further indication that there was not

a policy in relation to vaccination, the breach of which could have been a valid reason for

the Applicant’s dismissal based on his conduct and capacity.

• [85] Accordingly, failure to comply with a vaccination policy was not a valid reason for

dismissal based on the Applicant’s conduct or capacity to do the job. As previously

noted, there was no evidence of any performance issue that could have constituted a

valid reason for dismissal. I am therefore not satisfied that there was a valid reason for

the Applicant’s dismissal based on his conduct or capacity to do the job. I am also not

satisfied that the Applicant was given a reason why he was at risk of being dismissed.

Even if I accept Mr Long’s version of the conversation he claimed to have with the

Applicant on 27 October and 9 November 2021, that conversation is not sufficient to

establish that the Applicant was given a reason why he was at risk of being dismissed.

• [86] On Mr Long’s evidence, the conversation on 27 October 2021 was to obtain a

response from the Applicant about whether he had been vaccinated. Mr Long does not

indicate that he made any comment when the Applicant replied and said that he would

not comply. Mr Long did not inform the Applicant that his employment would be at risk

if he maintained that position. Mr Long’s evidence about the conversation with the

Applicant on 9 November, if accepted, may establish that he advised the Applicant that

he was at risk of being dismissed if he was not vaccinated, but that is not sufficient for

compliance with the Code.

• [87] To comply with the Code, it was also necessary for the Applicant to be warned

verbally, or preferably in writing, that he risked being dismissed because of his refusal to

comply with the vaccination policy. The Respondent did not comply with this

requirement and did not warn the Applicant that he was at risk of dismissal for this

reason. Taken at its highest, Mr Long’s evidence of the conversation with the Applicant

on 8 November 2021 does not constitute a warning. Mr Long states that he asked the

Applicant whether he planned to be vaccinated from December as all restaurant and café

customers would require persons to be double vaccinated to enter. According to Mr

Long, when the Applicant responded by saying “probably not” he told the Applicant that

he could not work for the Respondent if he was not vaccinated. The Applicant’s response

was: “Ok I gonna go”.

• [88] The purpose of the requirement that an employee who is at risk of dismissal is

given a warning, is related to the opportunity to respond to the warning, which the Code

requires be given to an employee who is at risk of dismissal. I do not accept that the

warning Mr Long gave to the Applicant was sufficiently detailed to meet this

requirement, particularly in light of the deficiencies in the Respondent’s policy. The

Code further requires that an employee who is at risk of dismissal is given a reasonable

chance to rectify the problem, having regard to the employee’s response. On Mr Long’s

evidence, the Applicant’s response to the question as to whether he intended to be

vaccinated was: “probably not”. The Applicant’s evidence is that Mr Long stated, “If you

haven’t been vaccinated, you don’t have a job” and that his response was to ask Mr Long

to email information to him and he would get back to Mr Long.

• [89] On either version of this conversation, the Applicant’s response was not a clear

refusal and was given in circumstances where the implications of refusal to be vaccinated

had not been explained to the Applicant. It is also relevant that when the Applicant

provided this response, he was rushing away from work to attend to his partner who had

been taken to hospital by ambulance and admitted. The Applicant states that he also told

Mr Long that he needed to go as his partner was in hospital.

• [90] The Code further provides that an employee be given a reasonable chance to rectify

the problem, which may involve providing additional training and ensuring the

employee knows the employer’s job expectations. At that point, the only information the

Applicant had was from a colleague and not from Mr Long or any manager of the

Respondent. When these matters are considered in the context of the lack of detail in the

Respondent’s vaccination policy, and the fact that the Applicant had not been informed

by Mr Long of the vaccination requirement or the effect of the policy, it is clear that the

Applicant had no chance to rectify the problem. This is also apparent from the fact that

the Applicant was notified of his dismissal on 10 November 2021 by letter sent at 1.57

pm that day, after he had forwarded a medical certificate to the Respondent advising

that he was absent from work on carer’s leave due to the illness of his partner.

Accordingly, regardless of whether the Applicant told Mr Long that his partner was in

hospital before he left the workplace, the Respondent knew, or should have known, that

this was the case, prior to the dismissal letter being sent to the Applicant.

• [91] It is true that the letter notifying the Applicant of his dismissal invited him to

attend a meeting to “review his progress”. However, the letter also informed the

Applicant that his employment would end on 8 December 2001 and this was not

conditional upon the review. The Applicant cannot be criticised for failing to attend a

meeting to discuss his progress in circumstances where there was no indication that any

discussion would change the fact that his employment would end on 8 December 2021.

This is not an opportunity to respond to a warning or rectify a problem. In any event the

Applicant responded to this letter and sought further information about the

Respondent’s alleged vaccination policy and did not receive a response. This further

establishes the lack of opportunity for the Applicant to respond to a warning or rectify

the problem.

• [92] There were no discussions about the dismissal and it is not necessary to consider

whether the Applicant had another person present to assist him in discussions. While

the Respondent completed the Checklist, there were two contradictory versions filed and

Mr Long’s evidence about why this was the case was not convincing. The Applicant was

not provided with a written warning either in relation to the vaccination policy or his

alleged underperformance. For these reasons, I am not satisfied that the dismissal

complied with the Code and it is necessary to consider whether the dismissal was unfair,

having regard to the matters in s.387 of the FW Act.

Was the Applicant’s dismissal unfair?

Was there a valid reason for the Applicant’s dismissal?

• [93] The reasons for the Applicant’s dismissal are within the Respondent’s knowledge,

and it is required to establish that the reason was a valid reason for the purposes of

s.387(a) of the FW Act. A valid reason for dismissal is one that is “sound, defensible or

[16]

well-founded” and not “capricious, fanciful, spiteful or prejudiced.”

The reason for

dismissal must also be defensible or justifiable on an objective analysis of the relevant

[17]

facts.

• [94] For the reasons set out above, I do not accept in the present case that the

Respondent has established that there was a valid reason for the Applicant’s dismissal.

The Respondent did not have a vaccination policy that was properly promulgated in the

workplace. There is insufficient evidence to establish when the document purporting to

set out the policy came into existence and when it was posted on the wall of Mr Long’s

office, or that it was posted at all. The terms of the document are confusing and

contradictory.

• [95] There is also evidence that after the Applicant was dismissed, the Respondent did

not follow the alleged policy in any event. Under cross-examination, Mr Long was unable

to confirm that all employees are vaccinated in accordance with the policy. Mr Long also

conceded that Mr Arnold is still employed by the Respondent and took on the work the

Applicant was doing when his employment ended. In response to the proposition that

Mr Arnold was not vaccinated at the relevant time and that he is not currently

vaccinated, Mr Long said that Mr Arnold had received a termination letter but had

“come back” and persuaded Mr Long that he could work safely without being vaccinated.

• [96] It also appears that the Applicant’s response to the termination letter was different

to the response given by Mr Arnold. Mr Long’s evidence about Mr Arnold makes it clear

that Mr Long must have known he was not vaccinated and, notwithstanding this, was

prepared to accommodate Mr Arnold and to provide him with work, including work

previously done by the Applicant, because Mr Long was having issues associated with

shortage of labour. This tells against the vaccination policy being a valid reason for the

Applicant’s dismissal. It appears that Mr Arnold was either retained in employment or

given work as a casual employee, for the arbitrary reason that Mr Arnold responded

differently to his dismissal. There is no evidence as to whether Mr Arnold received a

letter notifying him that he was to be dismissed in the same form as the letter received

by the Applicant. Regardless, for reasons set out above, the letter notifying the Applicant

that he was to be dismissed with effect from 8 December 2021 was confusing and

contradictory and it was not unreasonable for the Applicant to respond in the manner he

did. The way the Respondent treated Mr Arnold weighs against the vaccination policy

being a valid reason for the Applicant’s dismissal.

• [97] In short compass, failure of the Applicant to comply with the terms of a confusing

and ill-conceived document, which bears no resemblance to a policy and was not

promulgated or applied as such in the workplace, was not a sound, defensible or well-

founded reason for his dismissal. There is no evidence of underperformance as stated in

the letter notifying the Applicant of his dismissal. I find that there was no valid reason

for the Applicant’s dismissal, and this weighs in favour a finding that his dismissal was

unfair.

Was the Applicant notified of the reason for his dismissal?

• [98] Section 387(b) requires consideration of whether an employee is notified of “that

reason” with reference to the valid reason for dismissal related to the employee’s

capacity or conduct referred to in s.387(a). In relation to whether the Applicant was

notified of the reason for his dismissal consistent with s.387(b), as a Full Bench of the

[18]

Commission observed in Crozier v Palazzo Corporation Pty Ltd

procedural fairness

requires that an employee be notified of a valid reason for dismissal before any decision

to dismiss is taken and provided with an opportunity to respond to the reason identified.

• [99] The Applicant was notified of the reason for his dismissal in the letter advising him

that he was dismissed and that his employment would end on 8 December 2021. In

circumstances where the reason for dismissal is provided in a letter notifying the

Applicant that the termination of his employment is a fait accompli, and that his

employment will end on a prospective date, it can hardly be said that the notification is

consistent with the requirements in s. 387(b) of the FW Act. Accordingly, I find that the

Applicant was not notified of the reason for his dismissal within the meaning in s.387(b)

of the FW Act. This weighs in favour of a finding that the dismissal was unfair.

Was the Applicant given an opportunity to respond to reasons for dismissal?

• [100] As the Applicant was not notified of the reasons for his dismissal, he was not

given an opportunity to respond to the reasons to the extent those reasons related to his

capacity and/or conduct as provided in s.387(c). If there was a policy requiring that the

Applicant be vaccinated, the date by which this was required to occur was not until 8

December 2021. The Applicant was required to work out his notice and there is no

reason why he could not have been warned about the fact that he was at risk of being

dismissed, so that he could have had a proper opportunity over a reasonable period to

consider his position. These matters weigh in favour of a finding that the dismissal was

unfair.

Was there an unreasonable refusal to allow the Applicant a support person?

• [101] There were no discussions with the Applicant relating to the dismissal and no

request was made. Section 387(d) is not relevant and is a neutral consideration in

determining whether the dismissal was unfair.

Was the Applicant warned about any unsatisfactory performance before

dismissal?

• [102] If the reasons for the Applicant’s dismissal included “underperformance”, there is

no evidence of any warnings, for the purposes of s.387(e). The Applicant states that he

had received no warnings during his employment and there was no evidence to the

contrary from Mr Long, other than a bare assertion in the letter notifying the Applicant

of his dismissal. There is also no evidence of any discussion with the Applicant

conducted by a manager of the Respondent, warning him about the repercussions of

failure to be vaccinated. I therefore find that the Applicant was not warned about any

unsatisfactory performance. This weighs in favour of a finding that the dismissal was

unfair.

Did the size of the enterprise impact on procedures followed in dismissing

Applicant?

• [103] The Respondent’s enterprise is a small business and I accept that this had an

adverse impact on the procedures followed in effecting the dismissal. I have had regard

to this matter.

Did any absence of dedicated human resource management or expertise impact

the procedures followed in dismissing the Applicant?

• [104] The Respondent’s enterprise does not have dedicated human resource

management specialists or expertise. I accept that this adversely impacted on the

procedures followed in effecting the dismissal and this is also a matter to which I have

had regard.

Are there any other matters relevant to whether the Applicant’s dismissal was

unfair?

• [105] The following matters are in my view relevant to the overall consideration of

whether the Applicant’s dismissal was unfair. The Applicant was notified that he had

been dismissed while he was absent from work caring for his partner who was

hospitalised at the time. Mr Long’s text messages questioning the Applicant’s absence

from work, at what must have been a difficult time, were not appropriate. The

Applicant’s uncontested evidence is that when he attended work on 9 November, he

informed his manager that he may need to leave urgently if his partner’s condition

deteriorated. Notwithstanding this, Mr Long’s text messages in response to those sent by

the Applicant about his absence were hostile and there was no evidence of any

attendance issues on the part of the Applicant to justify Mr Long’s attitude.

• [106] Further, there was no reasonable basis for the Respondent to treat the Applicant

and Mr Arnold differently and to continue to offer work to Mr Arnold while not offering

work to the Applicant. I accept that Mr Long has difficulties with English and that this

impacted on his communication with the Applicant. However, this is not a factor that

outweighs other relevant considerations in the overall assessment of whether the

Applicant’s dismissal was unfair.

Conclusion in relation to whether the Applicant was unfairly dismissed

• [107] Balancing the considerations in s. 387 of the FW Act, I find that the Applicant was

unfairly dismissed. The Applicant’s dismissal was harsh because of its economic

consequences for the Applicant. At the time of this dismissal the Applicant had over six

years’ service and lost the benefit of that service, particularly with respect to long service

leave. The harshness of the dismissal was exacerbated by the fact that the Applicant’s

partner was ill and hospitalised at the time he was notified of his dismissal.

• [108] The Applicant’s dismissal was unjust because Mr Long decided that the Applicant

would not be vaccinated, in circumstances where he had not had a proper discussion

about the policy and its repercussions with the Applicant. The Applicant’s dismissal was

unreasonable because the Applicant was dismissed in circumstances where he was not

given a reasonable opportunity to consider his position with respect to vaccination

before he was dismissed.

• [109] I turn now to consider whether the Applicant have a remedy for his unfair

dismissal?

Remedy

Whether reinstatement is inappropriate

• [110] In circumstances where I have found that the Applicant was protected from unfair

dismissal at the time he was dismissed and that he has been unfairly dismissed, s.390(1)

provides discretion for the Commission to order a remedy of reinstatement or

compensation. As required by s.390(2), the Applicant has made an application for an

unfair dismissal remedy under s.394 of the FW Act. By virtue of s.390(3), the

Commission must not order compensation unless satisfied that reinstatement of the

person is inappropriate and the Commission considers an order for compensation is

appropriate in all of the circumstances.

• [111] The Applicant does not seek reinstatement and contends that it would be

inappropriate because of the loss of trust on his part with Mr Long. It is also the case

that the Respondent would have been entitled to introduce a vaccination policy had it

gone about this process in a fair and reasonable manner. It is not clear that the Applicant

is vaccinated and there is a possibility that he would not be able to work for the

Respondent if he were reinstated. In these circumstances, I am satisfied that it is not

appropriate to order reinstatement (s.390(3)(a)). I must therefore consider whether it is

appropriate in all the circumstances to make an order for payment of compensation

(s.390(3)(b)).

Whether an order for compensation should be made

• [112] In relation to compensation, the Applicant seeks the following:

“Compensation for lost long service leave (pro-rata), underpaid wages/entitlements over the

period of my employment, the cost to get retrained (Truck licenses, forklift license, training

courses) me to find new work, impacts on my mental health due to the false allegations and

breach of confidentiality, privacy and the embarrassing hostile work environment I endured

post termination letter created by Shaun Long.

I therefore seek financial compensation, a written apology and for Shaun Long to send a

memo to all other employees acknowledging his handling of my termination and addressing

ongoing matters like health & safety/covid safe plan/human resources and wage contracts.”

• [113] Section 390(3)(b) of the FW Act provides that the Commission may only issue an

order for compensation if it is appropriate in all the circumstances. A remedy of

compensation is designed to compensate an unfairly dismissed employee in lieu of

reinstatement for losses reasonably attributable to the unfair dismissal within the

[19]

bounds of the statutory cap on compensation that is to be applied.

• [114] Having regard to all the circumstances of the case, including the fact that the

Applicant has suffered financial loss and loss of employment credits because of his

unfair dismissal, I consider that an order for payment of compensation to him is

appropriate. It is necessary therefore for me to assess the amount of compensation that

should be ordered to be paid to the Applicant. In assessing compensation, I am required

by s.392(2) of the FW Act to take into account all the circumstances of the case including

the specific matters identified in paragraphs (a) to (g) of this subsection.

• [115] The established approach to assessing compensation in unfair dismissal cases was

[20]

set out in Sprigg v Paul Licensed Festival Supermarket

and applied and elaborated

upon in the context of the current Act by Full Benches of the Commission in a number of

[21]

cases,

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.

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.

Step 5: Apply the legislative cap on compensation.

• [116] I turn now to apply that approach and set out the matters I have taken into

account in assessing compensation.

Remuneration the Applicant would have received, or would have been likely to receive, if he

had not been dismissed (s 392(2)(c))

• [117] Calculations of damages or compensation involve an element of speculation in

determining an employee’s anticipated period of employment. This is because the task

involves an assessment of what would have been likely to happen in the future had the

[22]

employee not been dismissed.

• [118] I am satisfied on the balance of probabilities that if the Applicant had not been

dismissed on 8 December 2021, he would have remained employed by the Respondent

for a period of only four months. I have concluded that the Applicant’s employment

would not have extended past six months based on the following matters. The Applicant

nominated this period in his evidence to the Commission stating that he sought

compensation up to the date of the hearing. Had the Respondent implemented a policy

requiring employees to be vaccinated against COVID – 19 in an appropriate manner

including consulting with its employees, it is more probable than not that such a policy

would have been lawful and reasonable. There is nothing unlawful about a vaccination

policy and the Respondent had a need for vaccinated employees to undertake deliveries

to several clients. Accordingly, failure to comply with such a policy would prima facie

have been a valid reason for dismissal. There is also a possibility that the Applicant

would have maintained his position of not wishing to comply, notwithstanding his

evidence to the contrary in these proceedings.

• [119] I am also of the view that the Applicant could see the writing on the wall in

relation to his ongoing employment, indicated by his evidence that he did not believe his

exchange with Mr Long about carer’s leave would end well and he used part of his carer’s

leave – albeit the weekends – to undertake additional training to further his career

prospects. The Applicant had significant issues with the way he alleges he was treated

prior to his employment ending.

• [120] Mr Long’s evidence, which was also uncontradicted, is that Mr Arnold was only

offered casual work for a few days each week after the 8 December date for the

implementation of the Respondent’s vaccination policy had passed. Both the Applicant

and Mr Long could have called Mr Arnold to give evidence. The Commission expended

time and effort to ensure Mr Arnold made himself available for the hearing. Given the

evidence that both the Applicant and Mr Long gave about Mr Arnold was not

inconsistent and that both could have called Mr Arnold to give evidence, I accept that Mr

Arnold was working less than full time hours after December 2021. It is possible that the

Applicant would not have accepted employment on this basis. Finally, I observed the

interaction between the Applicant and Mr Long at the hearing and it suffices to say that

the relationship was fraught and I doubt that this would have changed.

• [121] I am satisfied that the remuneration that the Applicant would have received, or

would have been likely to receive, if he had not been dismissed, is 16 weeks’ pay at the

weekly rate of $1,096.15, totalling $17,536.25, and an amount of $1,665.95.

Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))

• [122] The Applicant’s evidence which I accept, is that he had earned no income from

other sources since the termination of his employment. I also note that the Applicant

was required to work his notice period and did not receive payment in lieu, and that

amount is not deducted from the anticipated income.

• [123] There is no evidence from the Respondent about the effect that an order for

compensation would have on its viability, notwithstanding that the Directions for the

hearing of this matter required submissions in relation to remedy and all relevant

legislative provisions were appended.

Length of service (s 392(2)(b))

• [124] The Applicant had more than six years’ service, a significant portion of which was

as a full-time employee. The termination of his employment deprived the Applicant of

accrued credits for various forms of leave which were not paid out on termination,

including sick leave and long service leave. Although the Applicant did not have

sufficient service to be entitled to be paid out his long service leave, I have had regard to

the fact that he had accrued credit towards such leave and will now need to commence

accruing from scratch.

Mitigation efforts (s 392(2)(d))

• [125] The Applicant gave evidence about attempts he has made to obtain alternative

employment which I accept. I am satisfied that such attempts were reasonable and that

no deduction should be made for failure to mitigate the loss of the Applicant’s

employment.

Any other relevant matter (s 392(2)(g))

• [126] It is necessary to consider whether to discount the amount $17,536.25 for

“contingencies”. This step is a means of taking into account the possibility that the

occurrence of contingencies to which the Applicant was subject might have brought

[23]

about some change in earning capacity or earnings.

Positive considerations which

might have resulted in advancement and increased earnings are also taken into account.

• [127] The discount for contingencies should only be applied in respect to an

“anticipated period of employment” that is not actually known and that is a period

prospective to the date of the decision. Given the period I have anticipated that the

Applicant would remained employed extended only to the date of hearing, there is no

basis to make a deduction for contingencies.

• [128] However, the consideration in s.392(2)(g) is not limited to contingencies. In the

present case, I consider it appropriate to adjust the amount of compensation to reflect

the impact of a reduction in hours of work that could have been implemented if the

Applicant was dealt with in the same way as Mr Arnold. In this regard, I consider there is

at least a strong possibility that the Applicant may have remained in employment

working reduced hours, taking into account that he was not available to perform the full

range of deliveries that the Respondent required.

• [129] While the Applicant’s evidence was that he had not been required to travel from

Queensland to New South Wales in the course of his employment and that he could

undertake contactless deliveries, the shortage of labour being faced by the Respondent

may have meant that the Applicant was unable to perform the full range of duties the

Respondent required, resulting in a reduction of his working hours.

• [130] Accordingly, I have deducted an amount of 15% to reflect this possibility, resulting

in an amount of $14,905.80 in wages and $1,416.05 in superannuation contributions.

• [131] The Applicant has not engaged in misconduct and there is no basis to reduce any

amount of compensation on account of this consideration.

Shock, distress or humiliation, or other analogous hurt (s 392(4))

• [132] The Applicant has claimed compensation in relation to matters which are

analogous to shock, distress, humiliation or other hurt. I note that any amount of

compensation calculated must not include a component for shock, humiliation or

distress, and I have disregarded that aspect of the Applicant’s claim for compensation.

Compensation cap (s 392(5)-(6))

• [133] The amount of compensation I have calculated will not make it necessary to apply

the cap provided for in s.392(5) of the FW Act.

• [134] The Respondent has not sought that any amount of compensation I have awarded

be paid in instalments and I make no order allowing the amount to be paid in

instalments.

• [135] I have determined to award the Applicant an amount of $14,905.80, less taxation

according to law, as compensation for lost wages and $1,416.05 in superannuation

contributions to be paid into the Applicant’s nominated superannuation fund. An Order

will issue with this Decision requiring that those amounts are paid within 21 days of the

date of this Decision.

Seal of the Fair Work

Commission with Member

Signature

DEPUTY PRESIDENT

Appearances:

J Doran, Applicant, self-represented.

X Long, Respondent, self-represented.

Hearing details:

2022.

Brisbane (by video):

8 April.

[1]

Transcript of proceedings PN107 – PN113.

[2]

Transcript of proceedings PN114-PN117.

[3]

Transcript of proceedings PN198 – 202.

[4]

Transcript of proceedings PN208 – 216.

[5]

Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] (per Acton, SDP,

Sams DP and Hampton C), citing MM Cables (a Division of Metal Manufacturers Ltd v

Zammit AIRC (FB) S8106 17 July 2000.

[6]

Fair Work Act 2009 s.381(2).

[7]

Walton v Mermaid Dry Cleaners Pty Limited [1996] IRCA 267; (1996) 142 ALR 681 at

684.

[8]

Webb v RMIT University [2011] FWAFB 8336 at [6].

[9]

Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print

S5897 AIRCFB at [62]; (2000) 98 IR 137.

[10]

Fair Work Act 2009 s. 12.

[11]

Walton v Mermaid Dry Cleaners Pty Limited [1996] IRCA 267; (1996) 142 ALR 681 at

684.

[12]

Webb v RMIT University [2011] FWAFB 8336 at [6].

[13]

Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing

Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 (per McHugh and Gummow JJ).

[14]

Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt

Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059 at [64] citing Thompson v IGT

(Australia Pty Limited [2008] FCA 994 at [48]; McManus v Scott-Charlton [1996] FCA 1820

at [21]; King v Catholic Education Office Diocese of Parramatta [2014] FWCFB 2194 at

[26]–[29].

[15]

[2021] FWCFB 6059.

[16]

Selverchandron v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at 373.

[17]

Rode v Burwood Mitsubishi Print R4471 at [90] (per Ross VP, Polites SDP, Foggo C).

[18]

(2000) 98 IR 137.

[19]

Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17].

[20]

[1998] AIRC 989; (1998) 88 IR 21.

[21]

Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care

Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431.

[22]

Double N Equipment Hire Pty Ltd v Humphries [2016] FWCFB 7206 at [16]- [17].

[23]

Ellawala v Australian Postal Corporation Print S5109 at [36].

Printed by authority of the Commonwealth Government Printer