Maris v Australian Telecommunications Solutions [2016] FWC 898 (6 May 2016) [2016] FWC 898 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Mr Valer Maris v Australian Telecommunications Solutions (U2015/12358) DEPUTY PRESIDENT ASBURY BRISBANE, 6 MAY 2016 Application for unfair dismissal remedy – Small Business Fair Dismissal Code – Consideration of operation of the Code and interaction with s.387 criteria for deciding if dismissal unfair - Dismissal not consistent with the Code – Dismissal unfair on grounds including lack of procedural fairness – failure to provide Applicant with full payment in lieu of notice or to deal appropriately with the giving of notice is a matter relevant to unfairness - Remedy of compensation granted. 1. BACKGROUND [1] Mr Valer Maris applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to the termination of his employment by Australian Telecommunications Solutions Pty Ltd (ATS). ATS provides a broad range of telecommunications installation and maintenance services, primarily as a sub-contractor to larger organisations. [2] Mr Maris commenced employment as a telecommunications technician with ATS on 24 August 2014. His duties primarily involved fibre splicing, patching, testing, labelling and commissioning new connections. It is common ground that on 21 September 2015 Mr Maris was given two weeks’ notice of his dismissal by email and was informed that he was required to work during his notice period up until 2 October 2015. Mr Maris was advised on 29 September 2015 that he was to cease employment on that date. Mr Maris was not paid for the remaining three days of his notice period – 30 September to 2 October 2015. [3] It is not in dispute that ATS is a small business employer within the meaning of the Act and that the Small Business Fair Dismissal Code (the Code) is relevant. The dismissal was not a redundancy. The application was made within the period required in s.394(2) of the Act. It is also not in dispute that Mr Maris is a person protected from unfair dismissal as defined in s.382 of the Act. The matter was dealt with by way of a hearing as it was considered that this was the appropriate course, having taken into account the matters set out in s.399 of the Act and the views of the parties. [4] The Code has two limbs and covers dismissals on the ground of serious misconduct and dismissals for other reasons. ATS asserts that Mr Maris was dismissed because of ongoing issues with his conduct and in particular, that Mr Maris’ behaviour was “toxic” in that he caused conflict on jobs to which he was assigned and was unable to work with or get along with other employees. ATS further asserts that Mr Maris was warned about his conduct and that his dismissal was consistent with the Code. ATS does not identify which of the limbs of the Code Mr Maris’ dismissal is said to be consistent with. There was a significant amount of evidence about the alleged toxic behaviour, and given the manner in which the dismissal was effected, it is necessary to consider whether it was consistent with each of the limbs. In any event, for the avoidance of doubt I have proceeded on that basis. [5] Mr Maris asserts that his dismissal was unfair on a number of bases including that the real reason for his dismissal was that he made safety complaints and took sick leave, and that he was not given any warnings or counselling in relation to his conduct or capacity. Mr Maris also asserts that there was no valid reason for ATS to have given him notice of the termination of his employment or to have subsequently required him to cease employment before the expiration of the notice period and to decline to pay him for the remainder of that period. [6] The issues for determination are whether Mr Maris’ dismissal was consistent with the Code, and, if not, whether his dismissal was unfair because it was harsh, unjust and unreasonable, on the basis of the criteria in s. 387 of the Act. 2. LEGISLATION [7] Section 385 of the Act relevantly provides that a person has been unfairly dismissed if the Commission is satisfied that the dismissal: ● was harsh, unjust or unreasonable – s. 385(b); and ● was not consistent with the Small Business Fair Dismissal Code – s. 385(c). [8] 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” on the basis of the employee’s conduct or capacity to do the job. The terms of the Code are as follows: “ Summary Dismissal It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair, it is sufficient, though not essential, than 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 either 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 may be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia. Evidence may include a completed check list, copies of written warning(s), a statement of termination or signed witness statements.” [9] The effect is that if a dismissal was consistent with the Code then the employee has not been unfairly dismissed. 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 Act. [10] Generally, the criteria in the Code with which a dismissal must be consistent so that it is not an unfair dismissal, are more limited than the criteria in s.387 of the Act against which the Commission considers whether a dismissal was harsh, unjust or unreasonable. However, it is also the case that in some respects the criteria in the Code are more stringent and can be more difficult to satisfy. [11] In the case of a summary dismissal for serious misconduct, the Code requires that the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify summary dismissal. It follows that the reason for the dismissal must be known to the employer at the time the dismissal is effected and that the employer cannot rely on knowledge of misconduct after the event to establish that the dismissal was fair. In relation to cases of other dismissal, the Code requires that the employee is given a reason why he or she is at risk of dismissal and that the reason must be valid. The language in this limb of the Code makes it clear that the reason must be given to the employee before or at the time that the employee is dismissed and that the employer cannot rely on some other reason not given to the employee as a valid reason for dismissal. [12] This can be contrasted with s.387(a) of the Act which simply requires that the Commission be satisfied as to whether or not there was a valid reason for dismissal, and whether or not the alleged conduct occurred. With respect to s.387(a) of the Act, in asserting the validity of a reason for dismissal an employer can rely on conduct that was not known or was known but was not relied on at the point the employee was dismissed. [13] The Code is also more stringent than the general provisions of the Act dealing with unfair dismissal in the sense that there is no discretion for the Commission when considering whether or not a dismissal is consistent with the Code, to consider matters not specifically referred to in the Code. This can be contrasted with s.387(h) of the Act which provides that in addition to the criteria specified in ss.387(a) to (g) the Commission may take into account any other matters that it considers relevant in deciding whether or not a dismissal was unfair because it was harsh, unjust or unreasonable. [14] It is open to the Commission to find that a dismissal was not consistent with the Code and then find under the criteria in s. 387 that the dismissal was not unfair. Such a finding may be based on a matter that the Commission considers relevant for the purposes of s.387(h) that it was not permitted to take into account when considering the dismissal in the context of the Code or for a reason that was not given to the employee at the point of dismissal but is nonetheless a valid reason for dismissal. In cases where the Commission finds that a dismissal is not consistent with the Code, the process of arriving at a conclusion with respect to whether or not it is unfair is unwieldy and time consuming for the parties, because the Commission must then consider whether the dismissal was harsh, unjust or unreasonable against the criteria in s. 387 of the Act which provides: “ 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 .” [15] A number of these criteria are very similar to those already considered in determining that the dismissal was not consistent with the Code. However, there are some significant distinctions which require separate consideration of the s.387 criteria. 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 been drawn from the material before the employer. 1 3. WAS THE DISMISSAL CONSISTENT WITH THE SUMMARY DISMISSAL LIMB OF THE CODE? [16] The reason advanced for Mr Maris’ dismissal is essentially that there were on-going issues with his work performance about which Mr Maris had been warned. These issues can be summarised as Mr Maris causing conflict on site and his inability to work with other employees. While this conduct was described by both Mr and Mrs Larder as “toxic”, there is no evidence that they considered it to be serious misconduct of the kind justifying summary dismissal and there was no assertion to the contrary during the hearing of Mr Maris’ application for an unfair dismissal remedy. On their own evidence, Mr Maris’ conduct had been tolerated by Mr and Mrs Larder for some time. Further, Mr Maris was not summarily dismissed and was given notice of his dismissal during which he was required to work. [17] Accordingly, I am satisfied and find that the Code, insofar as it relates to summary dismissal, is not relevant to Mr Maris’ application for an unfair dismissal remedy. It is therefore necessary to determine whether Mr Maris’ dismissal was consistent with the provisions of the Code in relation to other dismissal. If a finding as to consistency with the summary dismissal limb of the Code is necessary, I am not satisfied that the dismissal was consistent with the summary dismissal provisions of the Code. 4. WAS THE DISMISSAL CONSISTENT WITH THE ‘OTHER DISMISSAL’ LIMB OF THE CODE? 4.1 Was Mr Maris dismissed for raising safety concerns or for taking sick leave? [18] As previously noted, Mr Maris asserts that the real reason for his dismissal was that he raised safety concerns and made complaints or that he took sick leave. I accept that Mr Maris complained about lack of equipment and that he raised a number of other safety issues during his employment. However, I am unable to be satisfied that this was the reason for his dismissal. [19] The evidence filed in this matter is confusing, and I was not assisted by the fact that the parties conducted their relationship by way of voluminous text messages and emails. The emails and text messages (mostly tendered by Mr Maris) disclose the following sequence of events in relation to the safety issues raised by Mr Maris. Mr Maris raised the issue of gas detectors in a text message exchange with Mr Larder on 19 March 2015. The text message exchange consists of Mr Maris informing Mr Larder that he does not have his own gas detector but that if one is calibrated for him he will use it on the job. There is some unexplained reference to electrical tags. Mr Larder responds by telling Mr Maris that he has been considering getting new gas detectors and that it is a good idea as extra gas detectors are needed to cover regional jobs and also to have some in Brisbane. Mr Maris raised the issue of gas metres in a further text message on 8 September 2015 in which he states that he will use his own gas metre if Mr Larder pays for it to be calibrated. There is a photo of the gas detector attached to the text message. 2 [20] It appears that there was a further discussion between Mr Maris and Mr and Mrs Larder between 16 and 17 September 2015, where safety issues were raised, conducted as was their habit, via text message, email and telephone. When the totality of the communication is considered, the sequence was as follows. At 9.03 am on 16 September Mr Larder sent a text message to Mr Maris pointing out that he was due on site at 7.00 am on that day and that his work colleagues were waiting for him. Mr Maris asserts that he worked on that date and that assertion is not disputed, although Mr Maris probably ceased work prior to his usual ceasing time. At 3.04 pm on 16 September 2015, Mr Maris responded to Mr Larder’s text message advising that he needed to take a few days “ stress leave or whatever you want to call it ” and that Mr Larder could arrange to have the company van – which was presumably in the possession of Mr Maris – on site if Mr Larder needs it there. 3 [21] At 9.23 pm on 16 September 2016, Mr Maris sent an email addressed “ Hello All ”. The identity of all recipients is not clear from the copy tendered by Mr Maris. It purports to be a report raising issues that Mr Maris asserts he has been informed of by other employees, including what he describes as a “ near miss incident ” involving other employees working in a man hole in the Brisbane CBD, which appears to have been traffic related rather than associated with gas detectors. The email records that “Bryan” has expressed concern about ATS not being equipped to carry out this kind of work. It is necessary to interpolate that Bryan was a supervisor for ATS and is Mrs Larder’s brother. The email goes on to state: “ Having thought about the safety issues today and having talked to Michelle [Larder] and not willing to listed (sic) to say only my safety concerns among other issues, it makes sense that I would like to apologise to Bryan for not listening more closely to you and the fact that Nick [Larder] does not listen to you when you tell him about your concerns. One other concern I have is about not having nick [Mr Larder] available to take calls and also the amount of hours worked and safety associated with being sleep deprived when driving or when on the job. I can see one other concern which has not been addressed even after having been brought to the managements (sic) attention. The company needs more gas detectors, currently the two gas detectors the company has are up north, yesterday we worked in two manholes without any form of gas monitoring. Because of these safety concerns and the stress levels (even if this is caused by our personality clashes as we might be led to believe) I have requested stress leave effective tomorrow. I have parked the the (sic) van at the office and the key is on the upstairs desk. The trailer is parked inside the warehouse. Since this is not my company I cannot make the decisions which management needs to make but I personally will not be carrying on working in an unsafe manner and be responsible in any way shape or form for my own safety and that of my co-workers. I understand if you think of me as a troublemaker or whatever you want to call me, but as far as I am concerned I want to go home to my family safe after a days work. As I cannot see that happening at the moment given the stress levels and the lack of safety equipment, adequate traffic control etc. etc. I believe is best for my own sake and probably that of others to take some time off .” [22] I assume that Mr Larder received this email because at 10.59 pm on 16 September 2015, he responded to it as follows: “ Hi Valer, Until now you have not expressed any concerns about the gas detectors being in North QLD. If the guys in brisbane (sic) require any further equipment whilst staff are away then we will do the same thing we always have and regularly do and hire that equipment as necessary. There is no need to have surplus equipment in our assets that are underused and become obselete (sic) in case of the odd occasion that both of ours are required up north when we have hire options readily available to use. There is no expectation of staff to do ridiculous hours and running on no sleep, in fact it is strongly discouraged. You would be well aware of this fact since you have only done minimal, infrequent overtime this year. I have always told everyone if they come into an unsafe situation on the job to let me know about it and we’ll action it from there. Your concerns were addressed today in your 15 minute phone call to Michelle. There was no mention of any safety concern in the 15 minutes you had of Michelle’s undivided attention. One would expect if you had a safety concern you would have brought it up during your phone call today. We have a very good safety record which we should all be proud of .” 4 [23] On 17 September 2015 at 8.02 am, Mrs Larder sent an email to Mr Maris (via Mr Larder) documenting matters she asserts were discussed in a telephone conversation she held with Mr Maris on 16 September 2015. Mrs Larder’s comments in that email in relation to safety issues raised by Mr Maris can be summarised as follows: ● At no time during the telephone conversation on 16 September had Mr Maris mentioned safety concerns including that both gas detectors were in North Queensland; ● Had this been mentioned Mr Maris would have been instructed to go and hire a gas detector; ● The gas detectors are in North Queensland because when jobs there were scheduled it was not anticipated that they would be needed in Brisbane. ● Mr Maris’ threats to advise Visionstream and Telstra (clients of ATS) about his safety concerns are “ of no consequence ” to ATS and if Mr Maris honestly believed his safety was at risk he should contact the relevant parties and should have done so already during safety audits conducted by Telstra; ● Mr Maris had stated that he is actively looking for other employment and would go when something came up but if ATS wanted him to leave sooner it would have to fire him; ● Every time an issue with Mr Maris’ performance is raised by the Company he states that he is looking for another job; and ● The issues with Maris are long standing and include his inability to work with others and to work through issues on site and Mr Maris needing constant direction from, and contact with, Mr Larder before he will perform work. [24] It is further stated that Mr Maris should focus on his own concerns and that if other employees have concerns they could raise them directly with Mr or Mrs Larder. 5 The email concludes with a warning to Mr Maris about his conduct and that he will be dismissed if it does not improve. This aspect of the email is discussed later in this Decision. [25] Mr Maris was notified of his dismissal on 21 September, less than two hours after he had returned from sick leave, and was required to work during his two week notice period. At 7.03 pm on 28 September 2015, Mr Larder sent a complaint by email to a Safety Advisor employed by Thiess-Visionstream, a client of ATS for the project on which Mr Maris was working. The email refers to a discussion Mr Maris had with the safety advisor earlier on that date and Mr Maris also tendered a text message from the Advisor in which she set out her email address. There is no evidence that Mr Maris raised any concern with that Safety Advisor prior to 28 September 2015 and I find that he did not. The email makes a number of allegations about Mr Maris’s stress levels because of the quality of tools supplied by ATS and refers to the fact that Mr Maris has already been fired and does not wish to seem vindictive. [26] Mr Maris clearly got over his concern in this regard and on 29 September 2015 at 9.20 am he sent the Safety Advisor photographs, said to be of a warehouse, pointing out that there is rubbish blocking the exit from a front door which could cause issues in the event of fire. The accompanying text message states that “ this is actually not bad now, it cleaned up the boys initiative in June/July but before you had to step over things to go to the toilet ”. [27] According to Mr Larder, at or around 1.00 pm am on 29 September he received a telephone call from a Thiess Manager expressing concern that Mr Maris had raised an issue directly with Thiess and was directed to immediately remove Mr Maris from the site at which he was working. Mr Larder said that he complied with that direction. Mr Larder did not call the Thiess Manager to give evidence and was unable to provide any other documentary evidence that such a direction was given. [28] I accept that safety is a serious matter and that employees who raise genuine concerns about safety issues are entitled to do so and should not be dismissed because of it. However, in the present case, Mr Maris’ complaint seems to have been more about causing problems for ATS than it is about a genuine safety issue. I can only wonder at why Mr Maris did not raise this matter with Mr or Mrs Larder, or better still, why he did not take action to clear up the items allegedly blocking the access to toilet by seeking the assistance of the employees who had earlier cleaned up the area. I also note the evidence that upon investigation, it was found that Mr Maris’ complaint about these matters was without substance, and that Mr Maris does not dispute that this was the outcome. [29] In any event, Mr Maris was not dismissed for raising this issue, because at the point he raised it he had already been dismissed and was working out his notice period. That Mr Maris’ notice period may have been shortened as a result of raising this issue is not a matter that the Commission can deal with in an unfair dismissal application. In any event it is equally probable that Mr Maris’ notice period was shortened because of the manner in which he raised the issue rather than the simple fact that he did so. I am also of the view that when the totality of the evidence is considered, the earlier issues relating to gas detectors raised by Mr Maris were not the reason for his dismissal. [30] Mr Maris had returned from sick leave when he was dismissed and the only issue with sick leave appears to have been Mr Maris’ failure to return to work after the period he had advised that he would be absent for. I also note that the medical certificate later provided by Mr Maris did not cover 21 September 2015 and that Mr Maris failed to report for work at his normal starting time on that day and did not advise that he required a further period of sick leave. I am not satisfied that Mr Maris was dismissed because he had taken sick leave. 4.2 Was Mr Maris given a valid reason for his dismissal? [31] As Vice President Watson observed in Puri v Sydney Strata Pty Limited 6 it is not clear whether the requirements of the Code include the existence of a valid reason for the dismissal, as distinct from a valid reason being given to the employee that there is a risk of being dismissed. In that case, his Honour assumed that the requirements of the Code involve the employer giving the employee a reason for the dismissal, and that the reason must be a valid reason based on the employee’s conduct or capacity. 7 In the present case I adopt the same approach. It is well established that a valid reason for dismissal is one that is sound, defensible and well founded in the context of the employee’s conduct or capacity to do the job. 8 [32] The task of identifying the reason for the dismissal is complicated in this case by the fact that the parties conducted their employment relationship by telephone, text message and email. Further, Mr Larder has recorded many of his concerns about Mr Maris’ conduct in his diary without recording whether those concerns were conveyed to Mr Maris and the way in which this occurred. [33] Mr Maris was notified of his dismissal by email, sent to him on Monday, 21 September 2015, under the electronic signature of Mr Larder. That email stated: “ As per our phone call this is to advise you of your termination. With the two weeks notice (sic) required your last day of work will be Friday 2 nd of October and your final pay will be processed after that. Following the trouble that was caused last week you were given the opportunity this morning to return to work with the expectation that there would be a behavioural change and all the negativity would cease. If you weren’t comfortable returning following some of your emails and accusations that were sent from you last week then you were given the option of us terminating your employment and giving you notice immediately. As you chose to return to work and gave assurances that the negativity would not continue then your time at work recommenced and as such you will be expected to work out your notice period. You can choose to take annual leave during this period if you like but otherwise you are expected to be at work every day as usual .” 9 [34] It is apparent from the evidence of Mr and Mrs Larder, and the text messages, diary entries and emails tendered in this case that the reason for Mr Maris’ dismissal was a combination of Mr Maris’ conduct as set out in an email to him from Mrs Larder dated 17 September 2015, relating to his inability to work with others or to take direction, causing conflict on work sites to which he was assigned and demonstrating a lack of initiative and responsibility for his own work. These matters were the basis for the final warning given to Mr Maris on 17 September 2015. [35] ATS has not called any evidence about exactly what, if anything, occurred in the two hours between Mr Maris returning to work on 21 September and being notified of his dismissal. Mr Larder said that he decided he would not call any evidence on this point because it involved other employees. The short space of time between the dismissal and Mr Maris’ return to work is dealt with in relation to whether Mr Maris had an opportunity to rectify the problem and respond to the warning. However, in light of the voluminous evidence of issues with Mr Maris’ conduct and capacity at the point he returned to work on 21 September 2015, this does not alter the fact that there was a valid reason for his dismissal and that this reason was given to Mr Maris. [36] Mr Larder maintains that during the thirteen months that Mr Maris was employed, he put considerable effort into communicating his concerns to Mr Maris and organising work so that Mr Maris was not required to work with other people. Mr Larder also contends that he took steps to provide training to all employees – including Mr Maris – in relation to team work. Mr Larder concluded that no amount of effort would resolve the issues that he had with Mr Maris and that he was “ not a good fit ” as an employee of ATS. [37] Mr Maris provided lengthy and detailed responses to the points raised by Mr Larder in his witness statement and the material tendered on behalf of ATS. While I do not doubt that Mr Maris genuinely believes that his responses to the matters raised by Mr Larder are appropriate and reasonable, it is clear that Mr Larder’s assessment was correct and that as an employee of ATS, Mr Maris was not a good fit. In my view, this is a valid reason for Mr Maris’ dismissal. I have reached this conclusion for the following reasons. [38] ATS is a small business. Mr Larder is a hands-on manager who undertakes project work himself, often at remote locations. He is assisted in the administration of his business by Mrs Larder, who has a Masters Degree in Business with a major in Human Resources, and in her own words is currently: “ a stay at home mother to two small children ”. Mrs Larder assists with administration of the business by processing pays, submitting invoices and advising Mr Larder about the management of staffing issues. It also appears that there were occasions when Mrs Larder answered emails and text messages on behalf of Mr Larder when he was out of range or too busy to communicate himself. [39] The email and text message exchanges between Mr Maris and Mr and Mrs Larder are replete with frustration on both sides. There are text message exchanges in which where Mr Maris indicates that he is looking for other employment and Mr and Mrs Larder agree that this is a good idea. All parties in that correspondence, either implicitly or explicitly raise issues about whether ATS is the kind of organisation that Mr Maris wishes to work for. Mr Maris makes frequent comments to Mr Larder to the effect that he does not agree with the way that Mr Larder is running the Company. [40] There are also a number of communications where Mr Larder expresses the view that Mr Maris works best on his own. Further, there are communications in which Mr Larder informs Mr Maris that he cannot afford to “ get off the tools ” and play a purely management role and in which Mr Maris remonstrates with Mr Larder about ATS being better managed if Mr Larder was “ off the tools ”. On occasion, Mr Maris suggests that the hours Mr Larder is working are too long and that he should reduce his working hours and his travel. The responses to Mr Maris’ issues make it clear that Mr Larder is not going to be in a position where he is “ off the tools ” and that if Mr Maris wants to work for a company where there is a manager constantly on hand to deal with his issues, then he should seek employment elsewhere. [41] I am satisfied and find that Mr Maris’ conduct and the impact it had on Mr and Mrs Larder and his co-workers was a valid reason for Mr Maris’ dismissal. Further, I am satisfied and find that Mr Maris was given the reason for his dismissal in numerous emails and oral communications with Mr and Mrs Larder. It is clear that Mr Maris was not going to alter the manner in which he interacted with Mr and Mrs Larder and his work colleagues. It is equally clear that Mr Larder was not going to alter the way in which he conducted his business in order to meet Mr Maris’ expectations and in my view he should not have to do so. It was reasonable, after thirteen months, for Mr Larder to conclude that Mr Maris was not a good fit for the business and that there was no option but to dismiss him. This was a valid reason for Mr Maris’ dismissal. 4.3 Was Mr Maris warned that he risked being dismissed? [42] The Act does not mandate any particular number of warnings that must be given to an employee prior to dismissal or the form that a warning must take so that it meets the requirements in the Code. Although the Code states that it is preferable that an employee be given a warning in writing, a verbal warning may be sufficient to comply. In determining whether an employee has been warned of the risk of dismissal if conduct or capacity to do a job does not improve, the approach is to consider whether what is said to be the warning: ● Identifies the relevant aspect of the employee’s conduct or performance which is of concern to the employer; and ● Makes it clear that the employee’s employment is at risk unless the conduct or performance issue is addressed. [43] The question of whether a warning has been given in a manner that satisfies these criteria is to be considered in a practical and common-sense way, taking into account the employment context. 10 In the present case the context of the employment relationship is one between a small business employer with an owner who worked in the business himself, often at different locations to those where his employees were working, and an experienced technician who should have reasonably been expected to display initiative to resolve issues that arose at the work locations to which he was assigned. [44] Mr Maris asserts that he was not warned that he risked being dismissed and was not given sufficient details about the issues with his conduct so that he could improve and avoid dismissal. In my view, there were several points during Mr Maris’ employment where he could have been in no doubt that Mr Larder was not happy with his capacity or conduct and he evidenced this by his exchanges in the form of text messages and emails with Mr and Mrs Larder. In this regard there are numerous emails and text messages from both parties where they each express the view that Mr Maris should resign or look elsewhere for employment. The evidence in relation to warnings is convoluted and I was not assisted by the fact that it comprised emails, text messages and entries in Mr Larder’s diary or by the fact that some of the relevant emails were composed by Mrs Larder and forwarded to Mr Larder who then forwarded them to Mr Maris. It is necessary to consider the evidence in some detail. [45] Mr Larder presented a typewritten document that was said to record details of telephone and text message exchanges with Mr Maris and to summarise his diary entries. Some of the actual text messages and emails between Mr and Mrs Larder and Mr Maris were tendered. Mr Larder also tendered the actual diaries from which the typewritten document was extracted. The typewritten document tendered by Mr Larder has additional content to entries that appear in the diaries tendered by Mr Larder and there was no real explanation for the differences, other than that Mr Larder claimed the typed document was intended to be a summary. It is unusual that a summary contains greater detail than the source document, and I prefer the diary entries, emails and text messages as a source of evidence and have not placed any weight on the contents of the typewritten document. [46] The 2014 diary contains references to performance discussions with Mr Maris on 26 September and 28 November. The diary entry for 26 September 2014 is as follows: “ Valer complaining about the company equipment again. He advised all the gear is unsuitable to use. Phone call to Valer to advise he needs to adapt to his new surroundings or we will be getting rid of him ” [47] The diary entry for 28 November 2014 states: “ Talked to Valer about the need to keep me updated on the progress of jobs, and getting onto issues early so we can assign extra resources if needed. Told Valer it was completely unacceptable to miss jobs as we look incompetent to our customer which affects their ability to give us more work .” [48] In 2015, there were performance discussions noted in Mr Larder’s diary on 30 January, 2 February, 25 February, 3 March, 21 April, 22 April, 17 June, 18 June, 13 July, 23 July, 11 August, 31 August, 15 September and 16 September. These entries variously record Mr Maris being spoken to about conflicts and complaints involving work colleagues, complaints and unprofessional comments to customers of ATS, level of work, delaying work and inability to work with other staff of ATS. It is also recorded that on numerous occasions Mr Maris offered to look for another job or Mr Larder told him that he should do this. Mr Maris does not dispute that these discussions occurred but rather, maintains that there were explanations for the issues or that the other employees involved in the incidents were at fault. [49] Some of the text messages from Mr Larder contain general statements to employees to the effect that he is angry and frustrated at their inability to work together and to get along and that any employee who is not able to work with other employees to get jobs done should resign. Other communications are made directly to Mr Maris. For example, on 24 and 25 February 2015 there was a text message exchange between Mr Maris and Mr Larder in relation to job priorities. In that exchange Mr Larder tells Mr Maris that a particular job has priority and Mr Maris responds stating that the job has priority according to Mr Larder but according to Mr Maris another job has priority and he will be going to that other job. Mr Larder responds stating that the last time he checked he owns the Company and Mr Maris is an employee who should do the job he is instructed to do. Mr Larder goes on to state: “If you are going to hinder every job we do and have problems taking instructions then this might not be the right job for you in which case it might be best for you to look for alternative employment”. 11 [50] It is apparent from the evidence that Mr Maris was agitating issues on behalf of other employees in circumstances where there is no evidence that they had requested him to do so. In some cases Mr Maris complained about incidents that had occurred when he was not present at a particular site and which did not involve him. Generally, the text messages and email communications between the parties evidence that the relationship between Mr Larder and Mr Maris was rapidly becoming untenable as it went on and I am satisfied that when Mr Maris was dismissed it had well and truly reached that point. [51] In relation to the warning said to have been given to Mr Maris on 13 July 2015, in his witness statement Mr Larder said that he conducted a general discussion with all employees on 13 July 2015, in relation to conflict resolution and team work. 12 Mr Larder’s diary entry reflects that he: “ --- advised staff the infighting and inability to work with other staff is to cease – or there won’t be a job for people who continue to cause conflict” [52] During his oral evidence Mr Larder initially stated that warning was conveyed to Mr Maris and others as a group of employees; “ Well, he was told that this constant problems – if they continue people aren’t going to have jobs. I explained to the guys the problems we have while we’re away” [53] When I put the proposition to Mr Larder that that giving a warning to a group of employees is not the same as giving a direct warning to Mr Maris, Mr Larder said that he had also taken Mr Maris aside in the office and reiterated his comments to Mr Maris personally. If Mr Larder did this he did not document the interaction with Mr Maris, either in his diary on in some other way. Mrs Larder had no direct knowledge of a warning being given specifically to Mr Maris on that date. I do not accept Mr Larder’s evidence on this point or that the discussion on 13 July constituted a warning to Mr Maris. [54] There is also evidence of a lack of clarity on the part of Mr Larder in his dealings with Mr Maris. On 15 September 2015 there was a series of text messages between Mr Larder and Mr Maris in which Mr Larder asks Mr Maris to stop calling the customer and states that Bryan (a supervisor) is in charge of the job because he has more experience. Mr Maris’ response to that text message was critical of Bryan and asserted that he does not “ have his heart in it ” and had been critical of Mr Larder. Mr Maris also stated that if he was a burden for ATS he would start looking elsewhere for a job. [55] Mr Larder sent an individual text message to Mr Maris on that date stating that he was “ sick to death of the pathetic infighting and people just not getting along ” and asking Mr Maris to let the supervisor make the calls for a few days and that Mr Maris could go back to working on his own jobs after that time. The text message also states that Mr Maris did not need to start looking for another job. In a general text message sent to all employees shortly after the text message to Mr Maris, Mr Larder reiterates that he is sick of infighting between employees and that they should work together. It goes on to state that any employee who cannot do this should resign. Mr Maris responded to this text message by sending another lengthy text message outlining a series of issues on the site and stating that he has his doubts about how the Company is running. 13 In short, this exchange evidences a general frustration with all employees on the part of Mr Larder rather than with Mr Maris as an individual. [56] Mrs Larder gave evidence about a fifteen minute telephone conversation she held with Mr Maris on 16 September 2015, during which she asserts that she gave Mr Maris a final warning. Mrs Larder tendered a telephone record said to evidence a 15.33 minute telephone call from Mr Maris commencing at 10.03 am on that date. Mr Maris did not disagree that he had a fifteen minute telephone conversation with Mrs Larder on 16 September 2015 but maintained that she did not give him a warning about his conduct or work performance during that conversation. [57] Mrs Larder later documented the matters discussed in that telephone call in an email sent to Mr Maris at 10:27 pm on 16 September 2015. In that email, Mrs Larder notes that Mr Maris said that he was looking for work elsewhere and that she understands why. Ms Larder also notes that she told Mr Maris that he is a valued member of the team and that she attempted to deal with some of the issues Mr Maris had set out in his earlier email. There is no reference in the email to a warning having been given during the telephone conversation but Mrs Larder records that she suggested that if Mr Maris and ATS are not a good fit then it would probably be a good idea for him to look for another job. [58] As previously noted, on 17 September 2015 at 8.02 am, Mrs Larder sent Mr Maris an email setting out what are said to be long standing issues with Mr Maris’ conduct and work performance as follows: ● Inability to work with others; ● Inability to work through issues on site; ● Looking for issues on particular jobs as a means of being transferred to other jobs on which Mr Maris wished to work; ● Contacting staff of major contractors about matters that should be referred to Mr Larder or ATS’ site manager; ● Refusing to turn up to work unless spoken to directly by Mr Larder about particular issues; ● Refusing to take direction or to accept feedback; ● Refusing to communicate with colleagues on site; ● Putting ATS’ contracts at risk by discussing internal Company matters with persons external to the Company; ● Blaming equipment or co-workers for any deficiency with this conduct or performance and making constant complaints about these matters to Mr Larder; ● Failing to take initiative to resolve issues by hiring equipment or implementing systems of work to overcome problems; and ● Inability to work unsupervised or with limited direction and at the level expected of an employee with his qualifications and skills. [59] The email concludes with the following statement: “ Based on this, if, on your return to work, we don’t see the behavioural changes that we require, to stop these ongoing issues recurring, we will be terminating your employment and will be given two weeks notice as the National Employment Standards (sic). These changes will have to be permanent, because the way I see it, we keep having the same ongoing issues with you have done since you first started. As you stated ‘the one thing that still remains is the fact that we can’t work together’. If you are unable to work with people that work for this company, especially the managing Director then you need to look for alternative employment .” 14 [60] Cumulatively these entries evidence that Mr Maris’s employment at ATS was regularly causing issues for Mr Larder in relation to workplace harmony and job completion. However, I do not accept that they constituted warnings that put Mr Maris on notice that he was at risk of being dismissed if there was no improvement. Mr Larder went to great effort to document these matters in his diary. Mrs Larder has an advanced, formal qualification in Human Resource Management. Mr and Mrs Larder contend that Mr Maris constantly deflected criticism and refused to accept responsibility for matters raised with him. This knowledge should have alerted Mr and Mrs Larder to the need to give clear warnings to Mr Maris. [61] In my view the manner in which Mr and Mrs Larder dealt with issues related to Mr Maris’ conduct and work performance left much to be desired. A number of messages and emails that Mr Larder asserted were warnings were directed to his employees generally and expressed frustration with the conduct of all of those employees including Mr Maris. It is apparent from those messages and emails that Mr Larder was uncertain about whether Mr Maris or other employees were responsible for the poor working relationships and the issues that were arising on various sites. Some of the so called warnings were mere exhortations to Mr Maris and other employees to improve their performance, combined with statements to the effect that if they did not wish to improve they should seek other jobs. 15 [62] When all of the communication between Mr and Mrs Larder and Mr Maris is considered in the context of the employment relationship and the nature of the employer’s business, it is clear that Mr Maris was told that there were issues with his conduct and work performance. However, until the written warning on 17 September 2015, there was no communication that could properly be described as a warning. A mere exhortation to improve, followed by a statement that if Mr Maris does not wish to comply he should seek other employment, or a general communication to employees threatening dismissal to any employee who does not get on with other employees, does not constitute a warning to Mr Maris as required by the Code. [63] Notwithstanding the deficiencies with earlier communication with Mr Maris, on 17 September 2015, Mr Maris was clearly warned in writing, that his conduct and work performance were not acceptable and that if he did not demonstrate an improvement in the areas listed in the email of that date, his employment would be terminated. Accordingly, I find that there was compliance on that date with the requirement of the Code that Mr Maris be warned about the reasons for his dismissal based on his conduct or capacity to do the job and that he risked being dismissed if there was no improvement. 4.4 Was Mr Maris provided with an opportunity to respond to the warning and to rectify the problem having regard to his response? [64] I do not accept that Mr Maris was provided with an opportunity to respond to the warnings. The matters Mr Larder raised with Mr Maris prior to 17 September 2015 could not be described as warnings and in any event were not raised in a way that allowed for a response. Essentially, Mr Larder’s approach was to send an email (which was often drafted by Mrs Larder) or a text message setting out general issues with Mr Maris’ conduct or work performance and then fail to follow through with Mr Maris to allow him to respond. On some occasions, Mrs Larder sent emails setting out issues with Mr Maris’ conduct under the electronic signature of Mr Larder, immediately after Mr Maris and Mr Larder had engaged in a positive interaction. Mr Maris asserts that this was confusing and I accept that this was the case. When Mr Maris responded to the issues, Mr Larder took the view that Mr Maris was deflecting attention from his own conduct or work performance to that of his colleagues and disregarded Mr Maris’ responses. Having formed such a view, Mr Larder did not convey his conclusions to Mr Maris and it is probable that this lack of follow through meant that Mr Maris simply went on with the same conduct assuming that his explanation was accepted. [65] The sequence of events culminating in Mr Maris’ dismissal illustrates the fact that he was not given an opportunity to respond to the warning he received on 17 September 2015. As previously noted, Mr Maris had advised on 16 September 2015 that he was taking two days of sick leave on the basis of “stress”. Mr Maris did make contact with Mr or Mrs Larder to extend the period of sick leave and did not report for work at his usual starting time on Monday, 21 September. Mr Maris said that on Monday, 21 September he was at home as he still felt unwell, when at 8.22 am he received a text message from Mrs Larder as follows: “ Valer, you were expected back at work today. You are not on indefinite leave and you are required to update us. As per the email sent to you last Thursday, upon your return to work we are going to have to see these ongoing issues resolved or we will be terminating your employment. If you would prefer not to return, please advise and we will pay out your two weeks notice and terminate immediately .” [66] Mr Maris responded to the text message at 8.28 am advising that he would like to return to work and was expecting a message from Mr Larder to tell him where he had to go and what jobs he would be working on. Almost immediately Mrs Larder responded to Mr Maris telling him that Mr Larder would contact him to advise where he would be working. At 8.34 am, Mr Maris sent a copy of a medical certificate covering his absences on 17 and 18 September 2015. [67] Mr Maris said that as he valued his job, he decided to go to work. While travelling to work by train, Mr Maris had a telephone conversation with Mr Larder, who then sent him a text message at 9.22 am in the following terms: “ Valer further to our conversation just now, it is not my decision if you resign or not, that is a decision you need to make. Having said that though, I realise that I may have given you an indication that I will get off the tools, and whilst this was a goal of mine, and I have been working with a business coach to try and work toward my company goals, on review, this won’t actually be possible in the foreseeable future. If having constant office support is something you do require and having all your issues attended to immediately and not feeling comfortable making some decision on site yourself is something you do require then this is not something we can provide to you. This is the reason we hire experienced, qualified people and not trainees or people just finished traineeships. It is not an issue if that’s the way you prefer to work, it will just mean your need cannot be met and are not a good fit for the way ATS needs to operate to stay financially sustainable and I don’t see that changing anytime soon. If anything, with the Thiess/Visionstream merger happening we are looking to downsize the company not increase capacity. Secondly, I don’t need to hear about constantly how such and such didn’t want to work and just wanted to whinge about me all day. I have the expectation as adults that you would be able to say “I’m not here to listen to this negativity all day, take it up with the people that you have the issue with, we need to get on and get this job completed”. We need to stay productive and this constant toxic communication on site is stopping jobs being completed and stopping us being able to invoice jobs. You need to decide if you are happy working for ATS as it is now not under what it can possibly become one day because we can’t guarantee that our goals can be met .” [68] Mr Maris responded by text message at 9.55 am as follows: Hello Nick I am hearing you but I don’t see how I am the problem to the extent is made out to be? The way I see it is the people that are here just for the money. I am here to get the job done when it can be done safely. When working in a team I also need the other teams members to pull their weight, the other option is to sit back, be on my phone all day (personal text calls) and you think the job will get done? From now on I will do just that take instructions from whoever is in charge and do exactly as I am told. I am happy to sit down if you care to go through these issues together with everyone, if that’s something you want to do at all at some stage. Thanks Valer 16 [69] Mr Maris arrived at the job site and commenced work. Mr Maris states that at 11.03 am he noticed a missed call from Mr Larder on his telephone and returned the call. Mr Larder told Mr Maris that he could not continue like this and that Mr Maris’ employment was terminated with two weeks’ notice. At 11.39 am Mr Larder sent the email to Mr Maris confirming the termination of his employment, as set out in paragraph [32] above. [70] Almost immediately after receiving the email, Mr Maris sent a text message to Mrs Larder as follows: “ Hello Michelle. I have been given two weeks notice from Nick he has terminated my employment if it’s ok with you pay me he (sic) two weeks and all my entitlements and I will be on my way to finding another job. Thanks. ” [71] Mrs Larder’s response, also by text message, was: “ Valer, termination is two weeks notice, finishing next Friday 2/10/2015. If you don’t wish to work until then it will be leave without pay. I gave you the option this morning of you not returning to work but you chose to forfeit that option and come back and bring more negativity and cause more trouble. [72] ATS did not call any evidence about what caused Mr Larder to move from a final warning to dismissing Mr Maris within a space of less than two hours, other than Mr Larder said that Mr Maris turned up at site on 21 September 2015 “ as toxic as ever ”. Neither Mr Larder nor Mrs Larder was on the site at which Mr Maris was working on that date. There was no evidence from any person in a management or supervisory role on that site about what took place when Mr Maris arrived at work. Mr Maris called evidence from a labour hire employee who was working on site on that date to the effect that Mr Maris did not behave in a toxic manner. Given that the labour hire employee had worked with Mr Maris for less than two hours before he was dismissed, and that he was not working in close proximity to Mr Maris for the entirety of that period, his evidence is of limited assistance. [73] I do not accept that Mr Maris’ text message, send to Mr Larder at 9.55am on that date, justified Mr Larder moving from a final warning to a dismissal. In circumstances where Mr Maris was absent on sick leave when he received his only formal written warning in the thirteen months of his employment, and was back at work for less than two hours between the time he received the warning and the time he was told that he was dismissed, I do not accept that Mr Maris was provided with an opportunity to respond to the warning. In his response to the warning, Mr Maris specifically requested the opportunity to sit down with Mr Larder and go through the issues, and this opportunity was not afforded to him. It also follows that in those circumstances, Mr Maris was not given a reasonable opportunity to rectify the conduct and work performance issues set out in the warning. [74] Accordingly I am satisfied and find that the requirements of the Code with respect to Mr Maris being given an opportunity to respond to the warning and to rectify the problems identified in the warning were not complied with. As a result the dismissal of Mr Maris was not consistent with the Code and it is necessary to consider whether it was unfair on the basis that it was harsh, unjust or unreasonable considered against the criteria set out in s. 387 of the Act. 5. WAS THE DISMISSAL UNFAIR? [75] Turning to the criteria in s. 387 of the Act, for the reasons set out above, I am satisfied and find that there was a valid reason for dismissal based on Mr Maris’ capacity or conduct as provided in s. 387(a) – Mr Maris was not a good fit as an employee of ATS and the relationship between the owners of the Company and Mr Maris was untenable as a result of Mr Maris’ conduct. In short, Mr Maris was disruptive, difficult to manage, and was a source of constant conflict when he was working with others. I am also satisfied and find that Mr Maris was notified of the reason for his dismissal, as provided in s. 387(b). [76] In relation to s. 387(c), for the reasons set out above, I do not accept that Mr Maris was given an opportunity to respond to the reason for his dismissal. Given that there was no discussion with Mr Maris about the reason for his dismissal he did not have an opportunity to request a support person and the criterion in s. 387(d) is not relevant. In relation to s. 387(e) Mr Maris was warned about his unsatisfactory performance before his dismissal, albeit not in sufficient time to enable him to respond. [77] With respect to s. 387(f) ATS is a small business. Its Chief Executive Officer, Mr Larder, works in the business and does not undertake a full time management role. The fact that Mr Larder is working in the business often at remote locations, impacted on his ability to communicate face to face with Mr Maris and necessitated communication by other means such as email and text message. Although these were not appropriate mechanisms to give warnings and to manage conduct and work performance issues, the size of ATS and the nature of Mr Larder’s role meant that he had no real alternative. [78] In relation to s.387(g) Mr Larder did not have access to dedicated human resource management expertise. Although Mrs Larder has a qualification in human resource management, she does not work full time in the business and is otherwise occupied caring for children. Mrs Larder also undertook a range of administrative tasks for ATS, which meant that she was not dedicated to human resource management. Accordingly, I consider that these matters impacted adversely on the procedures followed in effecting the dismissal and this is a factor I have taken into account. [79] I also consider, pursuant to s. 387(h) that there are other matters relevant to consideration of whether Mr Maris’ dismissal was unfair. The manner in which Mr Maris’ entitlement to notice on termination of his employment was dealt with by ATS left much to be desired. While an unfair dismissal application is not an appropriate vehicle to deal with failure to comply with legislative entitlements to notice or to pay some amount to which the employee was legally entitled on termination of employment, in my view such a failure goes to fairness and is a matter that can be taken into account in an overall assessment of whether a dismissal was unfair. [80] Mr Maris was given two weeks’ notice of the termination of his employment and informed that he was required to work during that notice period. Mr Maris was not permitted to complete his notice period and was required to cease work three days prior to the date on which he had been informed that his termination would be effective and was not paid for the duration of the notice period. [81] Mr Maris was not terminated for serious misconduct such that it would not have been reasonable to employ him for the notice period and this is evidenced by the fact that he was required by Mr Larder to work during his notice period. It appears that Mr Maris was entitled under the Act to two weeks’ notice on termination of his employment. Generally, once a period of notice is given and accepted, it cannot be altered without agreement. Mr Larder gave Mr Maris two weeks notice and it was agreed that Mr Maris would work for the notice period. I can conceive of no reason why Mr Maris should not have been paid for the duration of the period of notice; notwithstanding ATS required Mr Maris to cease work before the notice period had expired. [82] Mr and Mrs Larder dealt with giving Mr Maris notice in an entirely inappropriate way. Their failure to communicate with each other before communicating with Mr Maris caused confusion at what would have already been a difficult time for Mr Maris. Having given Mr Maris a final warning and an opportunity to go back to work after his period of absence to attempt to redeem himself, that opportunity was withdrawn in an unreasonably short space of time, before Mr Maris could avail himself of it. No reason for this was provided by ATS, either in evidence or submissions. [83] It is also the case that when Mr Maris sought to be paid his notice in a lump sum, he was told that because he had already rejected that offer in an earlier discussion, he was required to return to work and that if he did not do so he would be considered to be on two weeks leave. Leaving aside the lawfulness of the manner of such a direction. Mrs Larder’s text message at 8.22 am on 21 September gave Mr Maris two options: return to work and attempt to address the issues raised in the warning of 17 September or effectively resign and be paid two weeks in lieu of notice. Mr Maris had not been dismissed at that point. That Mr Maris opted to return to work and attempt to maintain his job does not constitute his rejection of payment of two weeks wages in lieu of notice at the later point when he was dismissed and was not a basis to subsequently refuse to pay him that amount and allow him to cease work immediately. [84] Upon returning to work, Mr Maris was dismissed almost immediately but was required to work during his notice period, notwithstanding that only a few hours prior, Mrs Larder had offered him an option to cease work on that day and to be paid two weeks in lieu of notice. If Mr Maris committed some further infraction upon his return to work, justifying a change in the previous position where he had been given a final warning and an opportunity to improve his conduct, it is strange that Mrs Larder would have rejected Mr Maris’ suggestion upon being notified of his dismissal, that he cease work immediately, be paid two weeks in lieu of notice and “ be on his way .” Mrs Larder’s conduct in this respect was unreasonable and contributed to the unfairness of the dismissal. [85] Further, Mr Larder effectively condoned Mr Maris’ conduct for a significant period by failing to clearly articulate to Mr Maris the issues with his conduct or capacity and why Mr Maris’ explanations or excuses about these matters were not accepted. There was a total lack of clarity in the communications with Mr Maris to the extent that on 15 September (only two working days before the final warning and three working days before Mr Maris was dismissed) Mr Larder was telling Mr Maris that he should not resign, and within two hours of returning to work on 21 September, after being given a final warning on 17 September, Mr Maris was dismissed. [86] On balance and after weighing the criteria in s. 387 of the Act, I am satisfied and find that Mr Maris was unfairly dismissed. The dismissal was harsh because there was no consideration of Mr Maris’ personal circumstances, in particular in relation to the manner in which notice was dealt with. It was also unjust because at the point the decision to dismiss Mr Maris was made and effected, he had not been given an opportunity to respond to the issues set out in the warning letter or to improve his conduct. 6. REMEDY [87] Having decided that Mr Maris was unfairly dismissed it is necessary to determine whether he should have a remedy. In relation to remedy, s. 390 of the Act provides as follows: “ 390 When the FWC may order remedy for unfair dismissal (1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if: (a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and (b) the person has been unfairly dismissed (see Division 3). (2) The FWC may make the order only if the person has made an application under section 394. (3) The FWC must not order the payment of compensation to the person unless: (a) the FWC is satisfied that reinstatement of the person is inappropriate; and (b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case. Note: Division 5 deals with procedural matters such as applications for remedies.” [88] For reasons set out below, s. 391 of the Act in relation to remedy is not relevant. In relation to compensation s. 392 of the Act provides: “ 392 Remedy—compensation Compensation (1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement. Criteria for deciding amounts (2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including: (a) the effect of the order on the viability of the employer’s enterprise; and (b) the length of the person’s service with the employer; and (c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and (d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and (e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and (f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and (g) any other matter that the FWC considers relevant. Misconduct reduces amount (3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct. Shock, distress etc. disregarded (4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal. Compensation cap (5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of: (a) the amount worked out under subsection (6); and (b) half the amount of the high income threshold immediately before the dismissal. (6) The amount is the total of the following amounts: (a) the total amount of remuneration: (i) received by the person; or (ii) to which the person was entitled; (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and (b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.” [89] Pursuant to ss. 390(1)(a) and (b) of the Act, I am satisfied that Mr Maris was a person protected from unfair dismissal and that he has been unfairly dismissed. Mr Maris has made an application for an unfair dismissal remedy under s. 394 of the Act and in my view should have a remedy for his unfair dismissal. Mr Maris does not seek reinstatement. Given the level to which the employment relationship between Mr Maris and Mr and Mrs Larder has degenerated, I am of the view reinstatement is not an appropriate remedy and I have no doubt that the relationship cannot be re-established. Accordingly, I am satisfied and find that reinstatement is not appropriate. Mr Maris has now found alternative employment albeit of a casual nature. [90] I also consider that an Order for compensation is appropriate. In relation to the consideration in s. 392(2)(a) there is no evidence that the Order for compensation in this matter that I intend to make will have a detrimental financial impact on ATS or that the Company is suffering from financial incapacity such that it could not meet the terms of such an Order. [91] It is not in dispute that Mr Maris had 13 months service with ATS. I am satisfied that even if Mr Maris was not dismissed on 21 September 2015, he would not have remained in employment for longer than one month from that date. In reaching this conclusion I have taken the following matters into account. Throughout the course of his employment Mr Maris frequently stated that he was considering resigning or was actively looking for alternative employment and gave every indication that he was not happy working for ATS. On receiving the email on 21 September 2015 terminating his employment, Mr Maris sent an email in response stating: “ I never thought I would say this but I actually feel relieved that I can put an end to this mostly unhappy chapter of my life working for ATS. One question still remains if you are looking to downsize what reason are you going to use to terminate the other guys? Joke you don’t have to answer that, I know the other guys are smarter that you make us (sic) so they will work it out .” [92] I put to Mr Maris during the Hearing that on one view of the evidence it was not likely that Mr Maris would have remained in his employment very long, but for the dismissal. 17 In light of the evidence of the breakdown in the employment relationship, Mr Maris’ response was not convincing. [93] I have concluded, for the purposes of s. 392(2)(c), that Mr Maris would have remained in employment for a period of no more than one month from 21 September 2014 when he returned to work on the basis that he had been given a final warning requiring immediate improvement in his conduct and work capacity. It is highly unlikely that Mr Maris would have changed his attitude, given that he continues to assert that he was not at fault for the issues during his employment. [94] Mr Maris provided evidence of his wage and I accept that he was paid an amount $1,200.00 per week, based on an hourly rate of $30 for a 40 hour week in accordance with the written contract of employment appended to his witness statement. 18 Had Mr Maris remained in employment for a further four week period, he would have earned an amount of $4,800.00. In that four week period Mr Maris was paid for seven working days which I calculate as an amount of $1,680.00. Mr Maris did not earn any amounts from other employment in the period I have determined that he would otherwise have remained in employment. In the circumstances I make no deduction for contingencies or misconduct. [95] I determine that compensation in the amount of $3,120.00, less taxation at the appropriate rate, should be paid to Mr Maris within 14 days of the date of this Decision as compensation for his unfair dismissal. An Order to that effect will issue with this Decision. DEPUTY PRESIDENT 1 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. 2 Exhibit 11 Witness Statement of Valer Maris Annexure “VM-5”. 3 Exhibit 11 Witness Statement of Valer Maris Annexure “VM-4”. 4 Exhibit 11 Witness Statement of Valer Maris Annexure “VM-3”. 5 Exhibit 11 Witness Statement of Valer Maris Annexure “VM-7”. 6 [2012] FWA 7317 . 7 Ibid at [5] – [6]. 8 Selvachandron v Peteron Plastics Pty Ltd (1995) 62 IR 371. 9 Exhibit 11 Witness Statement of Valer Maris Annexure “VM-10”. 10 Goodwin v Fastidia Pty Ltd Dec 1023/00 M Print S9280 at [43] considering similar terms in s. 170CG(3)(d) of the former Workplace Relations Act 2006. 11 Exhibit 11 Witness Statement of Valer Maris Annexure “VM5”. 12 Exhibit 7. 13 Exhibit 11 Witness Statement of Valer Maris Annexure “VM28”. 14 Exhibit 11 Witness Statement of Valer Maris Annexure “VM6”. 15 Goodwin v Fastidia Pty Ltd op. cit. at [44]. 16 Exhibit 11 Witness Statement of Valer Maris Annexure VM-9. 17 PN1619. 18 Exhibit 11 Witness Statement of Valer Maris Annexure VM-1. Printed by authority of the Commonwealth Government Printer <Price code C, PR576928>