This passage from an unfair dismissal case decided by a senior member of the Fair Work Commission is a very helpful guide to some of the principles used by the Commission when determining whether the dismissal of an employee was harsh, unjust and unreasonable.
“Section 385 of the Act – was the dismissal unfair?
[12] As to the circumstances set out at s.385 of the Act, I am satisfied on the material before
me that Mr Dimkovski was dismissed (s.385(a)). Further, as outlined above, this would not
appear to be a matter that involves a small business, such that consideration of whether Mr
Dimkovski’s dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c))
is required or one where it is claimed the dismissal was a case of ‘genuine redundancy’ within
the statutory definition of that term (s.385(d)).
[13] This leaves s.385(b) and in determining whether the dismissal was harsh, unjust or
unreasonable, I must have regard to s.387 of the Act:
“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
[2023] FWC 726
6
(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.”
[14] I am required to consider each of these criteria, to the extent they are relevant to the
factual circumstances before me.2
[15] In order to be a valid reason, the reason for the dismissal should be “sound, defensible
or well founded”3
and should not be “capricious, fanciful, spiteful or prejudiced.”4
[16] Mr Dimkovski submits that there was no valid reason for the dismissal for the following
reasons:
- He was not provided any reason for the dismissal;
- Not wanting to work the 2-hour shifts at the Leo’s site for the contractor is not a valid
reason for dismissal and should not have been a factor in the decision to dismiss him;
- He has a workplace right to express concerns about the work, health and safety of his
workplace conditions, including the ability to effectively clean a worksite in a given
amount of time;
- He remained ready, willing and able to work shifts at both the Barkley Square site
and at other sites and communicated this readiness to the Respondent on numerous
occasions.
[17] Based on the material before the Commission, I am satisfied that on or about 12
November 2022, the Respondent sought to replace Mr Dimkovski at Union Square and that the
Respondent subsequently relayed, through its accountant, Mr Atay’s direction to Mr Dimkovski
to no longer work at Union Square. Further, I am satisfied that after this, Mr Dimkovski was
not offered work or directed to attend work elsewhere and nor was he contacted by Mr Atay. In
these circumstances, I am satisfied that Mr Dimkovski was dismissed by the Respondent.
[18] I am not persuaded there was a valid reason for the dismissal related to Mr Dimkovski’s
capacity or conduct (s.387(a)) and as such, ss.387(b) and (c) do not apply. The evidence before
me suggests Mr Dimkovski completed his shift at Leo’s but Mr Atay did not engage fulsomely
with Mr Dimkovski’s concerns regarding the Leo’s work. In addition, Mr Atay did not appear
to take serious issue with Mr Dimkovski’s actions and nor did he attempt to resolve them
directly one way or another. I am satisfied Mr Atay elected not to directly engage with Mr
Dimkovski after their conversation at the beginning of the week commencing 7 November
- That there was no valid reason for the dismissal related to either Mr Dimkovski’s capacity
or conduct or his unsatisfactory performance weighs in favour of a finding that his dismissal
was unfair.
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7
[19] On the facts before me, neither s.387(d) s.387(e) have application and I can give no
weight either way in relation to ss.387(f) and (g) because the Respondent did not file any
material or attend the hearing to make submissions addressing these factors.
[20] As to s.387(h), I have had regard to unchallenged evidence from Mr Dimkovski that he
was dismissed without notice and have noted his submissionsthat he is the primary breadwinner
for his family and that the dismissal placed him under financial stress. I also note Mr Dimkovski
appears to have been treated very poorly by his former employer in the following respects:
The Respondent twice unilaterally varied terms of his rate of remuneration in what
seemed to be retaliatory moves, firstly because Mr Dimkovski was absent from work
for medical reasons5
and secondly because he had declined to continue working at
Leo’s.6
Mr Dimkovski was not paid his entitlement to one week’s notice upon termination;7
Mr Dimkovski has not been paid the balance of accrued annual leave upon termination
which, from his final payslip, appears to equate to 43.61537 hours;
8
Mr Dimkovski does not appear to have been paid for his two hours of work at Leo’s on
31 October 2022;
9
and
Mr Dimkovski appears to have been underpaid during the course of his employment for
his weekend work a Union Square.
10
[21] These various matters also weigh in favour of a finding that his dismissal was unfair.
Consideration
[22] Having considered each of the matters specified in s.387 of the Act, I am satisfied the
dismissal of Mr Dimkovski was harsh because it would appear the Respondent took a set against
him because he voiced concerns about the requirements for shifts at Leo’s and instead of
discussing and resolving these issues with him, terminated his employment. This followed some
very poor treatment of Mr Dimkovski during his employment.
[23] Further, I am satisfied on the material and evidence before me that the dismissal was
unjust and unreasonable because it had no sound, defensible or well-found basis. There was no
valid reason for the dismissal related to Mr Dimkovski’s capacity or conduct and nor was the
dismissal related to unsatisfactory performance.
[24] Accordingly, I find that Mr Dimkovski’s dismissal was unfair. Mr Dimkovski’s
application for unfair dismissal remedy is therefore granted.”
Dimkovski v Majorsite Property Group Pty Ltd [2023] FWC 726 delivered 27 March 2023 per Clancy DP