An unfair dismissal case with almost all of the legal issues

The unfair dismissal case from which this extract from  decision of the Fair Work Commission is drawn has it all; covid 19, border closures, questions about valid reason for dismissal and frustration of contract, and reinstatement of employment.

“Conclusion

[184] There is nothing about Mr Prinsloo’s conduct which suggests that he intended to renunciate his employment contract as a whole or his fundamental obligations under it when he did not commence work on 13 July 2021. To the contrary he appeared to take multiple proactive steps to ensure he could attend his shift as rostered and inform his employer that he wished to continue in employment.

[185] He was dismissed when he failed to attend his shift commencing on 13 July 2021. A day for which he had a valid medical certificate.

[186] There is no evidence of a pattern of conduct of failing to attend his roster shifts. In fact the evidence is to the contrary. On multiple occasions Mr Prinsloo relocated two weeks in advance of the start of his rostered shift to ensure that he was able to work when rostered to do so.

[187] Based on the terms of the Enterprise Agreement, his prior experiences and the discussions at the Townhall it was reasonable for him to presume that if he couldn’t get to Western Australia as a consequence of border restrictions he would have the option to take unpaid leave for some period of time before his employment would be at risk.

[188] I am not satisfied that Mr Prinsloo abandoned his employment.

[189] I find, that Mr Prinsloo’s employment with Jadestone was terminated at the initiative of Jadestone.

[190] I am therefore satisfied that Mr Prinsloo has been dismissed within the meaning of section 385 of the FW Act.

Was the Application made within the period required?

[191] Pursuant to section 396 of the FW Act, the FWC is obliged to decide whether an application was made within the period required in subsection 394(2) of the FW Act before considering the merits of an application.

[192] Section 394(2) of the FW Act requires that the Application is to be made within twenty-one (21) days after the dismissal took effect.

[193] It is not disputed, and I find, that Mr Prinsloo was dismissed from his employment on 13 July 2021 and made the Application on 29 July 2021. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.

Was the dismissal harsh, unjust or unreasonable?

[194] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd by McHugh and Gummow JJ as follows:

“…. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”126

[195] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

  1. 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);
  2. whether the person was notified of that reason;
  3. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
  4. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
  5. if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
  6. the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
  7. 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
  8. any other matters that the FWC considers relevant.

[196] Each of these criteria must be considered to the extent they are relevant to the factual circumstances of the Application.127

Was there a valid reason for the dismissal related to Mr Prinsloo’s capacity or conduct?

[197] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”128 and should not be “capricious, fanciful, spiteful or prejudiced.”129 However, the FWC will not stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.130

[198] Where a dismissal relates to an employee’s conduct, the FWC must be satisfied that the conduct occurred and justified termination.131 The question of whether the alleged conduct took place and what it involved is to be determined by the FWC on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.132

[199] The Termination Letter identifies the reason for termination as follows: 133

“RE: Termination for Frustration of Employment Contract

Dear Clinton,

Further to our letter of 8th July 2021, you have failed to make yourself available to mobilise to the facility on 13th July 2021 in accordance with your contractual employment obligations.

The Company has carefully considered all information concerning this matter, particularly the events leading up to your decision to not mobilise for work:

  • On June 27, the Western Australian Government advised that Queensland had been moved to a “low risk” jurisdiction meaning anyone arriving into Western Australia from Queensland would need to quarantine or self-isolate for 14 days.
  • On the morning of June 28, you were contacted by the Montara OIM and requested to mobilise immediately. There were numerous flight options available that day and the following day for you to travel to Western Australia.
  • However, on the same day, June 28, you informed Jadestone that you would not be travelling to Western Australia to undertake 14 days quarantine in advance of your rostered swing commencing on July 13.
  • On the afternoon of June 29, Queensland was then moved to “medium” risk by the Western Australian Government meaning people from Queensland could only travel to Western Australia with a special exemption and would need to undertake 14 days quarantine on arrival.

You therefore had ample opportunity to freely travel to Western Australia, including being specifically requested to do so by the company prior to Queensland being moved to “medium risk” by the Western Australian Government, in order to undertake quarantine and ensure you would be able to mobilise for your roster.

Jadestone has regularly and consistently reminded you and all employees, through direct written advice, townhalls, shift change border updates and/or general employee notices, that if you reside outside of WA you are exposed to fluid border restrictions and at risk of not being able to meet your employment obligations.

We thank you for your service with the Company and wish you all the best in the future.”

[200] Mr Prinsloo was not rostered to mobilise or to commence work on 13 July 2021 in accordance with his contract and the Enterprise Agreement. He was rostered according to a roster unilaterally imposed by Jadestone.

[201] It was Mr Prinsloo who proactively first contacted Jadestone after Queensland was reclassified. Not the other way around.134

[202] The consequence of the reclassification of Queensland by the Western Australian State Government was that Mr Prinsloo needed to leave Queensland and arrive in Western Australia or another location classified as ‘low risk’ by the Western Australian Government before midnight on 28 June 2021 in order to complete a fourteen day quarantine period before commencing his next rostered period of duty. 135 Mr Prinsloo did not have “…ample opportunity to freely travel to Western Australia.”

[203] Mr Prinsloo initially indicated that he intended to travel on 28 June 2021. It was only when he received medical advice that he was not fit that he informed Jadestone that he was not able to travel. 136

[204] Mr Prinsloo did not fail to make himself ‘available’. He experienced a health concern which required treatment and in relation to which he held a valid medical certificate which certified him unfit for work on 13 July 2021.

[205] Of his own initiative Mr Prinsloo repeatedly communicated with his employer his health status during a period of which he was rostered off duty on leave so as to minimise the impact of his health on business operations.

[206] Jadestone did not question the authenticity of his medical condition or his medical certificate prior to his dismissal. Jadestone did not request that he separately provide evidence that he was not fit to travel or quarantine.

[207] On his own initiative Mr Prinsloo sought to obtain a permit to travel as soon as he was medically fit to work.

[208] Contrary to Jadestone’s evidence that Mr Prinsloo’s attendance at work was critical to its operations Jadestone made his attendance at work more difficult by delaying issuing a letter of support and reframing the letter in the way it did.

[209] There is no evidence of a prior pattern of conduct on the part of Mr Prinsloo of failing to attend his roster shifts. In fact the evidence is to the contrary. On multiple occasions Mr Prinsloo relocated two weeks in advance of the start of his rostered shift, notwithstanding the personal costs of doing so, to ensure that he was able to work when rostered to do so.

[210] Based on the terms of the Enterprise Agreement, the discussions at the Townhall and his prior experiences it was not unreasonable for Mr Prinsloo to presume that if he couldn’t get to Western Australia because of border restrictions he would have the option to take unpaid leave and would be assisted by his employer to join the Montara mid roster.

[211] On 10 July 2021 Mr Prinsloo sent Mr Cerlenizza, an email initiating a dispute pursuant to clause 27 of the Enterprise Agreement in relation to the threatened termination of his employment.137 Notwithstanding the existence of a status quo provision in the dispute resolution procedure and its assertion that Mr Prinsloo’s availability to perform his roster was critical to its operations Jadestone proceeded with his dismissal.

[212] Even if Mr Prinsloo had relocated to Perth prior to 28 June 2021 the medical evidence is that he was not fit to commence work until 14 July 2021.

[213] Ultimately I find that Mr Prinsloo was dismissed because he refused to relocate to Perth for an indefinite period. I am not satisfied that this is a valid reason for his dismissal in the circumstances including that:

  1. Mr Prinsloo was hired on fly in fly out basis.
  2. His employment contract recognises that his residential location is outside of Western Australia.
  3. Jadestone did not seek his agreement to vary his contract to make permanent or temporary residence in Western Australia a term of employment.
  4. The incentives offered to Mr Prinsloo to relocate were not proportionate to the request.
  5. In agreeing to the Enterprise Agreement and incorporating it into the common law contract the parties had provided a mechanism to deal with the possibility of an employee being unable to attend their rostered shift. This mechanism was not utilised by Jadestone.
  6. Jadestone did not make adequately clear that failing to relocate would result in dismissal and/or the basis on which it lawfully might.

[214] In support of their assertion that Mr Prinsloo’s inability to attend his shift on 13 July 2021 formed a valid reason for his dismissal Jadestone cite the decision of Commissioner Wilson in Wessley v Toyota Motor Corporation Australia Limited 138. The factual matrix of that case is very different. The Applicant in that case had submitted a false statutory declaration in support of carers leave and had applied for trade union leave in relation to days when he was not entitled to such leave. In Mr Prinsloo’s case there is no evidence that Mr Prinsloo misled his employer about his health or that he was not genuinely unfit.

[215] While it was operationally inconvenient that Mr Prinsloo was unable to commence his shift as rostered I am not satisfied that it is a valid reason for his dismissal.

Was Mr Prinsloo notified of the valid reason?

[216] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,139 and in explicit,140 plain and clear terms.141

[217] The proposed reasons for the decision to terminate Mr Prinsloo’s employment were communicated to him in the 8 July 2021 Letter as follows: 142

“By choosing to stay in Queensland in the lead up to your current swing, should the Hard Border with Queensland persist, and or you are required to undertake 14 days quarantine on arrival into WA, either of which prevents you from making the 13th July crew change, you will not be able to undertake your rostered swing and therefore be in breach of your contractual employment obligations to Jadestone.

As previously communicated to you and all our offshore employees, a situation whereby you are not ready, willing and able to perform your assigned work swing would place your continued employment with Jadestone in jeopardy. A failure to attend and undertake your assigned work enables Jadestone to exercise its contractual right to terminate your employment due to a frustration of our employment contract.

Any termination so actioned would be in accordance with clause 11 Termination of Employment, as outlined within the Jadestone Energy Montara Venture Enterprise Agreement 2021.”

[218] The 8 July 2021 Letter identified the proposed reason for dismissal as a breach of contractual obligations. The Termination Letter identifies the reason for dismissal as “termination for frustration of employment contract”.

[219] In the submissions filed in advance of the Hearing Jadestone identified the reason for dismissal as frustration of contract or in the alternative abandonment of contract. At the Hearing Jadestone abandoned the argument that the contract had been frustrated in favour of an argument that it had been abandoned.

[220] Breach of contract, frustration of contract and abandonment of contract are very different legal concepts. Not identifying the ground upon which Jadestone dismissed Mr Prinsloo until after his dismissal denied him the opportunity to properly respond to the reasons for his dismissal.

[221] I find that Mr Prinsloo was not notified of the reasons for his dismissal before the decision was made to terminate his employment,143 in explicit,144 plain and clear terms.145

Was Mr Prinsloo given an opportunity to respond to any valid reason related to his capacity or conduct?

[222] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.146

[223] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.147 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance, and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.148

[224] Mr Prinsloo was not invited to respond to the reasons for his dismissal.

[225] The 8 July 2021 Letter did not invite a response, although it elicited one from the AWU. It is not clear on the evidence before me whether the AWU did so specifically on behalf of Mr Prinsloo.

[226] Mr Prinsloo independently lodged a dispute notification pursuant to clause 27 of the Agreement. Jadestone did not provide him with this opportunity. It was a right which existed by virtue of the Enterprise Agreement. The dispute notification merely notified of the existence of a dispute. Jadestone did not seek further details of the dispute such that the dispute resolution process might have been characterised as having provided an opportunity for Mr Prinsloo to respond to the reasons for his dismissal.

[227] On 13 July 2021 Jadestone sent Mr Prinsloo the Termination Letter without further discussions with him informing him that his employment had been terminated effective immediately.

[228] I find that Mr Prinsloo was not given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss him being made.

Did Jadestone unreasonably refuse to allow Mr Prinsloo to have a support person present to assist at discussions relating to the dismissal?

[229] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[230] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 149

[231] No discussions were held with Mr Prinsloo in relation to his dismissal, therefore no opportunity arose for him to request that a support person be present or for that request to be denied.

[232] I have therefore treated this as a neutral factor.

Was Mr Prinsloo warned about unsatisfactory performance before the dismissal?

[233] As the dismissal did not relate to unsatisfactory performance, I have treated this as a neutral factor.

To what degree would the size of Jadestone’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[234] Where an employer is substantial and has dedicated human resources personnel, and access to legal advice, there will likely be no reason for it not to follow fair procedures.150

[235] Jadestone is a large business with the financial resources and sophistication such that its size provides no explanation for its failure to observe procedural fairness.

[236] Having found that Jadeston’s size was not likely to impact on the procedures it followed in effecting the dismissal I have therefore treated this as a neutral factor.

To what degree would the absence of dedicated human resource management specialists or expertise in Jadestone’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[237] The absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”151

[238] Jadestone’s enterprise did not lack dedicated human resource management specialists and expertise. In these circumstances the failure to observe procedural fairness is inexplicable.

[239] Having found that Jadestone did not lack dedicated human resource management specialists and expertise I have treated this as neutral factor.

What other matters are relevant?

[240] Section 387(h) requires the FWC to take into account any other matters that the FWC considers relevant.

[241] Mr Prinsloo submits that the following matters are relevant considerations:

  1. Clause 14.1.1 of the Enterprise Agreement
  2. Clause 27 of the Enterprise Agreement

[242] Both clauses of the Enterprise Agreement are incorporated into Mr Prinsloo’s employment contract. 152

[243] Clause 14.1.11 of the Enterprise Agreement specifically contemplates circumstances in which an employee fails to attend for duty: 153

“14.1.11 Should an employee without reasonable excuse fail to report for duty or report for duty unfit for work, they will be suspended without pay until they can either:

▪ Rejoin the facility on a scheduled flight;

▪ Be engaged on alternate useful work at the Company’s option; or

▪ Have the period of suspension approved by the Company, in whole or part, as an approved absence, with or without pay.”

[244] Jadestone submit that clause 14.1.11 “has no part to play” in the FWC’s considerations. Jadestone don’t articulate why. Jadestone go on to submit that clause 14.1.11 does not override the right to dismiss in the event an employee fails to report to duty. Rather they say it confirms that the minimum disciplinary consequence is suspension and emphasises the seriousness of failing to report to duty.

[245] The FWC has no power to enforce this provision of the Agreement or to impose penalties for its breach. However, the existence of the clause is highly relevant to these proceedings. It demonstrates that the parties had turned their minds to the possibility of an employee failing to commence a rostered period of work and that they had agreed a mechanism to deal with such an incident other than by dismissal.

[246] The existence of the clause suggests that the parties contemplated something other than dismissal as a consequence for an employee failing to attend for duty. In fact the clause contemplates Jadestone granting paid leave for such absences. While the clause would not necessarily act as a bar to prevent a contract ever being frustrated the clause must have some work to do. The approval of the Enterprise Agreement and the consequential contractual variation to include it in Mr Prinsloo’s contract all occurred in the course of the COVID-19 pandemic when the parties were aware that absences from work as a consequence of covid disruptions was a real possibility. Arguably the clause decreases the seriousness of a failure to report to duty than might otherwise be the case without such a clause.

[247] Jadestone submit that the dispute resolution procedure was not properly activated by Mr Prinsloo because clause 27.2 of the Enterprise Agreement states that “The employee will raise and discuss the matter with his or her immediate supervisor whilst on the facility” and that therefore a dispute can not be activated while an employee is not on the facility. Furthermore, Jadestone submit that the dispute raised by Mr Prinsloo did not fall with the scope of clause 27 of the Enterprise Agreement.

[248] The Full Bench, in Princess Linen Services Pty Ltd v United Workers’ Union154 at [15] and [16] of its decision explained the principles of interpretation of enterprise agreements as follows:

“The most succinct expression of the correct approach is that articulated by the Federal Court Full Court in WorkPac Pty Ltd v Skene as follows (citations omitted):

“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose…”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”

The Full Court observations are consistent with the approach taken by the Full Bench of this Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri).”

[249] The principles of interpretation applicable to enterprise agreements are well-settled. The terms are to be given their plain and ordinary meaning, read within the instrument as a whole and in light of the instrument’s industrial context and purpose, and against the legislative background against which the instrument was made and is to operate. It is justifiable to read the agreement to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. A Court or Tribunal will not adopt a narrow or pedantic approach to the interpretation of enterprise agreements.155

[250] It is not strictly necessary for me to reach a concluded view as to whether Mr Prinsloo validly initiated a dispute. However, I am inclined to the view that it is unlikely that the parties intended such a strict application of the language used in clause 27 such that an employee would have to travel to the facility in order to commence the process of resolving a dispute relevant to their return to the facility.

[251] Mr Prinsloo described his dispute in the following way: 156

“I wish to advise that I am in dispute with Jadestone regarding their decision to issue me a written warning to terminate my employment with Jadestone as a consequence of my inability to mobilise to Western Australia as a result of a decision by the WA Government to restrict my entry into Western Australia.

I am seeking the Company withdraw their threat to terminate my employment. I am also seeking Jadestone commence discussions with my representative (the Australian Workers Union) about the WA Border restrictions and the impact such restrictions have on the ability for employees to mobilise to the facility.”

[252] The dispute resolution procedure has a broad scope: 157

“The parties commit to making every endeavour to settle issues raised by employees concerning their employment …”

[253] I am inclined to the view that a dispute of the nature raised by Mr Prinsloo comfortably falls within the scope of the dispute resolution procedure set out in clause 27 of the Agreement.

[254] The status quo provision provides that: 158

“27.5 Whilst the above process is being followed the status quo will be preserved and employees will continue to perform their normal duties, subject to safe working practice and without prejudicing the rights of the employee or the Company.”

[255] The status quo clause would have no work to do if the Company was able to simply ignore it and continue the course of action the subject of the dispute. The dispute resolution process could have proceeded without prejudicing the rights of Jadestone to ultimately dismiss Mr Prinsloo once the dispute was resolved.

[256] In my view the existence of clauses 14 and 27 of the Enterprise Agreement weigh in favour of Mr Prinsloo’s dismissal being unfair.

[257] Jadestone submits that the following matters are relevant considerations:

  1. The importance of the roster system.
  2. Jadestone’s efforts to ensure employees were able to perform their rostered shifts
  3. Safety requirements imposed on Jadestone
  4. The volatile border situation
  5. Townhall meeting

[258] These are all matters which are considered earlier in the decision in relation to the question of whether Mr Prinsloo was dismissed and whether his dismissal was for a valid reason. I have also taken them into account when considering whether his dismissal was harsh, unjust or unreasonable more broadly. I also note the following in relation to those submissions:

  1. Jadestone say that the COVID-19 “roster system is fundamental to the employment relationship between Mr Prinsloo and Jadestone…” however Jadestone never sought to enshrine the COVID roster in the Enterprise Agreement or employees’ contracts of employment.
  2. Jadestone say its employees receive a high salary however this reflects the market value of the negative aspects of their employment. They spend lengthy periods away from their families, in a remote and dangerous location with limited opportunities for exercise or entertainment performing long shifts. They, and consequently their families, have limited flexibility to participate in significant events during their rostered periods of work. Whether it is the birth of child, an illness of a family member or the wedding of a best friend. It does not follow that, just because Jadestone employees receive a high salary, the negative aspects can be made worse, or significantly altered, by the unilateral decisions of Jadestone.
  3. Jadestone did not seek any clarification or evidence of Mr Prinsloo’s health prior to his dismissal and should not now criticise him for failing to provide such information particularly given it relates to a period during which he was rostered ‘off duty’.

Conclusion

[259] For the reasons set out earlier in this decision I am view that Mr Prinsloo’s dismissal was procedurally unfair.

[260] Jadestone submit that even if it is accepted that Mr Prinsloo was denied procedural fairness the dismissal was not harsh, unjust or unreasonable given the reasons for his dismissal. Jadestone cite a number of cases in support of this submission. In each of these cases a valid reason was found to have existed for the dismissal. In Scott v Aqua Environmental Pty Ltd 159 the applicant was absent from work on multiple occasions without approval. In Oren v Garry Crick Auto Group160 the applicant failed to perform his duties properly despite training and contrary to law. In De Silva v ExxonMobil Chemical Australia Pty Ltd161 the applicant had consistently failed to perform their duties properly.

[261] In its submissions Jadestone point out that: 162

“In circumstances where the employee is aware of the precise nature of the employer’s concern about his or her conduct and has an opportunity to provide a response, the Commission has previously found the procedural deficiency is not of sufficient significance to render the termination harsh, unjust or unreasonable.

[262] This case is fundamentally different. There was no valid reason for Mr Prinsloo’s dismissal. Mr Prinsloo was not aware of the precise nature of his employer’s concern. Mr Prinsloo was not provided with an opportunity to provide a response, rather, he was forced to create his own by initiating a dispute pursuant to the dispute resolution procedure.

[263] I have considered each of the matters specified in section 387 of the FW Act. I am satisfied that the dismissal of Mr Prinsloo was harsh given the barriers to him securing alternative employment with comparable renumeration given his age and caring responsibilities. I am satisfied that the dismissal of Mr Prinsloo was unjust because it was without a valid reason. I am satisfied that the dismissal of Mr Prinsloo was unreasonable because he had taken steps to ensure his availability for work but was unable to do so due to no fault of his own conduct. Accordingly, I find Mr Prinsloo’s dismissal was unfair.

Remedy

[264] Mr Prinsloo seeks an order that he be reinstated with continuity of service and be compensated the remuneration lost between the date of his dismissal and his reinstatement.

[265] Section 390 of the FW Act sets out the circumstances in which an order for reinstatement or compensation may be made:

“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.”

[266] I am satisfied that Mr Prinsloo was protected from unfair dismissal pursuant to section 382 of the FW Act and was dismissed unfairly.

[267] Reinstatement is the FW Act’s primary remedy for unfair dismissal and must be ordered if sought unless the FWC is satisfied on proper grounds that reinstatement is not appropriate.

[268] In DP World Sydney Limited v Lambley 163 the Full Bench of the FWC said:

“The language of s.390 makes the position pellucidly clear. The Commission “must” order reinstatement unless reinstatement of the person is inappropriate.”

[269] The Directions required the parties to file submissions and evidence in relation to remedy.

[270] Mr Prinsloo submits that reinstatement would be appropriate given the circumstances of his dismissal.

[271] Jadestone submits reinstatement would be inappropriate because it says the relationship of trust and confidence between Jadestone and Mr Prinsloo has been destroyed “… as a result of Prinsloos failure to attend for work as required by Jadestone.” Jadestone submit that this one failure creates a likelihood that additional absences will occur in the future with adverse consequences to Jadestone’s operations. Jadestone say that given Mr Prinsloo’s absence on 13 July 2021 and the controlled border arrangements put in place by the Western Australian Government that further performance by Mr Prinsloo of his contractual obligations would either be impossible or radically different than his contractual obligations. 164

[272] Trust and confidence is a necessary ingredient in any employment relationship. Where trust and confidence have been lost, reinstatement may be impractical. 165

[273] It is not sufficient to merely state there has been a loss of trust and confidence. 166 The reason for the loss of trust and confidence must be ‘soundly and rationally based’.167 The assessment requires the FWC to carefully consider the facts of the matter by scrutinising the basis for any alleged breakdown of trust and confidence. The FWC is entitled to consider the rationality of any attitude taken by a party.168

[274] Jadestone’s assertion that there has been a break down of trust and confidence is evidenced only by the opinion of Mr Reid.

[275] The proper assessment of an alleged loss of trust and confidence in the employment relationship was extensively considered in Perkins v GraceWorldwide (Aust) Pty Ltd 169 (Perkins) In Perkins Wilcox CJ and Marshall and North JJ made the following statement:170

“So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.”

[276] The question of whether the relationship can be restored if the employee is reinstated cannot be answered solely by reference to the views of management witnesses. All of the circumstances should be taken into account. 171

[277] Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement. 172

[278] Mr Prinsloo failed to attend work because he was unfit to do so. Jadestone did not query the veracity of his state of health prior to his dismissal which suggests that it did not believe that it had a basis for suggesting his fitness for work was falsified.

[279] Mr Prinsloo has not demonstrated any pattern or tendency of failing to attend work without lawful excuse.

[280] There is no evidence to suggest that he is likely to fail to attend to work in the future without lawful excuse.

[281] As at the date of this decision the Western Australian Government has removed the hard border and travel between Western Australia and Queensland is now unrestricted.

[282] While it may be embarrassing or frustrating for Jadestone to be required to re-employ a person it believed to have been unsympathetic to the position in which Jadestone found itself and ungrateful for the steps taken by Jadestone to minimise the impact of COVID-19 on its operations I do not think that this makes the restoration of the employment relationship impracticable.

[283] In all of the circumstances I consider that an order for the reinstatement of Mr Prinsloo is appropriate.

[284] Section 391(1) of the FW Act provides that an order for reinstatement must be an order that Jadestone reinstate Mr Prinsloo by:

  1. reappointing him to the position in which he was employed immediately before the dismissal; or
  2. appointing him to another position on terms and conditions no less favourable than those on which he was employed immediately before the dismissal.

[285] There is no evidence before me to suggest that the position in which Mr Prinsloo was employed in immediately before his dismissal no longer exists.

[286] I am satisfied that it is open to me to make an order reappointing Mr Prinsloo within seven days of the date of this decision to the position in which Mr Prinsloo was employed immediately before his dismissal.

[287] Section 391(2) of the FW Act provides that, if the FWC makes an order for reinstatement and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

  1. the continuity of an applicant’s employment; and
  2. the period of an applicant’s continuous service with the employer or, if applicable, the associated entity.

[288] In all the circumstances, particularly that Mr Prinsloo was denied procedural fairness and that no valid reason existed for his dismissal I consider it appropriate to make an order to maintain Mr Prinsloo’s continuity of employment and period of continuous service with Jadestone.

[289] Section 391(3) of the FW Act provides that, if the FWC makes an order for reinstatement and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to an applicant an amount for the remuneration lost, or likely to have been lost, by the applicant because of the dismissal.

[290] Section 391(4) of the FW Act provides that, in determining an amount for the purposes of such an order, that I must take into account:

  1. the amount of any remuneration earned by Mr Prinsloo from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
  2. the amount of any remuneration reasonably likely to be so earned by Mr Prinsloo during the period between the making of the order for reinstatement and the actual reinstatement.

[291] An order to restore lost pay does not necessarily follow an order for reinstatement. The FWC may only make an order if it considers it appropriate to do so and only make an order that the Commission considers appropriate.173 Where an employee has engaged in misconduct, the Commission may refuse to make any order to restore lost pay.174

[292] In all the circumstances, particularly given that Mr Prinsloo was denied procedural fairness and that no valid reason existed for his dismissal, I consider it appropriate to make an order to restore lost pay.

[293] An Order 175 giving effect to this Decision will be issued with this Decision.”

Prinsloo v Jadestone Energy (Australia) Pty Ltd  (2022) FWC 428 delivered 16 March 2022 per Binet DP