Unfair dismissal; valid reason but harsh, unjust or unreasonable

Although reasonably rare, it is quite possible for the Fair Work Commission to conclude, in an unfair dismissal case, that although there a valid reason for the dismissal related to the Applicant’s capacity or conduct, it was nonetheless harsh, unjust or unreasonable, and thus relevantly unfair.

 

(s.387(a))?

[26] To be a valid reason, the reason for the dismissal should be sound, defensible or well

founded and should not be capricious, fanciful, spiteful or prejudiced. However, in assessing

the validity of the reason (s) for dismissal the Commission will not stand in the shoes of the

employer and determine what the Commission would do in the same position. The test is

whether, on the evidence before the Commission, there was a valid reason for dismissal

connected with the employee’s capacity or conduct.

[27] As referred to above, Mr Bright said words in his phone conversation with Mr Moseley

that could reasonably have been interpreted as a threat to Mr Jones. As such, I am prepared to

accept that there was a valid reason for dismissal on 5 December 2022, being that Mr Bright

said words that objectively could have been interpreted as a threat.

[2023] FWC 915

5

Was the Applicant notified of the valid reason (s.387(b))?

[28] Section 387(b) requires me to take into account whether Mr Bright “was notified of that

reason.” Sections 387(b) and (c) direct the FWC’s inquiry to matters of procedural fairness. In

general terms a person should not exercise legal power over another, to that person’s

disadvantage and for a reason personal to him or her, without first affording the affected person

an opportunity to present a case.

[29] In context, the inquiry to be made under s.387(b) is whether the employee was “notified”

of that reason before the employer made the decision to terminate. The reference to “that

reason” is a reference to the valid reason(s) found to exist under s.387(a) and the reference to

being “notified” is a reference to explicitly putting the reasons to the employee in plain and

clear terms.

[30] Mr Bright was not notified of this reason for dismissal before he was dismissed. Mr

Bright was dismissed either in the phone call with Mr Moseley or straight after the call, but

either way he was not specifically told of the reason prior to the dismissal taking effect.

Was the Applicant given an opportunity to respond to any valid reason related to their

capacity or conduct (s.387(c))?

[31] Mr Bright was not given a proper opportunity to respond to the allegations against him

at all.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person

present to assist at discussions relating to the dismissal (s.387(d))?

[32] This factor is not a relevant consideration in this matter.

Was the Applicant warned about unsatisfactory performance before the dismissal

(s.387(e))?

[33] As the dismissal did not relate to unsatisfactory performance, strictly speaking this

factor is not relevant to the present circumstances.

To what degree would the size of the Respondent’s enterprise be likely to impact on the

procedures followed in effecting the dismissal (s.387(f))?

[34] Neither party submitted that the size of Turners Civil’s enterprise was likely to impact

on the procedures followed in effecting the dismissal and I find that the size of Turners Civil’s

enterprise had no such impact.

To what degree would the absence of dedicated human resource management specialists

or expertise in the Respondent’s enterprise be likely to impact on the procedures followed

in effecting the dismissal (s.387(g))?

[35] Turners Civil does not appear to employ or engage any a dedicated human resource

management specialist. When matters rapidly escalated on the Monday morning Turners Civil

would hopefully have benefitted from advice from a sensible human resource management

specialist that might have averted the dismissal altogether and avoided Mr Bright’s hostile

messages as he became angrier.

[2023] FWC 915

6

What other matters are relevant (s.387(h))?

[36] Section 387(h) requires the Commission to take into account any other matters that the

Commission considers relevant.

[37] Given the above context, particularly the context in which Mr Bright had de-escalated

earlier hostile encounters with Mr Jones and had asked for help from Turners Civil which had

not come (at least as far as Mr Bright saw it), I am not satisfied that Mr Bright intended to make

any threat against Mr Jones in his conversation with Mr Moseley.

[38] Mr Moseley took no steps to de-escalate the situation on the Monday morning. To be

fair to Mr Moseley, the hostility from Mr Bright started very quickly after the phone call ended.

The SMS from Mr Moseley to Mr Bright at 7:41am is not in evidence. It seems from the

evidence that Mr Bright sent an SMS to Mr Moseley at 7:52am that included the words “you

lying dog”. Later messages are worse.

[39] Further, and again in fairness to Mr Moseley, he had taken steps in his phone

conversation with Mr Bright on Friday, 2 December 2022 to de-escalate the situation when he

urged Mr Bright not to resign and to let Mr Moseley sort out the situation.

[40] However, after Mr Bright made the statement that was interpreted to be a threat, and

before Mr Bright had burned all the bridges with his hostile messages, Mr Moseley should have

interjected and attempted to calm Mr Bright down. He should have given Mr Bright the same

assurances that he gave him three days before that, he would sort the matter out with Mr Jones

without the need for Mr Bright to leave his employment.

[41] Most relevantly, Mr Moseley should have talked to Mr Bright and clarified his earlier

statement about there being a fight if he returned to work.

[42] Mr Moseley did not do any of these things. Instead, he cut Mr Bright loose from

employment without any warning and without clarifying Mr Bright’s words.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or

unreasonable?

[43] I have made findings in relation to each matter specified in section 387 as relevant. I

must consider and give due weight to each as a fundamental element in determining whether

the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.

[44] Mr Bright was agitated about the incident that took place on Friday 2 December 2022.

He was obviously still agitated about it on the Monday morning. He had told his employer a

number of times that another employee was threatening to fight him and he was frustrated by

the employer’s inaction.

[45] It is very likely that Mr Bright spoke aggressively to Mr Moseley however Mr Moseley

did not appear to understand the context in which this aggression appeared. In the three

incidents on site over the previous six months Mr Bright had not engaged in any violence

towards Mr Jones and had in fact done exactly what he should have done – de-escalated each

situation and reported it to someone in authority in the expectation that they would intervene to

[2023] FWC 915

7

prevent actual violence. Mr Bright did not call Mr Moseley in order to threaten workplace

violence, he rang Mr Moseley to prevent workplace violence.

[46] In this context, and even though Mr Bright spoke aggressively to Mr Moseley, his

dismissal was harsh and unreasonable.

[47] Mr Bright’s unsatisfactory behaviour after he was advised of his dismissal by SMS

cannot and does not justify the dismissal. Mr Bright’s behaviour meant that he could never

return to his employment, but it does not prove that he should have been dismissed.

[48] Having considered each of the matters specified in section 387 of the FW Act, I am

satisfied that the dismissal of Mr Bright was harsh, unjust and unreasonable.

Remedy

[49] Under the Act I have the discretion to order that Mr Bright be reinstated, or to order that

Turners Civil pay compensation to him, or I can choose to make no order at all.

[50] Mr Bright did not seek reinstatement and it would not be appropriate in any event.

[51] In all the circumstances, I consider that an order for payment of compensation is

appropriate to compensate Mr Bright for financial losses he has suffered arising from being

unfairly dismissed.

[52] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken

into account when determining an amount to be paid as compensation in lieu of reinstatement

including:

(a) the effect of the order on the viability of the Respondent’s enterprise;

(b) the length of the Applicant’s service;

(c) the remuneration that the Applicant would have received, or would have been likely to

receive, if the Applicant had not been dismissed;

(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant

because of the dismissal;

(e) the amount of any remuneration earned by the Applicant from employment or other

work during the period between the dismissal and the making of the order for

compensation;

(f) the amount of any income reasonably likely to be so earned by the Applicant during the

period between the making of the order for compensation and the actual compensation;

and

(g) any other matter that the Commission considers relevant.

[53] I will consider these factors in sequence:

  1. a) there is no dispute and I am satisfied that an order for compensation would not have an

effect on the viability of the employer’s enterprise;

  1. b) Mr Bright’s length of service was more than one year, which is not insubstantial and

slightly favours a greater amount of compensation;

[2023] FWC 915

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  1. c) if Mr Bright had not been dismissed on 5 December his employment would have

finished on 17 December 2022 in accordance with the two weeks’ notice he gave on 3

December 2022. Mr Bright probably hoped that his resignation would prompt some

more decisive action from Turners Civil and lead to him staying on, however I am not

prepared to assume that the employment would have in fact lasted any longer than the

notice period given by Mr Bright;

  1. d) Mr Bright found work in the new year but was not able to mitigate his loss of two weeks’

pay;

  1. e) the amount of income reasonably likely to be earned by Mr Bright between the making

of the order for compensation and the payment of compensation is not directly relevant;

and

  1. f) there are no other directly relevant matters.

[54] By application of the well-established “Sprigg formula” (see Sprigg v Paul’s Licensed

Festival Supermarket (1998) 88 IR 21) Mr Bright should be paid two weeks’ compensation for

the two weeks he would have otherwise worked except for the fact that he was unfairly

dismissed.

[55] I am satisfied that two weeks’ compensation takes into account all the circumstances of

the case as required by s.392(2) of the FW Act and that “the level of compensation is an amount

that is considered appropriate having regard to all the circumstances of the case” (per Double

N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206 at [17]).

[56] In this matter the amount of the order for compensation is not to be reduced on account

of misconduct (per s.392(3)).

[57] In light of the above, I will make an order that Turners Civil pay $2,800 gross less

taxation as required by law to Mr Bright in lieu of reinstatement within 21 days of the date of

this decision, plus an additional component for superannuation (PR761185).”

 

Bright v Turners Civil Pty Ltd [2023] FWC 915 delivered 18 April 2023 per Easton DP