TERMINATION OF EMPLOYMENT – merit – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – applicant found to be an employee in previous jurisdictional decision [[2017] FWC 2476] – employment relationship akin to casual with some expectation of ongoing employment and significant degree of mutual flexibility – applicant could elect to fill physiotherapy sessions not utilised by owner/operator of respondent – applicant discussed taking new job with view to work for new employer fulltime in future – respondent subsequently engaged third employee – applicant’s utilisation rate below that desired of respondent – respondent wrote to applicant advising that his services were no longer required – Commission held letter was a dismissal within meaning of FW Act – respondent accepted applicant protected from unfair dismissal – respondent a small business – no warning of any description that applicant risked being dismissed if there was no improvement – Commission not satisfied dismissal was consistent with Small Business Fair Dismissal Code – given nature of role undertaken by applicant, factors going to utilisation rate were relevant to capacity or conduct and capable of consideration as part of assessment of valid reason – held valid reason for dismissal – some exchanges between parties about factors going to utilisation rate and related concerns – applicant not notified of reason for dismissal as contemplated by FW Act – Commission not satisfied applicant given opportunity to respond – applicant not warned about work performance in manner contemplated by FW Act – respondent a very small business – allowance made for this when considering manner and procedures adopted as part of assessment of overall fairness of dismissal – considered impact of dismissal on applicant given all of the circumstances and in context of nature of this particular employment relationship – objective basis of business decisions leading to dismissal also taken into account – in all the circumstances, including consequences for applicant, omission in procedure was unfair – satisfied dismissal unfair – remedy considered – reinstatement not appropriate – rejected respondent’s submission that dismissal could be treated as a redundancy – decision not to backfill applicant’s hours separate and consequential – Commission not prevented from considering compensation beyond that set out in original application – general approach to assessment of compensation confirmed in McCulloch – considered length of service – on balance of probabilities applicant would have remained employed no more than three months including notice period – applicant made extensive efforts to mitigate losses – termination was from supplementary job therefore reasonable to deduct additional remuneration earned in continuing position rather than total earnings from that position – did not accept applicant’s contention that dismissal meant loss of opportunity to have worked additional part-time hours at another practice – appropriate to make order for compensation – amount derived having regard to projected remuneration loss and additional income taking into account other factors identified by Commission – compensation of $2,974 ordered. Mitchell v Uraidla Physio
