Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2024
  4. Gill v WBC Investments Pty. Ltd. - [2024] QIRC 153

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Gill v WBC Investments Pty. Ltd.[2024] QIRC 153

Gill v WBC Investments Pty. Ltd.[2024] QIRC 153

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gill v WBC Investments Pty. Ltd. [2024] QIRC 153

PARTIES:

Gill, Ricky John

(Applicant)

v

WBC Investments Pty. Ltd., as trustee for WBC Investment Family Discretionary Trust, trading as Wide Bay Canopy & Filter Cleaners

(Respondent)

CASE NO:

B/2023/88

PROCEEDING:

Application for recovery of pro rata long service leave

DELIVERED ON:

21 June 2024

HEARING DATE:

27 March 2024

MEMBER:

Butler IC

HEARD AT:

Bundaberg

ORDER:

WBC Investments Pty. Ltd., as trustee for WBC Investment Family Discretionary Trust, trading as Wide Bay Canopy & Filter Cleaners, is to pay Ricky John Gill the sum of $8,315.45 (gross), being the amount of  pro rata  long service leave owed to him, within 28 days.

CATCHWORDS:

INDUSTRIAL LAW – RECOVERY OF  PRO RATA  LONG SERVICE LEAVE – Employee absent from work for an extended period because of injury – whether the employer constructively dismissed the employee – whether the employer unfairly dismissed the employee – the employee is entitled to proportionate long service leave.

LEGISLATION:

Fair Work Act 2009 (Cth) s 536(1)

Industrial Relations Act 2016 (Qld) ss 95, 319, 320, 475, 476

Workers Compensation and Rehabilitation Act 2003 (Qld) s 119A

CASES:

Brown v National Security Proprietors Australia Pty Ltd [2007] 184 QGIG 183

Cerin v ACI Operations Pty Ltd & Ors [2015] FCCA 1654

Cox v Photograve Pty Limited [2008] QIC 54 Schipp & Anor v The Star Entertainment Qld Limited [2019] ICQ 9

Farquhar v Commonwealth of Australia represented by Services Australia [2023] FedCFamC2G 1100

Thomas and Ailua v Virgin Australia Airlines Pty Ltd t/a Virgin Australia [2019] FWC 4464

APPEARANCES:

Mr R.J. Gill, the Applicant in person.

Mr G. Higgins, for the Respondent.

Reasons for Decision

Introduction

  1. [1]
    On 1 November 2023, Mr Ricky Gill ('the Applicant') filed an application seeking proportionate payment of long service leave pursuant to ss 476 and 95 of the Industrial Relations Act 2016 (Qld) ('the Act').
  2. [2]
    The Application named the Respondent as "Gregory Higgins, Wide Bay Canopy and Filter Cleaners," and Mr Higgins represented the Respondent in these proceedings. At the mention held 6 March 2024 I clarified, with Mr Higgins, the identity of the respondent. On 7 March 2024 I ordered that the respondent in these proceedings is WBC Investments Pty. Ltd., as trustee for WBC Investment Family Discretionary Trust, trading as Wide Bay Canopy & Filter Cleaners. For convenience I will refer to it in this decision as "Wide Bay Canopy & Filter Cleaners."
  3. [3]
    Mr Gill was in continuous employment with Wide Bay Canopy & Filter Cleaners from his commencement in June 2014 until his termination took effect.
  4. [4]
    The question is whether an entitlement to proportionate payment of long service leave arose when Mr Gill's employment ended. That necessitates consideration of the length of Mr Gill's continuous service, and when, how, and why the employment ended.
  5. [5]
    Mr Gill says that his employer terminated his employment, either via a constructive dismissal in 2022, or by summary termination in November 2023, and the termination was because of illness or was an unfair dismissal.
  6. [6]
    Mr Higgins says Wide Bay Canopy & Filter Cleaners terminated Mr Gill's employment on 2 November 2023 for serious misconduct, and that the dismissal was not an unfair dismissal.
  7. [7]
    Though the date on which the termination took effect was in dispute in these proceedings, it is not in dispute that Mr Gill last performed work in his job in late 2021.
  8. [8]
    For the reasons that follow I find that:
    1. Wide Bay Canopy & Filter Cleaners summarily dismissed Mr Gill on 2 November 2023;
    2. the dismissal was an unfair dismissal;
    3. Mr Gill was entitled to a proportionate payment for long service leave on termination.

Background

  1. [9]
    Mr Gill commenced employment with Wide Bay Canopy & Filter Cleaners in June 2014.[1] In 2017 he was promoted to the position of General Manager.[2]
  2. [10]
    In December 2020 Mr Gill suffered a lower back injury at work.[3] WorkCover subsequently accepted the claim for that injury and paid weekly compensation.[4] On 10 November 2021 WorkCover Queensland issued reasons for decision to cease weekly compensation for the back injury.[5] It was not in dispute that Mr Gill subsequently commenced a common law claim in respect of that injury.
  3. [11]
    After the back injury Mr Gill returned to work on light duties in April 2021 but ceased working following a "mental breakdown" that occurred in October 2021.[6]
  4. [12]
    On or around 25 October 2021, Mr Higgins took back all company equipment that had been issued to Mr Gill as the manager, including keys, his phone, his tablet, and other office equipment in his possession.[7] Mr Gill's passwords were changed and thereafter he had no access to Wide Bay Canopy & Filter Cleaners' information technology accounts including surveillance cameras.[8]
  5. [13]
    On 16 November 2021 WorkCover accepted that Mr Gill had suffered a secondary psychological injury diagnosis of adjustment disorder with mixed anxiety and depressed mood, which was secondary to the back injury.[9] Mr Gill never returned to his duties following these events. The existence of a psychological injury, and subsequent incapacity for work, are not in dispute.
  6. [14]
    Mr Gill says he was prescribed "various" antidepressants and pain killers.[10] He says that from around November 2021, he struggled with adverse side effects and reactions as he tried different prescription medications until settling on his current prescription in February 2023.[11]
  7. [15]
    On 17 November 2021 Wide Bay Canopy & Filter Cleaners' lawyers, MRH Lawyers, wrote to Mr Gill asking about his "long-term intentions" with respect to his employment. In that correspondence they also advised that, relevantly, Wide Bay Canopy & Filter Cleaners wanted to arrange the return of Mr Gill's personal effects and the collection of the employer's property.[12]
  8. [16]
    On 22 November 2021 Mr Gill responded saying, relevantly:[13]

I have kept your client informed throughout my recovery and as I have advised Mr Higgins in a recent email, I am unfit for duty due to my current mental state. I have also advised Mr Higgins that I am awaiting medical and mental health review regarding a secondary WorkCover claim. With this in mind I cannot make any decisions regarding my future employment with Wide bay canopy and filter cleaners.

Given that I was stripped of my contracted company vehicle, phone and other equipment as well as being locked out of my company email for no apparent reason. I would like to ask the same of Mr Higgins and his intentions regarding my future employment with the company.

…

Mr Higgins was asked to refrain from contacting my wife and myself as his continuous harassment and lack of concern for my wellbeing as well as his continuous requests to breach the conditions set by WorkCover Queensland and Work Focus Australia was causing both my Wife and myself undue anxiety and stress. This is the type of stress inducing situation that I was trying to avoid under medical advisement and I had simply asked for some time to get my mental health inorder.

  1. [17]
    On 20 December 2021 Mr Higgins wrote to Mr Gill as follows:[14]

I wrote to you on 17 November 2021 asking what your future intentions are with respect to your employment with Wide Bay Canopy and Filter Cleaners.

You responded via email on 22 November 2021 noting that you cannot make any decisions, and returned the question to me, asking what my intentions are with respect to your employment.

I have not received any further medical certificates confirming you are unfit for work. Nor have I received any certificates confirming that you are fit to return to work.

I am still therefore unaware what your future intentions are. As I need your duties to be completed, I need to make a decision as to your employment. I therefore provide you with 2 days' notice for you to provide me with any further information that you wish for me to consider before I make my decision. Please understand that my decision may be to terminate your employment due to an inability to perform your duties, or abandonment of employment.

Please send your response via email.

  1. [18]
    On 24 December 2021 Mr Higgins wrote to Mr Gill again as follows:[15]

I note that I have written to you several times now asking what your intentions are with respect to your employment. Whilst I have received return emails from you, I have not received any direct response to that question.

I understand from WorkCover that your claim was finalised several weeks ago. I did not receive any update from you between the finalisation of your WorkCover claim and your email of 22 December 2021 asking for sick leave to be paid out. During that period, you did not attempt to attend work or provide me with any explanation of your absence. I consider that during that period you abandoned your employment.

  1. [19]
    On 1 January 2022 Mr Gill wrote to Mr Higgins relevantly as follows:[16]

As I have received no response to emails sent on 22/12/2021, 27/12/2021 and 30/12/2021, it appears you may have overlooked this matter. The lack of action in relation to this matter has, and continues to have, a significant impact on my physical and mental health.

As I have received no response, I have no alternative than to seek assistance from agencies such as the Fair Work Ombudsman and the Queensland Police, and will be seeking legal representation.

…

I also assume that I am still employed by Wide Bay Canopy and Filter Cleaners as I have not been informed otherwise. …

It is unfortunate that this matter has not been actioned, leaving me no alternative but to pursue all legal avenues at my disposal to ensure this matter is dealt with appropriately.

  1. [20]
    The emails of 27 December 2021 and 30 December 2021 are also not before the Commission. There were some subsequent emails and then on 2 February 2022 Mr Gill wrote to Wide Bay Canopy & Filter Cleaners' lawyers, relevantly as follows:[17]

As I have not received any response from this office to any of my previous emails, I can only assume that you're not receiving them and not forwarding the information to your client. If I don't receive a response to this email, I will forward future communications with Mr Higgins directly.

Please find attached medical certificate and forward to your client.

Also provide me with an update to the following.

My current employment status with wide bay canopy and filter cleaners.

My employment start date.

Employer's intentions regarding sick leave entitlements.

  1. [21]
    On 7 February 2022 Mr Gill wrote to Mr Higgins as follows:[18]

As your lawyer has ignored all previous correspondence, I'll be sending future communications directly to you.

Please find attached medical certificate covering my absence from work until 01/03/2022.

Also provide me with update the following.

My current employment status with wide bay canopy and filter cleaners. If you are maintaining that I have abandoned my employment then please provide evidence of this as you have been provided with certificates to explain my absence from work on medical grounds.

My employment start date.

Your intentions regarding sick leave entitlements as you've refused to answer enquiries from Fair Work.

  1. [22]
    On 8 February 2022 Wide Bay Canopy & Filter Cleaners' lawyers responded:[19]

My client confirms that your employment commenced on 27 June 2014 as a casual employee. On 1 July 2017 your employment converted to a permanent arrangement.

Please forward to us your contact person at the Fair Work Ombudsmen's office, along with any reference number, and we will make contact with them directly.

  1. [23]
    As can be seen from the foregoing there was no response to the question about the status of Mr Gill's employment.
  2. [24]
    In or around January or February 2022, Wide Bay Canopy & Filter Cleaners paid out Mr Gill's annual leave and personal (sick) leave.[20] Though the amount of the sick leave entitlement was in dispute, the fact that there was a payout was not.
  3. [25]
    On 23 February Wide Bay Canopy & Filter Cleaners' lawyers told Mr Higgins that Fair Work had said they would not be taking any more action in relation to Mr Gill's matter.[21]
  4. [26]
    On 4 March 2022 Kartelo Law wrote to Wide Bay Canopy & Filter Cleaners via its lawyers on Mr Gill's behalf. That correspondence was a letter of demand for unpaid sick leave. Relevantly the letter stated, "Our client continues to be employed by you."[22]
  5. [27]
    On 8 March 2022, the Wide Bay Canopy & Filter Cleaners' lawyers wrote to Mr Gill's lawyers.[23] Though there is a letter dated 8 March 2022[24] before the Commission, it is likely that letter is incorrectly dated and is actually the letter of 1 April 2022.
  6. [28]
    On 14 March 2022, a Medical Assessment Tribunal ('MAT') decision was issued in relation to Mr Gill's psychological injury. [25] The MAT found his psychological condition was stable and stationary and that he had sustained a degree of permanent impairment. It found he had a moderate impairment in relation to employability and could not work at all in the same position due to emotional symptoms, but could undertake some work in a different, less demanding role for less than 20 hours per week.
  7. [29]
    Also, on 14 March 2022[26] Mr Gill attended at the office. He describes the attendance as follows:[27]

I had entered the workplace during regular business hours via an open gate and entered the office via an unlocked roller door where I proceeded to collect my personal belongings before leaving. I did not gain entry to the building by force, and there was no employees on site at the time.

  1. [30]
    Mr Higgins described this occurrence as a "break and enter." He says he referred it to the police.[28] Mr Gill says Mr Higgins attempted to have him charged with serious crimes of theft, breaking and entering, and trespassing three times, and that on each occasion police declined to press charges.[29]
  2. [31]
    Mr Higgins cross-examined Mr Gill about this attendance:[30]

… did you break and enter into my workplace and took your desk and other belongings where we were supposed to exchange it by lawyers’ letters?---I didn’t agree to any exchange and, as an employee, I thought I had every right to be there. It was, in fact, my office.

But we’re in a dispute, and you were told not to come on the premises – you - - -?---I was - - -

By my lawyer?---You never told me not to come in. There was no - - -

So you just - - -?--- - - - communication to that effect.

 …

You obviously went into my yard with no one there and took your belongings?---I went into my place of employment. Yes.

…

  1. [32]
    And subsequently:[31]

So you admitted walking into the workplace and taking your stuff?---Yes.

And you even stole WorkCover desks and chairs that they provided the workplace?---They were provided to me by WorkCover, so yes. They were mine. I checked with WorkCover.

So you took that as well?---Yes.

Okay. Did I come into your house, Mr Gill, and take my stuff you bought on eBay for the business?---Not that I’m aware of. No.

  1. [33]
    The desk was later sold via Facebook.[32]
  2. [34]
    Mr Gill's application describes 1 April 2022 as his last paid date of employment. He said his last pay slip was around April 2022,[33] other than those provided in bulk on a USB in late 2023.[34]
  3. [35]
    The termination letter[35] indicates correspondence was sent from Wide Bay Canopy & Filter Cleaners' lawyers to Mr Gill's lawyers on 1 April 2022. There is a letter before the Commission from Wide Bay Canopy & Filter Cleaners' lawyers wrote to Mr Gill's lawyers dated 8 March 2022[36] but it is likely this date is incorrect, and this is actually the letter of 1 April 2022. This letter was marked "without prejudice" but Mr Higgins sought to have it admitted and Mr Gill consented. That letter related to Mr Gill's claim in relation to personal (sick) leave. Regardless of whether I am right about the date of the letter, the significance of it is that the letter did not refute Kartelo Law's earlier assertion, in the letter of 4 March 2022,[37] that Mr Gill continued to be employed by "you" i.e., Wide Bay Canopy & Filter Cleaners.
  4. [36]
    Wide Bay Canopy & Filter Cleaners says that on 16 April 2022 Mr Gill stole a padlock from a fence at its premises. CCTV footage is before the Commission.[38] I have reviewed the footage and make the following observations:

07:35:17

The video is in colour and is date and time stamped. It shows a largely empty outdoor bitumen car park, about 20 m x 20 m. In the foreground is a yellow-topped wheelie bin. In the background, on one side of the carpark, there is a blue wall, and to the right, adjacent and perpendicular to that wall, there is a black fence, about 2 m high, with narrow palings. The far end of the fence (nearest the blue wall) has a sliding gate, which is open. The opening appears to be about 2 m to 4 m wide. Mr Gill can be seen through the fence at the top of the screen. At this point he seems to be about 30 m from the camera

07:35:17 - 07:35:23

At the top of the screen, Mr Gill is seen, through the fence, walking a small, white dog. He is mostly looking in towards the carpark. He puts his right hand up to around his face.

07:35:23 - 07:35:26

Seen towards the top of the screen, heading towards the right of the screen, Mr Gill walks past the open gate and can be seen head to toe, along with his dog. About half-way across the opening he turns his head to look straight ahead, instead of into the carpark.

07:35:26 - 07:35:28

Mr Gill keeps walking, looking straight ahead until 07:35:28, at which point he keeps walking but turns his head inwards towards the car park and upwards to where the edge of the gate meets the fence, and raises his right arm.

07:35:29 - 07:35:30

Slowing and stopping only briefly, Mr Gill appears to take something off the top of the gate or fence using his right hand, and then keeps walking. His left hand continues to hold the dog's lead throughout the video. Mr Gill does not slow or stop long enough to unlock a padlock and nor is the video close enough to see whether it is a padlock that is taken.

07:35:31 - 07:35:35

Mr Gill, looking straight ahead and then turning his head again to look inwards, keeps walking to the edge of the frame (the right edge of the screen).

  1. [37]
    At all times Mr Gill seems to be at least 20 m to 30 m from the camera. From that distance it is not possible to see what it is he seems to take off the gate or fence.
  2. [38]
    Mr Gill said in relation to this issue:[39]

I was aware that Mr Higgins attempted to have me charged for theft at this time, as I was interviewed by police regarding the matter. I explained to the police that I had no recollection of the incident and was shown the recording that Mr Higgins has supplied as evidence. I was pretty shocked and embarrassed to see that, and I agreed to pay for the replacement padlock and associated keys there and then.

… The police returned to me a few days later with an invoice from Mr Higgins that I paid and gave the remittance to the officer before he left. The officer told me at the time that that was the end of that matter. Neither Mr Higgins nor his lawyer made any mention of that incident until Mr Higgins’ letter on the 2nd of the 11th 2023, over 18 months after the alleged theft, and after my instigating proceedings with the Industrial Relations Commission.

I was not provided a copy of the video evidence until Mr Higgins was directed to do so by the Commissioner on the 6th of the 3rd ’24. After reviewing the clip, obviously, something has happened there, but I can’t see a padlock or anything in that. As I have no recollection of it, I don’t really know what more to add to that.

  1. [39]
    On 17 August 2022, Mr Gill transferred $80.00 to Wide Bay Canopy & Filter Cleaners with the reference "gregory padlock".[40]
  2. [40]
    Mr Gill cross-examined Mr Higgins about this issue:[41]

In relation to the padlock, why did you not make any attempt to make any contact with me to let me know that this had happened or - - -?---It was a criminal act what you done, stealing, so I let the police know, and we done a police report on it, and the police came to me. It wasn’t just a padlock. You stole that at Easter and left the yard wide open, and I was in Yeppoon, so I couldn’t lock my yard for three days until I got back, and it was a police matter, so they dealt with it.

So as an employer, you didn’t feel that I needed to know about it - - -?---And it’s not a lawyer - - -

- - - from you?---He’s only my employment lawyer. He’s not my criminal lawyer, and you’d done a criminal act.

So didn’t think I should have been notified by yourself that this misconduct had occurred and that you wanted to address it at some point?---Well, I just let the police handle it, Mr Gill.

They did, and they - - -?---They did. Yes.

- - - dismissed the matter?---They dismissed the matter because I wanted to get you charged, because I had eight keys to that padlock, and you left my yard wide open for more theft. The police said it’s not worth pursuing it through the courts because they are too busy, basically, and he said, “If Mr Gill pays the money back, are you happy with that?” So I said, “No, I’m not,” and that’s why they didn’t pursue it anymore, because the police are too busy to worry about - - -

So you accepted it?---The police?

You accepted the police’s findings?---Well, you stole the padlock, and you paid for it, so if you didn’t pay for it - - -

Well, I paid for a padlock, yeah, but it was never stolen?---If you didn’t pay for it, 25 you didn’t steal it; correct?

Well, I didn’t want the issues, so I was – it looked like there was something taken. I - - -?---Because you stole it.

Well, I don’t know. I don’t remember.

  1. [41]
    Mr Gill ceased receiving remuneration and pay slips from Wide Bay Canopy & Filter Cleaners in around April 2022.[42] Wide Bay Canopy & Filter Cleaners subsequently provided a USB containing further pay slips in mid-November 2023,[43] after sending the termination letter on 2 November 2023.[44]
  2. [42]
    Though Mr Gill provided a statement from his wife relating to late 2022,[45] he did not call his wife as a witness, so I have not taken this statement into account.
  3. [43]
    On 15 May 2023 Mr Gill and Mr Higgins had a verbal altercation. In that regard:
    1. Wide Bay Canopy & Filter Cleaners provided a signed statement from another person[46] but did not call him to give evidence.
    2. Wide Bay Canopy & Filter Cleaners also provided a still frame from CCTV showing the same car park as the CCTV of 16 April 2022, but with the camera turned slightly to point more directly towards the blue wall, showing less of the fence and footpath.[47] The still frame sheds no light on the altercation.
    3. Mr Higgins' evidence was that Mr Gill had called him an "f-wit" in front of one of Wide Bay Canopy & Filter Cleaners' workers,[48] though having regard to the submissions[49] and the termination letter I take this as meaning that Mr Gill had used the full profanity. Mr Higgins says Mr Gill had also said "I have only just started, I haven't finished with you yet."[50]
    4. Mr Gill's evidence was that the incident occurred on the public footpath, that Mr Higgins had driven the company vehicle out of the premises toward him on the footpath, before stopping and getting out the car, abusing Mr Gill, and then locking his gate.[51]
  4. [44]
    On 28 August 2023 Mr Gill's common law claim was settled.[52]
  5. [45]
    On 23 October 2023, Mr Gill sent correspondence entitled "Final Letter of Demand" to Wide Bay Canopy & Filter Cleaners, in relation to unpaid employee entitlements.[53] That letter of demand related to Mr Gill's claims of unpaid personal (sick/carers') leave, pro-rata long service leave, failure to provide four weeks' notice, and superannuation on those amounts.
  6. [46]
    After close of business on 31 October 2023 Mr Gill sent the initiating application in these proceedings to the Industrial Registry. It was taken to be filed the following day, 1 November 2023. That application alleged that his employment had been terminated in April 2022. The Industrial Registry provided a copy of the application to Wide Bay Canopy & Filter Cleaners the day of filing, 1 November 2023.
  7. [47]
    On 2 November 2023, Wide Bay Canopy & Filter Cleaners issued the termination letter. That letter asserted Wide Bay Canopy & Filter Cleaners had not previously terminated Mr Gill's employment. The letter said that Mr Gill's employment was terminated "effective immediately and without notice."[54]
  8. [48]
    Mr Gill sent a letter of the same date in response.[55] In that letter, Mr Gill:
    1. asserted he had previously been constructively dismissed, because of:
      1. (i)
        Wide Bay Canopy & Filter Cleaners and its lawyers having 'refused to reply to multiple requests' for his 'employment status';
      2. (ii)
        Mr Higgins having attempted to have him charged for trespass for collecting personal effects from his place of employment; and
      3. (iii)
        "other behaviours you have displayed";
    2. took issue with the content of the letter of 2 November; and
    3. re-asserted his claims of underpayment.
  9. [49]
    After reading the application filed 1 November 2023, the Industrial Registrar referred this matter to conciliation, and a conference was held before another Industrial Commissioner. Conciliation did not yield a settlement and the matter was allocated to me for hearing and determination. I conducted a hearing in Bundaberg. At the conclusion of the hearing the parties were provided with an opportunity to provide their closing submissions in writing, after the hearing, and dates were fixed for that purpose.

Legislation

  1. [50]
    The Industrial Relations Act sets out the entitlement for payment of long service leave for periods of ten years or more, and for proportionate payment for periods of continuous service where an employee has completed at least seven years continuous service where other specific conditions are met. Section 95 of the Act relevantly provides for a proportionate payment on termination if the employee has completed at least 7 years' continuous service, and, relevantly, the termination is because the employer:[56]
    1. dismisses the employee because of the employee's illness;
    2. dismisses the employee for another reason other than the employee’s conduct, capacity, or performance;
    3. unfairly dismisses the employee.
  2. [51]
    In this case Mr Gill says he was constructively dismissed because of his illness in or around April 2022, or alternatively he was unfairly dismissed in November 2023. As to the unfairness issue, section 316 of the Act provides that a dismissal is unfair if it is harsh, unjust, or unreasonable, and section 320 provides for various matters that are to be considered in determining if a dismissal was harsh, unjust, or unreasonable.
  3. [52]
    Section 476 of the Industrial Relations Act provides for an applicant to apply for orders pursuant to s 475 for recovery of unpaid wages.

Parties' submissions

Applicant

  1. [53]
    Mr Gill initially submitted that Wide Bay Canopy & Filter Cleaners had constructively terminated his employment on or around 1 April 2022, which his application describes as his last paid date of employment. He said his last pay slip was around April 2022.[57] He says that Wide Bay Canopy & Filter Cleaners should have not stopped paying him at that point because in his view he had  unpaid sick leave that had accrued over the course of the employment.[58] He says that Mr Higgins' "abusive nature" and "multiple attempts to file charges" led him to believe that his position was no longer tenable.[59] Mr Gill argues that his employment was brought to an end because of his permanent injury and mental health conditions.[60] In response to Wide Bay Canopy & Filter Cleaners' claim that Mr Gill's LinkedIn profile showed he still considered himself to be employed by them beyond April 2022, he said he no longer used LinkedIn.
  2. [54]
    Mr Gill argued that, in the alternative, if the termination had been effected by the letter of 2 November 2023 it was an unfair dismissal. In his closing submissions he said he was prepared to "accept" Wide Bay Canopy & Filter Cleaners' claim that the termination date was 2 November 2023, [61] though as those same submissions made arguments in support of his initial submission, I take this as being intended to mean that he accepted this in the alternative to not instead of his primary claim.  
  3. [55]
    He says that the letter of termination was provided only after he had sent his letter of demand on 23 October 2023 and after he had filed these current proceedings on 1 November 2023. He argues that the letter of 2 November 2023 was an intentional attempt to avoid paying his employee entitlements.[62]
  4. [56]
    In answer to a submission from Wide Bay Canopy & Filter Cleaners, Mr Gill says the letter of 23 October 2023 was not the first Wide Bay Canopy & Filter Cleaners had heard from him. Mr Gill refers to various exhibits in support of that submission.[63]
  5. [57]
    As to the termination letter of 2 November 2023 Mr Gill says:
    1. This was the first occasion on which Wide Bay Canopy & Filter Cleaners had raised the alleged misconduct with him, and that Wide Bay Canopy & Filter Cleaners gave him no chance to address the issues.[64]
    2. He has not admitted to any theft or misconduct.[65] The termination letter was not issued until after these proceedings were commenced and he has challenged it throughout these proceedings.[66]
    3. Wide Bay Canopy & Filter Cleaners had had ample time to raise the issues referred to in the letter of 2 November 2023 with him before that date[67] and had failed to act within a reasonable time. Wide Bay Canopy & Filter Cleaners was obliged to act fairly and within a reasonable amount of time regardless of Mr Higgins' personal circumstances.[68]
    4. His WorkCover claim had finalised in November 2021, and he had not received WorkCover payments since then.[69]
    5. Wide Bay Canopy & Filter Cleaners failed to consider mitigating factors including Mr Gill's mental health issues and the fact that there had been no other instances of misconduct or disciplinary action during his service.[70]

Respondent

  1. [58]
    Wide Bay Canopy & Filter Cleaners says it did not terminate Mr Gill's employment on 1 April 2022, or, if it did, the termination was not "done unfairly."[71]
  2. [59]
    It argues he remained employed, as an unpaid worker, and that he could not be dismissed because he was "on WorkCover."[72] It points to Mr Gill's LinkedIn profile as showing he still considered himself to be employed beyond April 2022. It says Mr Gill had provided no evidence that his employment had been terminated in 2022.[73] It submits it did not terminate Mr Gill's employment until 2 November 2023,[74] and that it terminated his employment at that time for serious misconduct.[75]
  3. [60]
    As to why Wide Bay Canopy & Filter Cleaners waited until 2 November 2023 to terminate Mr Gill's employment, Wide Bay Canopy & Filter Cleaners relies on various reasons, which are discussed below. As to the reasons for termination on 2 November 2023, Wide Bay Canopy & Filter Cleaners initially submitted:

4) Subsequent Termination on 2 November 2023

…

d) On 2 November 2023, the Respondent wrote to the Claimant raising two incidents of serious misconduct. The first incident relates to the Claimant's theft of a padlock from the gate of the business premises on 16 April 2022. This incident has been captured on our security camera.

e) The second incident relates to an interaction between the Claimant and the Respondent on 15 May 2023, where the Claimant attended the workplace, uninvited and not in a state where he was ready to work as he was still injured and on WorkCover, and called the Respondent, in an aggressive manner, a 'fuck wit'. This was witnessed by another employee by the name of Mr John Parker.

f) Additionally threats in exchange for money have been issued by the claimant sent directly to respondent dated 23 October 2023.

g) For these reasons, the Claimant's employment was terminated on 2 November 2023.

  1. [61]
    It says that if the Commission accepts that the termination occurred on 2 November 2023, then the employment was terminated for serious misconduct. It argues that pursuant to s 95(4)(c)(ii), pro-rata long service leave is not payable.
  2. [62]
    It says further that Wide Bay Canopy & Filter Cleaners acted fairly in the termination of 2 November 2023. It relies upon a decision of the Fair Work Commission in relation to theft by an employee.
  3. [63]
    As to why it had simply relied upon the alleged serious misconduct as a basis for termination without first providing Mr Gill with an opportunity to respond, Wide Bay Canopy & Filter Cleaners submitted it did not feel an opportunity was required because there was "clear video footage of the lock theft," and it (via Mr Higgins) "was on the receiving end of the "fuck wit" comment."[76] Therefore, in its view, Wide Bay Canopy & Filter Cleaners had the highest and best evidence available and a decision could be made.
  4. [64]
    In submitting the dismissal was not an unfair dismissal, Wide Bay Canopy & Filter Cleaners made brief submissions as to each of the limbs of s 320 as follows:[77]

S. 320(a) - Notified of the Reason - the Claimant was notified of the reasons

S. 320(b)(i) - Operational Requirements - this is not applicable to the present case

S. 320(b)(ii) - Conduct - the termination was as a result of the Claimant's conduct and that conduct of theft was serious.

S. 320(c)(ii) - Opportunity to Respond - the Claimant had every opportunity to respond to the letter of 2 November 2023 but did not.

S. 320(c)(ii) does not state that the opportunity must be before termination occurs. In any event, the evidence available to the Respondent was such that it could not have been contradicted by the Claimant.

S. 320(d) - Any Other Matter - no other matters have been raised pursuant to s. 320(d) of the Act.

S. 320(2)(b) - Unlawful - The Commission is given the power to decide a dismissal was not harsh, unjust or unreasonable, if the employees conduct was unlawful. In the present case the conduct of theft is clearly unlawful … It is therefore open to the Commissioner to decide that the termination was not unfair.

(Paragraph numbering omitted)

  1. [65]
    Wide Bay Canopy & Filter Cleaners also submits in its closing submissions that the termination letter has not been contradicted "until now."[78]
  2. [66]
    Wide Bay Canopy & Filter Cleaners, in its closing submissions, also raised a jurisdictional objection, that Mr Gill could not rely on s 95(4)(c)(iii) without first making an unfair dismissal application. As Wide Bay Canopy & Filter Cleaners is self-represented the Commission referred Mr Higgins to Cox v Photograve Pty Limited [2008] QIC 54 and Schipp & Anor v The Star Entertainment Qld Limited [2019] ICQ 9 and invited him to indicate whether he wanted any further opportunity to make submissions specifically about this issue. He responded by email, indicating the issue should still be considered. I did not take this as a request for leave to make further submissions.

Conciliation

  1. [67]
    Throughout this matter Wide Bay Canopy & Filter Cleaners repeatedly attempted to rely upon an admission said to have been made by Mr Gill during conciliation.[79] If any such admission was made, and I make no finding in that regard, Wide Bay Canopy & Filter Cleaners could not rely upon it (absent Mr Gill's consent),[80] as was made clear to Mr Higgins.[81]

Consideration

  1. [68]
    The first question is whether Mr Gill had completed sufficient continuous service for s 94 of the Industrial Relations Act to apply.

What is the service requirement and potential proportionate payment?

  1. [69]
    The long service leave entitlement is relevantly as follows:[82]
    1. An employee who has completed at least 7 years' continuous service is entitled to a proportionate payment for long service leave on the termination of the employee’s service under certain conditions.
    2. Proportionate payment means a payment equal to the employee’s full pay for a period that represents the same proportion of 8.6667 weeks that the employee’s period of continuous service bears to 10 years.
  2. [70]
    Before considering how the employment ended, and whether its cessation gave rise to an entitlement to payment for long service leave, it is first necessary to consider whether Mr Gill had completed at least 7 years' continuous service.
  3. [71]
    Continuous service is determined in accordance with Part 4 of Chapter 2 of the Industrial Relations Act.[83] Section 134 falls in that part and provides for how different types of leave affect continuity of service. No party has submitted that any applicable industrial instrument provides for unpaid leave to count as service and nor am I aware of any. Accordingly, the effect of s 134 is that while periods of authorised unpaid leave do not break continuity of service, they also do not count towards continuous service. For that reason, Mr Gill's periods of unpaid leave do not count towards continuous service.
  4. [72]
    The period of employment was 14 June 2014 to 2 November 2023 (494 weeks). The relevant periods of absence on unpaid leave were:[84]
    1. 18 December 2020 to 4 May 2021 (around 19.57 weeks); and
    2. 22 October 2021 to 2 November 2023 excluding around 14.39 days' paid leave in early 2022 (around 103.8 weeks).
  5. [73]
    This is a total period of unpaid leave of 123.37 weeks. Continuous service was therefore 370.63 weeks or 7.1275 years.
  6. [74]
    Having established that, the next question is how Mr Gill's employment ended and if so, whether its cessation gave rise to a right to payment for long service leave on a pro rata basis.

Was Mr Gill constructively dismissed for reason of illness in 2022?

  1. [75]
    Wide Bay Canopy & Filter Cleaners has not asserted, in these proceedings, that Mr Gill abandoned his employment. Nor has either party argued that the employment contract was frustrated by Mr Gill's incapacity, and if such an argument had been made it would have been unlikely to succeed.[85]
  2. [76]
    Mr Gill argues he was constructively dismissed in April 2022. This is not a matter where Mr Gill seeks to characterise a resignation as being, in reality, a dismissal. Mr Gill never resigned. It is a matter where the employer's conduct is said to have been repudiatory giving rise to a constructive dismissal. Accordingly, the questions are whether Wide Bay Canopy & Filter Cleaners' conduct was repudiatory and if so whether Mr Gill accepted any repudiation.
  3. [77]
    A number of different events occurred in late 2021 and early 2022 which could potentially have constituted repudiatory conduct on the part of Wide Bay Canopy & Filter Cleaners, including:
    1. Mr Higgins taking back all company equipment that had been issued to Mr Gill as manager in October 2021;
    2. password changes so that Mr Gill no longer had access to Wide Bay Canopy & Filter Cleaners' IT accounts;
    3. Wide Bay Canopy & Filter Cleaners' lawyers' request in November 2021 to arrange for the return of Mr Gill's personal effects and the collection of the employer's property;
    4. Mr Higgins' assertion in correspondence of December 2021 that Mr Gill had abandoned his employment;
    5. Wide Bay Canopy & Filter Cleaners' failure to answer Mr Gill's questions, on at least two occasions in February 2022, about his employment status; and
    6. the cessation of payments for leave and/or the paying out of leave.
  4. [78]
    However, it is not necessary to determine whether any or all of these incidents were repudiatory because on two occasions Mr Gill, instead of accepting any repudiation, positively affirmed the employment was ongoing. This was communicated to Wide Bay Canopy & Filter Cleaners by:
    1. Mr Gill's email correspondence of 1 January 2022; and
    2. Mr Gill's lawyers' letter of 4 March 2022.
  5. [79]
    There is nothing on the evidence showing that Mr Gill subsequently contradicted his lawyers' letter of 4 March 2022.

Events following the letter of 4 March 2022

  1. [80]
    It was common ground that Mr Gill commenced common law proceedings in relation to his back injury. He would have undertaken pre-court procedures prior to doing so. It seems likely that from at least the time of the MAT decision (14 March 2022)[86] to the time of the settlement (August 2023)[87] his attention would have been directed towards his common law claim.
  2. [81]
    On 14 March 2022 Mr Gill collected items from the workplace. There is nothing on the evidence showing he had been directed not to attend his workplace. Mr Higgins reported this attendance to the police as a break and enter at the time but did not raise it directly with Mr Gill until a year and a half later when he cited it in the termination letter of 2 November 2023. It is not clear on the evidence whether and if so when the police approached Mr Gill about incident. He now relies upon the fact it was referred to the police as part of the reasons for his forming the belief that his employment was no longer tenable,[88] but there is nothing on the evidence showing he did anything to accept the repudiation in or in the months following March 2022.
  3. [82]
    Mr Gill says his last paid day was 1 April 2022 and his last (timely) pay slip was in April 2022. That pay slip was not before the Commission, so I am not able to know whether it said anything about the status of the employment or for what the payment was made. In that regard, Mr Gill had not returned to work so the payment was unlikely to have been for wages. He was no longer receiving workers' compensation so the relevant provision of Queensland's workers' compensation legislation allowing for accrual of leave would not have applied,[89] albeit Mr Higgins seemed unclear about the timing of the WorkCover process.[90] So the cessation of payment is consistent with a worker no longer having any entitlement to payment and would not necessarily allow an inference of a lack of intention to continue. As to pay slips, the Fair Work Act[91] requires an employer to give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work. Certainly, by April 2022 there was no performance of work and so the obligation to provide the pay slips did not arise.[92] Therefore the lack of pay slips would not necessarily allow an inference of a lack of intention to continue. Most significantly, regardless of whether Mr Gill could or did take this cessation of payments or the provision of pay slips, at the time, to be repudiatory, there is  no evidence showing he accepted such repudiation.
  4. [83]
    On 16 April 2022 Mr Gill took something off the open gate while walking his dog past the workplace. The surveillance footage is from too much a distance to see what it was. Wide Bay Canopy & Filter Cleaners says the item he took was a padlock. If so, it was an unlocked one as Mr Gill barely had to break his stride to lift the item off the gate. Mr Higgins reported this attendance to the police as a theft at the time but did not raise it directly with Mr Gill until a year and a half later when he cited it in the termination letter of 2 November 2023. The police did, however, raise this with Mr Gill. Mr Gill says they showed him the surveillance footage but did not give him a copy. He says when he saw the surveillance footage, he was embarrassed. He says as at the date of the event, mid-April 2022, he was still suffering adverse side effects from his medication, and that he does not remember doing this. He says when the police showed him the footage, he decided to make payment for the cost of a padlock but that was not an admission. The date of the payment was 17 August 2022, which implies that he had seen the footage some time between mid-April 2022 and mid-August 2022. Whether or not a reasonable person could have taken this police notification as repudiatory, there is no evidence that Mr Gill accepted the repudiation.

No acceptance of repudiation

  1. [84]
    There is nothing on the material to indicate whether at any time after 4 March 2022 until late 2023 either party explicitly addressed the issue of whether Mr Gill was still employed by Wide Bay Canopy & Filter Cleaners. In that regard:
    1. there is nothing before the Commission to indicate that Wide Bay Canopy & Filter Cleaners took issue with Kartelo Law's assertion of 6 March 2022 that Mr Gill remained employed by Wide Bay Canopy & Filter Cleaners at that time;
    2. there is nothing showing that Mr Gill had subsequently indicated that despite his lawyer's correspondence of early March, he now considered he was no longer employed by Wide Bay Canopy & Filter Cleaners;
    3. there is nothing to indicate that Mr Gill asserted any repudiation on Wide Bay Canopy & Filter Cleaners' part, when the payout of leave entitlements occurred or at some other time, or that he attempted to accept any such repudiation; and
    4. the parties were unable to say with any precision at hearing whether any documentation had been filed with the Australian Taxation Office at the conclusion of the financial year that would have given any indication as to Mr Gill's employment status at that point (though in later submissions Mr Gill indicated there was no such document).[93]
  2. [85]
    There was a substantial or complete failure of communication, between the parties, as to the status of Mr Gill's employment, at least after 4 March 2022. There was no express acceptance, by Mr Gill, of any repudiation. Throughout late 2021 to April 2022 and beyond, Mr Gill was not turning up for work. It is not clear whether Mr Higgins knew or understood Mr Gill's incapacity to arise from permanent impairment, nor whether he received or read the MAT decision of 14 March 2022 at any time. Wide Bay Canopy & Filter Cleaners could have assumed that Mr Gill's absence was because of his incapacity without understanding that the absence would be permanent. I do not consider Mr Gill's absence sufficient of itself to have constituted implied acceptance of any repudiation.
  3. [86]
    Mr Gill has not proven that he was constructively dismissed in early 2022 or subsequently. Accordingly, no issue of the application of s 95(4)(c)(i) of the Industrial Relations Act arises from the events of this period. However, this makes little difference to the outcome of this matter because for the reasons that follow, I find the termination of employment on 2 November 2023 to have constituted an unfair dismissal, giving rise to an obligation to pay pro rata long service leave.
  4. [87]
    I appreciate this may be a counter-intuitive finding, given Mr Gill did not return to perform his duties after the events of late 2021. If I am wrong in making this finding, and the Respondent did terminate Mr Gill’s employment in 2022, then, having regard to the facts and circumstances described above, I find that the termination was for reason of the employee’s illness.
  5. [88]
    The amount payable is the same regardless of whether the right crystallised in April 2022 or November 2023 because it is calculated having regard to service not employment.

If not dismissed for illness, was there another reason for the dismissal other than conduct, capacity, or performance?

  1. [89]
    The ostensible reason for the dismissal in November 2023, on the face of the termination letter,[94] was serious misconduct consisting of two separate incidents. In submissions Wide Bay Canopy & Filter Cleaners also indicated the letter of demand of 23 October 2023[95] was among the reasons for termination.[96] It is unnecessary for me to decide whether the inclusion of this reason, which is a reason other than conduct, capacity, or performance, means the dismissal attracts the operation of s 95(4)(c)(ii) of the Industrial Relations Act, because in any event the dismissal was an unfair dismissal.

Was Mr Gill unfairly dismissed?

  1. [90]
    If the employment did not end, it follows that it was still on foot as at 2 November 2023, the date on which Wide Bay Canopy & Filter Cleaners sent the termination letter.
  2. [91]
    The termination was prompted by the letter of demand of 23 October 2023. Wide Bay Canopy & Filter Cleaners conceded this.[97] Wide Bay Canopy & Filter Cleaners, in submissions, also included the letter of demand as being among the reasons for termination, along with what it said was serious misconduct.[98] The letter of demand:
    1. alleges the termination of the employment and the intentional withholding of employee entitlements;
    2. expresses an intention to lodge formal proceedings with the Fair Work Commission[99] and/or the Queensland Industrial Relations Commission, as well as foreshadowing other potential acts, if the issues in dispute are not settled; and
    3. claims, among other things, pro rata long service leave.
  3. [92]
    The termination letter was also issued the day after the initiating application in these proceedings, seeking pro rata long service leave, was filed and provided to Wide Bay Canopy & Filter Cleaners. The initiating application alleges the employment ended on 1 April 2022 and states that to date Mr Gill had not been provided with any notice of termination.
  4. [93]
    Given it appears the letter of demand prompted the termination letter and was among the reasons for termination, and given the termination occurred when Mr Gill was pressing his entitlements, I asked the parties to address me, in submissions, as to whether the dismissal contravened the general protections provisions and if so whether that made the dismissal unjust or unreasonable.[100] Neither party referred to those provisions directly, but Mr Gill submitted:[101]

It became clear that Mr Higgins was either looking or a reason to terminate my employment for any reason other than my health or to force me to resign to avoid paying various minimum employee entitlements required by law.

  1. [94]
    In any event it is unnecessary for me to decide the question of whether Wide Bay Canopy & Filter Cleaners contravened the general protections provisions in dismissing Mr Gill, because I find the dismissal to have been an unfair dismissal. The dismissal was an unfair dismissal by reason of:
    1. the long delay between the events said to constitute the serious misconduct, and the termination of employment; and/or
    2. the failure to provide Mr Gill with an opportunity to respond to the allegations before making the decision, including the failure to provide Mr Gill with an opportunity to raise any issues in mitigation had the allegations been found to have been substantiated, before deciding on the penalty to be applied.
  2. [95]
    Separately and cumulatively, these considerations render the termination of employment an unfair dismissal.
  3. [96]
    Also, at the conclusion of the hearing I drew the parties' attention to Brown v National Security Proprietors Australia Pty Ltd [2007] 184 QGIG 183, and invited them to make submissions as to whether:
    1. the failure to give notice or make payment in lieu of notice rendered what might otherwise have been a fair dismissal an unfair dismissal; and
    2. the delay in acting on the misconduct contradicted any claim that it was serious enough to dismiss Mr Gill without notice.
  4. [97]
    Neither party canvassed this issue in the closing submissions. It is difficult for Wide Bay Canopy & Filter Cleaners to maintain that these two events were of such seriousness to warrant summary termination, but not so serious that summary termination could not wait a year and a half, or six months, respectively. However, given the other findings I have made it is unnecessary to decide this point. I now turn to the content of the termination letter.

The termination letter

  1. [98]
    The termination letter of 2 November 2023[102] runs to two pages and relevantly provides as follows:

Background

You were employed by Wide Bay Canopy and Filter Cleaners Pty Ltd on 14 June 2014 in a casual role.

On about I July 2017, you were engaged in a permanent position.

[The letter then sets out a chronology]

Further correspondence was sent by our lawyers to your lawyers on 1 April 2022. You then continued to pursue your injury claim.

At no time did you, your lawyer, our lawyer, or Wide Bay Canopy and Filter Cleaners Pty Ltd terminate your employment. The only reference to the currency of your employment was in your lawyer's letter of 4 March 2022 confirming that you remained employed.

Therefore, your reference in your Form 14 – Application, to your employer terminating your employment on 1 April 2022 is incorrect. You were not terminated on that date, or prior date.

Termination of Employment on 2 November 2023

After receiving your request in about January 2022 to not be contacted directly by me, I made the decision to wait until your return to employment to raise several issues regarding your conduct.

Your WorkCover claim was finalised by Deed on about 28 August 2023. Despite this claim being finalised 2 months ago, you have not returned to work. It is apparent to me that you do not intend to return to the workplace.

I therefore raise two incidents of serious misconduct. The first incident relates to your theft of padlock from the gate of the business premises on 17 April 2022. This incident has been captured on our security camera.

The second incident relates to an interaction with me on 15 May 2023, where you attended the workplace, uninvited and not in a state where you were ready to work, and called me, in an aggressive manner, a 'fuck wit'. This was witnessed by another employee by the name of Mr John Parker.

Ordinarily, these incidents would have been addressed with you at the time they occurred, however, due to your WorkCover claim, which included claims of mental injury, I made the decision to wait until your return to work so that you were in a fit state to address this. As it is apparent you are not returning to work, I have decided to address these incidents now (though the first incident was reported to the Qld Police at the time).

I am satisfied that that the first incident of theft of a padlock did occur as it was captured on our security camera.

I am also satisfied that the second incident occurred as I was present at the incident and was the recipient of your abuse.

I am also satisfied that these incidents, taken individually, or together, are both satisfactory to warrant immediate termination on the grounds of serious misconduct.

As result of these incidents, and due to their serious nature, I hereby terminate your employment, effective immediately and without notice.

Reasons for termination

  1. [99]
    Wide Bay Canopy & Filter Cleaners' submissions gave similar reasons for both the termination and the delay in raising the serious misconduct with Mr Gill.[103] They also cited the 23 October 2022 letter of demand as being among the reasons.[104] The letter itself notified Mr Gill of the stated reasons for the termination of his employment, specifically, the two incidents referred to in it.
  2. [100]
    The first of the two incidents is the padlock incident considered above in relation to constructive dismissal, of mid-April 2022. The second is the verbal altercation of 15 May 2023. As to the latter, I accept that Mr Gill used abusive language toward Mr Higgins. The two incidents are incidents of serious misconduct. If Wide Bay Canopy & Filter Cleaners had raised them with Mr Gill in a timely and fair manner it would have had a strong basis to resist a finding that the dismissal was an unfair dismissal for the purposes of ss 95 and 316 of the Industrial Relations Act. That is particularly so having regard to s 320(2)(b)(i) of that Act which relates to dismissals where the employee's conduct was unlawful. Wide Bay Canopy & Filter Cleaners referred to a Fair Work Commission decision as authority for the proposition that 'theft is theft' and regardless of the value of the item stolen, stealing as an employee justifies dismissal.[105] However:
    1. the Fair Work legislation is not identical to the Industrial Relations Act and the question here is whether the dismissal was an unfair dismissal for the purposes of the latter; and
    2. this is a case in which extreme delay, a failure to afford procedural fairness, and the summary nature of the dismissal jointly or separately render what might otherwise have been a fair dismissal, unfair.

Delay

  1. [101]
    Why did Mr Higgins wait a year and a half to raise the padlock incident directly with Mr Gill? Why did he wait six months in relation to the verbal altercation? Why did he wait such a long time to terminate Mr Gill's employment given he considered those incidents to constitute serious misconduct? The various reasons given were:
    1. "After receiving [Mr Gill's] request in about January 2022 to not be contacted directly by [Mr Higgins], [Mr Higgins] made the decision to wait until [Mr Gill's] return to employment to raise several issues regarding your conduct."[106]
    2. A "WorkCover claim", which Mr Higgins seemed to take to include the Supreme Court proceedings settled in August 2023, and which included claims of mental injury, had been on foot. Mr Higgins had taken a cautionary approach and had made the decision to wait until Mr Gill's return to work (or alternatively until Mr Gill made contact in relation to returning to work)[107] so that Mr Gill would be in a fit state to address the serious misconduct. Wide Bay Canopy & Filter Cleaners also relied on federal right to disconnect laws in this regard[108] even though they had not been passed at the time. However, once it became apparent to Mr Higgins that Mr Gill was not returning to work, Mr Higgins decided to raise the incidents with him.[109]
    3. Mr Higgins' understanding was that his lawyers had said he could not dismiss Mr Gill while Mr Gill's WorkCover matter (which he took as including the court proceedings that settled in August 2023[110] and were discontinued on 24 October 2023)[111] was ongoing.[112]
    4. The fact that he, Mr Higgins, was going through a divorce in mid-2023,[113] and trying to run a business and look after his other workers at that time.[114]
    5. Upon receipt of Mr Gill's letter of demand of 23 October 2023, Mr Higgins considered that he was "now forced to address the serious misconduct allegations that had been left in abeyance."[115]
  2. [102]
    Having read the correspondence the parties put before the Commission it appears to me that prior to 22 November 2021 Mr Gill had asked that Mr Higgins not contact him directly.[116] Wide Bay Canopy & Filter Cleaners' lawyers referred to this in their correspondence of 6 January 2022.[117] Regardless of when the request was made, the claim in the termination letter that it was part of the basis for waiting until November 2023 does not make sense given the parties had, including by their lawyers, been in contact after that request had been made.
  3. [103]
    It also does not make sense to claim that Mr Higgins was waiting for Mr Gill to return to work before addressing issues with him, on the basis that he would be in a "fit state" by then. Wide Bay Canopy & Filter Cleaners was a party to the common law claim.[118] Even if it did not see the MAT decision at the time it was made, Mr Gill would likely have learned during the course of the common law claim of Mr Gill's permanent impairment. In any event, the suggestion that it suddenly became apparent that Mr Gill would not return to work at this particular time is disingenuous particularly in light of the Wide Bay Canopy & Filter Cleaners' concession that it was prompted to terminate the employment by the receipt of the letter of demand.
  4. [104]
    Even if Mr Higgins had genuinely believed Wide Bay Canopy & Filter Cleaners could not or should not raise misconduct or serious misconduct issues with Mr Gill until after the back injury common law claim had settled,[119] that does not explain the delay between August 2023 and November 2023 in raising those issues. In closing submissions Wide Bay Canopy & Filter Cleaners attempted to tie this to the date of the discontinuance of the common law proceedings. This had not been raised at hearing and there was nothing on the evidence to indicate Mr Higgins had any awareness of the date of discontinuance at the time.
  5. [105]
    The proprietor's divorce, and the other ordinary responsibilities he had as a business owner, do not provide sufficient reason for the delay.
  6. [106]
    In my view Wide Bay Canopy & Filter Cleaners failed to act diligently in relation to the employment and took no action until it received the letter of 23 October and then the application of 1 November. At point, having seen Mr Gill was attempting to press his entitlements, Mr Higgins on behalf of Wide Bay Canopy & Filter Cleaners decided to dismiss Mr Gill on conduct grounds in an attempt to avoid paying entitlements including pro rata long service leave. Wide Bay Canopy & Filter Cleaners relied on events from the past – 18 months before and 6 months before the termination letter –to justify the dismissal.
  7. [107]
    Issues going to misconduct, and particularly serious misconduct should be raised in a timely way; if not, there is unnecessary prejudice to the person against whom the allegations are made.

Failure to warn; failure provide an opportunity respond

  1. [108]
    Wide Bay Canopy & Filter Cleaners did not raise these issues with Mr Gill directly until it included them in the letter notifying him of his summary dismissal. There is nothing on the evidence showing it had provided any warnings to Mr Gill about these or similar issues.
  2. [109]
    Wide Bay Canopy & Filter Cleaners submitted that Mr Gill had "every opportunity" to respond to the termination letter, but did not, and that s 320(c)(ii) of the Industrial Relation Act "does not state that the opportunity must be before termination occurs." The submission that Mr Gill had an opportunity to respond to the allegations after the dismissal took effect is novel and untenable.
  3. [110]
    There was no reason Wide Bay Canopy & Filter Cleaners, having waited several months to even raise these matters with Mr Gill, could not have provided him with a brief period in which to respond to them. Wide Bay Canopy & Filter Cleaners says this does not matter because the evidence was such that it could not have been contradicted. Whether or not that is correct, it ignores that an opportunity to respond allows not only for an employee to contest the basis for termination but also gives them an opportunity to offer submissions as to mitigation, and to offer submissions as to whether termination was the appropriate penalty should they be substantiated. Had Wide Bay Canopy & Filter Cleaners provided such an opportunity, Mr Gill would, for example, have been able to raise the issues in mitigation that he has canvassed in these proceedings including the side effects of his medication in or around April 2022.
  4. [111]
    In the circumstances the dismissal was on its face an unfair dismissal. Accordingly, s 95(4)(c)(iii) applies. It is unnecessary for me to consider whether any other limb of that sub-paragraph applies; for example, it is unnecessary for me to consider whether a real or underlying reason for the termination was Mr Gill's illness.

Amount payable

  1. [112]
    As stated above, Mr Gill had 7.1275 years' continuous service. On a pro rata basis, where the amount payable is equal to Mr Gill's full pay for a period that represents the same proportion of 8.6667 weeks' long service leave as 7.1275 years bears to 10 years, the amount payable is 6.17719 weeks' pay. The annual salary was $70,000.

Conclusion

  1. [113]
    Mr Gill had more than 7 years' continuous service when his employment ended.
  2. [114]
    The employment ended when Mr Gill was dismissed by letter dated 2 November 2023.
  3. [115]
    The dismissal was an unfair dismissal for the purposes of s 95(4)(c)(iii).
  4. [116]
    Mr Gill had an entitlement to a proportionate payment for long service leave on termination by operation of s 95 of the Industrial Relations Act.
  5. [117]
    Mr Gill is entitled to relief pursuant to ss 475 and 476 of the Industrial Relations Act.

Order

  1. [118]
    I am satisfied that this application meets the requirements of ss 95, 475 and 476 of the Industrial Relations Act and therefore make the following Order:

 WBC Investments Pty. Ltd., as trustee for WBC Investment Family Discretionary Trust, trading as Wide Bay Canopy & Filter Cleaners, is to pay Ricky John Gill the sum of $8,315.45 (gross), being the amount of  pro rata  long service leave owed to him, within 28 days.

Footnotes

[1]T 1-18, l 18.

[2]Ibid, l 19.

[3]Ibid, l 24.

[4]Exhibit 12, p 1.

[5]Exhibit 12.

[6]T, 1-18, l 27; Exhibit 18.

[7]T 1-19, ll 19-21.

[8]Ibid, 1-19, ll 23-24.

[9]Exhibit 13, p 1.

[10]T 1-18, l 31.

[11]T 1-19, l 33.

[12]Exhibit 19.

[13]Exhibit 3.

[14]Exhibit 2.

[15]Exhibit 1.

[16]Exhibit 20.

[17]Exhibit 6.

[18]Exhibit 7.

[19]Exhibit 8.

[20]T 1-51, l 27.

[21]Exhibit 33.

[22]Exhibit 22.

[23]Respondent's submissions filed 20 March 2024 para 2(k).

[24]Exhibit 23.

[25]Exhibit 12.

[26]Respondent's submissions filed 20 March 2024, para 2(l). Mr Higgins adopted the factual matters set out in the Respondent's submissions as part of his evidence: T1-45, ll 35-44.

[27]T 1-19, ll 27-30.

[28]Respondent's submissions filed 20 March 2024, para 2(l); T1-45, ll 35-44.

[29]Transcript, 1-19, ll 14-17.

[30]T 1-23, ll 23-47.

[31]T 1-24, ll 10-19.

[32]Respondent's submissions filed 20 March 2024, para 2(l); T1-45, ll 35-44.

[33]T 1-29, ll 45-47.

[34]Exhibit 35; T 1-30 ll 19-22.

[35]Exhibit 25.

[36]Exhibit 23.

[37]Exhibit 22.

[38]Exhibit 30.

[39]T 1-17, ll 3-20.

[40]Exhibit 26.

[41]T 1-46, ll 39-45; T 1-47, ll 1-31.

[42]T 1-29, l 46.

[43]T 1-30, ll 20-23.

[44]Exhibit 25.

[45]Exhibit 10.

[46]Exhibit 29.

[47]With the CCTV footage of the event of April 2022, Exhibit 30.

[48]T 1-55, l 23.

[49]Respondent's submissions filed 20 March 2024, para 4(e).

[50]T 1-56, l 14.

[51]T 1-17, ll 28-36.

[52]Exhibit 27. No party asserted that the deed of settlement affected Mr Gill's ability to bring this current proceeding.

[53]Exhibit 32.

[54]Exhibit 25.

[55]Exhibit 16.

[56]Section 94(4)(c), sub-paragraphs (i), (ii) and (iii) respectively.

[57]T 1-29, ll 45-47.

[58]T 1-30, ll 1-3.

[59]T 1-20, ll 7-9.

[60]T 1-20, ll 9-10.

[61]Applicant's closing submissions, p 1.

[62]Applicant's submissions filed 11 March 2024, p 3, para 10.

[63]At page 1 of the Applicant's submissions in reply, where he refers to exhibits 16, 20, 22, 1, 2, 3, 5, 6, 7, and 8.

[64]Applicant's closing submissions filed 11 April 2024, paragraph 2 D.

[65]Applicant's submissions in reply p 1, 2.

[66]Applicant's submissions in reply p 1, 2.

[67]Applicant's closing submissions para, 2(a).

[68]Applicant's closing submissions para, 2(e).

[69]Applicant's closing submissions para, 2(b) and (c), and Exhibits 1 and 13.

[70]Applicant's closing submissions para, 2(f).

[71]Paragraph 5(a), Respondent's submissions filed 20 March 2024.

[72]T 1-57, ll 35-46.

[73]Applicant's closing submissions, para 2(g).

[74]Respondent's Submissions filed 20 March 2024, para 4(g).

[75]Respondent's Submissions filed 20 March 2024, para 5(b).

[76]Respondent's closing submissions, para 3(k).

[77]Respondent's closing submissions, para 3(m).

[78]Respondent's closing submissions, para 3(n).

[79]Respondent's closing submissions.

[80]Industrial Relations Act 2016 (Qld) s 547I ('Industrial Relations Act').

[81]T 1-22, ll 9-17.

[82]Industrial Relations Act s 95.

[83]Industrial Relations Act s 94.

[84]Exhibit 12; Exhibit 15; T 1-18, ll 24-31.

[85]For example, Cerin v ACI Operations Pty Ltd & Ors [2015] FCCA 1654.

[86]Exhibit 12.

[87]Exhibit 27.

[88]T 1-20, ll 7-9.

[89]Workers Compensation and Rehabilitation Act 2003 (Qld) s 119A.

[90]T 1-52, ll 32-43.

[91]Fair Work Act 2009 (Cth) s 536(1).

[92]Compare Farquhar v Commonwealth of Australia represented by Services Australia [2023] FedCFamC2G 1100.

[93]Applicant's closing submissions, para 3(a).

[94]Exhibit 25.

[95]Exhibit 32.

[96]Respondent's submissions filed 20 March 2024, paras 4(f) and (g).

[97]Respondent's closing submissions, para 3(h); T 1-49, l 40; T 1-57 ll 28-31.

[98]Respondent's submissions filed 20 March 2024, paras 4(f) and (g).

[99]Though "Fair Work Australia," a previous name, is used.

[100]T 1-69, ll 22-29.

[101]Applicant's closing submissions, p 4.

[102]Exhibit 25. Though the termination letter is signed "Greg Higgins, Director, Wide Bay Canopies and Filter Cleaners Pty Ltd," there is no such entity, and the letterhead gives the ABN as 96 189 116 275, which is registered to The trustee for WBC Investment Family Discretionary Trust with the trading name Wide Bay Canopy & Filter Cleaners and the ACN 146 696 675, which is WBC Investments Pty. Ltd.

[103]Respondent's submissions filed 20 March 2024, para 4.

[104]Respondent's submissions filed 20 March 2024, para 4(f) and (g).

[105]Thomas and Ailua v Virgin Australia Airlines Pty Ltd t/a Virgin Australia [2019] FWC 4464.

[106]Exhibit 25; see also Respondent's closing submissions, para 3(e).

[107]Respondent's closing submissions, para 3(f).

[108]Respondent's closing submissions, para 3(f).

[109]Exhibit 25; see also Respondent's closing submissions para 3(b) and (d).

[110]Exhibit 27.

[111]Respondent's closing submissions, para 3(c) and (i).

[112]T 1-54, l 20.

[113]T 1-5, ll 21-24; T 1-49, ll 24-34; T 1-54, ll 22-25.

[114]T 1-54, ll 22-25.

[115]Respondent's closing submissions, para 3(h).

[116]Exhibit 3.

[117]Exhibit 21.

[118]Exhibit 27.

[119]Despite the narrower protection from termination provided by the protection for injured workers provisions in Pt 6 of Ch 4 of the Workers' Compensation and Rehabilitation Act 2003 (Qld).

Close

Editorial Notes

  • Published Case Name:

    Gill v WBC Investments Pty. Ltd.

  • Shortened Case Name:

    Gill v WBC Investments Pty. Ltd.

  • MNC:

    [2024] QIRC 153

  • Court:

    QIRC

  • Judge(s):

    Butler IC

  • Date:

    21 Jun 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Cerin v ACI Operations Pty Ltd & Ors [2015] FCCA 1654
2 citations
Jump To
Cite 1 - [2015] FCCA 1654
Cite 2 - [2015] FCCA 1654
Compare Farquhar v Commonwealth of Australia represented by Services Australia [2023] FedCFamC2G 1100
1 citation
Jump To
Cite 1 - [2023] FedCFamC2G 1100
Cox v Photograve Pty Ltd [2008] QIC 54
2 citations
Jump To
Cite 1 - [2008] QIC 54
Cite 2 - [2008] QIC 54
Schipp v The Star Entertainment Qld Ltd; Minister for Education and Minister for Industrial Relations v The Star Entertainment Qld Ltd [2019] ICQ 9
2 citations
Jump To
Cite 1 - [2019] ICQ 9
Cite 2 - [2019] ICQ 9
Thomas and Ailua v Virgin Australia Airlines Pty Ltd t/a Virgin Australia [2019] FWC 4464
2 citations
Jump To
Cite 1 - [2019] FWC 4464
Cite 2 - [2019] FWC 4464

Cases Citing

Case NameFull CitationFrequency
Soysa v Brisbane Powerhouse Pty Ltd [2024] QIRC 2152 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.