[2013] FWC 9168

FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Micaylia Stewart
v
P.O.D’s Pest Control
(U2013/2027)

COMMISSIONER SIMPSON

BRISBANE, 12 DECEMBER 2013

Jurisdictional issue - Whether dismissal was consistent with the Small business dismissal code- Whether conduct justified summary dismissal - Evidence considered - Jurisdictional objection made out - Application dismissed.

[1] The following Decision, now edited, was issued during proceedings on 6 December

2013.

[2] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Ms Micaylia Stewart (“the Applicant”) who alleges that the termination of her employment with P.O.D’s Pest Control (“the Respondent”) was unfair in accordance with the definition contained within s 385 of the Act.

[3] The application was filed on the 20 June 2013. The matter was listed for a conciliation conference which was unsuccessful. The matter was then allocated to me and listed for a directions hearing on 12 September 2013 where the Respondent pressed their Jurisdictional objection, which is the matter we deal with today. It was agreed to deal with the jurisdictional issue separately in an attempt to separate the issues as a more efficient way to conduct the issue.

[4] In terms of the background, the evidence is that Ms Stewart said she commenced her employment with the respondent on the original application in April 2012, but the evidence has indicated that she actually commenced in December 2011 in accordance with the separation certificate. The respondent’s response said it had five employees, although the statement in the evidence is that it employs four. In any event, it is evident that the respondent is a small business employer.

[5] In terms of the requirements of dealing with these matters, s.385 sets out that a person has been unfairly dismissed if the Fair Work Commission is satisfied - and I specifically refer to s.385(c) “The dismissal was not consistent with the Small Business Fair Dismissal Code.” Section 388 of the Fair Work Act sets out that the Minister may declare the code and a person’s dismissal was consistent with the code if “immediately before the time of the dismissal or at the time the person was given notice of the dismissal” the employer was a small business and the employer complied with the code. For the purposes of my decision at this point, I will deal with the section that deals with summary dismissal. It reads that:

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

[6] In effect, the code provides that summary dismissal without notice or warning by an employer can be fair:

..when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.

[7] Regulation 1.07 of the Fair Work Act 2009 defines the term serious misconduct. The relevant part of that regulation for today’s purpose reads as follows:

1.07 Meaning of serious misconduct

[8] The respondent has relied on a couple of authorities in its submissions and I will turn to those. The first of those was a decision of Bartel DP in Khammaneechan v Nanakhon Pty Ltd. The particular passage that’s relied upon reads as follows:

At the outset, it is appropriate to note that unlike a consideration of the dismissal of an employee of a business that is not a small business employer, the function of Fair Work Commission is not to determine on the evidence whether there is a valid reason for dismissal. That is, the exercise in the present matter does not involve a finding on the evidence as to whether the applicant did or did not steal the money.

The application of the Small Business Fair Dismissal Code involves a determination as to whether there were reasonable grounds on which the respondent reached the view that the applicant’s conduct was serious enough to justify immediate dismissal. As such, the determination is to be based on the knowledge available to the employer at the time of the dismissal and necessarily involves an assessment of the reasonableness of the steps taken by the employer to gather relevant information on which the decision to dismiss was based.

[9] In essence, the determination has to be based on the knowledge available to the employer at the time of dismissal and necessarily involves an assessment of the reasonableness of the steps taken by the employer to gather relevant information on which the decision to dismiss was based.

[10] The respondent has also relied upon the full bench decision in John Pinawin t/as RoseVi Hair.Face.Body v Domingo. That really goes to the passage in the decision where the full bench sets out the two steps in the process. The passage is as follows:

There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal.Secondly, it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[11] I accept that the Full Bench authority is an appropriate authority for me to have reference to in determining the facts of this case. On that basis, firstly I need to determine in this matter whether the employer held a reasonable belief that Ms Stewart’s conduct was sufficiently serious to justify immediate dismissal. In that regard, the employer relies on Ms Stewart’s admitted failure to wear PPE and also a failure to provide signage provided to her for the purposes of the particular incident that led to the ultimate termination, but there is context to that and some history which I will deal with.

[12] Essentially, in that regard it relies on that part of the definition of “serious misconduct” in the regulations to the Act, particularly in that regard sub regulation (2)(a). It argued her conduct constituted:

wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment..

[13] It was argued that Ms Stewart’s continued failure to comply with safety requirements was conscious and deliberate, and a choice made by her despite repeated instructions and formal written and verbal warnings. I will deal with that particular element of the argument first. Findings in unfair dismissal matters are based on the balance of probabilities, so it is not required that I be satisfied in making findings beyond a reasonable doubt, but really on balance, which is more likely to be the case.

[14] Mr Bonny has argued that he held a reasonable belief that Ms Stewart’s conduct was not complying with safety requirements and that was wilful and deliberate. I am satisfied, based on the evidence concerning the number of times that Ms Stewart had been advised about the importance of doing this, that on balance it is more than likely the case that he did hold such a reasonable belief and I will give my reasons.

[15] Ms Stewart did concede in her evidence that she had been made aware prior to the incident itself that not complying with the safety requirements could jeopardise the QBuild contract held by the employer. I do not intend to itemise in detail in this oral decision all the evidence concerning the number of occasions with which the respondent said the importance of this issue was raised with staff and Ms Stewart in particular, but it is included in her admission during her evidence that she did have training on the safety requirements.

[16] There was in evidence that Mr Bonny discovered that Ms Stewart had falsified documentation about completing a job that she had done. This was not given any particular significant coverage in the evidence today. He said in his statement when he challenged her about this, that she admitted she had not done the job and had falsified that report.

[17] The evidence does show that Ms Stewart was trained in relation to safety issues. Her initial commencement was as a trainee on an informal basis according to Mr Bonny’s evidence, which was not challenged, and eventually she did receive that formal training which were modules as part of a certificate III in asset management, dealing specifically with pest management. It was also in the evidence that Ms Stewart completed a construction industry induction and obtained a white card so that she could enter sites that the business of the employer was requiring her to do.

[18] The evidence of Mr Bonny dealt with a meeting on 4 March. He said he held a meeting with all employees, including Ms Stewart. Ms Stewart accepted this meeting did occur on 4 March. His evidence was that he explained his concerns in the context of a new QBuild inspector who was in the city and he said that the company would be in big trouble if they did not do the right thing, and employees had to make sure that they followed QBuild’s requirements in terms of safety.

[19] He said he asked employees to make sure they had the right signage and all the correct PPE, and to advise him if they did not. He said he put up signs in the office - and this was covered in his oral evidence today - to remind employees of the discussion. This material was referred to in the meeting and a copy of that was attached to his witness statement.

[20] He also said he checked all the vehicles the next day and he realised that Ms Stewart had not complied with his instructions in the context of a jug used as part of her role which still had residue of pesticides inside it. There was some contest in the evidence about whether that was the case or not. It was certainly Mr Bonny’s evidence that he said he reminded her about that and that she had to do everything she was asked to do in relation to it. He said again he gave clear instructions to her about wearing PPE, that she was always to use signs and that she was always to ensure that the jugs used were emptied and cleaned.

[21] Further evidence turned on 9 May 2013, where Mr Bonny said that after he had had to raise a number of other performance issues with Ms Stewart, he met with her on 9 May and discussed those. He said he provided a document to her - which was a letter issued to Ms Stewart - that day. He said he was particularly concerned about her arriving late and leaving early, and there was some evidence on that although ultimately that is not critical in determining this matter. He said he reminded Ms Stewart to wear safety shoes and discussed the issue of safety and PPE. He said he told Ms Stewart he would not tolerate any safety breaches.

[22] On the following day, 10 May, he said he called Ms Stewart into his office and handed her a letter which outlined the contents of their discussion from the previous day. He said Ms Stewart took the letter from him and read it, and handed it back. He said at no stage did Ms Stewart indicate that she disagreed with the contents of the letter. I will refer to that attachment to the statement of Mr Bonny, particularly the second paragraph of attachment AB08 which reads as follows:

Safety issues, especially PPE, was raised by me must be worn at all times. Severe penalties and/or termination of government contracts for P.O.D’s Pest Control if these issues are not followed. I will not tolerate any excuses. Regular toolbox meetings are conducted for any concerns to be raised and are signed off so that you understand.

[23] Ms Stewart said in her evidence today that she was never given this letter. It was put to her in cross examination that it was in fact attached to her originating application. I did have reference to that and it does appear that it was. This, to some extent, undermines Ms Stewart’s evidence generally, in that it would appear that in fact if she did have the letter in her possession at the time of filing the application, that her evidence on that point was not right.

[24] On another issue, I am also more inclined to accept the argument as put by the respondent that it is less likely than likely that Ms Stewart had come directly from a job on the date of the incident that led to her termination where she had been involved in spraying for fleas. I do so keeping in mind that terminations on factual issues, as I said, are reached on the balance of probability. I do so because the work diary, attached to the statement of Mr Bonny as AB12, would indicate that it appears unlikely that that would have been the case.

[25] When Ms Stewart was asked in cross examination what day she thought the incident occurred in order to investigate this particular dispute in the facts in the hearing today, she simply said she did not know. The evidence of Ms Stewart on the two matters I have referred to tends to direct me to a view that it would be better to accept Mr Bonny’s evidence, or prefer it over Ms Stewart’s in cases where there are conflicts between them. This is particularly with regard to the disputed evidence regarding the number of times that safety issues had been raised with Ms Stewart throughout her period of employment and prior to the incident that led to her termination.

[26] In terms of the QBuild contract itself, Mr Bonny’s evidence was that the contract to provide services to QBuild was renewed every two or three years as part of an extension option. He said that the employer performs all pest control services for QBuild, including vacant property maintenance and all other QBuild pest maintenance and control in Townsville. He said QBuild has its own specific regulations in regard to safety and the respondent’s contract has always been subject to QBuild’s regulations. He said ongoing work with QBuild is conditional on compliance with their work health and safety standards.

[27] He said that QBuild issues health and safety and environmental requirements for QBuild contractors, and that QBuild sites are considered construction sites. I understand why Mr Rainford has made some submissions for Ms Stewart to the effect that he questions why that might fit the usually accepted definition of what is a construction site. In any event, that was the evidence of Mr Bonny and the result of that is that at all times any employees who go on site to do QBuild treatments are required to wear PPE equipment. Mr Bonny said the respondent had always provided all PPE to employees for that very purpose.

[28] He said there are significant penalties for breaches, including possible termination of the contract. He attached to his statement a copy of the document titled “Conditions of working with building and asset services contractors”, which was attached as AB4. His evidence was he was very conscious of ensuring that the respondent always complied with QBuild regulations and claimed he regularly reminded his employees of the requirement to wear PPE. He said he made it clear to his employees that if QBuild regulations are breached, the respondent may lose the contract and this would be a very serious risk to the business.

[29] He said in about early March, he became aware that QBuild had appointed a new safety representative who was inspecting QBuild properties in Townsville for the purpose of confirming compliance. He said he was particularly concerned, in the case of safety breaches, the respondent could have its contract terminated without notice. He said after the meeting that occurred in relation to this issue, he spoke to Ms Stewart and claimed he went through with her work instructions to make sure she understood them and had her signs. He said these were the same instructions that had been signed off by Ms Stewart in February 2013.

[30] He attached to his statement a copy of a document which he said was a copy of Ms Stewart’s March work instructions that were signed by her. That was AB6. He said he went with Ms Stewart to check her vehicle had everything she needed and he found that it did not have the correct sign. He said he then went and got a sign, and instructed her to use it.

[31] In the context of the actual incident that triggered the termination, it was Mr Bonny’s evidence that on 5 June, he was informed by Eric Dibben, who was another employee, that Ms Stewart had been with a QBuild representative in relation to not wearing the correct PPE. His evidence was that he was annoyed about this, because he had told Ms Stewart so often about what was expected and could not believe that she would not have worn PPE. He said he was considering terminating her and went to the Fair Work web site, and found the Small Business Dismissal Code and check list. He said he went through it in order to follow the procedure.

[32] He said he checked the meaning of “serious misconduct”, which he had done previously. He said he decided that if it confirmed that Ms Stewart had not followed his directions about safety, it would be serious misconduct because of breach of safety. He said he was very concerned about breaches of that legislation. He printed out the material and he also printed out a definition of “serious misconduct”, he said. He said he was aware the company could be fined, as well as him personally. He also said he believed it was a serious risk to his business.

[33] There was an issue in the evidence about Mr Bonny not telling Ms Stewart who spoke to him about the incident, which was on or around 30 May. Mr Bonny’s statement does give some explanation for the rationale for the reasons why he did not tell Ms Stewart and I am inclined to accept that that is an accurate description of the reason why he did what he did. Mr Bonny said he asked Ms Stewart to provide him with the details concerning the incident and he said he told Ms Stewart that the company would be in big trouble with QBuild if she breached safety requirements. He said he asked for a response by the following morning.

[34] It is not disputed that the next day, Ms Stewart gave Mr Bonny a written explanation of what she said happened, including an admission that she did breach the PPE requirements and there was also evidence that she did breach the signage requirements. The explanation given was that she had changed out of the safety boots because she held a concern about cross-contamination of the site of fleas because of work she had been doing.

[35] She said that the QBuild representative was on site and had accompanied her, and it was her evidence to the effect that she did not think the issue itself was that serious and also that the QBuild representative did not appear to conduct himself in a manner which would indicate that he thought it was serious either. She accepted in her evidence that there was no practice of employees changing out of their safety boots as part of work performed for the employer.

[36] I am inclined on all the evidence that I have set out above to form the view, as I have said, that Mr Bonny was entitled to have a view that Ms Stewart’s conduct was wilful and deliberate given the long history of being advised not to do what she did on that day.

[37] In terms of the second issue for consideration as set out in the definition of “serious misconduct” in the regulations, I am not inclined to accept an argument that the nature of the breach was a serious breach of occupational health and safety issues such that it would meet the definition. While it was a breach, it was not one that would cause imminent risk to safety; so on that basis, I would not accept that that would be a basis to justify summary dismissal.

[38] On the third issue, I need to consider whether or not in the context it was reasonable for Mr Bonny to have the view he claims he did about the circumstances posing a serious risk to the reputation, viability and profitability of the respondent’s business. The arguments put by Mr Bonny were that he could lose the QBuild contract or incur substantial fines if the applicant did not comply and, further, that the respondent would be liable for prosecution for breaches of workplace health and safety for failing to provide a safe workplace if he did not enforce compliance.

[39] I am inclined, on the basis of all the evidence, to hold a view that Mr Bonny did have a reasonable belief that the employee’s conduct was sufficiently serious to justify dismissal in the context of his evidence about the potential threat to the business. All the evidence tends to support a conclusion that Mr Bonny treated compliance with QBuild safety requirements very seriously and was concerned a breach could lead to a loss of that very important contract, and could lead to serious consequences for the business and potentially for all the employees of his business. The respondent has said it held a genuine belief that the conduct was serious enough to warrant summary dismissal and I accept that that was the case.

[40] That is not the end of the matter though. I need to turn to consider the second test which was enunciated in the Pinawin Full Bench decision and that was “it is necessary to consider whether that belief was based on reasonable grounds.” Now, this concept does involve that the employer has carried out some reasonable investigation of the matter. As has been set out, it is not necessary to determine whether the employer was correct in that belief.

[41] The evidence is uncontested that the allegations were put by Mr Bonny to Ms Stewart on the afternoon of the 5th and he requested that she provide a written response. There is no contest in the evidence that the written response was provided by Ms Stewart on the 6th and that the response included admission that she did not follow safety procedures, and had breached the respondent’s policies in relation to workplace health and safety.

[42] On that basis and on the basis of much of the evidence that I have summarised above in relation to the first test that I need to consider, I am satisfied that Mr Bonny - and, therefore, the respondent - had reasonable grounds for holding the belief that the conduct was serious misconduct. I find, therefore, that the tests as set out in the Pinawin Full Bench are satisfied in this case for the purposes of deciding whether or not the employer has complied with the Small Business Fair Dismissal Code. I find that it has and, therefore, I am required to dismiss the application on jurisdictional grounds.

COMMISSIONER

Appearances:

Mr Rainford for the Applicant.

Ms Parker Wilson/Ryan/Grose for the Respondent.

Hearing details:

2013.

Brisbane:

6 December

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