[2013] FWC 4513 Note: An appeal pursuant to s.604 (C2013/5986) was lodged against this decision - refer to Full Bench decision dated 18 December 2013 for result of appeal.

FAIR WORK COMMISSION

DECISION AND REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Wayne Schwenke
v
Silcar Pty Ltd T/A Silcar Energy Solutions
(U2012/17252)

COMMISSIONER CLOGHAN

PERTH, 22 AUGUST 2013

Application for relief from unfair dismissal.

[1] This is an application in which Mr Schwenke is seeking a remedy for alleged unfair dismissal.

[2] The Employer summarily dismissed Mr Schwenke on 7 December 2012 for secretly voice recording a prior disciplinary meeting and for performance related issues.

PROCEDURAL BACKGROUND

[3] On 21 December 2012, Mr Wayne Schwenke (Applicant) made application to Fair Work Australia, now the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from Silcar Pty Ltd T/A Silcar Energy Solutions (Employer) pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] The application was unable to be resolved at conciliation and referred to me for arbitration on 14 February 2013.

[5] Procedural directions were issued on 2 April 2013.

[6] At the 10 June 2013 hearing, the Applicant represented himself and gave evidence on his own behalf.

[7] The Employer was represented by Mr S Kemp of counsel and evidence was given on behalf of the Employer by:

● Mr P Green, Regional Manager;
● Mr W Harrington, Construction Manager;
● Mr P Janissen, Construction Supervisor;
● Ms N Fortune, Regional Administrator.

[8] At the conclusion of the hearing, I reserved my decision. Having considered the application, documentary material as a result of procedural directions, evidence and submissions, this is my decision and reasons for decision.

RELEVANT BACKGROUND

[9] Mr Schwenke commenced employment as a Trades Assistant with the Employer on 2 October 2011.

[10] Mr Schwenke’s contract of employment is unexceptional and for the purposes of this application the Commission refers only to the following content: the need to obey lawful directions; compliance with all applicable occupational health and safety legislation; punctual work attendance, and to co-operate and assist management when required.

[11] Many of the facts in this application are in dispute and the parties agreeing only that:

● on 9 October 2012, the Applicant was working at the South Coogee site when he observed a fellow employee, Mr D Morrison, using an angle grinder to cut into a wall;

● the Applicant was aware that the wall in question contained asbestos;

● the Applicant, using a mobile telephone, took a photograph of Mr Morrison using the angle grinder; and

● the Applicant was required to attend a meeting with Mr Green and Mr Harrington on 27 November 2012.

[12] At the conclusion of the meeting on 27 November 2012, the Applicant was given a first and final warning. The meeting discussed:

● the incident at the South Coogee site described briefly above;
● the Applicant’s work attendance; and
● the Applicant’s standard of work and productivity.

[13] Correspondence reflecting the meeting and warning concludes with notification to the Applicant that:

“in order to improve your performance and reach an acceptable standard of work we shall meet with you on a regular basis over the next three months...Please note that failure to achieve the required improvements may result in the termination of your ongoing employment with Silcar.

Wayne [Schwenke], we will assist you to improve and sincerely hope that you accept assistance offered to you to enable you to adequately perform your duties and conduct yourself in a co-operate and competent manner.

Both Peter Green and Will [Harrington] look forward to assisting you in this endeavour.” 1

[14] On 7 December 2012, a further meeting was held between the Applicant, Mr Green and Ms Fortune. Mr Janissen joined the meeting later and Mr N Virgen attended for a short period of time.

[15] At the 7 December 2012 meeting, a dispute arose as to what had been discussed at the 27 November 2012 meeting. At this point in the meeting, the Applicant stated that he had made a voice recording of the meeting on 27 November 2012.

[16] At the end of the 7 December 2012 meeting, the Applicant was asked to wait in another part of the office while Mr Green telephoned the Human Resources Department.

[17] The Employer made the decision to terminate Mr Schwenke’s employment.

[18] Mr Green attempted to speak to the Applicant and give him a letter of termination of employment but he had left the building.

[19] The letter of termination was delivered to Mr Schwenke’s home address at 1:00 pm and sent by registered mail on the same day - 7 December 2012.

[20] The letter of termination refers to Mr Schwenke’s performance, punctuality, unacceptable amounts of time spent on a mobile telephone, lack of initiative, inability to follow instructions, and contravention of health and safety procedures.

[21] The Employer also specifically refers to the taping of the meeting on 27 November 2012 in the letter of termination. The Employer considers the Applicant’s taping of the meeting serious and potentially unlawful misconduct and no longer has any trust in him to work safely or to undertake the inherent requirement of the position. Finally, the Employer could no longer trust Mr Schwenke to work in the best interests of the Employer. Mr Schwenke was summarily dismissed.

RELEVANT STATUTORY FRAMEWORK

[22] It is not in dispute that Mr Schwenke is protected from unfair dismissal pursuant to s.382 of the FW Act and that the application was made within the statutory timeframe in paragraph 394(2)(a) of the FW Act.

[23] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

● 385 What is an unfair dismissal

A person has been unfairly dismissed if FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) …
(d) …

[24] The criteria for considering whether a dismissal was harsh, unjust or unreasonable can be found at s.387 of the FW Act and is as follows:

● 387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWC considers relevant.

APPLICANT’S CASE

[25] The Applicant did not provide a written submission. The following is taken from his written statement of facts which are essentially repeated in his oral submissions.

[26] Mr Schwenke’s evidence refers to a series of incidents. The first incident in early 2012 relates to his unwillingness to install fan covers over a hole in a Telstra facility in Geraldton. As the hole had to be enlarged, this was considered “demolition” work and required approval from Telstra. In the course of this incident, Mr Schwenke felt “trapped, threatened and concerned” about the security of his employment. 2

[27] Later in 2012, Mr Schwenke refers to what he describes as the Bull Creek incident in which he alleged that another employee “verbally assaulted me with racial slurs.” Secondly, that Mr Schwenke informed the Construction Manager that the Supervisor was “incompetent” and “continuous (sic) performing non compliant works”. Finally, that the Employer had promised him an electrical apprenticeship which did not eventuate. 3

[28] I now turn to the more significant incident which preceded the Applicant’s termination of employment which is referred to as the “South Coogee” incident. On 9 October 2012, Mr Schwenke was working with the Trades Assistant who had made racial slurs and the Supervisor who he considered was incompetent.

[29] Mr Schwenke and the Trades Assistant were working apart when the Applicant heard a grinder being used. Mr Schwenke told the Trades Assistant not to use the grinder, which was met with the response “Fuck Off”. Mr Schwenke adopted the view that to do anything further would create a greater hazard, so he took a photograph, left the site and reported it immediately to the safety officer.

[30] Mr Schwenke received a written warning for not taking sufficient action to stop the Trades Assistant using the grinder on the wall. This warning led to a lack of concentration on work he was carrying out at the time resulting in damage and wastage.

[31] On the following day, the Applicant was involved in another safety issue which he referred to as the “Bassendean” incident. It is unnecessary to set out the details of this incident.

[32] On or around this time, the Applicant claims that Mr Green threatened him with instant dismissal for the way he was using a grinder.

[33] On 6 November 2012 Mr Schwenke, sought “1 week emergency RDO’s” to find new accommodation. Mr Green replied that he was unable to agree to the request because of lack of notification by Mr Schwenke. Mr Schwenke contends that Mr Green has no consideration for the welfare of his staff. The denial of leave by Mr Green led him to be anxious and stressed. Mr Schwenke sought medical advice and was given a medical certificate declaring him unfit for work for one week. 4

[34] On returning to work on 12 November 2012, Mr Schwenke was informed that Mr Green wanted to see him. Mr Schwenke contacted “Gordon and Slater” [sic].

First meeting

[35] Mr Green met with Mr Schwenke on 27 November 2012.

[36] In contrast to the earlier incidents outlined above, Mr Schwenke provides significant detail of his meeting with Mr Green. The meeting traversed a number of issues including the previous incidents I have referred to above, complaints about the Applicant by other employees, the Applicant’s productivity, “dobbing” in other employees and ignoring instructions.

[37] Mr Schwenke gives evidence that he was “not late, I followed all lawful instructions, I worked to a high standard and I attempted to get along with my work colleagues. Everything I was doing prior to having time off”. 5

Second meeting

[38] On 7 December 2012, Mr Green again met with Mr Schwenke.

[39] Mr Schwenke gives evidence that Mr Green commenced the meeting with “a lie by stating that I was still always late”. Mr Schwenke responded by denying the allegation and asserting that “punctuality is an overriding habit which I am fastidious about”. Further, he would have absolutely denied such a claim at the first meeting as, “I know without a doubt, we did not discuss it at the first meeting”.

[40] Mr Schwenke claims in his evidence that “all Peter [Green] wanted to do was to dismiss me”, leading “me to believe that the only outcome from the meeting was my dismissal”. It was at this time in the meeting, that Mr Schwenke declares in his written evidence:

“I said I had recorded the meeting [on 27 November 2012]”. 6

[41] Mr Schwenke’s written evidence is that:

“Peter [Green] quickly ended the meeting saying give me an hour, and I’ll get back to you. 2 hours later I left for lunch explaining to the receptionist that I needed to see a doctor as I was feeling very nauseous. The doctor gave me 2 weeks off.”

I then left for Bali. A holiday that I had booked prior to the South Coogee incident. A holiday that was ruined due to the stress of not knowing what was going to happen once I returned home”. 7

[42] Mr Schwenke returned from Bali and found his letter of termination which relevantly reads as follows:

“You further divulged that you had taped the last conversation with the Regional Manager WA and the Regional Construction Manager WA. This is unacceptable misconduct and a serious breach of confidentiality and privacy, which we reserve the right to refer to the relevant authorities.”

EMPLOYER’S CASE

[43] The Employer’s case put shortly by Mr Kemp is that Mr Schwenke’s performance was substandard and unacceptable in the following areas: attendance; inability to follow instructions with the result that much of this work had to be redone; low productivity when at work and concerns about his approach to safety.

[44] The Applicant attended a meeting on 27 November 2012 to discuss the above issues. Mr Schwenke was issued with correspondence and a first and final warning following the meeting. Mr Schwenke was advised that “failure to achieve the required improvements may result in the termination of your ongoing employment.” 8

[45] The Applicant was required to attend a further meeting on 7 December 2012. At the meeting, the Employer referred to its correspondence of 27 November 2012 and the Applicant’s poor performance. The Applicant’s response was to blame other employees and would not accept that his performance was below standard.

[46] At the meeting on 7 December 2012, the Applicant informed the Employer that he had recorded the meeting on 27 November 2012.

[47] Following the meeting, the Employer made the decision to terminate Mr Schwenke’s employment on the grounds that:

● he had acted in a serious breach of the employment relationship by secretly recording the meeting on 27 November 2012; and

● failed to improve his performance despite the warning issued on 27 November 2012.

CONSIDERATION OF STATUTORY FRAMEWORK

● Paragraph 387(a) - valid reason

[48] I have adopted the definition of a valid reason stated by North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 in the following terms:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”

[49] Mr Schwenke was essentially dismissed for two reasons. Firstly, for performance related matters. Secondly, the taping of a disciplinary meeting on 27 November 2012 without the knowledge of those present.

[50] I will also consider the credibility of evidence given by the Applicant.

Secretly recording conversations at work

[51] At the performance meeting on 7 December 2012, Mr Schwenke informed the Employer that he had recorded the earlier performance meeting on 27 November 2012. In his amended application to the Commission on 8 January 2013, Mr Schwenke states:

“I did also mention that I had taped the first meeting, I felt I had no other option, as when Peter Green wants someone gone from Silcar he will find any excuse to justify dismissal. Also, I felt that as I was not afforded the right to legal representation, I had to use any means necessary to protect myself from a workplace bully.”

[52] As a result of procedural directions, Mr Schwenke sets out in his Statement of Facts in relation to the second meeting on 7 December 2012,

“It was at this time I said I had recorded the meeting”. 9

[53] In his opening submission, Mr Schwenke states:

“So as soon as I realised he was going to lie and fight me on that day, I just thought “Stuff it”, and I told him that I had recorded the meeting”. 10

[54] However, notwithstanding the above in paragraphs [51] to [53], Mr Schwenke gives evidence in cross examination as follows:

“Now, at this next meeting, you said that you had recorded what had been said at this meeting on 27 November. Is that correct?---I said that.

“Had you recorded that meeting?---No.” 11

“So you didn't record it?---No, I didn't.” 12

“He said that you hadn't asked for consent to record, didn't he? He said it was unlawful, what you had done was unlawful?---I can't remember exactly.

“Well, that's his evidence. He said he told you that it was unlawful. Did you then say to him that in fact, "Well, I didn't really record it"?---No.

“So you left the meeting that day, when the meeting was called to an end, which was shortly after that statement, you left, and as far as Mr Green was concerned, you had told him that you had recorded the earlier meeting?---Yes.” 13

[55] In view of the nature of this evidence by Mr Schwenke, I took the opportunity to ask Mr Schwenke questions in the hearing as follows:

“Mr Schwenke, just so I'm absolutely clear, from the questions that were put to you by Mr Kemp, did you or did you not record that first meeting?---No.” 14

“This is important, Mr Schwenke, and the reason why it's important is because when you received your letter of termination, it refers to the fact that you had said in a meeting that you had recorded the first meeting. So if you could pay attention to me. I'm going to what you describe as the statement of facts, and it has on 27 November 2012, first meeting, it has in there on pages 3 and 4 a number of comments in inverted commas. What did you mean when you put those statements in inverted commas?---That's what they said to me.

“Are you absolutely sure that's what they said to you?---No.

“You make comments to the effect, and I'll just go through some of them, "I explained all that I tried to do." Then you go on to say "I again state to them". Then you say "we then go on to talk". "Will and Peter then state". Why did you use that sort of language?---That's what they said.

“So you believe I shouldn't read anything into the tone of the way that statement of facts is written? It appears that it is from a recording. Would you agree? The language that's used?---It could be, yes. I just tried to be objective and non-emotive.

“When you made an application to the commission, you included in that application a statement, didn't you? Your response to the reason why you were dismissed. Can you recall that?---No, sorry

“Maybe if I just take you to it. It's part of your application. It's dated 6 January, and it says on page 3, and I'll read this out to you, "I did also mention that I taped the first meeting. I felt I had no other option." Now, what do you think that leads me to believe?---That I recorded it.” 15

[56] For my part, it is necessary to determine whether the conduct complained of by the Employer did occur, and if so, what were the consequences for the employment relationship. I make it clear that my role is not to determine whether that conduct involved any breaches of law.

[57] I find on the balance of probabilities, that Mr Schwenke did record the first performance meeting on 27 November 2012. In addition to the evidence set out, I find support in the Applicant’s own Statement of Facts in which he describes, in part, the meeting as follows:

“Peter then continues on ignoring everything I’ve said, continuing his mantra that I have done nothing to stop him ...

Peter threatens that “it is not over and done with yet”...

We then begin to talk about work attendance...

William is quick to add...

I then ask William if...

I again state to them...

William and Peter then state “I am not being given work and the supervisors don’t trust me”.

Peter then continues ... He asks...

He then continues ... 16

[58] The detail, the tone, the moving from direct to indirect speech all lead me to conclude that Mr Schwenke, on the balance of probabilities, recorded the performance discussion.

[59] I now turn to the consequences of Mr Schwenke’s action in recording the performance discussion without the knowledge of the Employer.

[60] Honesty, obedience, diligence, competence and due care are the foundation stones of an employee’s duty to an employer. It is sometimes wrapped up under the term “good faith” or “duty of fidelity”.

[61] What I have before me is either Mr Schwenke not telling the truth to his Employer on 7 December 2012 and the Commission is his application and attached documents, or alternatively, he told the truth to the Employer on 7 December 2012 and to the Commission but not in evidence to the Commission. Either way, what is at issue is Mr Schwenke’s honesty.

[62] I now proceed on the basis, as I have found, that Mr Schwenke recorded his performance meeting on 27 November 2012

[63] First, there is no dispute that the Applicant did not seek or obtain the permission of Mr Green and Mr Harrington to have the performance discussion recorded. This omission raises two issues for employers generally. In the first instance, the employee is not being open and transparent in their actions with the employer. Secondly, if such an action becomes known to the employer, the necessity of trust and confidence in the employment relationship is undermined. Henceforth, the integrity or probity of the employee’s actions is not free from doubt for the employer.

[64] It is not uncommon in performance/disciplinary discussions for both parties to bring along paper and pen. For both parties such actions are readily observable and free from inequity. Such actions are rarely objected to and deemed fair.

[65] Secretly recorded discussions are objectionable because one party is being deceptive and purposefully misleading the other party.

[66] In considering this issue, what comes to mind is the expression “fair go all round”. Put shortly, how would Mr Schwenke, or for this matter any employee, feel if their conversations were being secretly recorded by an employer?

[67] It is convenient at this point to consider the content of this secret recording and whether there are circumstances in which it is permissible. In the context of this application Mr Schwenke’s defence to why he secretly recorded the information is that he felt that Mr Green would “find any excuse to justify dismissal”. However, the difficulty with such a defence is that it is self serving and I am reluctant to endorse such circumstances.

[68] Mr Schwenke does raise the issue of Mr Green being a “workplace bully”. There was no evidence, other than Mr Schwenke’s assertions, to such allegations. However, this assertion does raise the issue more generally of bullying, discrimination and harassment actions in the workplace where it is one person’s word against another, and confirmatory or refutable evidence, is difficult to obtain.

[69] I am satisfied that the secret recording of Mr Schwenke’s performance discussion was contrary to his duty of good faith or fidelity to the Employer, and undermined the mutual trust and confidence required in the employment relationship.

[70] There may be some circumstances, such as one-on-one actions in relation to discrimination, harassment or bullying that secretly recording a conversation is permissible - but the gravity and cause would have to be significant to override the general requirement of dealing honestly and openly with the employer and work colleagues. In such circumstances, the Commission would have to be acutely conscious to provocation or entrapment.

[71] I now turn to the other reason why Mr Schwenke was dismissed by the Employer, and that is, his performance.

[72] Mr Schwenke disputes almost entirely the issues raised by the Employer concerning his performance.

[73] On 6 November 2012, Mr Janissen provided a list of performance issues regarding Mr Schwenke. This list was provided at the request of Mr Green. It is not necessary to detail each and every aspect of performance but they can be summarised as follows:

● poor attendance;
● poor standard of work;
● low productivity;
● errors requiring rework; and the
● a safety issue at the South Coogee work site.

[74] I shall deal with the safety issue given there is a dispute about the actions and motive of Mr Schwenke which touches upon his credibility.

[75] Mr Schwenke gives evidence that after using his mobile telephone to capture a work colleague using an angle grinder to cut into a wall containing asbestos, he “left the site immediately to William [Harrington] the Safety Officer” 17. Mr Schwenke repeated this in cross-examination18.

[76] In contrast, Mr Harrington gives evidence that Mr Schwenke reported the incident and the photograph to him two (2) days later. When advised of the incident, Mr Harrington instructed him to return to site and stop his colleague working. Mr Schwenke left Mr Harrington’s office but came back to say that the incident occurred two (2) days earlier. Mr Harrington immediately called Mr Schwenke’s supervisor Mr Janissen and arranged to meet at South Coogee.

[77] Putting aside the witness evidence concerning whether Mr Schwenke reported the issue immediately or two days later, I have a “Workplace Incident Investigation Report” prepared by the Employer. This Report, by another name, is called a “Root Cause Analysis” of the incident. In the Report, which was completed in November 2012, it categorically states that the incident occurred on 9 October and was reported on 11 October 2012. Further, I have a diary extract from Mr Janissen of 11 October which confirms the date when he was informed of the incident.

[78] In these circumstances, I find that Mr Schwenke did not report the incident “immediately”. I consider the evidence of Mr Harrington and Mr Janissen more compelling.

[79] When confronted with the Employer’s documented evidence concerning his conduct or performance, Mr Schwenke gave evidence that he didn’t “agree with it all”, has issues with what is stated, provides an alternative explanation which cannot be refuted, the Employer was “finding excuses to fire me” and sought the names of the persons making complaints 19.

[80] While I do not consider it necessary to determine the truth of each and every allegation, I find that there was sufficient evidence to give rise to a finding that Mr Schwenke’s performance was not acceptable and needed to be reviewed. This review was completed by the Employer.

[81] To support his evidence regarding the actions of Mr Green, Mr Schwenke states “Peter [Green] abuses Nina so much she goes home crying”. However, in cross-examination he gives evidence that he had not observed such behaviour, “It’s what I’ve heard” and agrees with Ms [Nina] Fortune that it is a complete fabrication 20.

[82] When asked

“Why did you put it in the statement if you weren't sure? It's speculation?---Well, so are 90 per cent of their facts.

“Sorry?---Well, that would be similar to their statement, though, wouldn't it? Full of lies?” 21

[83] For Mr Schwenke, this exchange, similar to others, does not assist in his credibility or that of his application.

[84] In his application, Mr Schwenke makes the allegation, “Peter Green dismissed me while I was on sick leave”. Such an allegation is serious. However, it must be considered, if true, in context.

[85] At the conclusion of the performance meeting on 7 December 2012, Mr Schwenke was asked to wait in the reception area for an hour until Mr Green had considered their discussion and seek advice from the Human Resources Department. Mr Green telephoned the Human Resources Department who in turn discussed the matter with the General Manager. The General Manager agreed with Mr Green’s recommendation that Mr Schwenke be dismissed. A letter of termination was prepared.

[86] Mr Green went to the reception area to give Mr Schwenke his letter of termination but was advised that he had left. There is no dispute that Mr Schwenke advised Ms Fortune that he felt nauseous and was leaving. While it is in dispute how long Mr Schwenke waited in the reception area, the issue for the Employer is his inability to follow instructions and leave the Employer’s premises without advising Mr Green.

[87] The minutes of the meeting record that it commenced at 10:20 am and concluded at 11:15 am. Further, the minutes record that the Employer sought to bring Mr Schwenke back into the conference room “within 45 minutes”. It was at this time that the Employer discovered that Mr Schwenke left the Employer’s premises. 22

[88] Ms Fortune hand delivered the letter of termination at 1:00 pm on the same day, 7 December 2012, and noticed Mr Schwenke’s car in the driveway. Ms Fortune’s evidence or the minutes were not disputed by Mr Schwenke.

[89] I am unable to accept Mr Schwenke’s evidence that, “2 hours later I left for lunch explaining to the receptionist that I needed to see a doctor as I was feeling very nauseous” 23. Mr Schwenke did not dispute that the meeting finished at 11:15 am nor did he dispute that Ms Fortune delivered his termination letter at 1:00 pm. Accordingly, if two (2) hours elapsed, it would place Mr Schwenke leaving the Employer’s premises after his letter of termination was delivered. For this reason, I am not satisfied that Mr Schwenke was terminated while on sick leave.

[90] In conclusion, for the above reasons, I am satisfied that the Employer had valid reasons to terminate Mr Schwenke’s employment on the grounds of secretly recording his performance discussion on 27 November 2012 and a number of performance related matters.

● Paragraph 387(b) - notification of reason for termination of employment

[91] The Employer was unable to notify the Applicant verbally of the reasons for the termination of his employment because he had left the premises after the performance discussion on 7 December 2012. Notwithstanding this situation, the Employer notified the Applicant by hand delivery of his letter of termination of employment on the same day - 7 December 2012.

● Paragraph 387(c) - opportunity to respond

[92] I am satisfied that on 27 November 2012, the Applicant had an opportunity to respond to issues concerning his conduct and performance prior to the termination of employment. I am also satisfied that the Employer, at the performance discussion on 27 November 2012 and in correspondence of the same day, set out those matters which were the Applicant’s unsatisfactory conduct and its expectations. Further, I am satisfied that the Employer indicated that if the Applicant’s performance did not improve, it may lead to the termination of his employment.

[93] Finally, I am satisfied that if Mr Schwenke had remained on the Employer’s premises on 7 December 2012, he would have been given the opportunity to respond to the reasons for his dismissal. In doing so, I am of the view that it was unlikely that the Employer would have changed its mind regarding his termination of employment as a consequence of secretly recording the meeting on 27 November 2012 and his general performance.

● Paragraph 387(d) - support person

[94] Mr Schwenke did not request, and consequently the Employer did not deny, a support person being present during the dismissal.

● Paragraph 387(e) - unsatisfactory performance

[95] As I have already stated, a reason for Mr Schwenke’s dismissal related to his performance. This unsatisfactory performance was discussed on 27 November 2012 and resulted in a first and final warning. The unsatisfactory performance was a factor in Mr Schwenke’s dismissal.

● Paragraphs 387(f)-(g) - size of enterprise and human resources

[96] The Employer employs approximately 1,500 employees and has a specialist Human Resources Department.

[97] Mr Green, who made the recommendation to terminate Mr Schwenke’s employment, sought advice from the Human Resources Department who in turn discussed the matter with the General Manager. While I was not given evidence of the actual consideration by the Human Resources Department and General Manager, I am satisfied that the line management decision to terminate Mr Schwenke’s employment was professionally appraised externally.

● Paragraph 387(h) - other matters

[98] I have referred to the credibility of Mr Schwenke’s evidence in some areas above and it is not necessary to repeat them.

CONCLUSION

[99] In conclusion, for the reasons set out above, I am satisfied that Mr Schwenke’s dismissal from his employment was not unfair pursuant to s.387 of the FW Act. Accordingly, the application must be dismissed and an order to this effect is issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

Appearances:

W Schwenke on his own behalf.

S Kemp of counsel on behalf of the Respondent.

Hearing details:

2013:

Perth,

10 June.