[2013] FWC 5910 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Con Plessas
v
Phillip Foxman T/A Botany Building Recyclers Pty Ltd
(U2013/7146)
DEPUTY PRESIDENT LAWRENCE |
SYDNEY, 21 AUGUST 2013 |
Application for relief from unfair dismissal.
[1] On 4 March 2013 an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Con Plessas (the applicant).
[2] The applicant was employed from 20 September 2010 until 11 February 2013 by Phillip Foxman T/A Botany Building Recyclers Pty Ltd (the respondent). The reason he gave in his application for dismissal was “lateness”.
[3] The respondent’s “employer response” form, on the other hand, said that “the applicant was terminated . . . for gross misconduct on the basis that he took the work utility vehicle without permission and drove it whilst unlicensed”. The respondent’s business is a waste management facility in the southern suburbs of Sydney.
[4] The matter was the subject of considerable delay, mainly as a result of the applicant’s lack of response and inability to be contacted.
[5] A non compliance hearing was conducted by telephone, by Commissioner Jones on 17 May 2013 which led to directions being issued. A telephone conciliation conference took place on 12 June.
[6] The matter was listed before me for a pre-hearing telephone conference on Thursday, 27 June. Mr Khoury from the Waste Contactors & Recyclers Association of NSW represented the respondent at this conference but did not take a role in the matter thereafter. There was no appearance from the applicant.
[7] At the first hearing on 5 July, there was also no appearance by the applicant despite numerous attempts to contact him.
[8] At the hearing the respondent made an application pursuant to s.399(a) of the Act that the matter be dismissed.
[9] However, the applicant made contact with the Commission later that day.
[10] I considered that fairness necessitated one last attempt to hear the matter. Correspondence was sent to both parties on 5 July setting this out. It also repeated the request to the respondent to file and serve its submission/witness statements as per the directions. The applicant had done so on 21 May. The respondent filed on 8 July.
[11] At the 16 July proceedings the applicant was represented by Mr W. Bass who undertook that he was not a legal representative. Therefore, no permission was required to appear pursuant to s.596 of the Act.
[12] The applicant was the only witness on his own behalf.
[13] The respondent was represented by Sandy Durrant, the Financial Controller, who also filed a statement. Also in attendance was Robert Josef, the Yard Manager, who had also filed a witness statement. Additional statements were filed by the sole director, Phillip Foxman and also by Jacob Foxman, Machinery Operator.
[14] With the agreement of the parties, the 16 July proceedings took the form of a determinative conference in accordance with s.398 of the Act.
Background and Submissions of the Parties
[15] On 18 June 2011, the applicant was involved in a workplace incident which led to a worker’s compensation claim, which it appears has not been satisfactorily resolved. The applicant submitted that his ongoing medical problems led to a change of attitude by the respondent.
[16] The applicant’s statement outlined a conflict with his supervisor Robert Josef. The applicant said that Mr Josef had told him not to attend work on Saturday, 9 February 2013.
[17] On the morning of Monday, 11 February there was an altercation about the applicant’s timekeeping.
[18] The applicant says he then received a call from a friend who asked him for help urgently about a personal matter. He took the work utility, and because of the timekeeping altercation, forgot to tell Mr Joseph. He says that it was not unusual for him and other workmates to take the utility for short errands.
[19] When he returned to the yard, the applicant was told by Mr Josef to go home. He was hand delivered a dismissal letter from Phillip Foxman that night.
[20] The termination letter said that the applicant had been “terminated, effective immediately for misconduct”. It further said:
“On Monday, 11th December 2013, you were counselled by our yard manager, Mr Robi Josef, who explained to you that you were coming in late or not at all and that this behaviour was unacceptable. You stormed out of the office, slammed the door and cursed Mr Josef in front of other employees.
You then went out and took the work utility, without permission and without holding a current drivers licence.
Driving a company vehicle without permission and without a driver’s licence will not be tolerated. You have therefore left us with no other alternative than to terminate your employment for gross misconduct.”
[21] Ms Durrant, in her statement, said that the applicant had left early on Friday, 8 February, had not shown up on Saturday, 9 February, despite being rostered on and with no advice and was an hour late on Monday, 11 February.
[22] Ms Durrant said that she and other management were not aware that the applicant had taken the vehicle until told by the front gate attendant. She had not called the police, as instructed by Phillip Foxman, because of concerns about the consequences for the applicant.
[23] Mr Phillip Foxman, in his statement, confirmed the reasons for the termination letter, as set out above. The statements of Jacob Foxman and Robert Josef were consistent with the respondent’s version of events.
Protection from Unfair Dismissal
[24] An order for reinstatement or compensation may only be issued where I am satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.
[25] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[26] There is no dispute, and I am satisfied, the Applicant has completed the minimum employment period is covered by a modern award, and is below the high income threshold. Consequently, I am satisfied the Applicant was protected from unfair dismissal.
Was the dismissal unfair?
[27] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Was the Applicant dismissed?
[28] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the Act. Section 386 of the Act provides that:
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[29] There is no dispute that the Applicant was dismissed.
[30] The Respondent had 35 to 40 employees, so issues relating to the application of the Small Business Fair Dismissal Code do not arise.
[31] There was no argument that the Applicant was a case of “genuine redundancy” pursuant to s.385 (d) of the Act.
Harsh, unjust or unreasonable
[32] Having dealt with each of s.385(a),(c)-(d) of the Act, I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the 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 the FWC considers relevant.”
[33] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:
.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.
[34] The Applicant submits the dismissal was harsh, unjust or unreasonable because:
● Issues of attendance and lateness had not previously been the subject of disciplinary action;
● Driving the vehicle had been authorised and was common practice;
● The applicant was disadvantaged by the respondent because of his worker’s compensation claim.
[35] Reinstatement, however, was not sought.
[36] The respondent submits the dismissal was not harsh, unjust or unreasonable because:
● The applicant’s unauthorised use of the company vehicle and driving it without a licence was an act of serious or gross misconduct which justified summary dismissal;
● This act came on top of issues of attendance and poor timekeeping;
● The company’s participation in the Works Release programme showed that it had particular regard for its employees, but that Mr Plessas’s continued employment was untenable.
[37] I am under a duty to consider each of these criteria in reaching my conclusion, Sayer v Melsteel [2011] FWAFB 7498.
[38] I will now consider each of the criteria contained in s.387 of the Act separately.
Valid Reason - s.387(a)
[39] The Respondent must have a valid reason for the dismissal which should be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced” Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (Selvachandran). The question is whether the respondent’s summary dismissal action was justified.
[40] Regulation 1.07 of the Act defines “serious misconduct”:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”
[41] There was no dispute that the applicant took the vehicle without authorisation and drove it unlicensed. There was no corroborative evidence that this had occurred previously or was a common practice. The respondent’s witnesses denied that it had occurred previously.
[42] I find that the action of the applicant was serious misconduct which was wilful and deliberate and inconsistent with the continuation of the employment contract. The reason for dismissal was “sound, defensible and well founded” (Selvachandran).
[43] I find that there was a valid reason for the dismissal.
Notification of the Valid Reason - s.387(b)
[44] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” Ibid at 151.
[45] It appears that the applicant was not notified of the reason for the dismissal before the decision was made. The evidence of the events of the day of the dismissal indicate that there was a breakdown in the employment relationship. In any event, I am satisfied that the applicant was not notified of the reason for dismissal.
Opportunity to respond - s.387(c)
[46] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.
[47] Given the circumstances of the day, the applicant was not given an opportunity to respond to the reason for dismissal, although clearly, he was aware of the issues around attendance and timekeeping which had been previously raised.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[48] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[49] There was no evidence that the applicant sought to have a support person in attendance at discussions relating to the dismissal. I find also that the respondent did not unreasonably refuse to allow the applicant to have a support person in attendance.
Warnings regarding unsatisfactory performance - s.387(e)
[50] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal.
[51] Clearly, there had been informal warnings about timekeeping and attendance, but these were not the primary reasons for dismissal.
Impact of the size of the Respondent on procedures followed - s.387(f)
[52] There is no doubt that the size of the respondent’s enterprise did impact on the procedures followed to effect the dismissal.
[53] The monitoring and disciplinary systems that might have been expected in a larger operation did not exist.
Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[54] There is no doubt that the absence of dedicated human resource management or expertise in the respondent’s enterprise impacted on the procedures followed in effecting the dismissal. Of course, this issue is closely related to the size of the business.
Conclusion
[55] I accept the evidence of the respondent’s witnesses as being the most reliable account of events. I have found that the conduct of the applicant was a valid reason for dismissal. The applicant was not then given notification and opportunity to respond in accordance with s.387(b) and (c). This was understandable, given the events of the day, the nature of the business and the circumstances of the employment relationship.
[56] Having considered each of the matters specified in s.387, I am satisfied the dismissal of the applicant was not harsh, unjust or unreasonable.
DEPUTY PRESIDENT
Appearances:
W. Bass for the applicant with C Plessas.
S. Durrant with R. Josef for the respondent.
Hearing details:
2013
Sydney:
June 26 telephone conference;
July 5, 16.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR540474>