| FWC 7814|
|FAIR WORK COMMISSION|
Fair Work Act 2009
Citywide Service Solutions
MELBOURNE, 9 NOVEMBER 2016
Application for relief from unfair dismissal – reinstatement.
 Mr Bonny Walia was employed by Citywide Service Solutions (Citywide). He commenced his latest period of employment in 2012. His employment was terminated on 22 June 2016. Mr Walia now seeks relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).
 Mr Walia was employed by Citywide as a garbage truck driver. He collected garbage in the Melbourne CBD.
 On Sunday 12 June 2016 Mr Walia was working a 10 hour shift. About six and a half hours into the shift (at about 8.30am) he was seen by a City of Melbourne Inspector urinating in a laneway in the CBD. The Inspector issued Mr Walia with an infringement notice for public urination.
 At the completion of his shift Mr Walia called his supervisor and advised him of what had occurred. The City of Melbourne Inspector also emailed Citywide advising of the incident and expressing concern that such a thing could be done.
 A meeting was held with Mr Walia with respect to the incident on 17 June 2016. Mr Walia agreed that he had urinated in the laneway and that he had received a fine from the Council. The meeting was adjourned to allow Mr Walia to gather evidence as to why he could not ‘wait’ to find a toilet. Mr Walia had a union delegate with him at the meeting.
 A further meeting was held between Citywide and Mr Walia on 22 June 2016. Mr Walia was accompanied by a union organiser.
 Citywide took a break from the meeting to consider the further information provided by Mr Walia. On resumption of the meeting, Citywide advised that it was considering terminating Mr Walia’s employment and asked him if there was any reason why his employment should not be terminated for serious misconduct. Mr Walia said he had advised his supervisor of the incident immediately, apologised for his conduct and said it would not happen again.
 Citywide considered his response and advised that it took the incident seriously, Mr Walia’s actions were against the law and had the potential to cause reputational damage to Citywide. Specifically Mr Walia was dismissed for deliberately urinating in a public place.
 I am satisfied that Mr Walia is protected from unfair dismissal. His dismissal was not a result of redundancy and Citywide is not a small business. Mr Walia’s application was made within the time period specified in the Act.
 Section 385 of the Act states:
(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.
 In order to determine if Mr Walia was unfairly dismissed I must first consider if his dismissal was harsh, unjust or unreasonable.
 Section 387 of the Act states:
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.
 I have considered each of these matters.
A valid reason for dismissal (s.387(a))
 For a reason for dismissal to be valid it must ‘sound, defensible or well founded.’ A reason which is ‘capricious, fanciful, spiteful or prejudiced’ cannot be a valid reason. 1
 I am required to decide if urinating in a laneway provides a valid reason for dismissal.
Mr Walia’s evidence is that at about 7.00am he felt the need to go to the bathroom but did not have the chance to stop and find a public toilet. He says it is difficult to park his truck in the city near a public toilet and, because he had a lot of bins to collect, he did not have time to find a park and stop.
 Citywide says that Mr Walia drove a truck of such a size that he could easily have parked in a loading zone. Further, it says that businesses, including fast food restaurants, are very accommodating of employees who need to use the toilet (more than they might be of members of the public who are not customers). It says that Mr Walia could have gone to the toilet at the depot before he left or he could have stopped at multiple places between 7.00am and 8.30am when he was sighted urinating in the laneway in the city.
 Further, Citywide says that the laneway is overlooked by residential apartments and Mr Walia could easily have been seen by a resident in an apartment.
 It is undisputed that Mr Walia was at the depot just before 7.20am. The docket from the depot shows that he left the depot at 7.20am.
 It is not clear to me why Mr Walia did not use the toilets at the depot before he left. When he was asked this he said it wasn’t precisely 7.00am when he started to feel the need to go to the toilet. In his reply evidence Mr Walia said he could not specifically recall if he needed to go to the toilet when he was at the depot. Mr Walia said that at the time he urinated it was urgent and he did not have time to find a toilet.
 There have been many (perhaps too many) decisions of the Commission where an employee has had his employment terminated for urinating other than in the toilet.
 In Oxley v Cascade Brewery Company Pty Ltd 2 Mr Oxley had been seen urinating against an external wall of the company’s property. Deegan C found that Mr Oxley had committed the misconduct and found that:
 I am satisfied that the applicant’s action in urinating in the open, in view of the public and relatively close to the respondent’s pasteurising area, did constitute serious misconduct when the potential for harm to the company’s reputation and business is taken into account.
 I am satisfied that there was a valid reason for the dismissal relating to the applicant’s conduct.
 In Uoifalelahi v Teys Australia Southern Pty Ltd T/A Teys Australia Wagga 3 Mr Uoifalelahi was employed as a labourer scanning orders and stamping and sealing cartons (of meat) for export. Deegan C found that he urinated behind a container.4 In the context of the business (meat exporting) she was satisfied that the incident provided a valid reason for dismissal.5
 In Eng v Goodman Fielder 6 Mr Eng, who delivered bakery products and worked in the yard, was observed urinating into a storm water drain in the loading bay. Gooley C found that she was ‘unable to find that Mr Eng could be seen by members of the public on the neighbouring site or from Whiteside Road’7 or that he wilfully breached the policy of the employer. She accepted the evidence of Mr Eng ‘that he did not consider that he could reach the toilet before he urinated.’8 In the circumstances the Commission found that:
…there was not a valid reason for the termination of Mr Eng’s employment. It is not disputed that the conduct occurred and that urinating in a drain would, without mitigating circumstances, lead to a finding that there was a valid reason for the termination of Mr Eng’s employment. However in this case I have found that there were mitigating circumstances. It was Mr Eng’s evidence, and I accept his evidence on this point, that he could not have reached the toilets in time.
I do not accept that a worker, in Mr Eng’s circumstances, faced with an urgent need to urinate, who attempts to urinate out of view in a drain, albeit unsuccessfully, should have their employment terminated. When asked by Ms Ralph as to what he would do in the future if he was in the same situation, Mr Eng replied that he would urinate in his pants. This is not something that a worker should be required to do to avoid termination of his or her employment. Given Mr Eng’s circumstances, I do not find his failure to wash his hands after urinating is a valid reason for terminating his employment. 9
 In Cowan v Sargeant Transport Pty Ltd 10 (Cowan) Mr Cowan was caught on CCTV urinating beside his truck outside a Woolworths’ Distribution Centre to which he was to deliver goods. In that matter I concluded that:
…I am satisfied that the Respondent had a valid reason to dismiss the Applicant in that the Applicant urinated at the entrance to the RDC, this conduct was not acceptable to Woolworths and the Respondent, and he failed to provide an adequate explanation for his conduct. Such conduct is unprofessional, is not something that could be seen acceptable and was a breach of the Respondent’s policies. 11
 Whilst each of these cases turn on their own facts it seems that the important considerations are whether the employee had a real choice whether to urinate on the spot and whether any reputational damage might or did accrue to the relevant employer.
 In this case Mr Walia did not succumb to an urgent need to urinate that had not been present in the period leading up to his actions. On his own evidence he felt the need to urinate at around 7.00am. That provided him with 90 minutes within which he could have located a toilet. By the nature of his work he was on the move working around the city. He has provided no cogent reason why he did not stop to go to the toilet before it became urgent.
 Mr Walia did say that he was not aware of where the public toilets were such that he could use one. I find this disingenuous to say the least. Mr Walia has worked for Citywide for the last four years. He previously worked for Citywide between 2008 and 2010. The Melbourne city collection area was not a new area for him. In any event if he did not know where the toilets were he should have used the toilets before he left the depot at 7.20am, after, on his own evidence, he started to feel the need to go to the bathroom.
 Mr Walia could have been observed by a member of the public. That he was observed by a Melbourne City Council Inspector demonstrates this. He could have been seen by a resident. It is fortunate for him that he was not.
 I do not consider urinating in a public laneway in the CBD to be acceptable conduct by an employee of Citywide. This is particularly so when, on Mr Walia’s best evidence he had 90 minutes within which he ‘felt the urge’ to urinate and so could have accessed a toilet to do so. Having not found a toilet however I do not suggest that Mr Walia had any other option at that time and no alternative was put to him.
 Given his failure to do anything in the lead up to the incident, in the circumstances of this case I find that there was a valid reason for the dismissal of Mr Walia.
Whether he was notified of that reason (s.387(b))
 Mr Walia was provided with a letter on 15 June 2016 that set out the matter of concern to Citywide – that is that Mr Walia was observed urinating in a public street. The reason for his dismissal was the same as notified in this letter.
 I am therefore satisfied that Mr Walia was notified of the reason for his dismissal prior to the decision being taken to terminate his employment.
Opportunity to respond to the reason (s.387(c))
 The letter of 15 June 2016 invited Mr Walia to the meeting of 17 June 2016 where he could respond to the allegations. That meeting did occur and was adjourned until 20 June 2016 to enable Mr Walia to gather additional information.
 At the conclusion of the second meeting Mr Walia was advised that Citywide was considering terminating his employment and asked to provide any reasons why this should not occur.
 I am satisfied that the decision to terminate his employment was not made until after Mr Walia was given adequate opportunity to respond.
A support person (s.387(d))
 I am satisfied that Mr Walia was not denied access to a support person. He had one at each of the meetings he attended and the meeting times were adjusted to accommodate his support person.
The effect of the size of the employer’s business and access to human resources expertise (s.387(f) & (g))
 Citywide is a large employer. It has extensive internal human resources expertise. I do not consider that either matter adversely impacted on how the matter was dealt with. This is a neutral matter in my conclusion.
Any other matter (s.387(h))
 Citywide says that, in the first meeting after the incident on 17 June 2016, Mr Walia said he had a bladder infection or bladder problems or, perhaps, a urinary tract infection. Citywide also says that Mr Walia said that he had recently been to the doctor.
 Citywide says that it asked Mr Walia for a medical release so that it could contact his doctor to verify his bladder infection and determine if this impacted on him or explained his conduct. Citywide says that those could have been mitigating factors that it could take into account in deciding what sanction, if any, to impose on Mr Walia.
 Mr Walia refused to sign the release (no criticism is made of him for this). He was therefore asked to attend his doctor to get a report to provide to Citywide.
 Mr Walia said that he was told in the meeting on 17 June 2016 that he would be ‘terminated if I did not provide a medical reason as to why I had urinated in the street.’ 12 He further said that Rod (his support person) said in the meeting that he might have a bladder infection. Mr Walia said that he had been to the doctor a few weeks earlier and could go back and see if he could get a medical certificate.
 Mr Walia says he mentioned his visit to his doctor because he had been unwell and been to the doctor and was not sure if there was any connection between that and his urgent need to urinate on 12 June 2016. 13 He denies that he said he had a bladder infection and suggests that Citywide assumed he did because he mentioned he had been to the doctor after Rod mentioned that he might have a bladder infection.
 Mr Anthony Clendinen is the Human Resources Business Partner for Citywide. He gave evidence and produced his notes made during and just after the meeting on 17 June 2016 with Mr Walia. Those notes indicate that Mr Walia said he had a bladder problem and that he would go back to the doctor and get a certificate. 14
 Mr Jason Boyle is the Operations Manager Commercial Waste. He also attended the meetings with Mr Walia on 17 and 22 June 2016. His notes taken at the time of the meeting reveal nothing.
 I have carefully considered the evidence in respect of whether or not Mr Walia told Citywide he had a bladder infection and he was going to return to the doctor to get a certificate with respect to that infection. I am satisfied that either Mr Walia or Rod, his support person, raised the possibility that he might have a bladder infection. I am also satisfied that Mr Walia did mention he had been to the doctor some weeks earlier. If Mr Walia had a bladder infection when he had visited the doctor at that time I am not sure why he did not just say so. If he did not have an infection, the relevance of the reference to the doctor escapes me.
 Whilst I do not consider that Mr Walia deliberately lied I the meeting of 17 June 2016 I am satisfied that he was prepared to make use of the time a return visit to the doctor gave him to try and find some defence for his actions.
 I am not convinced that the evidence of Mr Paul Duncan of the Australian Municipal, Administrative, Clerical and Services Union provides any assistance to the Commission in resolving the matter at hand. Mr Clendinen does not say that Mr Duncan coached Mr Walia to say that he had a bladder infection.
 Mr Walia agrees that he has received one previous warning for smoking in a truck in April 2013. He says that a further warning given in August 2015 was withdrawn.
 Mr Walia says that his life has been difficult since he was dismissed. He has not been able to find work in hotel management (the area of his qualifications) and the jobs he has applied for have been as considerably less pay (he worked shift work at Citywide so received loadings for that work. He also worked substantial overtime working 54 hours per week).
 Mr Walia is the sole breadwinner for his family. His wife is the primary carer for their two young children. He says that he has had to take out a bank loan to meet his day-to-day living expenses.
 Mr Walia advised his supervisor of the incident on the day it occurred at the end of his shift. He apologised to Citywide for the incident and has shown contrition.
 Citywide agreed that it had dealt with other employees who had urinated in public places.
Conclusion as to harsh, unjust or unreasonable
 It is accepted that a dismissal may be:
● unjust because the employee was not guilty of the alleged misconduct
● unreasonable because the evidence or material before the employer did not support the conclusion
● harsh on the employee due to the economic and personal consequences resulting from being dismissed, or
● harsh because the outcome is disproportionate to the gravity of the misconduct (the punishment does not fit the crime). 15
 In the circumstances before me I am satisfied that the termination of Mr Walia’s employment was harsh in that it was disproportionate to the gravity of the misconduct and for the consequences on Mr Walia.
 I accept that urinating in a public place is not acceptable and, without sound medical reasons as to why it could not be avoided, is never acceptable. Why Mr Walia did nothing about his urge to urinate before it became a matter of urgency is not clear. He was moving around the city. He could have found a place to park and used a public toilet or one in a café. As it was, while he was seen by an Inspector, Mr Walia was not seen by a member of the public. I do not consider that he created a health and safety risk in urinating on the ground.
 I have balanced this against the fact that Mr Walia reported the incident as soon as his shift ended, that he has apologised on a number of occasions to Citywide and his dismissal has had a range of personal consequences for him in circumstances where he has a dependent wife and two small children.
 For these reasons I am satisfied that the termination of his employment was harsh.
 I am satisfied that Mr Walia has been unfairly dismissed.
 Section 390 of the Act states:
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
 Mr Walia seeks reinstatement.
 Citywide put nothing to the Commission as to why reinstatement would not be appropriate.
 Citywide is a large organisation of approximately 1000 employees.
 Mr Walia has a good employment record with Citywide. He has one misconduct matter on his file and I accept that the second matter had been withdrawn. He appears conscientious of his work, is aware that what he did was wrong has not attempted to deny it, advised his manager at the conclusion of his shift and has shown true remorse.
 In these circumstances I am satisfied that it is appropriate that Mr Walia be reinstated to Citywide.
 Section 391 of the Act deals with reinstatement. It states:
391 Remedy—reinstatement etc.
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
 I am satisfied that Mr Walia should be appointed to the position he occupied prior to his dismissal.
 Further, I am satisfied that an order should be made maintaining continuity of employment of Mr Walia and that his period of continuous service with Citywide should be maintained.
 Mr Walia’s employment was terminated on 22 June 2016. His application for relief from unfair dismissal was heard by the Commission on 10 October 2016. In considering if I should make an order that Citywide pay an amount to Mr Walia for remuneration lost, I have taken into account the unacceptable conduct by Mr Walia.
 In these circumstances I am prepared to order that Citywide pay to Mr Walia an amount for remuneration lost from the first full pay period on or after 22 August 2016 until the date of reinstatement. Citywide should deduct from this amount any remuneration received by Mr Walia from the time of his dismissal up until this date. To facilitate this:
● Mr Walia is required to provide an accurate account of all earnings since his employment was terminated to Citywide. Mr Walia is required to provide the information required to Citywide in a timely manner;
● Citywide is required to undertake the relevant calculations and advise the outcome to the Commission within 10 business days of the making of the order for reinstatement.
 A further order will then be issued indicating the amount to be paid to Mr Walia.
 An order will be issued with this decision:
● Requiring Citywide to reappoint Mr Walia to the position he occupied immediately prior to his dismissal;
● Requiring Citywide to maintain continuity of Mr Walia’s employment;
● Requiring Citywide to maintain Mr Walia’s continuous service.
 A further order will be issued on receipt of the financial information as outlined above
J Dawson-Field solicitor for the Applicant
D Victory of Counsel for the Applicant
A Clendinen for the Respondent
A Zanker for the Respondent
1 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
2  FWA 892.
3  FWC 9560.
4 Ibid .
5 Ibid .
6  FWA 317.
7 Ibid .
8 Ibid .
9 Ibid .
10  FWC 5330.
11 Ibid .
12 Exhibit A1, paragraph 26.
13 Exhibit A2, paragraphs 10-11.
14 Exhibit R4.
15 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.
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