[2017] FWC 366
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Keith Spurr
v
Valley Retreat Investments Pty. Ltd. T/A Autobarn Melton
(U2016/11021)

COMMISSIONER GREGORY

MELBOURNE, 18 JANUARY 2017

Application for relief from unfair dismissal.

Introduction

[1] Mr Keith Spurr was first employed by Valley Retreat Investments Pty Ltd T/A Autobarn Melton (“Autobarn Melton”) in April 2015. He carried out various tasks in this role, including work as a fitter installing sound systems and other equipment into customers’ motor vehicles. However, in August last year he was summarily dismissed on grounds of serious misconduct after a series of incidents over a period of 3 days. He subsequently lodged an unfair dismissal application and this decision deals with that application.

[2] It is also noted at the outset that Autobarn Melton initially raised a jurisdictional objection in response to the application, namely that it is a small business and the dismissal was carried out in accordance with the Small Business Fair Dismissal Code. However, it subsequently withdrew this objection. There have also been some changes in the representation of the parties since the application was first filed. Autobarn Melton also made an application seeking to dismiss the application on the grounds that it was made vexatiously and without reasonable cause. However, the Commission indicated it intended to proceed to hear and determine the unfair dismissal application.

[3] Mr Caleb Leitmanis from the Central Highlands Community Legal Centre was given permission to appear on behalf of Mr Spurr under s.596(2)(b) of the Fair Work Act 2009 (Cth) (“the Act”) on the basis that it would be unfair not to allow him to appear as Mr Spurr was unable to represent himself effectively. Mr David Stewart, a Director of Autobarn Melton, appeared on behalf of the Respondent.

The Issue to be Determined

[4] When dealing with an application made under s.394 the Act requires that the Commission must take into account the various considerations in s.387. It states:

[5] The Commission is accordingly required to now determine whether Mr Spurr’s summary dismissal on grounds of serious misconduct was harsh, unjust or unreasonable, taking into account the various matters in s.387.

The Evidence and Submissions

[6] Mr Spurr provided a written submission in support of his application, together with three additional pieces of correspondence. These were a so-called “show cause” letter from Mr Stewart given to him on 13 August 2016, a letter from his legal representatives at the time, dated 16 August 2016, and his termination letter of the same date. He did not file a witness statement or any other evidentiary material, but did provide some additional oral evidence.

[7] The submission indicates that Mr Spurr was provided with a letter from Mr Stewart on 13 August 2016, asking him to attend a meeting on 16 August 2016 to “Show Cause” why your employment should be allowed to continue. You are entitled to have a representative present at next Tuesday’s meeting if you wish.” 2 However, Mr Spurr did not attend that meeting, apparently because he was unwell. The solicitors acting on his behalf at the time instead offered to meet with Mr Stewart as a matter of urgency “to attempt to resolve this matter.”3

[8] However, Mr Spurr then received a further letter from Mr Stewart on the afternoon of Tuesday, 16 August 2016 terminating his employment on grounds of serious misconduct. The letter made reference to three incidents. Firstly, a burnout performed in the driveway of the business by a vehicle driven by Mr Spurr on Thursday, 11 August 2016. Secondly, work that was not completed to an appropriate standard in a customer’s vehicle on the following day, being Friday, 12 August 2016. It was alleged that this situation was compounded by Mr Spurr’s attitude towards the customer when he returned to the premises on the next day. Thirdly, “rude and aggressive gestures” 4 by Mr Spurr that were directed on three separate occasions at a security camera in the workshop on Saturday, 13 August 2016.

[9] The submissions provided on behalf of Mr Spurr acknowledge that each of these incidents occurred but suggests they were, in large part, a result of his frustration with the working conditions at the business. It is also submitted that the business was out to get rid of a “trouble maker,” 5 in that Mr Spurr had raised concerns about the culture in the workplace and “was prepared to be the whistleblower for concerns that other staff members shared but were too afraid to raise.”6 It was also submitted that the decision to terminate Mr Spurr on grounds of seriousness misconduct was a disproportionate response in all the circumstances, and some form of a lesser action was warranted instead.

[10] Mr Spurr also indicated in his oral evidence that he performed the burnout to vent his frustration. He also indicated that the incident involving the faulty workmanship had occurred in large part because he had not previously worked on that particular model of vehicle. He also said that he was not wanted, and the business was trying to get rid of him. In addition, after receiving the so-called “show cause” letter on 13 August 2016 he had been told by his legal representative at the time not to respond, and it would instead make contact with Autobarn Melton on his behalf.

[11] Mr Spurr was asked in cross examination about the various reasons referred to in his submission that led him to perform the burnout in the driveway. These included not having enough time for lunch breaks, allegations of theft from the till and taking tools from the workshop, bullying and harassment, having to lie in water on the floor while working on vehicles, and the fact the roller door was not fixed and required over exertion and the risk of injury to open it. However, he was reluctant to confirm in cross examination which of these issues had actually led him to act in the way he did. He also acknowledged that some of these issues had been resolved some time ago, or had played little or no part in him acting in the way he did.

[12] He also indicated that the incident involving faulty workmanship could have been resolved in a relatively straightforward way if the customer had been prepared to come back next morning. He was also reluctant to provide an explanation for the gestures made in front of the security camera, but acknowledged that ultimately these were directed at Mr Stewart.

[13] Autobarn Melton provided a written submission which responded to the matters raised in the submission provided on behalf of Mr Spurr. Mr Stewart acknowledged in the proceedings that the content of the submission contained much of his own witness evidence and agreed to be cross-examined about those matters. Autobarn Melton also provided additional witness statements from Mr Peter Nikolic, Ms Evdoxia (Eva) Penn, Ms Anastasia (Ana) Fountis and Mr Patrick Sanders.

[14] Autobarn Melton rejects the claim that Mr Spurr was denied procedural fairness in the context of his termination and submits he refused an opportunity provided to him to attend a meeting to discuss the issues involved, apparently because he was unwell. It also submits he was contacted by telephone to ask whether he wished to attend a meeting to discuss these issues and replied by text, indicating “no thanks.” It was then advised that his legal representatives were prepared to meet, but without Mr Spurr being present.

[15] The submission also refutes the suggestion his behaviour was motivated by an on the spot reaction prompted by frustration and submits instead that he foreshadowed some actions, in advance of them taking place, in discussions with other staff members. It also submits that after the burnout incident he returned to the shop and proceeded to fill a shopping trolley with stock he then purchased, apparently with the view he would be terminated as a consequence of his actions, and would not be returning to work in the store.

[16] The submissions also provide further detail about each of the incidents relied upon as the basis for termination. The burnout occurred at approximately 3.30 p.m. on the afternoon of Thursday 11 August 2016 and left extensive marks on the driveway. It is also submitted that it caused a cloud of black smoke to drift across the adjoining properties and caused surface damage to the driveway. It also submits it was a significant health and safety incident with the potential for the vehicle to collide with the adjoining buildings or trees that line the driveway. It also submits the appearance of the black rubber marks on the driveway created the potential for customers to be concerned about how their vehicles were treated when left at the premises.

[17] It also submits the installation of a sound system by Mr Spurr in a vehicle on Friday, 12 August 2016 was not completed to a professional standard, and when the vehicle was returned to the workshop on the following day for the work to be rectified the customer was treated in an aggressive and contemptuous manner, leading to a formal complaint being made to the head office of Autobarn. This subsequently required a further meeting with the customer, who had previously had a long association with the business, in order to retrieve the situation.

[18] The final issue arose on Saturday, 13 August 2016 when Mr Spurr was filmed on 3 separate occasions by the security camera in the workshop directing what can be described as rude, raised finger gestures at the camera in a manner that it submits quite clearly suggested these gestures, and their intended message, were directed at Mr Stewart.

[19] Autobarn Melton submits, in conclusion, that each of these actions, both separately and in combination, clearly demonstrated that Mr Spurr did not expect or intend to have an ongoing role in the business, given he was prepared to damage the interests of the business and direct abuse at the business owner. He had also caused physical damage to the premises and created a risk to the health and safety of himself and others. It accordingly submits it had a valid reason to terminate Mr Spurr’s employment on grounds of serious misconduct.

[20] Mr Stewart also indicated in response to a question from the Commission that it was decided to proceed with the decision to terminate Mr Spurr’s employment, even though he had not been able to meet with him to obtain a response to the “show cause” letter, as originally proposed on 16 August 2017. It decided instead to proceed to terminate his employment because he had previously indicated in his text message that he did not wish to take up the opportunity to meet and, in addition, his legal representatives were only proposing to meet without him being present.

[21] As indicated, Autobarn Melton also relies on the content of four additional statutory declarations filed in conjunction with its submissions. The first provided by Ms Eva Penn, who is employed by Autobarn Melton as a book keeper/paymaster, refuted any suggestion Mr Spurr was dismissed because he was a “whistleblower.” She also rejected any claims of bullying, harassment or intimidation toward Mr Spurr by Mr Stewart, and instead described Mr Stewart, based on her experience and dealings with him, as “a very loyal and compassionate employer.” 7

[22] Ms Ana Fountis is employed by Autobarn Melton as a Sales Assistant and has been employed since 2011. She also stated she had never seen Mr Spurr subjected to bullying or harassment by Mr Stewart, but did hear him make mention that he was going to try and organise a WorkCover claim based on claims of stress and depression. She also described the significance of the smoke and smell that covered the shop and workshop and the adjoining premises following the burnout in the driveway.

[23] Mr Peter Nikolic indicated in his Statutory Declaration that when he went to collect his vehicle from the workshop on Friday 12 August after having new speakers installed he noticed the door trims had not been replaced properly. After raising this issue he was told the fitter had already left for the day and was asked to come back on the following day. He said that when he arrived on the next day the attitude of the fitter was confronting and aggressive and when he finally collected his vehicle the trims had still not been installed correctly. He said he left the workshop dissatisfied and upset and made contact with the head office of Autobarn to complain. He then met with Mr Stewart on the following Monday and it was agreed the issues to do with the installation of the sound system in the vehicle would be rectified on the following day. He also indicated he was the owner of cafe in the local area and if his complaint had not been dealt with to his satisfaction he would have advised customers of his own business about his concerns with the service provided by Autobarn Melton.

Consideration

[24] The letter provided to Mr Spurr on 16 August 2016 sets out in some detail each of the three matters that led to the decision to terminate his employment summarily on grounds of serious misconduct. I now turn to consider whether his dismissal was “harsh, unjust or unreasonable” taking into account the considerations in s.387 I must have regard to.

[25] It is noted at the outset that an explanation about the nature of conduct or behaviour that might be encompassed within the phrase “harsh, unjust or unreasonable” is contained in the decision in Byrne & Frew v Australian Airlines Ltd 8 when McHugh and Gummow JJ stated as follows:

[26] The decision of the Full Bench of Fair Work Australia in the matter of L. Sayer v Melsteel Pty Ltd 10 also provides guidance about the Commission’s role in regard to each of the considerations in s.387. It concluded:

[27] I now turn to deal with each of the considerations in s.387 having regard to these authorities.

(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

[28] It is noted, firstly, that the existence or not of a “valid reason” is invariably an important issue in any unfair dismissal application, and is often determinative. In the often cited decision of Parmalat Food Products Pty Ltd v Kasian Wililo 12 a Full Bench of the Commission made the following statement about the importance of “valid reason”:

[29] It is also clear that the reason must be objectively valid. It is not sufficient that the employer believes it had a valid reason for termination. This was made clear in the Full Bench decision handed down in Rode v Burwood Mitsubishi 14 at paragraph 19 where it held:

[30] The decision in Selvachandran v Peterson Plastics Pty Ltd 16 also makes clear that the reason should also be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”

[31] Mr Spurr acknowledges that the three incidents referred to by Autobarn Melton took place, but suggests the burnout and the gestures to the security camera can be explained by the fact they were motivated by the frustrations he was experiencing with the working conditions in the workshop. However, in cross-examination Mr Spurr was not able to clearly identify or confirm what was actually the source of his frustration, other than some general sense that the business was out to get him. By contrast, other submissions and evidence appear to suggest the business and Mr Stewart, in particular, had made a number of attempts in the past to accommodate various requests made by Mr Spurr.

[32] Mr Spurr also sought to explain the incident with the customer by indicating that this was the first occasion on which he had worked on that particular vehicle, however, no further explanation was provided for his subsequent behaviour toward the customer when he returned on the following day.

[33] I am satisfied that each of these incidents can be described as significant. The burnout was carried out in a relatively confined space on the premises, in close proximity to trees and buildings. Photographs submitted by Autobarn Melton indicate the extent of the markings on the driveway, and the witness evidence also referred to the noise and the smoke that was emitted as a consequence. There is also a suggestion that the incident was serious enough to have caused damage to the surface of the driveway. In summary, it is difficult to contemplate how an employee could be involved in the commission of such a significant and potentially dangerous act on an employer’s premises without there being serious ramifications as a consequence.

[34] The second incident involving the rude hand gestures directed at the security camera could, on the one hand, be viewed as relatively light-hearted acts. However, Mr Spurr did not deny in cross examination that these acts were directed at Mr Stewart, the principal Director of the business. They also occurred in close proximity to the other two incidents.

[35] The third incident involving the faulty workmanship was compounded by the fact that the subsequent meeting on the following day with the customer, when the vehicle was returned to have the issue rectified, left the customer feeling intimidated and concerned. He was apparently a long-standing customer, who had a business in the local area, which created the potential for the damage to the reputation of Autobarn Melton to be magnified. There also appeared to be some suggestion that the faulty workmanship and the attitude towards the customer were a deliberate act, however, I make no concluded finding in regard to that submission. Nevertheless, faulty workmanship is a significant issue, and in this case it was compounded by the subsequent attitude adopted towards the customer.

[36] As indicated, I am satisfied that each of these incidents are significant. I am also satisfied that their significance is accentuated by the fact they occurred on three consecutive days, suggesting that some concerted action was involved. However, an issue does arise in terms of whether they justified summary dismissal on the grounds of serious misconduct, or whether some lesser sanction could have been provided in response. As the decision in Rode v Burwood Mitsubishi 17 makes clear it is not sufficient for an employer to simply maintain or act in the belief that the termination of an employee was for a valid reason. It must instead have a valid reason that is defensible and can be justified on an objective analysis of the relevant facts. As indicated, an issue of proportionality also arises in this case in terms of whether the matters relied upon provide a valid reason for summary dismissal on grounds of serious misconduct.

[37] As indicated, Mr Spurr was, firstly, involved in a dangerous incident that raised potential health and safety concerns, as well as leading to physical disfigurement and damage to the premises. On the next day he was involved in an ongoing issue with a customer, which had the potential to significantly damage the reputation of the business. On the next day he was involved on three separate occasions in making offensive gestures to the security camera in the workshop, which were apparently directed at the owner of the business. Two of these actions, at least, were not accidents or unintended outcomes. They were instead deliberate and wilful acts, which could reasonably be expected to have significant consequences.

[38] In conclusion, I am satisfied that these three incidents, particularly when viewed in combination, provided grounds for Autobarn Melton to conclude that Mr Spurr had decided that he had either no future, or no intention of remaining with the business in the future. I am also satisfied these incidents acted to destroy any remaining trust and confidence that the business had in Mr Spurr, and in his ability to act in an appropriate way in the future. They accordingly provided the basis for his summary dismissal on grounds of the serious misconduct.

(b) whether the person was notified of that reason; and

[39] Mr Spurr was provided with details of the issues of concern in the “show cause” document dated 12 August 2016. He was then provided with further details in the termination letter provided to him on 16 August 2016.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

[40] Mr Spurr was provided with an opportunity to respond to the matters raised by Autobarn Melton, but was apparently unable to take up this opportunity because he was unwell on the day in question. However, he also rejected the opportunity to discuss these issues when contacted by telephone, when he responded to a telephone message by text indicating, “no thanks.”

(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

[41] Mr Spurr was provided with the opportunity to have a support person present, if he wished, in the “show cause” letter provided to him on 13 August 2016.

(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

[42] This consideration is of limited relevance in that Mr Spurr was summarily dismissed.

(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

[43] Autobarn Melton appears to be a relatively small business although its Director, Mr Stewart, appears to have a significant degree of business experience. There is nothing to suggest this consideration is of any particular relevance in the circumstances of this matter.

(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

[44] There is no evidence indicating Autobarn Melton has any dedicated human resource expertise, however, again this consideration does not appear to be of particular relevance in all the circumstances of this matter.

(h) any other matters that the FWC considers relevant.

[45] There was a suggestion in the submissions provided on behalf Mr Spurr that he suffers from a mental health condition. However, without wanting to diminish the potential significance of the impact of mental health issues on an individual no evidence was provided about this matter. In addition, the submissions and the Statutory Declaration provided on behalf of Autobarn Melton suggest the business has previously had some experience in dealing with employees or other family members who suffer from mental health conditions, and has been prepared, in response, to work with these employees in a sympathetic and constructive way.

Conclusion

[46] As indicated, I have had regard to each of the matters in s.387. In conclusion, I am not satisfied in all the circumstances that Mr Spurr’s termination can be considered to be harsh, unjust or unreasonable. In coming to this decision I have had particular regard to the conclusions reached in regard to “valid reason.” Therefore, I am not satisfied that he was unfairly dismissed. It follows from this decision that the application must be dismissed.

al of the Fair Work Commission with member's signature

COMMISSIONER

Appearances:

C Leitmanis for the Applicant.

D Stewart on his own behalf.

Hearing details:

2017.

Melbourne:

January 16.

 1   Fair Work Act 2009 (Cth) s 387.

 2   Exhibit KS2, “Show Cause” letter, dated 12 August 2016.

 3   Exhibit KS2, Letter from BJT Legal to Respondent, dated 16 August 2016.

 4   Exhibit KS2, Letter of termination of employment, dated 16 August 2016.

 5   Exhibit KS1 at [6].

 6   Ibid.

 7   Exhibit AB3 at [1].

 8   (1995) 185 CLR 410.

 9   Ibid at 465.

 10   [2011] FWAFB 7498.

 11   Ibid at [20].

 12   [2011] FWAFB 1166.

 13   Ibid at [24].

 14   Print R4471, 11 May 1999, Ross VP , Polites SDP , Foggo C.

 15   Ibid at [19].

 16   (1995) 62 IR 371 at 373.

 17   Print R4471, 11 May 1999, Ross VP , Polites SDP , Foggo C.

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