DECISION

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

Mr Victor Bajada
v
Trend Windows and Doors Pty Limited
(U2018/2031)

Application for an unfair dismissal remedy, workplace policy, smoking breaks.

Introduction

[1] On 27 February 2018 Mr Victor Bajada (Applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work FW Act 2009 (FW Act) for a remedy in respect of his dismissal by Trend Windows and Doors Pty Ltd (Employer/Respondent) on 6 February 2018.

[2] The Applicant contended that he was unfairly dismissed and seeks an Order that he be reinstated.

[3] On 9 March 2018 the Employer filed a response to the unfair dismissal application. It defended its decision to dismiss the Applicant.

[4] Attempts at conciliation were attempted, but the matter remained unresolved.

[5] On 5 April 2018, I sought submissions from the parties about whether the Commission should conduct either a conference (section 398) or a hearing (section 399) in relation to the matter.

[6] Taking account:

a) any differences in the circumstances; and

b) the wishes;

of the parties to the matter, and considering whether a hearing would be the most effective and efficient way to resolve to the matter, I decided to conduct a Determinative Conference.

[7] At the Determinative Conference conducted on 21 May 2018 and 15 June 2018:

a) the Applicant represented himself. He gave evidence on his own behalf and was cross-examined.

b) the Respondent was represented by its Human Resources Manager, Maria Taylor. In addition to giving evidence herself, Ms Taylor called the following witnesses (each of whom made themselves available for cross-examination):

i. Steve Rayner – Operations Manager,

ii. Glen Egan – General Manager Operations,

iii. Zoran Sekulic – Leading Hand,

iv. Harry Pickersgill – co-worker and union delegate, and

v. Grant Smith – co-worker and union delegate.

[8] At the conclusion of the Determinative Conference the parties were directed to file final submissions by 29 June 2018.

[9] In addition to the evidence received at the Determinative Conference, in coming to this decision, I have had regard to the following:

Background

[10] The following matters were either agreed between the parties or not otherwise substantially contested. Accordingly, I make the following findings of fact:

a) The Respondent is a manufacturer and supplier of timber and aluminium windows and doors.

b) The Applicant’s employment commenced on 7 June 2004.

c) He initially worked on Line 4.

d) In 2006 the Applicant became a leading hand on Line 12.

e) At the end of his employment he was a multi-skilled labourer/window assembler.

f) The Applicant worked on a full-time basis, 38 hours per week. He was paid $26.8391 per hour. In the 12 months prior to his dismissal the Applicant earned $75,844.42.

g) In 2011 and 2016 the Applicant experienced work related injuries. Issue arose in relation to compensation. He says this led to poor treatment of him and that he made complaints about discrimination. He says he felt unsupported by the human resources department.

h) On 22 November 2014 at 8:30 AM the Applicant was smoking during work hours on a Saturday. This was discussed with him and a Disciplinary Document was prepared. The Applicant refused to sign it.

i) On 25 November 2014 the Applicant was again caught smoking during working hours. This was discussed with him and a Disciplinary Document was prepared. The Applicant refused to sign it.

j) On 24 June 2015 the Applicant was again caught smoking during working hours. This was discussed with him and a Disciplinary Document was prepared. The Applicant refused to sign it.

k) On 24 October 2015 the Applicant was again caught smoking during working hours. This was discussed with him and a Disciplinary Document was prepared. The Applicant refused to sign it.

l) On around 1 October 2017 the Respondent placed a notification on the factory notice board about the policy of not smoking outside of designated areas and designated times.

m) On Tuesday, 3 October 2017:

i. Operations Manager, Steven Rayner, instructed Leading Hand, Zoran Sekulic, to have one of his team members work on Line 4.

ii. Mr Sekulic passed on the request to the Applicant to work on Line 4. The Applicant did not see need for him to move to Line 4.

iii. The Applicant took the issue up with Mr Rayner. The Applicant was argumentative. Mr Rayner was dismissive of the Applicant. Mr Rayner directed the Applicant to work on Line 4.

iv. At 6.32am the Applicant left the work site without permission or authorisation. He says he was concerned for his safety. There is some debate about whether the Applicant informed anyone of his intention to leave. The Leading Hand, Zoran Sekulic denies being told (Exhibit R9). So too did Union Delegate, Harry Pickersgill (Exhibit R10).

n) On Wednesday, 4 October 2017 the Applicant was on sick leave.

o) On Thursday, 5 October 2017 the Applicant returned to work. He was again directed to work on Line 4. Mr Rayner sought to speak to the Applicant about him having left work on Tuesday, 3 October 2017.

p) For the remainder of October 2017 Applicant returned to Line 12.

q) Because of various un-availabilities a further meeting could not be scheduled until 13 October 2017. At the meeting on 13 October 2017 the events of 3 October 2017 discussed. The meeting became heated. The AWU Delegate, Grant Smith, terminated the meeting.

r) Between Monday, 16 and Friday, 20 October 2017 the Applicant was on sick leave.

s) On Monday, 23 and Tuesday, 24 October 2017 the Applicant was on approved annual leave.

t) On Wednesday, 25 October 2017 the Applicant was advised that a further disciplinary meeting would occur the following day.

u) On Thursday, 26 October 2017 the Applicant met with Ms Taylor and Mr Rayner. The Applicant did not attend with a support person (though it had been provided with the opportunity to do so). This meeting too became heated. It was adjourned.

v) Later on 26 October 2017 Mr Rayner wrote to the Applicant in the following terms,

“There is a meeting on Monday 30/10/2017 @ 10.30 AM at Girraween in the board room that you must in relation to your conduct absentees. You’re welcome to bring a support person we represent to me.”

w) The meeting scheduled for 30 October 2017 did not occur until the day after.

x) On Tuesday, 31 October 2017:

i. there was a meeting attended by AWU VP, Jeff Buhler, Mr Rayner, Ms Taylor and the Applicant. The agenda included the Applicant’s refusal to follow reason directions; unsatisfactory behaviour conduct, both in the workplace enduring the discipline process; high-level absenteeism; ongoing smoking breaks outside of scheduled breaks. Mr Buhler as the Applicant’s support person attempted to provide the Applicant with an understanding of the severity of the matters and understanding that he could ultimately lead to the termination of his employment. The Respondent’s policy in relation to smoking was discussed with the Applicant. He was told that any further breach of the policy might lead to the termination of his employment. Applicant was resistant to the non-smoking policy and stated “he could not guarantee that he would not do this again.”

ii. the Applicant was issued with a final warning letter (Exhibit R6) in relation to unsatisfactory conduct when he was found smoking during working hours. The final warning (signed by Maria Taylor, Human Resources Manager) stated,

“I am writing to you about your conduct during your employment with Trend Windows & Doors (the employer).

On 31 October 2017 you attended a meeting with your union representative, Jeff Buhler, your reporting manager, Steve Raynor [sic] and myself. At this meeting you were advised that your conduct has been unsatisfactory.

During the meeting it was established that on 3^rd October 2017 you had failed to follow a reasonable direction in the line of duty from your manager. Consequently, you finished your shift early and took the remaining week off work sick leave. In that meeting, no plausible reason was offered why you did not follow instruction.

On the 31^st October you were observed by your manager taking a cigarette break outside of your break times. Mr Raynor [sic] confronted you regarding the policy during the exchange you demonstrated no regard to what he was advising you and refuse to put out your cigarette. He was further advised that morning, in which you have admitted, that you had taken a cigarette break half an hour earlier. As a result, the warning letter was issued that morning.

After a short break in our meeting, you were encouraged to take some of your leave entitlements to assist you with managing giving up your smoking with the support of our Employee Assistance Program. This was offered to you as collectively, with those present in the meeting, we did not feel confident that you would comply with JELD-WEN’s Smoking Policy which ultimately would have resulted in your termination within a short period of time. Furthermore we are greatly concerned with the level of frustration expressed you had with a number of your colleagues and inability to manage those frustrations the workplace.

You accepted to take the Leave option, effective as of the 1 November 2017 and your first day to return back on the 15 January 2018.

This is a final warning letter. IF significant improvement in your conduct is not achieved upon your return from [leave] your employment may be terminated. To reiterate, expectation is that you:

•  follow all lawful directions from your reporting manager.

•  Adhere to the times smoking is permissible on site, that is, prior to your commencement of shift, during a morning break, lunchtime and at the end of your shift.

I propose that we meet again on the 15 January 2018, to review the progress you have made during your Leave of absence. If you wish to respond this final please do so by contacting me on …. or by replying in writing.”

y) Between 1 November 2017 - 15 January 2018 the Applicant was granted leave. The ostensible purpose of the leave was to provide him with an opportunity to address his addiction to smoking. During this period of time the Respondent approved payment of psychologist treatments.

z) On 3 November 2017 there was a Tool Box meeting at which the non-smoking policy was discussed. The Applicant was an annual leave and not in that meeting. In any case I find that the Applicant was aware of the Respondent’s smoking policy and the requirements about designated areas and designated time. This was substantially discussed at the meeting on 31 October 2017.

aa) On 15 January 2018 the Applicant returned to work.

bb) On 22 January 2018:

i. the Applicant was observed by Mr Rayner, smoking at 7.30am (i.e. during working hours and outside a scheduled break time). A discussion ensued.

ii. the Applicant left the work site (unauthorised) stating “I am not a slave and I am not going to put up with this again.”

cc) On 23 January 2018:

i. The Applicant advised that he would not attend work for the rest of the week.

ii. Mr Rayner wrote to the Applicant in the following terms,

“There will be a meeting on 31/01/2018 @ 8.00 AM in the Training Room that you must attend in relation to your conduct & behaviour re - smoking during working hours & leaving the premises without permission, incident on the date of 22/01/2018. You are welcome to bring a support person or unit representing to the meeting.”

dd) On 31 January 2018 the Applicant had a meeting with the General Manager of Operations, Glen Egan, Mr Rayner, Grant Smith and Harry Pickersgill (AWU Delegates) in relation to the smoking incident on 22 January 2018. The Respondent says that the Applicant admitted to smoking on 22 January 2018. The Applicant denies making admission. Regardless of whether the Applicant made the admission I am satisfied that the Applicant was smoking on 22 January 2010 outside of a scheduled break time.

ee) On 1 February 2018 Mr Rayner wrote to the Applicant in the following terms,

“There will be a meeting on 02/02/2018 @ 9.30 AM in the Trading Group that you must attend in relation to your conduct & behaviour re - smoking during working hours & leaving the premises without permission, incident on the date of 22/01/2018, also a follow-up from the meeting held on the 31/01 at 08.00 am. You are welcome to bring a support person or unit representing to the meeting.”

ff) The meeting scheduled for 2 February 2018 did not occur.

gg) On 5 February 2018 Mr Rayner wrote to the Applicant in the following terms,

“There will be a meeting on 06/02/2018 @ 09.45 am in the Training Room that you must attend in relation to your conduct & behaviour re - smoking during working hours & leaving the premises without permission, incident on the date of 22/01/2018, also a follow-up from the meeting held on the 31/01 at 08.00 am and 2.00 pm. You are welcome to bring a support person or unit representing to the meeting.”

hh) The meeting on 6 February 2018 was attended by Mr Egan, Mr Rayner, the Applicant, Paul Farrow (VP AWU) and AWU Delegates Mr Pickersgill and Mr Smith. The Applicant was provided with one last opportunity to provide reasons why his employment should not be terminated.

ii) There was a break in the meeting where the Applicant spoke with Mr Farrow. Mr Farrow advised the Applicant to resign rather than have his employment terminated. The Applicant refused to resign.

jj) Following the meeting the Respondent decided to terminate the Applicant’s employment. The Applicant was notified of the dismissal on 6 February 2018.

kk) The dismissal took effect on 7 February 2018. In the letter of termination (Exhibit R7) (signed by Glen Egan, General Manager Operations – NSW) the Respondent wrote,

“I’m writing to you about the termination of your employment with Trend Windows and Doors.

On 31st October 2017 you were issued with a Final Warning Letter to unsatisfactory conduct. As a result of that warning you also provided with the support of our Employee Assistance Program to assist you with managing or giving up smoking and agreed to take leave until January 15, 2018 to assist you with this program.

On January 22nd, 2018 at 7:30 AM you’re observed by your manager, Steve Rayner, smoking during working hours. Then, shortly before 9:00am you are also observed by the site Workplace Health & Safety Officer not wearing your ear protection (PPE) and reminded you of the requirement regarding PPE. As a result of those incidents that morning, at 9:00am you advised your Leading Hand, Zoran Sekulic, that you were leaving as you were angry as you u [sic] felt you were ‘not a slave won’t be treated as one’ and returned on Monday, January 29, 2008.

On January 31st, 2018 met with myself, Steve Rayner – Operations Manager and your supports Grant Smith – union representative and Harry Pickersgill - union representatives. In that meeting, you were advised that if you could not provide a plausible reason for your conduct on January 22, 2018 your employment may be terminated. You initially denied the allegations of smoking but later admitted that the allegation was correct. You also stated that the reason you left at 9:00am was you felt that you were being singled out.

On February 6^th, 2018 another meeting was scheduled once you are able to secure Paul Farrow, AWU Senior Vice President to support you. In that meeting, Harry Pickersgill and Grant Smith were there to support you additionally. Steve Raynor [sic] and myself were also present. The nature of the meeting was to provide it with one last opportunity to the reasoning for your ongoing conduct. No satisfactory response was offered.

Unfortunately, we have been left with no option but to terminate your employment for misconduct.

Your employment will end immediately. Based on a length of service, notice period is five weeks. You’ll also be paid to recruit entitlements any outstanding pay, up to and including your last day of employment. …”

Protection from Unfair Dismissal

[11] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[12] 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.

[13] There is no dispute, and the Commission, as presently constituted, is satisfied, the Applicant has completed the minimum employment period, and is covered by an enterprise agreement. Consequently, the Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal.

[14] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the FW Act.

Was the dismissal unfair?

[15] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

Was the Applicant dismissed?

[16] 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 FW Act. The Respondent concedes that it dismissed the Applicant.

[17] I find that the Applicant was dismissed from his employment with the Respondent within the meaning of s.386 of the FW Act.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[18] A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (the Code). The Respondent is not a small business and this the Code is not relevant in this matter.

Was the dismissal a genuine redundancy?

[19] The Respondent does not submit that I should dismiss the application because the dismissal was a case of genuine redundancy.

Harsh, unjust or unreasonable

[20] Having been satisfied of each of s.385(a),(c)-(d) of the FW Act, the Commission must consider whether it is satisfied the dismissal was harsh, unjust or unreasonable. The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the FW 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.”

[21] 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.

[22] I am under a duty to consider each of these criteria in reaching my conclusion. 1

[23] The Applicant submits the dismissal was harsh, unjust or unreasonable. He submitted that,

“It is unfair because I worked with the company for over 13 years. There were no issues with my work performance. I always did the right (work, opinions) for the company. I worked for the company to keep succeed their business not individuals. I treat everyone the same, work together. I’ve been discriminated, harassed, bullied, racist, set and framed up, political games, assaulted, degraded because I try to do the right thing, because they want to interfere, none of these things were ever addressed but got worse. Picking on me.”

[24] In terms of remedy the Applicant submitted that,

“I always worked in this industry. I’m experienced on this job (aluminium windows). In the event that the company decide to offer my job back (current position), I will be happy to accept it with none of the past trouble caused by them. In the event of no job offer to be reinstated, I insist to be provided with compensation to reflect on what’s cost past and future.

It has been a very difficult time (for the last 9yrs) especially recently. It’s caused lots of stress, pain, descriminations, [sic] harassments, racist, bullied, anxiety, degraded and being set and framed up to fall on the games so that I blamed for what’s happened. As I’m being dragged into trouble created by others.

I still got 15yrs of work until retirement age. I insist on compensation to reflect my future earnings. As I’m not in a position to start a new job (to start again from the beginning). I had no intensions [sic] to leave work till retirement age. The bad experience that I passed through this last 9 years is very hard to be forgotten. I’m in a position, I do like to say and say things at the same time from my view nothing except seeking for compensation amount till my retirement age.”

[25] I will now consider each of the criteria at s.387 of the FW Act separately.

Valid reason - s.387(a)

[26] The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. 2 The reasons should be “sound, defensible and well founded”3 and should not be “capricious, fanciful, spiteful or prejudiced.”4

[27] The Respondent contended that the valid reasons for termination included the following:

a) Breaching the JELD-WEN Smoking Policy by continuously smoking outside of designated break times.

b) Breaching the JELD-WEN Workplace Health Safety and Environment policy by not wearing required PPE (namely ear protection).

c) Leaving the worksite whilst he was on duty without notification.

d) A history of leaving the worksite and taking unscheduled leaves of absence when he has been spoken to by management about conduct and performance issues.

[28] In his reply submissions (Exhibit A4) the Applicant wrote,

•  “There were times I did smoke outside of designated break times. Smoking helps me to relax and deal with stressful situations. 1 week before termination smoking toolbox was introduced telling employees not to smoke during working hours.”

•  “I do wear ear protection when needed. 2 or 3 minutes before morning tea I took the earplugs off to go to the bathroom. The Safety Officer told me I need to keep on until I get into the bathroom.”

•  “Before I left work I informed my leading hand Zoran Sekulic, and manager, David Lowndes, I’m going home. I took sick leave until 25 January 2018.”

•  “Manager Steve Raynor [sic] always had a bad attitude with me. I lost counting every time [the] back stabbed me, he lies to cause trouble and conflict. Steve [and other named individuals] told me to smoke in the bathroom not at the smoking area. Whenever I left, I always let someone know I’m leaving. I always gave a medical certificate.”

Consideration

[29] The claims made by the Applicant that the reasons for his dismissal were “excuses to cover up their mistakes and that I’ve been set and framed up all this” are not made out on an objective assessment of the evidence. Rather, it is further evidence of the Applicant’s failure to take responsibility for his own actions and seeking to lay blame with others.

[30] In relation to the issue of smoking the Applicant stated that,

“I’m a smoker and smoking helps me to relax, to calm down. Steven Reiner [sic] and others find it as an excuse to give me warnings, where other smokers, smoke at any time. I go and smoke at the smoking area outside.” 5

[31] Noting the chronology and findings of fact made above I am satisfied that the Respondent had and had promulgated a smoking policy that clearly identify the designated areas and designated times in which employees could smoke. I am further satisfied that the Applicant was aware of that policy and was made aware of the expectations that the Respondent had in relation to compliance with the policy. Notwithstanding, the Applicant often wilfully breached the policy. He had a stubborn non-acceptance of the policy. He thought that, because smoking helped him relax and because he found some aspects of his engagement with management stressful, he should be entitled to smoke where he liked and when he liked. The approach taken by the Respondent can only be described as patient.

[32] Representatives of the Respondent spoke to the Application on numerous occasions about his breach of smoking policy. On 31 October 2017 he was issued with a final written warning in unequivocal terms. The Respondent allowed the Applicant a period of leave in the hope that he would take steps to deal with his smoking addiction. He returned to work on 15 January 2017. In a breathtaking act of disobedience only one week later, the Applicant again breached the smoking policy. The Applicant’s repeated and wilful breaches of the smoking policy ultimately led to the termination of his employment. It is often said that “smoking kills”, well on this occasion it killed Mr Bajada’s employment. And just as smoking is one of the largest causes of preventable death and illness in Australia, the devastating outcome for Mr Bajada was also preventable. All he had to do was comply with the policy. He could continue to smoke so long as he did it during identifiable breaks and in designated areas. He chose not to do so. In the face of the policy which was reasonable, clear and made known to the Applicant, his continuing breach of it provided a valid reason for the termination of his employment.

[33] Consequently, I find that there was a valid reason for the dismissal.

Notification of the valid reason - s.387(b)

[34] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 6 in explicit terms7 and in plain and clear terms.8 In Crozier v Palazzo Corporation Pty Ltd9 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations FW 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.” 10

Consideration

[35] The chronology of events and findings of fact made above clearly indicate that the Applicant was notified of the valid reason for termination in explicit terms and in plain and clear terms. Everyone at the meeting on 6 February 2018 understood why the Respondent had decided to terminate the employment of the Applicant.

[36] I find the Applicant was notified of the reason for the dismissal.

Opportunity to respond - s.387(c)

[37] 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. 11

[38] The chronology of events and findings of fact made above clearly demonstrate the Applicant was provided with an opportunity to respond to the concerns that the Respondent had in advance of the decision to terminate his employment.

[39] In his witness statement (Exhibit A1) the applicant conceded that he was given an opportunity to respond. However, in his reply submissions (Exhibit A4) the Applicant contended that while he was given an opportunity to talk his union representative Mr Farrow advised him not to speak during the meeting.

[40] I find the Applicant was given an opportunity to respond to the reason for the dismissal.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[41] 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.

Consideration

[42] The findings of fact made above clearly demonstrate the Applicant attend meetings with representatives of the Respondent with a support person. In some cases he had more than one support person attend with him.

[43] In his witness statement (Exhibit A2) the applicant conceded that he was allowed to attend meetings with a support person. However, in his reply submissions (Exhibit A4) the Applicant whilst acknowledging that union representatives attended meeting is critical of them. This contended that they offered him no support or advice.

[44] I find the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.

Warnings regarding unsatisfactory performance - s.387(e)

[45] 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. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 12

Consideration

[46] The Respondent was not dismissed for unsatisfactory performance but rather for his conduct in breach of the policies of the Respondent. In any case having regard to the chronology of events and findings of fact made above I am satisfied that the Applicant was warned on numerous occasions about the smoking policy and the consequences of breaching.

[47] I find the Respondent did warn the Applicant.

Impact of the size of the Respondent on procedures followed - s.387(f)

[48] The size of the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.

Consideration

[49] I find the size of the employer’s enterprise did not impact on the procedures followed in effecting the dismissal. It’s processes were fair and consistent with accepted human resource practices

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[50] The absence of dedicated human resource management or expertise in the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.

Consideration

[51] There was no absence of a human resource specialist. This is not a relevant consideration.

Other relevant matters - s.387(h)

[52] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. I consider the following matters to be relevant to the determination of whether the dismissal of the Applicant was harsh, unjust or unreasonable:

a) the Applicant is a long-term employee of 12 years.

b) other than the events which I found constituted a valid reason for the termination of his employment the Applicant was a hard worker and there were no complaints about the quality of his actual work.

c) the Applicant is over the age of 45 and generally men of his age and limited qualifications are likely to experience more difficulty in finding new employment.

d) the Applicant is the only source of income in his household and family members are financially dependent on him.

Conclusion

[53] Having considered each of the matters specified in s.387, the Commission, as presently constituted, is not satisfied the dismissal of the Applicant was harsh, unjust or unreasonable. Accordingly, I find the Applicant’s dismissal was not unfair.

[54] An order will be issued with this decision.

COMMISSIONER

Appearances:

The Applicant represented himself.

Ms M Taylor for the Respondent.

Hearing details:

21 May 2018

15 June 2018

Printed by authority of the Commonwealth Government Printer

<PR700731>

 1   Sayer v Melsteel [2011] FWAFB 7498.

 2   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

 3   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 4   Id.

 5   Exhibit A2.

 6   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

 7   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 8   Previsic v Australian Quarantine Inspection Services Print Q3730.

 9   (2000) 98 IR 137.

 10   Ibid at 151.

 11   RMIT v Asher (2010) 194 IR 1, 14-15.

 12   Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.