DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Tristan Hardy
v
Aus North Refrigeration & Air Conditioning
(U2020/2605)

Termination of employment – application for an unfair dismissal remedy – dismissal of air conditioning and refrigeration apprentice in a small business in the Northern Territory – city and remote work required – application of Small Business Fair Dismissal Code (the ‘Code’) –remedies sought beyond the Commission’s jurisdiction – allegations of false claims as to apprenticeship status, payments for time not worked, disparaging the employer to a customer, poor work performance, refusal of lawful and reasonable directions – conflicting evidence – applicant’s evidence not credible and not preferred over respondent’s evidence – concerns with the conduct of proceedings – valid reasons for the applicant’s dismissal – warnings given for unacceptable conduct and poor performance – further incidents of unacceptable conduct – employer complied with the Code – no jurisdiction – application dismissed.

BACKGROUND

[1] Mr Tristan Hardy (the ‘applicant’) was employed by Aus North Refrigeration & Air Conditioning (‘Aus North’, the ‘Company’ or the ‘respondent’), as an apprentice air conditioning and refrigeration mechanic on 4 January 2019, until he was dismissed on 25 February 2020. The respondent is a small air conditioning installation and repair business in Darwin, Northern Territory. At the time of his dismissal, the applicant was said to be a Third Year Apprentice employed under the Electrical, Electronic and Communications Contracting Award 2010 (the ‘Award’). He was paid an hourly rate of $29 for ordinary hours and $39 an hour when working remotely, outside Darwin. When working remotely, accommodation and meals were also provided.

[2] It is common ground that the respondent is a small business (as defined) with three employees at the time of the applicant’s dismissal. This means the applicant’s dismissal must be considered under the Small Business Fair Dismissal Code (the ‘Code’) and s 385(c) of the Fair Work Act 2009 (the ‘Act’) as to whether the applicant was unfairly dismissed – a jurisdictional prerequisite before other criteria in s 385 are considered. I shall return to the statutory provisions and relevant authorities later in this decision. The reasons for the applicant’s dismissal were not expressly set out in a letter dated 25 February 2020, terminating his employment, with 2 weeks’ notice (paid in lieu). However, shortly stated, the reasons were said to be unsatisfactory service, poor attitude, lack of satisfactory communications, passive/aggressive texts, slackness in advising of his hours worked and a lack of respect towards the owners of the business, Mr Reece Houston and Ms Michelle Murphy.

[3] On 4 March 2020, Ms J Patten, Industrial Relations Consultant, PBF Industrial Relations Consultants, filed an application for an unfair dismissal remedy on behalf of the applicant, pursuant to s 394 of the Act. The remedies sought were as follows:

‘1. AUS NORTH REFRIGERATION & AIR CONTITIONING (REECE HOUSTON) TO SIGN OFF THE THEORY COMPONENT OF HIS APPRENTICESHIP SO THAT THE APPLICANT IS A QUALIFIED TRADESPERSON

2. WAGE REVIEW ON OVERTIME, ANNUAL LEAVE, REMOTE ALLOWANCE, TAX COMPONENT OF WAGES

3. COMPENSATION FOR LOSS OF WAGES

4. THE RIGHT TO RESIGN

5. STATEMENT OF SERVICE

6. THE EMPLOYER TO BE HELD ACCOUNTABLE FOR HIS ACTIONS – FURTHER TRAINING IN THE RIGHTS OF WORKERS UNDER THE FAIR WORK ACT AND NATIONAL EMPLOYMENT STANDARDS – WORKPLACE POLICY AND PROCEDURES IMPLEMENTED WITHIN AUS NORTH REFRIGERATION AND AIR CONDITIONING’.

[4] In accordance with my usual practice, I convened a conciliation conference by telephone on 8 April 2020. However, the applicant’s claims were unable to be resolved. Accordingly, I issued directions for a hearing of the jurisdictional objection on 29 June and 10 July 2020, noting that this would invariably involve merit considerations under the Code. At the hearing on 29 June 2020, Ms Patten appeared for the applicant and Mr L Matarazzo, Industrial Relations Consultant, Lucio Matarazzo Pty Ltd, appeared for the respondent, with both parties’ representatives being granted permission to appear as paid agents, pursuant to s 596 of the Act.

[5] Despite the limitations and difficulties of hearing the matter in person, particularly where contested evidence is involved, it was necessary to do so, having regard to the restrictions on in-person hearings and travel restrictions due to the COVID-19 pandemic. I note that after I adjourned at the end of the first day of hearing, Ms Patten later requested an unspecified adjournment. Without giving the details, this was granted and for reasons entirely beyond the Commission’s control, the hearing did not proceed on the second listed day of 10 July 2020 and ultimately concluded on 24 August 2020. Ms Patten continued to engage with the Commission with further submissions after I reserved the decision, and sought to have the decision published before the applicant was said to be put forward for final sign-off of his apprenticeship. I will later set out why this request was inappropriate and incomprehensible.

THE EVIDENCE

[6] The following persons provided statement and/or oral evidence in the proceedings:

•  Mr Houston – Owner;

•  Ms Murphy – Owner and Office Manager;

•  the applicant;

•  Mr Justin Gill – former employee of the respondent – not available for cross examination; and

•  Ms Leanne Hardy – the applicant’s mother.

Mr Houston’s statement

[7] Mr Houston described his hiring of the applicant. He had given him an onsite trial, rather than a formal interview. The applicant led him to believe he was a Third Year Apprentice. However, the applicant displayed a good attitude during the trial day. The applicant had informed him he had previously installed a large number of air conditioners and was often left to work alone on these jobs by his previous employer.

[8] Mr Houston described a meeting he and Ms Murphy had with the applicant on 4 January 2019. The applicant was told that the business’ largest customer, Arnhem Land Progress Association (‘ALPA’), had 23 retail outlets – many in remote and isolated locations, which required air conditioner maintenance and breakdown services. It was also explained that these jobs were often at short notice and at locations with limited accommodation, usually organised by the customer. However, the business expected clean and acceptable accommodation for its employees.

[9] Mr Houston said that soon after the applicant commenced employment and he had installed an air conditioner, the customer called to complain it was hanging by a single screw and was about to fall. Mr Houston said that in the first three months of employment, the applicant had a week’s annual leave and asked for, and received a pay rise. Mr Houston referred to the applicant’s trade school training which required a two-week block of paid trade training. Mr Houston believed the applicant had removed the name of another student and inserted his own in order to mislead him into accepting he was a Third Year Apprentice and not a Second Year. He thereby received a higher rate of pay.

[10] Mr Houston described an incident on Friday 12 April 2019, when the applicant received a warning for not returning to work after finishing training at 12pm. The applicant later claimed the extra four hours as paid time on his timesheet. The applicant sought a further pay rise on 23 May 2019, having received a raise 2 months earlier. The applicant told him his peers at training school were receiving a higher rate than he was. Upon inquiries, Mr Houston learnt he was paying well above the average, but paid him $7 an hour increase anyway. From then on, Mr Houston claimed the applicant’s general attitude towards him turned from disrespectful, to condescending and ‘passive aggressive’.

[11] On 21 July 2019, Mr Houston called a toolbox meeting to advise that he and Ms Murphy were planning to marry, and this would be a highly stressful period where he expected employees to use their initiative and organise their work, if jobs finished early. It would be expected that long lunches or early finish times on full pay, might be experienced.

[12] Mr Houston described a trip to Tiwi Islands (ALPA) on 14 August 2019 for a customer’s quarterly maintenance check by the applicant and another employee. On 28 August 2019, the Store Manager phoned him to say there were ongoing issues with the freezer which had been serviced. Mr Houston went to the site and found no repairs had been done.

[13] On 2 September 2019, Mr Houston and Ms Murphy met Mr John Quill, area manager of ALPA, who had been a customer for 10 years. Mr Quill informed them that the applicant had been defaming him and Aus North to his staff. Mr Houston was shocked to learn of this. Mr Quill later emailed him and said:

‘Both mechanics had been complaining about you and your business non-stop, to a point were told they had told him Ausnorth (sic) would not be around long and would be closing as a result of poor business decisions and it (sic) management.’

The following day, both employees were given a strong verbal warning that this behaviour would not be tolerated. He told them they were welcome to make complaints to him in private, but he would not accept them speaking negatively about him, or the business to a customer. The employees agreed it would not happen again.

[14] Mr Houston said that on the applicant’s 21^st birthday, he gave him a set of refrigerant gauges ($1,770) and a paid long weekend, as a gesture of encouraging him about changing his negativity. Mr Houston referred to another Friday afternoon incident when despite him needing assistance with a job, the applicant finished trade school at 1:53pm and did not return to work. He later claimed a further hour until 3pm on his timesheet.

[15] In the week of 30 October 2019, the applicant demanded a further pay rise, as he was now working alone and unsupervised most of the time and deserved a pay rise. After pointing out that Mr Houston paid for time spent at trade school, a company vehicle and other expenses, he agreed to a further $4 an hour increase – the third in less than a year. This was despite no sign of improvement in the applicant’s behaviour.

[16] Mr Houston described another 5-day trip to the ALPA Kalkanridgi Store in late November 2019. The applicant phoned him and complained about unacceptable accommodation. He was extremely aggressive and claimed he (Mr Houston) had deliberately organised substandard accommodation. Mr Houston had no reason to believe that the accommodation would be any different to that where they had stayed many times previously. He later learnt there had been a misunderstanding and the applicant had been re-accommodated in a caravan park cabin.

[17] Mr Houston detailed another trip on 9 December 2019 to the ALPA Pirlangimpi Store (a 4-day trip). The applicant phoned the next day saying he had finished the job in half the time and wanted to come back early. Mr Houston told him to take his time and check everything was okay with the job. He flew home anyway on Wednesday 11 December 2019. The next day, the Store Manager phoned him to say the cold room had failed overnight, causing significant stock loss. Mr Houston directed the applicant to return and fix the problem. Mr Houston believed this incident caused him to lose faith in the applicant’s honesty and was extremely disappointing, given the impact on his major customer.

[18] When the applicant returned from the site the second time, he was late for work the next day. The applicant received another warning as Mr Houston believed this was serious misconduct. This was the ‘trigger’ for the meeting with the applicant on 20 December 2019.

[19] On Sunday 15 December 2019, the applicant texted Mr Houston to complain that his pay had not gone into his bank account, and he was refusing to come to work the next day. Mr Houston provided evidence that the pay was transferred as usual on the Friday before. The issue was with the Bank, as the timesheets are due on Thursday afternoons and the pays are processed on Fridays. Mr Houston said that the applicant did not turn up for work the next day (Monday). He considered this to be serious misconduct and it was a topic for discussion on 20 December 2019. In the week before, he and Ms Murphy discussed the applicant’s ongoing employment. Further evidence revealed the applicant had claimed start times earlier than his actual start times on 13 and 17 December 2019.

[20] Mr Houston said that he advised the applicant of the meeting on 19 December 2019. During the meeting, Ms Murphy had prepared ‘minutes’ and the items listed were discussed. The applicant could not explain the timesheet discrepancies. Nevertheless, given it was one week out from Christmas, it was decided to give him one last chance to improve his conduct and attitude. Mr Houston said the applicant acknowledged the final warning and committed to improve. Ms Murphy asked if the applicant had any issues and these were directly addressed in an email after the meeting.

[21] Mr Houston detailed the meeting on 31 January 2020 with Mr George Chingwangwe and Ms Debbie Hoad from Charles Darwin University (‘CDU’ or the ‘University’) to discuss the applicant’s early sign off of his apprenticeship, as the applicant advised he was 3 months from completion. Both Mr Chingwangwe and Ms Hoad said it was highly unusual for an apprentice to be signed off at such an early stage in the apprenticeship, as he was actually the equivalent of a Second Year apprentice in a 48-month apprenticeship. Mr Houston believed the applicant had misled both CDU and his employer. He was dishonest and this was serious misconduct.

[22] A further incident occurred on 4 February 2020, when the applicant left a job early after not completing the job. He had planned to return the next day. Mr Houston went to the job and the applicant turned up 15 minutes late (7:15am). He claimed the car battery was flat. He had not called the customer, or him to advise he would be late. In any event, Mr Houston tested the battery and found no fault. The applicant later claimed on his timesheet that he had commenced at 6:45am that day – the fifth occasion of his falsifying timesheets. This was further serious misconduct.

[23] Mr Houston said that on Monday 24 February 2020, he advised the applicant to attend a job with him at the Milikapti Store, Tiwi Islands, on Wednesday 26 February 2020. When this was confirmed on Tuesday, the applicant told Mr Houston he would not be going. When asked why, he said he wanted to fix his own car. Mr Houston described how important the job was and he was required. The applicant replied it was not his issue and he would not go as he had said ‘yes’ every other time. This was direct refusal of a lawful and reasonable direction.

[24] Mr Houston said he sought advice from his former legal advisor who had told him there was no requirement for a reason to be given for termination and otherwise two weeks’ notice should be paid. Mr Houston now understood this was bad advice.

[25] Mr Houston directed the applicant to attend a meeting at 2:30pm on 25 February 2020. When he arrived, he requested the meeting to begin an hour later. This was agreed. At the meeting, Mr Houston explained the reasons for the applicant’s termination as refusal to undertake service, reluctance and refusal to take lawful and reasonable directions on a number of occasions and his ‘passive aggressive’ behaviour. He handed the applicant the termination letter.

[26] Mr Houston offered the applicant to remove his personal possessions from the Company car and would drive him home or someone could collect him. The applicant asked to take his vehicle home and he returned it an hour later. After its return, Mr Houston found a company insulation tester and large cable crimpers had not been returned. After giving him time to do so, on 18 March 2020, he made a report to the Police of stolen property. Despite believing the applicant had stolen the property, the case did not proceed due to a lack of evidence.

Statement of Ms Murphy

[27] Ms Murphy said the applicant advised her and Mr Houston at the time he was hired that he was a Third Year Apprentice. He provided a call up document about his dates and subjects which was later found to be incorrect, as it omitted a Stage Two subject which he had not enrolled in. This was confirmed in an email from Ms Hoad. He had therefore provided incorrect and misleading evidence.

[28] Ms Murphy confirmed that at the meeting, Mr Houston explained the nature of the work the applicant would be required to perform, particularly on remote jobs. Ms Murphy found it unusual that this was his third employer for his apprenticeship. His resume disclosed:

•  September 2015 – June 2016 – NT Energy – 9 months;

•  June 2016 – September 2017 – Sam Eyles Refrigeration – 15 months;

This was 15 months’ less than the third year of a four-year apprenticeship stage. Nevertheless, Ms Murphy said the applicant made a good impression. However, in hindsight, it was an indication of a possible attitude problem and an unwillingness to perform assigned tasks.

[29] Ms Murphy gave evidence of the following incidents and events otherwise detailed by Mr Houston in his statement. To avoid repetition, I will only refer to the additional first-hand knowledge Ms Murphy described. These events were:

•  12 April 2019 – the applicant’s charging of 4 hours when he left training school early. Ms Murphy understood Mr Houston warned the applicant about this incident and his falsification of the timesheet.

•  14-16 August 2019 – the trip to the Pirlangimpi store and the failure to properly complete the work, resulting in customer dissatisfaction and extra costs.

•  2 September 2019 – Ms Murphy attended the meeting with Mr Quill where he told them the applicant and another employee had been ‘bad mouthing’ Mr Houston and the business. This was unacceptable and constituted serious misconduct.

•  25 October 2019 – a further incident of the applicant leaving training school early and then claiming for work time on his timesheet.

•  25 November 2019 – the applicant’s disrespect and accusations about unsuitable accommodation being deliberately organised at Kalkanridgi.

•  7 December 2019 – the faulty work undertaken at the Pirlangimpi, Tiwi Islands, and the applicant’s insistence on returning home early and then having to go back.

•  13 December 2019 – late for work after returning home for a second time and again claiming the time not worked.

•  16 December 2019 – the applicant’s refusal to attend work because his pay was not in his account was serious misconduct.

[30] Ms Murphy prepared the meeting minutes/schedule for the 20 December 2019 meeting and printed 3 copies. The document reads:

‘Meeting Friday 20th Dec 7:30am

•  Address payment time issue. Apologies for previous issues and it going in late last week. We processed it on Friday but it was in the afternoon due to the day getting busy and this being missed in the morning.

To avoid this happening in the future, new process is that

•  Michelle will be processing the pays from now on

•  We are looking to move pay day to Tuesdays – so if public holidays etc should not effect your pay, you can then bank of your money being in there by Tuesday each week.

•  Timesheets will still be due in on a Thursday.

•  We will update you on this but at this stage pay day is still Friday.

•  Timesheets

need to be in on a Thursday and it is your responsibility to ensure this is done. If you are going away for some reason and your computer might not work. It’s still your responsibility to make sure this is done. The issue in November re your timesheet, Reece did the best he could and got the hours wrong, which later was corrected and you were then paid the correct amount you were owed.

In future to avoid this, and to make sure you are paid on time, we will need for you to write it out by hand and send it to us by Thursday as an image or call us and tell us your exact hours over the phone. Contact Michelle to do this. If this is not done you won’t get paid on time. So this should not be an issue moving forward.

•  Leave allocation. Show print out of spreadsheet from Pam, can visit calculatefairwork.gov.au and use leave calculator if you would like.

•  If you have any questions/problems with regards to your pay/leave etc, please contact Michelle as it is my job to follow that up for you.

•  Feeling under a lot of pressure

Please explain in what way? Is it due to hours worked? Jobs allocated?

Explain that this is unfortunately a high pressure job however we do want you to feel supported and assist you in getting to the stage where you are comfortable and the last thing we want is for you to feel overwhelmed or that you can’t speak to us about any issues that you have in regards to the task at hand. What can we do to help you to be able to cope better? Training? Processes? Please tell us and we will see what we can do.

•  Attitude.

There have been some issues with your attitude. This needs to change. You can always come to use with any concerns that you have however a phone call is always better than a text as it gives us the opportunity to sort it out there and then. Passive aggressive messages will not be tolerated anymore.

-example re accommodation in Kalkuringi, we were advised by the store manager that she had arranged accommodation for you and Joel. We had no idea that it was going to be unsuitable. We assumed they would put you in the accommodation that they have in the past which we know is ok. To avoid this happening in the future we are now going to clarify with the store manager what accommodation it is and ensure it is up to living standard and have now put this in our contract with Alpa.

However, in future, it is not acceptable to send an angry text message to your employer saying ‘why didn’t you tell me, thanks for the heads up’, it’s very passive aggressive and does nothing to solve the issue. In future, pick up the phone, call us and we will get it sorted for you. We don’t expect you to accept staying in unsuitable accommodation just as we will not accept being spoken to with disrespect.

With regards to last weeks pay going in late by us on the Friday as we have said we are sorry that this happened it was by no means intentional. Of course we want to know if you have been impacted by something like this as it gives us the opportunity to review our processes and make appropriate changes and as we have discussed we have now made changes to our processes (Michelle doing the pays, changing pay day to Tuesday, ensuring you understand it is your responsibility to ensure that your timesheet and hours are loaded correctly on a Thursday).

Choosing to tell us via text message that you are not coming in for a rostered day on because your pay went in late is unacceptable. You have sick days that you can use is you are unwell and we will require a medical certificate in order for you to be paid for this. If you ever would like to have a day off, this is not to be organised via text message. We require you to call us or speak to us in person to arrange this. In future pick up the phone and call us to discuss any problems or any requests you have. Having a day off that is rostered on is a request.

•  Communication For the following

◦  calling in sick

◦  arranging days off

◦  if running late

This is to be communicated via a phone call or in person, not via text message.

•  If it is a work day and you receive a phone call or a message from either of us, please call us back. If it is a message please acknowledge via text that you have received it.

If we improve our communication it will help to avoid future issues.

Any questions’.

[31] Ms Murphy claimed all these matters were discussed and elaborated on by herself and Mr Houston. When shown the incorrect timesheets, the applicant had no explanation. After the applicant expressed concerns about his annual leave accruals, Ms Murphy later gave him a document outlining the details of all his leave entitlements. He advised he now understood the calculations were correct.

[32] At the meeting, Ms Murphy told the applicant this was his final warning. She read out the passage at [30] above commencing at the ‘Attitude’ section.

[33] Ms Murphy said that the applicant raised concerns about not being paid correctly for overtime and she undertook to make further inquiries. These were explained in an email that day and the applicant accepted the explanation. That same day, Ms Murphy emailed a $200 voucher to the applicant to a local restaurant as a Christmas gift.

[34] Ms Murphy attended the meeting with Mr Chingwangwe and Ms Hoad to discuss putting the applicant forward for his final Capstone exam. Ms Murphy corroborated Mr Houston’s version of the conversation and I do not repeat it.

[35] Ms Murphy claimed two further examples of the applicant claiming for time not worked were established on 4 and 5 February 2020. She believed this was dishonest conduct. A further issue arose concerning the order of a part from Daikin Tech Support. Ms Murphy directed the applicant to make inquiries with Daikin, but he failed to do so on three occasions when he was requested to do so.

[36] Ms Murphy referred to the meeting on 25 February 2020 during which the applicant’s employment was terminated. These details are not materially different to Mr Houston’s recollection and I need not repeat them.

The applicant’s statement

[37] The applicant said that when Mr Houston terminated his employment, he questioned if the process and the letter were legal, as no explanation had been given to him as to the reason for his dismissal. He claimed Mr Houston had told him he had sought legal advice and he did not have to give a reason. He said that Mr Houston had threatened to sack him many times before, generally after questioning his wages. The applicant’s evidence was that he then contacted CDU and GTNT (a provider of employment and training services) to find out if it was legal for him to be sacked, without a reason. Both organisations advised that Mr Houston had not raised any workplace issues or concerns with them.

[38] The applicant claimed he had records of all jobs he had completed. He then referred to the unsatisfactory state of accommodation booked for him when he was on work trips in remote communities. He was never told beforehand of the accommodation conditions he was required to stay in. On one visit, he stayed in a ‘Council container donga’ with no bedding, electricity or locks.

[39] The applicant claimed Mr Houston ‘misdiagnosed’ several jobs with incorrect parts or none at all. He said that he would often work in excess of 60 hours a week, especially on remote work and he was expected to work 10-12-hour days, after driving to remote communities. He further claimed his pay was regularly not processed on time, causing him financial stress. Mr Houston would just say he had forgotten to do so.

[40] It was the applicant’s evidence that when he commenced employment, he was completely truthful about where he was at with his apprenticeship. He was told by Mr Houston they would be working as a team. However, Mr Houston rarely accompanied him on job sites. He claimed he worked ‘unassisted’ from the time he was employed. He agreed he was missing a Second-Year theory unit, which he told Mr Houston and Ms Murphy about at his interview. He completed it in his own time after pressure from Mr Houston. The applicant stated that after completing his Third Year, he found out later that outstanding fees had not been paid by Mr Houston.

[41] It was the applicant’s evidence that there was never any meeting on 3 September 2019 where he was said to have been issued with a formal warning. He was ‘out bush at Hodgeson (sic) Downs’ at the time (this was later corrected by Mr Houston to 6 September 2020). Further, he had never received any written warning for any allegation of poor conduct or performance. There are no minutes of these meetings and no evidence of such meetings ever taking place. In any event, there was not a single reason for dismissal mentioned in the termination letter.

[42] The applicant claimed that after filing this claim, his previous employer, Sam Eyles, called him to say Ms Murphy had been requiring all his previous employment information, but the receptionist had declined to do so.

[43] The applicant said that in a meeting one month prior to his dismissal with Mr Houston, Ms Murphy, Ms Hoad and Mr Chingwangwe (CDU), there was a discussion about him having worked as a Tradesperson throughout his employment with the respondent, as he was able to sit his final Capstone exam early. Mr Houston confirmed he was happy to ‘sign off’ on his apprenticeship, as he was impressed with his work and maturity.

Statement of Mr Joel Gill

[44] Although Mr Gill’s statutory declaration was unsigned and unwitnessed, he was also unavailable for cross examination. As a former employee of the respondent, Mr Gill’s declaration was said to corroborate the applicant’s evidence, which largely conflicts with the evidence of Mr Houston and Ms Murphy. It was imperative, therefore, for Mr Gill to be subject to cross examination, particularly as to a separate allegation he made, without any specifics, that Mr Houston had attempted to bribe him in return for him withdrawing his statutory declaration. Accordingly, for these reasons, I attribute no weight to Mr Gill’s unsigned statutory declaration.

Statement of Ms Hardy

[45] Ms Hardy’s statement dealt with her concern for her son when he was going on bush work, whether accompanied or by himself. These concerns related to:

•  limited phone coverage;

•  the long travel times to these jobs;

•  crossing creeks and driving on dirt roads; and

•  his working 10-15 hours a day and on weekends and then having to drive long distances home.

[46] Ms Hardy said she became increasingly concerned with her son’s health with his very long hours and after he became sick with influenza. As to the Tiwi Islands trip, Ms Hardy insisted he see a doctor before he left. She claimed he was diagnosed with pneumonia and given a week off.

[47] On another occasion during the wet season, her son and Mr Gill were booked to go to Palumpa, although they both did not think it was a good idea, given heavy rain and a cyclone. As a result, when they approached a flooded creek, they turned around and spent the night at Mr Gill’s stepfather’s property at Litchfield station. She understood her son phoned Mr Houston to advise what was happening.

Reply statement of Mr Houston

[48] Mr Houston disputed that the applicant was not provided with a company car, fuel and company credit cards. He provided documents to demonstrate this assertion was untrue, including credit card transactions for meals and groceries made by the applicant and Mr Gill’s remote trips. Mr Houston denied Ms Patten’s submission that the applicant’s wages were consistently five days late. Wages were consistently paid on a Friday, as the wage records disclose.

[49] Mr Houston rejected Ms Patten’s submission that he did not follow due process for cancelling the applicant’s apprenticeship. Ms Patten’s own evidence from Ms Dodds’ email stated:

‘Please note a training contract can be cancelled at anytime (sic) by either party by notifying· the AASN on a cancellation form.’

[50] As to Ms Patten’s claim that the respondent had underpaid the applicant, Mr Houston firstly said this was untrue and, in any event, not a matter for the Commission. He explained that when Ms Patten had requested the applicant’s pay records, the respondent did not know who Ms Patten was, or whether she had authorisation to make such a request on the applicant’s behalf. Mr Houston denied that the applicant was not afforded any opportunity to respond to verbal warnings. There was a discussion with him on every occasion he was warned. Mr Houston emphatically denied claims by Ms Patten of fraudulent tax activities by the respondent. Mr Houston further denied threatening the applicant with dismissal or holding disciplinary meetings in respect to an illness covered by a medical certificate. These are fabrications.

[51] Mr Houston refuted and denied the majority of Mr Gill’s statement as nothing more than ‘malicious intent’. As I do not intend to rely on Mr Gill’s statement, it is unnecessary to recite Mr Houston’s responses to this statement, other than to observe that Mr Houston strongly denied pressuring Mr Gill in a phone call to withdraw his statement. In fact, he was calling him to seek the return of company property after he had left.

[52] Mr Houston responded and denied specific aspects of the applicant’s statement as follows:

•  the applicant was definitely given reasons for his dismissal;

•  he had never threatened the applicant many times with ‘the sack’. Rather, he had issued the applicant with a final warning on 20 December 2019;

•  he (Mr Houston) had not misdiagnosed several jobs. This was just an attempt to blame others for the applicant’s own poor performance;

•  accommodation during work trips was always organised beforehand and normally arranged by the customer;

•  the applicant had known, from commencing employment, that much of the work involved travelling to and staying at remote locations;

•  the applicant’s claim he was truthful about his apprenticeship was disproved by documentary evidence;

•  he regularly accompanied the applicant on remote jobs and not ‘rarely’ did so. For 50% of his employment, the applicant was accompanied by a second tradesperson on most jobs; and

•  Mr Houston accepted that the date of the warning given to the applicant on 3 September 2019 was given on 6 September 2019. In any event, the meeting referred to did occur.

The respondent’s oral evidence

[53] Notwithstanding the very detailed statements of Mr Houston and Ms Murphy, Mr Matarazzo went to considerable trouble to have Mr Houston reaffirm his written evidence and raise further matters in further evidence in chief. Such further evidence in chief is only usually permitted to address relevant issues which arise since the statements were filed; see: my comments at PN152 of the transcript. I allowed Mr Matarazzo to ask further evidence in chief, which meant that a similar opportunity was provided to Ms Patten.

Oral evidence of Mr Houston

[54] Mr Houston gave further evidence as to what expectations were given to the applicant when he first commenced employment as a Third Year apprentice in January 2019, with particular emphasis on the fact that the work involved remote work including dirt roads, long distances, charter flights and accommodation. The applicant had agreed he had similar experiences with previous employers.

[55] Mr Houston later became concerned that the applicant, in a four-year apprenticeship, had three employers. Although the applicant gave reasons for leaving his previous employers, and he provided a document setting out the stages of his apprenticeship, he later found out the document had been falsified.

[56] Mr Houston gave evidence that early on in the applicant’s employment, he received an email from the trade school indicating that training had ended at lunch time that day. When he raised this with the applicant and learnt he had logged the full four hours on his timesheet, he gave the applicant a verbal warning.

[57] It was Mr Houston’s evidence that the applicant had sought pay rises in 2019, and he was given three increases, taking his town rate to $29 an hour and $39 when working remotely. This was well in excess of the Award rates.

[58] Mr Houston claimed that in the second half of 2019 in respect to the misdiagnosis of the Tiwi Islands job, he later learnt from the customer (who he had worked for 10 years with) that the applicant and Mr Gill had been defaming and ‘badmouthing’ him and the business. He later called both employees to the office and gave them a strong verbal warning and told them that such conduct would not be accepted. They both agreed they had ‘done the wrong thing’.

[59] Mr Houston gave a further example of the applicant falsifying his timesheet on 21 September 2019, when the trade school again finished early and he could have used him that Friday for a job. He later claimed two hours for when he was not there.

[60] Mr Houston recalled a further incident at a remote location at Kalkanridgi when there was a mix-up in the applicant’s accommodation, and the applicant aggressively accused him of purposely organising unsatisfactory accommodation. The mix-up was resolved with his contact to the caravan park manager.

[61] The next incident referred to was on 9 December 2019 when the applicant went on a 4-day trip to the Tiwi Islands. Mr Houston said the applicant sought flights to return home after two days, despite him wanting the applicant to ensure the job was properly done. He returned home anyway. It turned out the cold room failed the next day, and the customer was very angry. The applicant was late for work the next day and he gave him a verbal warning. Further inquiries revealed he signed for a 6:30am start, but had actually arrived at 7:15am.

[62] Mr Houston then recounted the details of the meeting with the applicant on 20 December 2019 when he was given a formal final warning. As this evidence is referred to elsewhere, I do not repeat it. One of the specific allegations concerned the applicant’s refusal to turn up for work on Monday 16 December 2019, after telling Mr Houston he would not turn up that day because of delays in receiving his pay.

[63] Mr Houston said that during the month of January 2020, the applicant was pressuring him to sign off early on his apprenticeship. As a result, a meeting was arranged with Mr Chingwangwe and Ms Hoad from CDU, who were concerned he might be putting an apprentice forward so early. It was at this meeting, and believing the applicant was a Fourth Year Apprentice, when he learnt the applicant had only completed 26 months of a 48 month apprenticeship.

[64] Mr Houston gave further evidence of two examples of the applicant’s poor performance when the applicant did not complete a job and arrived late on the second day of the same job, explaining the Company vehicle’s battery was flat. Mr Houston had arrived earlier and when he tested the vehicle, it started perfectly. This was the fifth time the applicant had falsified his timesheet. The final incident concerned the applicant’s refusal to go with him to Tiwi Islands on 26 February 2020. The applicant told him the day before he wanted to work on his own vehicle and would not go on the trip and didn’t. This refusal prompted him to call the applicant to a meeting on 25 February 2020, where he gave him the termination letter, explained the reasons and proposed 2 weeks’ pay in lieu of notice. He later found out when the Ute was returned that some tools had not been returned.

[65] In respect to remote work, Mr Houston said that accommodation was organised by the customer and would generally be a self-contained cabin or camp-style accommodation. Meals were usually supplied, or the Company credit card could be used. Mr Houston added that wages were always paid on Fridays by Electronic Funds Transfer (‘EFT’).

[66] In cross examination, Mr Houston explained that the reasons for the applicant’s dismissal were not set out in the termination letter due to poor advice from a lawyer who told him that it was unnecessary. As a small business, he had relied on this advice. Nevertheless, despite the applicant’s evidence to the contrary, the applicant was given verbal reasons in the meeting on 25 February 2020. Mr Houston agreed he did not raise these matters with the training authorities, because this was the first person he had employed as an apprentice and he was not familiar with what was required. However, the employment issues did not relate to his training.

[67] As to working on his own as an apprentice, Mr Houston had been advised by CDU that he could work unsupervised if he was within eight months of his Capstone sign off, and this was actually encouraged. As the applicant had told him he was close to sign off, he accepted his word and willingness to work alone, given his own claim of ‘great experience’. Mr Houston confirmed that in 13 months of employment, for the first 50% of his time he was fully supervised and in the last 6 months, he did work unsupervised from time to time.

[68] Mr Houston said that on 31 January 2020, the CDU representative did not say the applicant had complied with the requirements to sit the Capstone exam. It was only later that rather being asked to put him forward six months earlier, he was actually asking to be put forward nearly two years early. He believed that the applicant was ‘playing him off’, by telling CDU he was putting the applicant forward and telling him CDU had brought the applicant forward. He was playing both of them against each other.

[69] Mr Houston explained the different rates of pay paid to the applicant, which was paid at two different rates (in town and remotely) and incorporated overtime and remote allowances but, in any event, the rates were above the Award rates.

[70] It was Mr Houston’s belief that the applicant was passive aggressive and would criticise him in text messages.

[71] Ms Patten asked why Mr Houston did not give the applicant 24 hours’ notice of the meeting on 25 February 2020. Mr Houston explained that he had to go on a trip the next day in which the applicant refused to go on. It was causing great inconvenience and he was left with no choice but to move on for the benefit of the business. Mr Houston said the applicant gave him two reasons why he would not go; he wanted to work on his own car, and he had a right to refuse to go. At no time did the applicant mention he was too ill. He agreed the applicant had provided a doctor’s certificate a week before for one day (actually three days), but showed no sign of illness or told him he was too ill to go.

[72] Mr Houston agreed there were no minutes of the meetings on 20 December 2019 or 25 February 2020, but he insisted there was an agenda and there was a discussion.

[73] In re-examination, Mr Houston said that at no time had the applicant requested a support person for the meeting on 25 February 2020.

Oral evidence of Ms Murphy

[74] In further evidence in chief, Ms Murphy, in substance, corroborated Mr Houston’s evidence as to:

•  concerns with the status of the applicant’s apprenticeship;

•  explaining the business’ expectations of the applicant at his interview;

•  the performance issues with the applicant as to:

◦  falsifying his timesheets;

◦  defaming Mr Houston and the business;

◦  the applicant’s lack of respect in text messages to the business;

◦  the Tiwi Islands incident around 9 December 2019;

◦  the meeting with CDU on 31 January 2020; and

◦  the meetings with the applicant on 20 December 2019 and 20 February 2020.

[75] In cross examination, Ms Murphy advised that the law firm which gave the respondent the advice about the termination letter, was Maleys Barristers & Solicitors, Darwin.

[76] Ms Murphy said that if the applicant requested a support person for the meeting on 25 February 2020, they would have been happy to allow him to do so. It was not her practice to take minutes of the meetings, but rather to set out a record of what was to be discussed. Ms Murphy confirmed that apart from the meetings on 20 December 2019 and 25 February 2020, there were other verbal warnings given to the applicant.

[77] Mr Murphy said that it was a practice of the business to send two persons on remote jobs. It depended on the job and the time it was planned to take. It was Ms Murphy’s understanding, in the meeting with CDU persons, that the discussion was not to put forward a person for the Capstone exam, but to put the request up to the Capstone Committee for that decision. Ms Murphy confirmed that the Company pays were transferred on a Friday and never on the weekend.

The applicant’s oral evidence

[78] The applicant detailed his conversation with Mr Houston and Ms Murphy when he was interviewed for the job. He explained the reasons why he had worked for a ‘couple of employers’ during his apprenticeship. He told them he was happy to go bush and Mr Houston had shown enough trust in him, by leaving him on a job site by himself. He reiterated that Mr Houston was to accompany him and oversee his work.

[79] The applicant claimed he was paid $18 an hour when he first started, whether working locally or remotely. When he raised concerns about no living away from home allowance or accommodation, Mr Houston did nothing. The applicant said that when he worked remotely, it was often a minimum of 300km from town. When you arrived, you were stuck with the accommodation and could not turn around and drive home. He received no living away from home allowance. The applicant also claimed the vehicle he was required to drive was not reliable and he did not feel safe driving it.

[80] The applicant gave detailed evidence of the event on 9 December 2019 when he was sent to Tiwi Islands and having completed work early, asked to come back. Mr Houston asked him to stay a few more days, which he agreed to. However, as it was close to Christmas, there was no flight availability and he returned on the Wednesday. When he got back, he was woken up by a text message telling him the cool room that he had left, had gone down. He flew back to Tiwi Islands, worked on the job and flew home in a subcontractor’s plane that afternoon, arriving at 7pm. He claimed the next day, Mr Houston abused him about the cool room and would not accept his explanation it was caused by a freak incident.

[81] The applicant was asked about the meeting with Mr Houston on 20 December 2019, which he thought was the end of year meeting to thank him for all the effort he had put in. However, Mr Houston had said he had wanted to sack him for taking a day off which he said was due to the ‘pay sort of thing’. He told Mr Houston he could not be dismissed, unless he had three legitimate reasons. He agreed ‘they had went over the points they had mentioned’ and he gave his explanations and defence, particularly that he should not have been permitted to work alone.

[82] In respect to falsifying timesheets, the applicant explained that when he finished early at trade school, he would use the time until 4 or 4:30pm to do practical tasks, go to the library or talk to tutors or lecturers. He denied falsifying timesheets or being ‘passive aggressive’.

[83] As to the allegation of refusing duties on two occasions, he explained that he refused a bush trip because the week before he felt sick and a doctor had verified he was experiencing heat exhaustion. He reiterated he was working upwards of 45 hours a week in town, and 70 hours remotely, and had no choice but to work these hours. He believed he was not really supported by Mr Houston throughout his apprenticeship as Mr Houston really did not know how to guide him. He stated that he averaged 3-4 jobs a day on his own.

[84] The applicant claimed his wages were consistently incorrect or late, because he would not be paid until Tuesdays as there was a 5pm cut-off and the bank takes a long time to process the payment. Further, superannuation had not been paid for nine months.

[85] The applicant reiterated that in the meeting where he was dismissed, Mr Houston basically said ‘well, we’re butting heads and this is the end of the road mate’. He challenged the legality of what Mr Houston was doing. Mr Houston told him to unpack the Ute and have his mum or dad pick him up. As he lived around the corner, he asked to unpack it at home, and Mr Houston expressed concern to ensure he did not take anything. He replied, ‘go ahead, I’m not hiding anything’. Mr Houston later filed a Police complaint that he had stolen company goods. Nothing happened with the police complaint.

[86] The applicant then reiterated his statement evidence of contacting the GTNT a month before his dismissal when Mr Chingwangwe from CDU told him he was fully eligible for Capstone. The applicant added that he was required to perform tasks contrary to OHS laws and regulations. He had made complaints about his pay, entitlements and condition to Mr Houston, but they were not addressed. He said he would turn up to jobs which had not been organised, and the pressure was on the workers to fix it. He claimed that on one job, he was late because the car battery was dead.

[87] In cross examination, the applicant agreed he had received a company credit card in the last four months of his employment. As to meals, the credit card could be used to purchase meals and the applicant conceded he was provided meat and other food (not just two minute noodles) when he was working remotely, but he had to sort his meals out himself and prepare them.

[88] As to the excuse for turning up late when the Company vehicle had a flat battery, the applicant was asked how it was Mr Houston easily started the vehicle an hour later. He said the engine was warmed up by that time, and the engine turns over easily in those circumstances.

[89] The applicant was asked about the meeting with Mr Houston and Ms Murphy on 20 December 2019. He agreed Ms Murphy handed him a piece of paper with the issues to be discussed, but he did not read it. He agreed the meeting went for about an hour and started with him being told that Mr Houston had wanted to sack him. He accepted that Mr Houston raised a few issues and asked for his opinion. He told Mr Houston he needed to ‘step up’ and start helping more in the business. He claimed no conduct or performance issues were raised. He then conceded that the allegation of him falsifying timesheets was raised, but they had already corrected the timesheets before approaching him.

[90] The applicant was asked to explain the email from CDU (Ex 38) which had advised Mr Houston the school had finished early and he had been sent back to work and he did not do so. He claimed he went to the library and tidied up his profile to get ready to go for Capstone. Further, as to the 20 December 2019 meeting, the applicant claimed he was ‘getting his head ripped off’ and Mr Houston had said he was ‘young and dumb’, didn’t have a brain and the only reason he got through his apprenticeship was that his father had sat him down and told him to ‘pull his head in’, gave him a second chance and pushed him through his trade. The applicant denied anything was said about his performance. In fact, he found it insulting to be compared to Mr Houston.

[91] The applicant believed the document Ms Murphy handed to him was just a few dot points and the document she provided in her evidence was false. The applicant understood that he required three warnings before being dismissed from a previous experience, when another apprentice was dismissed by a former employer he had worked for. There has to be three legal reasons and meetings must be held with the apprentice’s parent or guardian, so as to not be bullied by the boss.

[92] The applicant denied making derogatory comments about his employer to the store on Tiwi Islands. He explained again the reasons why he came home early from this job, fearing he would be stranded just before Christmas.

[93] The applicant was asked why he relied on a medical certificate stating he was unfit from Wednesday to Friday (19-21 February 2020), but had returned to work on the following Monday and Tuesday when he was asked to go to a remote job on Tiwi Islands. He said he was still not 100% and would likely be exposed to further heatstroke, if he worked 10 days straight at 12 hours a day. He denied telling Mr Houston he would work on his own car, rather than going bush. He just proposed working on his car, as he did not feel 100% and he had a medical certificate for the week before. He claimed he did not expect the employer to pay him for working on his own car.

[94] The applicant claimed he did not know the purpose of the meeting on 25 February 2020. He had asked to bring the meeting time forward as he had finished for the day and could not be forced to do overtime. The applicant claimed that at the time he was ready to sign off for his Fourth-Year apprenticeship, the paperwork had been submitted, but he was dismissed before it could be actioned by the appropriate authorities. After being shown his apprenticeship records, the applicant said it was blank for the entirety of 2018 as he went to work in another industry. He claimed that all that needed to happen was for Mr Houston to just sign it off.

[95] The applicant was asked about his own Exhibit 6 which stated:

‘The training contract is cancelled. Please note that a training contract can be cancelled at any time by either party by notifying the AASN on a cancellation form’.

He believed the contract can be reinstated at any time (which is what he is seeking in this case), but he could provide no evidence to confirm this belief.

[96] After further questioning, the applicant could not provide any evidence that the respondent had not paid superannuation for nine months. He accepted the medical certificate did not state the nature of his illness, but he had experienced pneumonia some time earlier, and Mr Houston had that medical certificate as well, although he could not produce it.

Oral evidence of Ms Hardy

[97] In cross examination, Ms Hardy acknowledged she had not been physically present to attest to:

•  the state of road conditions when her son went on bush work;

•  the extent of phone coverage issues when her son was on bush jobs; and

•  the hours her son worked.

[98] However, she had lived a long time in the Territory and knew the state of bush conditions and her son kept a diary of his work hours. She accepted that her statement was largely based on what her son had told her. She believed him because he was very truthful, does not make things up, and she had observed his tiredness when he returned from bush jobs. He would also call her when he was travelling many hundreds of kilometres away.

[99] Ms Hardy reiterated her claim that the applicant was diagnosed with pneumonia before the trip to Tiwi Islands, and had a week off and was checked regularly to make sure his pneumonia was improving. She believed the doctor would have written a letter stating that he had pneumonia. In fact, Mr Houston had taken him to the doctor. Ms Hardy stated her son had not worked on his car in the week before he was dismissed.

[100] In re-examination, Ms Hardy said the doctor’s opinion at the time was that her son was overworked. His job was very demanding, physical work.

SUBMISSIONS

For the respondent

[101] In oral submissions, Mr Matarazzo submitted that the evidence of Mr Houston and Ms Murphy was credible and should be accepted by the Commission. There was no doubt a meeting was held with the applicant on 20 December 2019. It was a disciplinary meeting. It resulted in a verbal warning being issued to the applicant. The Code does not require that warnings must be in writing. In any event, the applicant conceded he was given a document (an agenda of the meeting) and he did not bother to read it. The Code has been complied with in this respect.

[102] Further, Mr Matarazzo contended that trust and confidence in the employment relationship, particularly in a small business, is an important factor in this case; see: Nesbitt v Dragon Mountain Gold Limited [2015] FWCFB 3505. The applicant had known about and had worked in remote locations, and his refusal to do so on 24 February 2020 was the ‘straw that broke the camel’s back’ and Mr Houston had lost all trust and confidence in the employment relationship. Mr Matarazzo noted that although the respondent received bad advice about what should be put in the applicant’s termination letter, this was a minor procedural issue; entirely understandable for a small business employer which had relied on legal advice from a solicitor.

[103] In referring to the medical certificate relied on by the applicant as the basis for his refusal to work remotely, the certificate did not state the applicant had pneumonia, and in any event, it related to three days the week before. Moreover, the applicant had worked normally since the illness, before being asked by Mr Houston to accompany him to Tiwi Islands. Mr Matarazzo related this refusal to the summary dismissal provisions of the Code, which requires an employer to only have a reasonable belief that the applicant was guilty of misconduct; being his refusal to comply with a reasonable direction; see: Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264 (‘Ryman v Thrash’).

[104] Mr Matarazzo relied on a number of authorities of the Commission as to the discounting of any compensation (although not conceded) for reasons of misconduct, such as in this case, for the irregularities in the applicant’s timesheets; see: Lacase v Neon Group Pty Ltd T/A Neon Cosmetics Pty Ltd [2016] FWC 3058 and Mcillwain v Northern Territory Water Ski Association [2019] FWC 8606. Further, no compensation should be awarded where any identified procedural flaws are not outweighed by the seriousness of the misconduct; see: Williams v Dtarawarra Pty Ltd t/a Dtarawarra Aboriginal Resource Unit [2011] FWA 5091 and Berberian v Tiny Scholars [2013] FWC 5376.

[105] As to Code compliance, Mr Matarazzo relied on John Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 (‘Pinawin’) and Williams v P & J Cole Investments Pty Ltd t/a Savins Radiator Services [2020] FWC 2174. Mr Matarazzo put that the Commission would not accept or give any weight to Mr Gill’s unsigned statement, particularly as he was not available for cross examination. In any event, Mr Gill’s statement was inconsistent with the applicant’s evidence as to meals supplied on remote trips. On the other hand, the respondent’s witnesses were credible and gave detailed and meticulous evidence contrary to the applicant. In addition, the allegations of underpayment are not a matter relevant in this case.

For the applicant

[106] Ms Patten provided two written submissions which I summarise below. Ms Patten submitted that the applicant refutes he was provided with a company car, a fuel card and a Company credit card for expenses for remote work. The meals provided were two-minute noodles, and the Company credit card was for petrol only. Ms Patten stressed that the applicant’s termination letter disclosed no reasons for his dismissal. The applicant believed his dismissal was unfair because:

‘1. NO REASON BEHIND THE TERMINATION

2. NO PERFORMANCE ISSUES RAISE (sic) WITH APPLICANT

3. NO REASONS PROVIDED FOR TERMINATION OF APPRENTICESHIP 4 MARCH 2020 – NO MEDIATION, NO PREVIOUS WARNINGS OR PERFORMANCE DISPUTES ON FILE WITH AUSTRALIAN APPRENTICESHIP BOARD

4. APPRENTICESHIP/UNIVERSITY FEES REIMBURSED TO APPLICANT AS EMPLOYER FUNDED UNDER THE AUSTRALIAN APPRENTICESHIP BOARD

5. APPLICANT RAISED CONCERNS WITH EMPLOYER OVER AN EXTENDED PERIOD OF TIME IN RELATION TO WAGES BEING CONSISTANTLY 5 DAYS LATE

6. APPLICANT RAISED CONCERNS AROUND THE AMOUNT OF TAX TAKEN OUT OF EACH SALARY

7. APPLICANT RAISED CONCERNS IN RELATION TO WAGE REMUNERATION AND ALLOWANCE FOR REMOTE WORK

8. APPLICANT RAISED CONCERNS WITH EMPLOYER AROUND THE TAX COMPONENT OF HIS WAGES

9. APPLICANT IS A 4TH YEAR APPRENTICE AND IS DUE TO BE SIGNED OFF BY AUS NORTH REFRIGERATION & AIR CONTITIONING MID MARCH 2020

10. APPLICANT FEELS DUE TO REECE HOUSTON BEING QUESTIONED IN RELATION TO APPLICANTS (sic) PAY ISSUES HE WAS DISMISSED; APPLICANT HAD NO WORKPLACE DISPUTES OR PERFORMANCE ISSUES RAISED WITH HIM IN HIS ENTIRE LENGTH OF EMPLOYMENT’.

[107] Ms Patten referred to the Dispute Resolution Procedure (‘DRP’) in the Award, but did not explain how this was relevant to the case. Ms Patten also relied on Cl 12.6 of the Award dealing with the cancellation of an apprenticeship, and similarly, did not explain its relevance.

[108] Ms Patten also claimed that various Award allowances, expenses and entitlements were not paid by the respondent, and despite her seeking a wage audit of the respondent’s books, this request had been refused. In any event, it was said that the higher hourly rate paid did not compensate for these losses of entitlements.

[109] Ms Patten submitted that the applicant was considered compliant to sit the Capstone theory test to finalise his apprenticeship. She claimed Ms Murphy had agreed the meeting with CDU on 31 January 2020 was to discuss putting the applicant forward for his final Capstone exam. Ms Patten further alleged that the respondent may be involved in fraudulent activity for tax purposes. She also alleged that the respondent had made false allegations of theft against the applicant.

[110] Ms Patten claimed that the applicant was dismissed for an unlawful reason under s 772 of the Act, as he was dismissed for a temporary absence because of an illness covered by a medical certificate. Ms Patten maintained that the respondent did not comply with legislation as stated on the FWO website and fact sheets. She submitted that the Code had also not been complied with, as there was no valid reason for the applicant’s dismissal and due process was not followed ‘at any stage throughout the employment’.

[111] In a ‘final submission’ of 23 August 2020, with the benefit of the transcript of 29 June 2020, Ms Patten submitted that the applicant was never performance managed and no concerns of the employer were ever addressed in formal meetings. No notes were taken in the meetings of 20 December 2019 and 25 February 2020. He received an agenda only. The applicant did not refuse to go to a remote job; he merely said he was ‘not keen’, because he had taken three days off earlier. In this meeting, Mr Houston’s demeanour was quite aggressive, and the applicant was never sure what Mr Houston’s expectations were.

[112] Ms Patten said that Mr Houston admitted processing wages outside business hours. This was a regular occurrence. The applicant had kept detailed diary notes and records of all remote work and the treatment he received while employed with the respondent.

[113] Ms Patten claimed that the allegation of theft against the applicant were outside the Commission’s jurisdiction because it was made after his dismissal. In any event, the matter was closed by the Police. Ms Patten denied the applicant’s text messages were ‘passive aggressive’. Ms Patten claimed that Mr Houston approached Mr Gill in order to bribe him to withdraw his statement.

[114] Ms Patten accused Mr Houston of fabricating his evidence. Ms Patten relied on the applicant’s evidence that he did not falsify his timesheets and had explained what he was doing when training school finished early.

[115] Ms Patten noted that Mr Houston had agreed he had not raised any performance issues with the training authorities. Further, Mr Houston had frequently required the applicant to work alone and unsupervised throughout his employment.

[116] Ms Patten relied on the applicant’s evidence as to why his dismissal was unfair, and sought the following outcome from the case:

‘1. Right to Resign

2. Statement of Service

3. Back payment on Remote allowance

4. 30 weeks wages as compensation

5. Wages to be audited for hourly rate and tax component OMBUDSMAN

6. Apprenticeship to be completed through GTNT

7. Legal fees - $9k

8. Trade school fees need to be paid as they remain outstanding’.

CONSIDERATION

[117] Section 388 of the Act deals with the Code as follows:

The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person's dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

[118] Section 23 of the Act defines a ‘small business employer’ relevantly as a ‘national system employer is a small business, at a particular time, if the employer has fewer than 15 employees at the time’. The particular time is the time when the employee had been dismissed. There is no dispute that at the time of the applicant’s dismissal, the employer was a small business, to which the Code applied.

[119] The legislative instrument containing the Code declared by the Minister, pursuant to s 388(1) above, is as follows:

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to the Fair Work Commission, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

[120] Section 12 of the Act defines ‘serious misconduct’ as having ‘the meaning prescribed by the regulations’. Regulation 1.07 of the Fair Work Regulations 2009 reads, inter alia:

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.

[121] It will be immediately apparent, from my earlier summary of the respondent’s evidence, that at various points in the applicant’s employment, both Mr Houston and Ms Murphy considered his conduct in various incidents was serious misconduct. This included, inter alia, fabricating his timesheets and refusals to comply with lawful and reasonable directions of the employer. Arguably, in my view, the respondent could have relied on the summary dismissal provisions of the Code, in that the employer not only had a reasonable belief of conduct which justified his immediate dismissal (without warning), but it had proof of such conduct.

[122] It can be accepted, from the respondent’s evidence, that the applicant was dismissed (albeit with two weeks’ notice not worked) for alleged serious misconduct. It would follow that the summary dismissal section of the Code applies in this case.

[123] Of course, the applicant was only provided with warnings of his conduct when, prima facie, the respondent could well have taken the ultimate sanction of dismissal. This may have been due to the respondent’s naivety in offering the applicant many opportunities to improve his performance and attitude, or that, as a very small business, the respondent was unaware of its rights under the Code. Either way, the applicant’s employment continued until 25 February 2020. On one view, he was lucky to have been given so many second chances, until the inevitability of his dismissal crystallised in the incident of refusing duty on 24 February 2020.

[124] In this context, and having regard to how the case was prepared and conducted by both parties, including by references to authorities of the Commission dealing with the summary dismissal Code provisions, Pinawin and Ryman v Thrash, for example, but more importantly, the ultimate result of this case would be no different, I am prepared to treat the applicant’s dismissal as one which falls under the more onerous tests on the employer, being the ‘Other Dismissals’ provisions of the Code.

[125] Given this section of the Code requires a valid reason for the applicant’s dismissal based on his conduct, the meaning of ‘valid reason’ has the same meaning where it is referred to in s 387 of the Act. That this is so, derives from a principle of statutory construction that a word or phrase appearing in different sections of the same act, have the same meaning, unless a contrary intention is expressly prescribed. Therefore, the meaning can be ascertained from the frequently cited judgment of North J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’), in which His Honour said:

‘Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.’

[126] Subsections (b)-(e) of s 387 are generally grouped under the rubric of ‘procedural fairness’ or ‘natural justice’ issues. To highlight the importance of procedural fairness issues, I cite three authorities on the subject in unfair dismissal cases. In Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137 a Full Bench of the AIRC said at [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 170CG(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.’

[127] In Wadey v YMCA Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations concerning an employee’s conduct. His Honour said:

‘In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.’

[128] Nevertheless, procedural fairness steps should be applied in a common-sense and practical way. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1, Wilcox CJ said at [7]:

‘Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.’

[129] As mentioned earlier at various points, the respondent described the reason for the applicant’s dismissal as serious misconduct. He was paid two weeks’ notice in lieu, and was not summarily dismissed, without warning or notice. It is readily apparent (despite Ms Patten’s submissions to the contrary), that the respondent had numerous and ongoing concerns for the applicant’s conduct and behaviour. Accordingly, this case also falls for consideration under the ‘Procedural matters’ section of the Code.

[130] At this juncture, a number of other observations may be made about these sections of the Code.

(a) The employer must provide a valid reason (not three reasons) why the employee is at risk of being dismissed.

(b) The warning of poor conduct or capacity to do the job, does not have to be in writing.

(c) The employee must be provided with an opportunity to respond to the warning and provide a reasonable chance to the employee to rectify the problem/s.

(d) The employee may have a support person present in any discussions about the possible dismissal.

(e) The employer must provide evidence of Code compliance, including evidence that a warning has been given. Such evidence may include:

•  a completed Code checklist; or

•  a copy of any written warnings; or

•  a statement of termination; or

•  signed witness statements.

[131] Ms Patten placed considerable emphasis on the fact the letter of termination did not disclose any reason/s for the applicant’s dismissal, even submitting that s 388 of the Act had been breached. While it would have been preferable for the termination letter to have set out the reasons for the applicant’s dismissal, it is not a mandatory requirement of the Code, and is not a requirement if the Code had not applied to an employer which is not a small business employer.

[132] Indeed, the reason/s in the termination letter (or no reason, as in this case) need not be the same reason/s for the employee’s dismissal. As Dixon J said in Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 (‘Shepherd’) at 377-378:

‘It is a long established rule of law that a contracting party, who, after he has become entitled to refuse performance of his contractual obligations, gives a wrong reason for his refusal, does not thereby deprive himself of a justification which in fact existed, whether he was aware of it or not.’

The Act and the Code only require, as a matter of procedural fairness, that a dismissed employee is aware of the reasons for dismissal and has had an opportunity to respond to those reasons (and the other procedural fairness matters have been followed). I will come back to these matters later.

I turn now to the proceedings and evidence in the case.

Representation concerns

[133] It is with some hesitation and regret that I consider it necessary to observe that the applicant was not particularly well served with his representation by Ms Patten. Although Ms Patten is a relatively new paid agent, and despite her passionate and convinced enthusiasm that the applicant could not possibly lose his case, Ms Patten appeared to be uninformed and inexperienced in the Commission’s practices and expected court etiquette. More significantly, though, Ms Patten spent a disproportionate and wasted amount of time and focus on dealing with issues irrelevant to the matters at hand. Some of these issues are set out below.

[134] Firstly, the applicant’s case focused on alleged underpayments by the respondent, which is notoriously known to be beyond the jurisdiction of the Commission. If there is a genuine underpayment claim, the applicant is entitled to pursue such claims in a court of competent jurisdiction. It is not a power or function vested in the Commission.

[135] Secondly, Ms Patten’s other major misconception was that the Commission could make orders, or otherwise require Mr Houston to sign off on the applicant’s apprenticeship. Where this notion comes from is beyond me and was not explained. Indeed, the written advice to Ms Patten from Ms Dodds from the AASN, was that if the apprentice was terminated, he could work for another employer for three months to complete the apprenticeship. Moreover, Ms Dodds advised as follows:

‘I spoke to Tristan and told him that the employer was not will (sic) to sign the endorsement form. We discussed him having to do three months more under another employer who could endorse his ability and he advised he had someone he had worked with previously that could do this. The training contract was cancelled. Please note a training contract can be cancelled at anytime (sic) by either party by notifying the AASN on a cancellation form. With the employment contract all parties are advised to ensure they follow the award they are using for the employment contract.

I had advised both Tristan and the Employer that if both parties agreed I could reverse the cancellation once the capstone had been completed and passed however could not do so without both parties consenting.’

[136] Even more bizarre, is that even if there was some connection between completing an apprenticeship and reinstatement, at no time has the applicant sought reinstatement. He has only sought compensation, amongst other impermissible remedies.

[137] Thirdly, at one point in the applicant’s cross examination, Ms Patten objected to Mr Matarazzo’s line of questioning on the basis that her client was telling the truth. This is not a ground for objection. Putting aside that it will be the Commission to determine conflicting evidence and witness credit, it is a perfectly legitimate and unremarkable forensic exercise, indeed an expectation of a competent cross examiner, to challenge the truth of a witness’ evidence in cross examination. For an advocate to object to such questions does not establish the truth of the evidence, nor is it a ground for objection.

[138] Fourthly, Ms Patten continues to seek 30 weeks’ compensation, legal fees of $9,000, the right to resign, amongst other issues; see: [116] above. These remedies are either not available (26 weeks being the maximum compensation), or not able to be ordered by the Commission. The only remedies for an unfair dismissal are set out at ss 391 and 392 of the Act. Moreover, it is difficult to understand on what basis the applicant seeks legal fees, and for what services (presumably for Ms Patten, when she is not a lawyer), and assumes immediately that the applicant would win his case and cost orders would follow the event. Costs in these matters do not follow the event, and are limited by the provisions in ss 611 and 400A of the Act, and s 401 in respect to costs orders against lawyers and paid agents.

[139] Fifthly, Ms Patten seems to believe that the applicant was entitled to 24 hours’ notice in order to allow him to seek a support person to attend the meetings on 20 December 2019 and 25 February 2020. Two observations can be made. There is no legal entitlement or any Commission authority I am aware of, which requires 24 hours’ notice of meetings to discuss an employee’s dismissal. Further, there was no evidence that the applicant even asked for a support person or he had sought an adjournment to allow a support person to be present. I will say more about this later.

[140] Sixthly, within a week of the transcript being provided, Ms Patten made inquiries with my Chambers as to why my decision had not been published within ‘seven business days’. This was not only inappropriate, but unreasonable, given the Commission’s workload during the COVID-19 pandemic and the published timeliness benchmarks for such decisions.

[141] In a subsequent email to Ms Patten’s further inquiries as to when I would be publishing the decision (the contents of which she was obviously unhappy about), and because Chambers’ email was under the name of my Associate, Ms Patten sent an aggressive and discourteous email to my Chambers as follows:

‘Good afternoon chambers (sic),

I did not feel that I would again for the fifth time need to explain the situation Mr Hardy is currently facing. If by chance you or DP Sams infact (sic) read or sighted the previous evidence supplied to the Commission, Mr Hardy wouldn’t be faced with such incompetence.

As previously stated on many occasions, our claim has always implied if the unfair case (the longest to date to be actioned ... as you stated 7-8 months later!), was to be awarded in favour of my client, then the employer was to sign off on Mr Hardy’s apprenticeship allowing for him to sit Capstone exams.

However if we miss these upcoming dates, then YES Mr Hardy will in fact have to be employed for a further 6-12 months (due to the time lapse) to be considered again to sit Capstone. If this is too difficult to comprehend, I am not in a position to spell it out any clearer for you!!!!

I feel that you defamatory comments could be refrained from, as this is merely your opinion, I’m requesting action not personal opinions, extremely unprofessional on your behalf, and I will be seeking additional advice to hold DP Sams accountable for your remarks considering the forum you work in, absolutely disgusting.

Jaylene Patten’

[142] Ms Patten then proceeded to insist I email her directly, using my own words. Ms Patten plainly ignored the preamble to Chambers’ email to her which begins:

‘His Honour advises as follows:’.

In any event, it is a well-known judicial protocol that any communication from Chambers is conducted through the Associate with the knowledge, approval and in the name of the judicial officer. The judicial officer is ultimately responsible for any communication from his/her Chambers. Ms Patten’s insistence I write to her directly was wrong, inappropriate, and displayed an ignorance of correct court etiquette. I would note that at no time, did Ms Patten comply with my direction to produce evidence as to why and how the timing of the Commission’s decision was relevant to the applicant’s apprenticeship sign off.

[143] Seventhly, on 4 September 2020, Ms Patten filed a further final submission after the decision was reserved on 24 August 2020. This was inappropriate and will not be accepted for the purposes of this decision.

[144] Notwithstanding these observations (and others I would decline to elaborate on), I hasten to add I do not consider that any more experienced practitioner could have salvaged a case which, in my opinion, had limited prospects of success from the outset.

[145] Regrettably, Ms Patten’s written submissions were careless, disjointed and in some places, plainly contrary to self-evident facts. One might be prepared to overlook such submissions as those of an inexperienced and overly zealous advocate; however, it is incumbent on me to make brief comment on the serious allegations Ms Patten made against Mr Houston. These allegations were made without any supporting evidence; see: [109] above, and importantly, without ever putting such allegations to him in cross examination; see: Browne v. Dunn 6 R. 67, H.L. Ms Patten’s approach to raising such matters in written submissions was entirely inappropriate, unacceptable and contrary to the conventional principles of natural justice. I do not intend to give further currency to these scandalous, unsupported allegations, save as to say they are rejected and do not inform any aspect of this decision.

[146] As to Ms Patten’s carelessness with her submissions, I provide but a few examples:

(1) It was said by Ms Patten that the applicant refuted that he was provided with a company car, fuel card and company credit card for use on remote trips, and that he was only provided two minute noodles, and the Company credit card was for fuel only. This was not the evidence. If this was the applicant’s instructions, they are directly contrary to his later evidence where he conceded he was provided with those benefits and he could, and had purchased meat and other supplies on the Company credit card. Moreover, it makes no sense that the Company credit card was for petrol, when he was provided with a specific petrol card.

(2) Ms Patten simply quoted the DRP (Cl 9) in the Award, but did not explain how the DRP was relevant to the case.

(3) Similarly, Ms Patten set out Cl 12.6 of the Award dealing with the cancellation of an apprenticeship, but did not explain its relevance to the issues in this case. If the inference is Mr Houston had breached this clause, then such inference is rejected. Mr Houston dismissed the applicant for cause under s 388 of the Act. There is no correlation, direct or otherwise, between the two circumstances. In any event, Mr Houston sought advice and there was no evidence, particularly from Ms Dodds from AASN, that he had breached any apprenticeship rule or regulation.

(4) Although it is unnecessary to the purposes of this decision to rely on the Police report of theft by the applicant of company property, and I accept no further action was taken against him, possibly due to a lack of evidence, Ms Patten submitted such a matter is outside the Commission’s jurisdiction because it was after the applicant’s dismissal. This submission is simply wrong. There is an abundance of authority which makes plain that post-dismissal conduct, or facts not known at the time of dismissal, are matters the Commission may take into account in determining whether an employee’s dismissal was unfair; see: Shepherd at [132] above. Ms Patten misunderstands these principles.

(5) Ms Patten submitted that the applicant’s dismissal was an unlawful termination under s 772(1)(a) of the Act, in that he was dismissed for a temporary absence because of an illness covered by a medical certificate. Two things may be obvious from this submission:

(a) the medical certificate did not cover the period he was asked to work on a remote job, and refused a lawful and reasonable direction to do so; and

(b) no unlawful termination application has been lodged by the applicant and an attempt to morph this unfairness application into an unlawful termination under Part 6-4 of the Act is impermissible.

I turn now to the evidence.

The evidence

[147] In my view, despite the applicant’s young age, his evidence displayed a propensity to excessive exaggeration and hyperbole. He offered numerous implausible or uncorroborated explanations for self-evident facts. He manipulated circumstances and incidents in order to point Mr Houston as the ‘villain’, or simply chose to ignore documentary evidence that disproved his explanations for unacceptable behaviour and poor performance. His evidence is replete with contradictions, the most significant was his claim that he never received any verbal warnings for his conduct and behaviour, yet he accepted there was a meeting with Mr Houston and Ms Murphy on 20 December 2019 for at least an hour, in which he had been handed Ms Murphy’s notes of the agenda. When asked to explain his position, he said he did not read the notes and then more recently, claimed Ms Murphy had fabricated the document. This later assertion is absurd and is rejected. It begs the question, of course, as to what was discussed in a meeting lasting over an hour, other than his poor performance and unacceptable behaviour. Well, the applicant answered this question in oral evidence when he said, ‘they had went over the points you mentioned’; see: [81] above, and he agreed the allegations of falsifying timesheets was raised; see: [89] above. Regrettably, at no time has the applicant or his representative conceded that on his own evidence, a submission that no allegations or warnings had been given to him, was patently wrong. Indeed, the submission remains that disciplinary meetings simply did not take place. This is an unbelievable and extraordinary assertion to continue to maintain.

[148] In my view, these contradictions and self-serving post-reconstruction of events, reflects poorly on the applicant’s credit. It demonstrates to me that much of his evidence, in a similar vein, should be treated with considerable caution. Accordingly, I have no doubt that the applicant was verbally warned about his behaviour and conduct on 20 December 2019, and was given an opportunity to improve (2 months).

[149] That said, there are at least four examples in the evidence about incidents and allegations which, individually or collectively, were valid reasons for the applicant’s dismissal for which he was warned about. These were:

(1) falsifying timesheets;

(2) badmouthing Mr Houston and the business;

(3) serious concerns with the stage the applicant had claimed he had reached in his apprenticeship; and

(4) his refusals of directions to work as required.

[150] Firstly, there were at least five examples of the applicant claiming paid time for periods he was not at his training, and for times when he arrived late for jobs or left early. There were at least two occasions where the applicant’s training finished at around lunch time on a Friday, but he claimed for hours up to the end of the day. His explanation was that he would go to the library or talk to his tutors during this time, and was therefore still at work. There was simply no corroborative evidence to support the applicant’s explanation. His explanation is improbable. I do not accept it.

[151] It is curious that there was no explanation for other occasions when the applicant arrived late or left early, except for the flat battery incident, which I do not accept. There was documentary evidence from a disgruntled customer that the applicant and his colleague had left an uncompleted job early, but his timesheet showed he claimed for the full day. The applicant chose to ignore this evidence. It cannot seriously be suggested that Mr Houston would somehow have coerced his customer to formalise his complaint in writing, and the customer was a willing partner to create a false allegation against the applicant.

[152] Secondly, Mr Houston’s evidence was that a long-time customer had reported that the applicant and Mr Gill had been ‘badmouthing’ him and his business. Mr Houston further said he later called the two employees to the office and warned them that such conduct was unacceptable. Further, the employees had agreed and promised not to do so again. The applicant denied this allegation, effectively erecting a proposition that the customer was untruthful, and Mr Houston’s evidence of a warning meeting was fabricated. I reject both propositions as fanciful and find that the applicant was warned about this conduct. Such conduct might ordinarily be a valid reason for dismissal, yet he only received a verbal warning.

[153] Thirdly, there was significant emphasis in this case on the applicant’s assertion that he was ready for ‘sign off’ from Mr Houston of his four-year apprenticeship (by at least three months) and by his dismissal, he had lost the opportunity to complete his apprenticeship. I have referred earlier to the counterintuitive arguments of Ms Patten as to the remedy sought that Mr Houston be ordered, sign off the applicant’s practical side of his apprenticeship. In any event, the applicant had not lost an opportunity to complete his apprenticeship, as Ms Dodds made clear, he could have completed it after three months with another employer.

[154] There are, however, serious doubts that the applicant had, in fact, been ready for completing his apprenticeship. From the outset of his employment, Mr Houston and Ms Murphy found it odd that in a three-year period of a four-year apprenticeship, the applicant had been employed by three employers. They did not act on these concerns, accepted the applicant’s explanation and let it go. However, Mr Houston said it later came to light that the applicant had only completed 22 months of the usual 48-month apprenticeship and that he and CDU were being pressured by the applicant to sign his apprenticeship off early. As a result, there was a meeting held on 31 January 2020 with CDU representatives, Mr Chingwangwe and Ms Hoad, to discuss the matter. It is important to stress that the meeting was not to determine whether the applicant’s apprenticeship should be ‘signed off’ early, but to discuss the stage reached by the applicant and to decide whether to refer such a decision to the Capstone Committee. I accept Mr Houston’s evidence that both CDU representatives had been concerned at the early ‘sign off’, with almost half the time of practical work not completed.

[155] Being troubled by this conflicting evidence about this meeting and its purpose, I was, at one point, minded to issue a notice to attend to give evidence, directed to Mr Chingwangwe and Ms Hoad, particularly given Ms Patten’s submissions seemed at odds with the understanding Mr Houston had of the purpose of this meeting. However, I decided it was unnecessary to do so, as Ms Patten’s own reliance on a University tracking document of the applicant’s apprenticeship history, actually proved the opposite of her submissions (Documents 17, 18 and 19). Accepting the applicant commenced employment (and his apprenticeship) in 2016, the training record is completely blank for the whole of 2018. The applicant was then employed by Mr Houston for all of 2019 and dismissed at the beginning of his alleged fourth year, on 25 February 2020. This means there is almost 2 years of the 5 years (2016-2020), where the applicant was not employed in practical work training. This demonstrates the respondent’s initial suspicions were justified in that the applicant had not competed 3 years of practical training when he commenced employment in January 2019, and was well short of being within 6 months of completing practical training when he was dismissed.

[156] There is a further peculiar consequence of this evidence. It is difficult to reconcile with Ms Patten’s other major submission that Mr Houston had breached the apprenticeship rules by allowing the applicant to work unsupervised. Mr Houston’s unchallenged evidence was that he had been advised that an apprentice could work unsupervised (and in fact, it was encouraged) in the eight months prior to completion of a four-year apprenticeship. Further, that in the first half of the applicant’s employment, the applicant had worked with supervision. Then, acting on the applicant’s own say-so that he was soon to be eligible for ‘sign off’, he did work unsupervised. He was happy to do so and was trusted by Mr Houston. In hindsight, given what we now know, Mr Houston’s trust in the applicant was sadly misplaced.

[157] In any event, Mr Houston did not breach his employer obligations to the apprenticeship in this respect, as he was acting entirely on advice and the false assurances of the applicant. It was open to Ms Patten to obtain proof that this advice was either false or mistakenly given. She did not do so.

[158] It is rather curious and contradictory that on one hand, Ms Patten placed great emphasis on a claim that because the applicant had worked so many hours unassisted, he could easily sit for his last Capstone exam, and on the other hand, Mr Houston had improperly required him to work unsupervised, in breach of the apprenticeship rules. In any event, I am troubled by the following unadorned statement in the applicant’s evidence:

‘I worked unassisted from the time I was employed with Aus North’. (my emphasis)

[159] Putting aside Mr Gill’s statement of the two of them working together many times, this statement was proven false by the evidence of his own mother as follows:

‘Tristan was working with Sam who was a tradesman and Tristan enjoyed working with. After Sam resigned and Joel who is a labourer would assist Tristan on bush work’.

[160] Fourthly, notwithstanding the applicant was warned on 20 December 2019 and he was clearly on notice, the ‘final straw’ was said to be the applicant’s refusal to go with Mr Houston on a work trip to Tiwi Islands on 24 February 2020. Mr Houston’s evidence was that when he asked the applicant to accompany him on the trip, the applicant gave him two reasons why he could not go; namely, that:

(1) he wanted to work on his own vehicle; and

(2) as he had been on so many trips before, he had a right to refuse to go.

The applicant’s evidence was that he was still suffering from an illness the week before and he had been advised by his doctor that heat exhaustion would exacerbate his condition.

[161] In my view, the evidence casts serious doubt as to the applicant’s explanation and that it was post facto reconstruction, designed to falsely maintain that the applicant had a medical condition for refusing a lawful and reasonable direction from his employer. These are my reasons for so concluding.

[162] First, and foremost, the medical certificate for an unidentified illness was for 3 days prior to the trip on 24 February 2020; that is, 19-21 February 2020. The certificate was for a specified period only, and there was no reference in the certificate that the illness meant the applicant was unfit for his job beyond 21 February 2020. Ms Patten’s submissions that the medical certificate need not disclose the nature of the illness, or that it was for an illness which would be exacerbated by heat exhaustion, are not accepted. Ms Patten’s submissions are, at best, unsupported assumptions and it was necessary in these circumstances, for a doctor’s certificate to disclose the nature of the illness. Given the applicant now says he was still suffering from the illness, it was highly relevant that the Doctor be asked to be more specific, as to diagnosis and prognosis.

[163] Second, it was entirely open for Ms Patten to have asked the Doctor to provide a more detailed diagnosis or prognosis, or give an opinion on any adverse impacts a remote trip might have on the applicant’s health. This could have been done on a confidential basis, through a doctor’s report, or by having the Doctor called to give oral evidence.

[164] Third, Mr Houston’s evidence was that the applicant at the time, had not mentioned any illness, or appear to be suffering from any illness when he asked the applicant to go with him to Tiwi Islands. I accept this evidence and to the extent the applicant contends otherwise his evidence is rejected.

[165] Fourth, the applicant did acknowledge he worked on his own car during this time; a rather curious endeavour, given he would be working in the heat of a Darwin summer.

[166] Fifth, there was some confusion about the applicant suffering from pneumonia at an earlier time, and having a Doctor’s certificate for this condition. No other Doctor’s certificate was put into evidence, other than the one for 19-21 February 2020. His mother’s evidence did not clarify when this illness had occurred, or how it was relevant to the claims of reasons for the applicant’s refusal to go on the trip on 24 February 2020. Further, Ms Hardy’s evidence that her son had been given a week off was incorrect; he had been given three days off the week before. Ms Hardy’s evidence was unhelpful.

[167] In my view, the evidence of the applicant as to his incapacity to go on the work trip was not convincing. It is rejected. The reasons given by the applicant are entirely consistent with his earlier conduct of challenging Mr Houston’s authority and questioning his judgment and directions.

[168] Moreover, the criticism of the short notice of the meeting was misconceived, as Mr Houston had to leave the next day to do the job over a number of days. While it may have been preferable to have given the applicant more notice of the termination meeting, the applicant was very well aware of the history of his conduct and warnings (at the least, in writing, since 20 December 2019), and I accept Mr Houston had to take immediate action to avoid further damage to his business by the applicant’s non-cooperation and poor behaviour.

[169] Two further examples of the applicant’s evidence support my conclusion that the applicant was not a credible witness:

(a) The applicant claimed that when working remotely, he almost always worked alone. This was demonstrably incorrect. In fact, he relied on the evidence of his former colleague, Mr Gill, whose evidence went to the same complaints about poor accommodation and meals when working remotely.

(b) The applicant sought to give the impression that all the meals he was supplied with were ‘two-minute noodles’. This was misleading by omission. He later conceded he had purchased meat and groceries and had the use of the Company credit card, if meals were not provided.

[170] As to Ms Hardy’s evidence, I accept unreservedly a parent’s natural instinct to protect and defend their children. However, unless a parent is a direct first-hand witness to events or incidents in dispute, the evidence of a parent, particularly where it is based entirely on what they have been told by their son or daughter, must be treated with considerable caution. This was the case here.

[171] The fact Ms Hardy observed her son’s tiredness after returning from remote work does not take the applicant’s case very far. It was acknowledged, and he had accepted, that he would be working in difficult conditions and the work was physically demanding. These observations do not translate to reasons for the applicant’s dismissal, but reflect the nature of the work required to be performed and the environment in which he was working. In any event, given the applicant’s propensity to make complaints about his pay and conditions when working remotely, it is surprising that if he had genuine concerns as to his health and safety, that he did not raise them with any relevant agency or authority.

[172] For these reasons, I am satisfied that where the applicant’s evidence conflicts with that of Mr Houston and Ms Murphy, it is their evidence which I prefer. I found both of the respondent’s witness evidence to be believable, clear and consistent, and appropriate concessions were made. Their evidence had the proverbial ‘ring of truth’ about it. They gave their evidence calmly, despite some provocation by the false allegations made, particularly against Mr Houston.

[173] Putting aside Ms Patten’s implied criticism of their corroboration of each other’s evidence, given their relationship, there is no reasonable basis to conclude that either of them acted capriciously, unjustly, without reasonable cause or had any reason to harm the applicant’s employment. There was no evidence of them creating circumstances to justify the applicant’s dismissal. Rather, after giving the applicant the benefit of the doubt given his youth, the respondent tolerated his ongoing performance and conduct issues and warned him about his conduct. If they really had any mala fide intent to dismiss the applicant, in my view, they had ample opportunity and reason to do so, much earlier than when he was actually dismissed. The reasons for the applicant’s dismissal were valid, in the sense they were not capricious, unsound or ill-founded; see: Selvachandran.

[174] I am further satisfied the applicant was warned and given an opportunity to improve his behaviour over two months. He squandered that opportunity, and continued his unacceptable conduct. The outcome was inevitable.

[175] In accordance with the ‘procedural matters’ in the Code, the employer has provided evidence of compliance with the Code, in that:

•  warnings were given to the applicant;

•  documents of the agendas of meetings were tendered in the evidence and accepted; and

•  the witness statements of Mr Houston and Ms Murphy are accepted, and are preferred where they conflict with the applicant’s evidence.

[176] Lastly, s 381(2) of the Act provides:

381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

[177] In my judgment, the outcome in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both the applicant and the employer.

[178] For the aforementioned reasons, I am satisfied that the requirements set out in s 388(2)(b) of the Act in respect to the respondent’s compliance with the Code, have been met. It follows that the applicant’s unfair dismissal application (matter U2020/2605) must be dismissed. I so order.

DEPUTY PRESIDENT

Appearances:

Ms J Patten, Industrial Relations Consultant, PBF Industrial Relations Consultants, appeared for the applicant

Mr L Matarazzo, Industrial Relations Consultant, Lucio Matarazzo Pty Ltd, appeared for the respondent.

Hearing details:

2020.

Sydney/Darwin (via Microsoft Teams):

29 June; and
24 August.

Printed by authority of the Commonwealth Government Printer

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