| [2020] FWC 677 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Leslie Peter Beddoes
v
Safety Barrier Solutions Pty Ltd T/A Safety Barrier Solutions
(U2019/11154)
COMMISSIONER PLATT |
ADELAIDE, 12 FEBRUARY 2020 |
Application for an unfair dismissal remedy.
[1] The following decision, now edited, was issued during proceedings conducted on 6 February 2020.
[2] Mr Leslie Beddoes has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Safety Barrier Solutions Pty Ltd T/A Safety Barrier Solutions (SBS), which took effect on 23 September 2019. Mr Beddoes was employed as a Crew Supervisor at various locations where SBS performed work.
[3] Mr Beddoes was advised at a meeting on 23 September 2019 that he was summarily dismissed.
[4] On 28 October 2019, SBS lodged a Form F3 Employer Response, which did not raise any jurisdictional objections but contended that Mr Beddoes was dismissed due to his conduct towards another employee (described as victimisation and inappropriate conduct) which was contended to be gross misconduct.
[5] The matter did not resolve at conciliation and was allocated to my Chambers.
[6] The Determinative Conference was initially scheduled for 14 January 2020 but was adjourned to 6 February 2020 as a result of the Respondent’s failure to appear. An application to adjourn the 6 February 2020 Determinative Conference by the Respondent was refused.
[7] SBS had no internal HR or IR function and was represented by its National Operations Manager, Mr Adam Griffiths. Both parties were unrepresented with the application for Mr Beddoes to be represented by a lawyer refused as a result of fairness between the parties. The hearing was conducted by way of Determinative Conference.
[8] Mr Beddoes provided two statements and gave evidence. Mr Beddoes rejected a range of allegations contained in a letter written to SBS by an employee. Mr Beddoes accepted that he repeatedly called the employee a ‘peanut’ and wrote the same on his safety helmet, placed a metal podgy bar down the rear of a subordinate employee’s underpants and used his work crew to collect cans and bottles during work which he cashed in and gave the money to his daughter. Mr Beddoes accepted that he had been spoken to about a variety of work issues but contended no warnings had been given to him. Mr Beddoes accepted that the podgy bar incident was inappropriate but asserted the use of nicknames was okay as no-one complained. Mr Beddoes agreed that he had little respect for SBS management and that he refused to shake the hand of Mr Griffiths on one occasion when it was extended towards him. Mr Beddoes was out of work for approximately 12 weeks and has earnt approximately $4,000 post dismissal. He now earns approximately $750 per week. His average pre-dismissal earnings were agreed at $1,620 per week (gross).
[9] The employee who sent the complaint to SBS did not give evidence. I received confidential evidence from the employee’s father who advised that his son had a medical condition due to a historical event which would be exacerbated by giving evidence about his complaint. I accepted this explanation and do not draw any adverse inference as a result of SBS’s failure to call the witness. I have exercised my discretion to make that part of the transcript confidential, having given Mr Beddoes the opportunity to cross-examine.
[10] Mr Sam Neville, Project Manager SA Branch, had direct responsibility for Mr Beddoes’ supervision and submitted a witness statement and gave evidence. Mr Neville submitted the letter of complaint written by the witness who was not called. In line with the decision in Subramaniam v The Public Prosecutor, 1 I have regarded the letter as evidence of what was reported but not evidence as to what had occurred. Mr Neville did not investigate the allegations made in the letter prior to Mr Beddoes being dismissed, but conferred with Mr Griffiths and determined the allegations were so serious as to warrant dismissal. Mr Neville accepted that Mr Beddoes was not advised as to the nature of the allegations or given an opportunity to respond. Mr Neville gave evidence as to other complaints concerning Mr Beddoes including his ‘problem with authority’, ‘belittling everyone around him’, not being a team player and complaints as to following directions. Mr Neville had difficulty in detailing the events which led him to those conclusions. No notice of termination was paid.
[11] Mr Griffiths did not have day to day contact with Mr Beddoes but met with him 4-6 times a year. Mr Griffiths gave evidence that Mr Beddoes had no respect for the management of SBS. Mr Griffiths sent Mr Beddoes an email in August 2019 outlining issues arising from an ISO9001 audit.
[12] Mr Sengiyumba provided a statement and gave evidence as to the working environment.
[13] I make the following factual findings:
• Mr Beddoes was a Crew Supervisor, 40 years of age with 2.5 years’ experience.
• Mr Beddoes repeatedly called a subordinate employee a ‘peanut’ and wrote the same on his helmet. In the absence of a complaint by the employee, Mr Beddoes saw no issue with this behaviour.
• Mr Beddoes placed a podgy bar down a subordinate employee’s underwear.
• Mr Beddoes arranged for employees to collect bottles and cans during working hours for his (or his family’s) benefit.
• Mr Beddoes had no respect for SBS management.
[14] I turn now to the criteria under s.387 of the Act.
[15] I find that Mr Beddoes’ conduct in repeatedly calling an employee ‘peanut’ and writing the same on his helmet fell short of the standard required of a modern-day Supervisor. Mr Beddoes’ conduct in respect of the podgy bar was a valid reason for dismissal as was using subordinate employees to collect can and bottles for his (or his family’s) benefit during work time.
[16] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 2 and in explicit3 and plain and clear terms.4
[17] Mr Beddoes was not notified of the reason prior to his dismissal. This weighs in favour of a finding that the dismal was unfair.
[18] Mr Beddoes was not given an opportunity to respond. This weighs in favour of a finding that the dismissal was unfair.
[19] Mr Beddoes did not request a support person.
[20] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
[21] Whilst SBS is a mid-sized business, it does not appear to have processes to appropriately deal with disciplinary issues. This is a neutral consideration.
[22] SBS does not have dedicated human resources specialists, which appears to have adversely impacted on the processes effected. This goes some way to explain SBS’s procedural defects but does not remedy them.
What other matters are relevant?
[23] Section 387(h) of the Act requires the Commission to take into account any other matters that the Commission considers relevant. Mr Beddoes was not paid any notice and, on the basis of the factual findings, summary dismissal does not appear to have been warranted. This weighs in favour of a finding that the dismissal was unfair.
[24] I have made findings in relation to each matter specified in s.387 of the Act as are relevant.
[25] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 5
[26] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of Mr Beddoes was harsh.
[27] I am guided by the relevant provisions of Division 4 of Part 3-2 of the Act.
[28] The prerequisites contained in ss.390(1) and (2) of the Act have been met in this case.
[29] Mr Beddoes does not seek reinstatement owing to the breakdown in the employment relationship.
[30] Having considered the evidence and observed the interactions between the witnesses, I accept that the working relationship has broken down and I am satisfied that reinstatement is not appropriate in this case.
[31] I now turn to whether compensation in lieu of reinstatement is appropriate.
[32] A Full Bench in McCulloch v Calvary Health Care Adelaide6 confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg v Paul’s Licensed Festival Supermarket7 remains appropriate.
[33] Section 392(2) of the Act requires the Commission to take into account all of the circumstances of the case including the factors that are listed in paragraphs (a) to (g). Without detracting from the overall assessment required by the Act,8 it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.
[34] There was no submission that any award of compensation would affect the viability of the employer.
[35] Mr Beddoes’ service was approximately 2.5 years.
[36] In determining how long Mr Beddoes would have remained employed but for the dismissal, I have considered the following:
• Concerns about Mr Beddoes work performance.
• His admitted lack of respect for the SBS Management.
• The poor treatment of his subordinates and his position (prior to the Determinative Conference) that in the absence of a complaint there was no problem with his conduct.
[37] In the circumstances, I believe it is reasonable to assess compensation in this matter on the basis that Mr Beddoes would have continued to work for a period of 3 weeks (including notice) had he not been dismissed.
[38] I accept that Mr Beddoes has made reasonable efforts to mitigate his loss. No deduction arises as a result of any failure to mitigate the loss.
[39] Mr Beddoes did not receive income in the first few weeks after he was dismissed. As at the Determinative Conference date, Mr Beddoes had earnt $4,000 and had secured a role just prior to Christmas which paid him $750 per week (gross).
[40] There are no other relevant matters.
[41] Having considered the evidence and my findings, I believe it is appropriate to make a deduction of 50% for misconduct.
[42] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.
[43] The maximum compensation limit in this case would be the lesser of 26 weeks remuneration or half the high-income threshold immediately before the dismissal.9 The amount of compensation awarded is less than this limit.
[44] Taxation is to be paid on the amount determined.
[45] I believe that the compensation detailed below is appropriate having regard to all of the circumstances of this matter and the considerations specified by the Act.10
[46] I award compensation in the amount of $2,430 gross (which represents 3 weeks less a deduction for misconduct of 50%). The compensation must be paid within 7 days from the date of the decision delivered at the Determinative Conference on 6 February 2020. An Order 11 reflecting this decision will be issued.
[47] I am aware that there is a dispute as to the return of Mr Beddoes’ property. I recommend that SBS return any property owned by Mr Beddoes within 7 days and that both parties use their best endeavours to give effect to that recommendation.
COMMISSIONER
Appearances:
Mr L.Beddoes the Applicant.
Mr A.Griffiths on behalf of the Respondent.
Hearing details:
2020.
Adelaide:
January 14;
February 6.
Printed by authority of the Commonwealth Government Printer
<PR716531>
1 [1956] WLR 965.
2 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
3 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
4 Ibid.
5 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
7 (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431.
8 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446.
9 Section 392(5) of the Act.
10 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32].