Adam Haliman v Marnikol Fisheries Pty Ltd
[2012] FWA 5450
•29 JUNE 2012
[2012] FWA 5450 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Adam Haliman
v
Marnikol Fisheries Pty Ltd
(U2012/6423)
DEPUTY PRESIDENT BARTEL | ADELAIDE, 29 JUNE 2012 |
Termination of Employment.
Introduction
[1] This decision deals with an application by Adam Haliman (the applicant) seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). He was dismissed from employment on 13 March 2012 by Daryl Evans, General Manager of Marnikol Fisheries Pty Ltd (the respondent). The applicant had approximately six years continuous service at the date of dismissal. 1
[2] The reason for dismissal cited by the respondent is the attitude of the applicant in response to a request on Thursday 8 March 2012 that he attends for work on the forthcoming weekend. The primary issue in dispute between the parties is whether the applicant advised the reason why he refused to work on the weekend in the course of that conversation.
[3] The applicant was self represented and the respondent was represented by Mr Daryl Evans, General Manager.
The evidence
[4] The applicant and Mr Evans gave evidence. The respondent also called Mr Brett Wheeler, Farm Manager and Mr Mark Holland, Freezer Manager. Mr Holland, Mr Wheeler and the applicant were involved in a three way conversation on 8 March 2012 which ultimately led to the applicant’s dismissal. I consider that all the witnesses were genuine in the evidence they gave and that each presented their evidence in a straight forward manner and to the best of their recollection.
[5] The respondent witnesses provided more detail than the applicant in relation to the conversation that transpired on 8 March 2012. Mr Holland also prepared a written statement on 30 March 2012 relating to the conversation. 2
Is the employer a small business employer?
[6] Section 23 defines a small business employer as follows:
“23 Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”
[7] The respondent employed 19 employees immediately before the applicant’s dismissal, described as “14 full time or regular casuals, 5 casuals”. 3 Further information was sought from Mr Evans at the hearing as to the nature of the employment of the “5 casuals”, having regard to the terms of s.23(2)(b) of the Act.
[8] The respondent’s work is seasonal in nature, although an attempt is made to keep the regular employees engaged in the off season. The on-season commences in February and the five casual employees were employed at or around this time. Each was on a three-month probationary period and it was Mr Evan’s expectation that most would finish up at the end of the season in July. The hours of work of the five casuals were approximately 40 hours per week initially, but regularly exceed 40 hours once harvesting of the fish commences. None of the five casuals had been previously employed by the respondent.
[9] Section 23(3)(b) requires FWA to assess whether the casual employees were employed on a regular and systematic basis “at a particular time” - in this case, immediately before the applicant’s dismissal on 13 March 2012. 4 Having regard to the probationary period and the hours of work of the casuals I am of the view that each was essentially a ‘seasonal employee’, engaged to work every week for (at least) full time hours for as long as the on-season extended. To be regarded as having regular and systematic employment a seasonal employee must be regularly engaged to perform seasonal work.5 There is no evidence that the five casual employees have an expectation that work will be offered in future on-seasons and/or that their current engagement reflects a pattern of work consistent with previous engagements. On this basis I conclude that the five casual employees should not be counted as employees of the respondent for the purposes of s.23 of the Act and accordingly the respondent is a small business employer.
Findings of fact
[10] Regular casuals are guaranteed work in the off-season when maintenance duties are performed. In early March 2012 the respondent received tuna at its Port Lincoln ranching site from its towing operations at sea. It is accepted practice that weekend work is required once the fish are transferred from the towing cages.
[11] It is convenient to firstly set out the version of the 8 March conversation as given by Mr Holland in his statement and in his oral evidence. He received a call on his mobile from Mr Wheeler who asked if the applicant was near. A conversation then ensued in which Mr Holland conveyed the information from Mr Wheeler to the applicant. The applicant’s answers were heard by Mr Wheeler. The applicant was asked if he would work on Saturday, to which he said “no”. He was asked if he would on Sunday to which he said “no”. It was then conveyed to the applicant that everyone had to work one day over the weekend and then have Monday off. The applicant is then alleged to have said “Get fucked, I’m not working on the fucking weekend”. 6 Mr Holland was told by Mr Wheeler not to worry about it, he (Mr Wheeler) would sort it out.
[12] Mr Holland stated that after the phone conversation the applicant said that his partner was due to give birth that weekend. Mr Holland acknowledged that it was common knowledge that the applicant’s partner was pregnant and due to give birth. 7
[13] The applicant’s version of the phone conversation varies from the above, in the following respect. He stated that when told he had to work one day on the weekend he said “Fuck off. Tell Brett that I won’t be working on the weekend because my missus is about to have the baby”. 8 The applicant stated that it was common knowledge that his partner was due to give birth and that he had advised Mr Evans of this in the week before the phone conversation.9
[14] Mr Wheeler’s evidence of the conversation was consistent with that given by Mr Holland.
[15] I am of the view that the evidence of Mr Wheeler and Mr Holland should be preferred to that of the applicant in relation to whether the applicant advised why he was refusing to work. Mr Holland’s evidence that immediately after the phone conversation the applicant told him he wouldn’t work because his partner was due to give birth is persuasive in the circumstances. I think it likely that the applicant’s recollection of the phone conversation and his statement to Mr Holland afterwards, have become intertwined.
[16] After the phone conversation, Mr Wheeler said he sent a text message to Mr Evans advising that the applicant “told me to get effed, he won’t work the weekend”. He said that Mr Evans replied by text message the he would sort it out. 10
[17] Mr Evans’ evidence was that he was made aware of the phone conversation involving the applicant when he received a call from the owner on the evening of 8 March, who in turn said that he was aware of the situation from Mr Wheeler. I prefer Mr Evans’ evidence as to how he became aware of the applicant’s attitude in the phone conversation earlier that day.
[18] In any event, the information conveyed by the owner to Mr Evans was consistent with Mr Wheeler’s version of events. Mr Evans then sent a text message to the applicant (and another employee who had also refused to work the weekend) stating that he would call them to confirm their availability to work on the weekend. 11
[19] Mr Evans did not in fact ring the applicant, and at some stage over the weekend decided 12 that his employment should be terminated for the manner in which he behaved toward Mr Wheeler in the phone conversation on 8 March. Mr Evans intended to advise the applicant on Monday 12 March but the applicant was not at work that day, so he advised him in a phone call on Tuesday 13 March that no further work would be offered to him. It was his view that if the applicant had explained in a reasonable manner why he couldn’t work that weekend there may have been a completely different outcome. He could not recall the applicant advising him that his partner was pregnant, saying that he did not socialize with the workers and that the first he became aware of the situation was when he dismissed the applicant.
[20] The applicant’s partner had a baby in the early hours of 13 March, 13 after some ‘false starts’ over the weekend.
[21] The applicant has not received any income by way of employment or social security benefits since his dismissal. 14 He was earning $20 per hour at the time of dismissal. He is seeking compensation of $8,000 - $10,000.
Consideration
[22] I am satisfied that the applicant has brought a valid application before Fair Work Australia (FWA). The application was filed within the requisite 14-day period and he had served the minimum employment period at the date of dismissal.
[23] Section 385 of the Act stipulates the matters that FWA needs to be satisfied of in order for a person to establish that he or she has been unfairly dismissed:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[24] All four criteria in s.385(a) to (d) inclusive must be satisfied in order for FWA to reach the conclusion that the applicant has been unfairly dismissed. I am satisfied, and there is no dispute that the requirements of ss.385(a) and (d) have been met.
The Small Business Fair Dismissal Code
[25] As discussed earlier, the respondent is a small business employer. It therefore falls to be determined whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code), which provides as follows:
“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 Fair Work Australia, 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.”
[26] The applicant was summarily dismissed. The terminology used by the respondent is that it took a decision not to offer the applicant further work but it is clear that the applicant’s employment was terminated without notice or prior warning at the initiative of the respondent.
[27] In Pinawin v Domingo, 15 a Full Bench of FWA considered the approach to determining whether the employer believed on reasonable grounds that the employee’s conduct justified summary dismissal. The Bench stated:
“... There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.”
[28] I am satisfied that it was the respondent’s view that the applicant’s attitude in the phone conversation on 8 March was sufficiently serious to justify the action it took at the time the decision was taken, although this was not its initial view. The respondent did not immediately dismiss the applicant on learning about the conversation, but instead sent a text to him that referred only to working the weekend. It is not clear what caused the respondent to change its mind. However it did so without conducting a reasonable, or any, investigation into the incident. Had it done so, it would have become apparent to the respondent that the applicant had a sound reason for refusing to work the weekend.
[29] The failure of the applicant to give a reason for his refusal to work is a matter that the respondent was entitled to view seriously. Mr Evans was under pressure to have a sufficient number of workers available to undertake the work of transferring the fish ready for harvesting. The requirement for weekend work was understood by the applicant and his response to the request to work was ill-considered and inappropriate.
[30] In relation to the language used by the applicant, I note that in his evidence to FWA he stated that he told Mr Wheeler to “fuck off, fuck off”. This evidence was given without the slightest hesitation or embarrassment on the applicant’s part and I have formed the impression that the applicant saw nothing wrong with the use of this language to Mr Wheeler.
[31] I am persuaded that this language was not directed as a form of abuse to Mr Wheeler, rather, I gained the impression that the use of expletives was for ‘added emphasis’ to express the depth of the applicant’s resentment at being asked to work the weekend in circumstances where it was common knowledge that his partner was due to give birth.
[32] Nonetheless, the respondent was entitled to be concerned about the language used by the applicant and it was not unreasonable that it should seek to censure the applicant. As Mr Evans noted, had the applicant responded in a reasoned manner he would probably still be employed.
[33] The test under the Code is that the employer had reasonable grounds to believe that the conduct is sufficiently serious to justify immediate dismissal. In this case the respondent did not conduct a proper investigation and the applicant was denied the opportunity to explain his actions or have someone assist him. As a result, Mr Evans’ belief at the time he dismissed the applicant did not include an understanding of why the applicant refused to work.
[34] For the foregoing reasons I find that the dismissal was not consistent with the Code.
Was the dismissal harsh unjust or unreasonable?
[35] In assessing whether a dismissal is harsh, unjust or unreasonable, FWA must take into account the following matters as set out in s.387 of the Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
Was there a valid reason for dismissal?: s.387(a)
[36] Having regard to the findings above, I conclude that the dismissal was disproportionate to the applicant’s conduct and was not for a valid reason. 16
Whether the applicant was notified of the reasons for dismissal and given an opportunity to respond: ss.387(b) and (c)
[37] The notification of the reasons for dismissal must be provided in advance of the decision to dismiss so that the employee has a reasonable opportunity to respond. The decision to dismiss was taken by the respondent in the course of the weekend of 11/12 March and advised to the applicant on 13 March 2012. I am satisfied that in the present matter the applicant was not given the opportunity to respond and was denied procedural fairness.
Was there an unreasonable refusal by the employer to allow the applicant to have a support person present to assist at any discussions relating to the dismissal?: s387(d)
[38] Technically, there was no refusal by the employer because there was no opportunity for the applicant to request assistance in discussions relating to his dismissal, for the reasons outlined above. While there is no evidence as to whether the applicant would have sought assistance had he been given the opportunity to do so, the lack of opportunity is of itself a denial of procedural fairness.
Section 387(e)
[39] This section is not relevant as the dismissal related to the applicant’s conduct rather than his performance.
The degree to which the size of the employer’s enterprise, the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal: ss.387(f) and (g)
[40] The respondent is a small business employer. There are no human resources personnel or expertise within the enterprise and this no doubt impacted on the manner in which the dismissal took place. The weight that should attach to this fact is in my view, to be judged having regard to the particular defects in the procedure adopted by the employer. In this case the procedural defects were significant.
Other relevant matters: s.387(h)
[41] It is relevant andI have taken into account that the applicant contributed to his downfall by adopting a belligerent an inappropriate attitude when requested to work. While he must bear some responsibility in this regard I have also taken into account the applicant’s employment history. He had 6 years service in his latest period of employment with the respondent but had been engaged on previous occasions extending back 13 years. There is no evidence of any performance concerns or concerns over the applicant’s conduct prior to the events that precipitated his dismissal.
Conclusion on the dismissal
[42] Taking all matters into account I find that the dismissal of the applicant was disproportionate to his conduct and that he was denied procedural fairness. I determine that the dismissal was harsh, unjust and unreasonable. The applicant’s contribution to the fate that befell him is a matter that will be taken into account in determining an appropriate remedy.
Remedy
[43] The evidence from both parties on the issue of remedy was scant. The applicant seeks compensation. There is no evidence that he has attempted to obtain employment since his dismissal and it is apparent that he has dedicated his time to caring for his new daughter. The employer did not address the issue of remedy.
[44] The Act requires that compensation may only be awarded in the event that reinstatement of the person is inappropriate. There is insufficient evidence before me to reach a conclusion on this point or the various factors relevant to FWA’s assessment of any compensation to be awarded, and I will hear further from the parties in relation to these issues.
DEPUTY PRESIDENT
Appearances:
M Haliman on his own behalf
D Evans for the respondent
Hearing details:
2012
Port Lincoln
June 1
1 The applicant was first employed in 1999 but on more than one occasion had left to take up other work and then returned to the respondent.
2 Ex R1. This statement was initially attached to the Form F3 Employer Response.
3 Form F3 Employer Response form.
4 Section 388(2)(a) of the Act.
5 Bradford v Wrightson Seeds (Australia) Pty Ltd PR945197.
6 Ex R1.
7 PN 142, 166.
8 PN 24.
9 PN 67, 68.
10 PN 119, 124.
11 PN 89.
12 I infer that this was in consultation with the owner. Mr Evans stated that “In discussions it was decided that ... we wouldn’t be offering him any more work” at PN 85.
13 Ex A1 Newborn Examination dated 13 March 2012.
14 PN 54-56.
15 John Pinawin T/A RoseVi. Hair. Face. Body v Edwin Domingo, [2012] FWAFB 1359.
16 Edwards v Justice Giudice and others [1999] FCA 1836 at para 7.
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