Adam Williams v Dinnage Shopfitting Pty Ltd

[2020] FWC 6836

[2020] FWC 6836

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adam Williams
v
Dinnage Shopfitting Pty Ltd
(U2020/13319)

DEPUTY PRESIDENT COLMAN MELBOURNE, 17 DECEMBER 2020

Application for an unfair dismissal remedy – lateness for work – application dismissed

[1] This decision concerns an application made by Mr Adam Williams for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Mr Williams contends that he was unfairly dismissed from his employment as a casual worker with Dinnage Shopfitting Pty Ltd (company), where he had worked from February 2019 until his dismissal on 23 September 2020. Mr Williams submits that his dismissal was unfair because he was dismissed, by email, without warning or opportunity to respond to the company’s concerns. The company contends that it dismissed Mr Williams because of his persistent lateness for work, about which Mr Williams had repeatedly been warned, and because of his failure to attend work at all on 23 September 2020. It contends that the dismissal was consistent with the Small Business Fair Dismissal Code (Code) and that in any event the dismissal was not unfair.

[2] Section 396 requires the Commission to decide four matters before considering the merits of an unfair dismissal application. I record my determination of those matters. First, Mr Williams’ application was made within the 21-day period required by s 394(2). Secondly, Mr Williams was a person protected from unfair dismissal, as he earned less than the high-income threshold and had served the minimum period of employment (s 382). Thirdly, the dismissal was not a case of genuine redundancy. Finally, as I explain below, I have concluded that the dismissal was consistent with the Code and that the application must therefore be dismissed.

Background

[3] Mr Williams filed scant material in support of his application. His outline of argument stated that on 24 September 2020, the company’s bookkeeper, Ms Catherine Stanley, sent him an email on behalf of Mr Paul Dinnage, the company’s director. The email stated:

“Paul has been trying to contact you over the past week due to your unattendance (sic) at work this week. He has yet to hear back from you. Given this situation has occurred on previous occasions and you were warned that this conduct cannot continue, we wish to advise that we are giving you two weeks’ notice of termination…”

[4] Mr Williams stated in his submissions that on 24 September 2020, Mr Dinnage telephoned him, and said that things were ‘not working out’ and that he would be dismissed. Mr Williams said that, contrary to the email he received from Ms Stanley, he was not warned about being late for work or told that this could result in the termination of his employment, and that he had no opportunity to respond to the reasons for his dismissal.

[5] Mr Williams did not dispute being late for work on numerous occasions. He gave evidence that on one of the days he was late for work, either 21 or 22 September 2020, there had been an accident on the Westgate Bridge, which caused him to be late. He said that on 23 September 2020, he was on his way to work but was so tired that he had to pull over for a nap, and that when he woke up, he did not feel well, and so he turned around and went home. Mr Williams also said that on one day the reason for his late arrival at work was connected to the fact that his ‘permitted worker’ permit indicated a start time that did not align with the start time for the relevant job, and that this was then corrected.

[6] Mr Dinnage gave evidence that his business was heavily affected by the COVID-19 pandemic, and that in late June he told Mr Williams that the company had no work for him. Mr Dinnage said that in early August he called Mr Williams on numerous occasions to let him know that the company had work available for him, but that Mr Williams did not return his calls. On 13 August 2020, the company advised Mr Williams that it had been endeavouring to contact him without success, and that it had decided to terminate his employment. But on 16 August 2020, Mr Williams called Mr Dinnage and it was agreed that he would continue his casual employment with the company and work on a new project in Greenvale. Mr Dinnage’s evidence was that Mr Williams had a history of not being on time, and that he asked Mr Williams whether he would be able to manage the commute from his home in Ballarat to worksites in Melbourne. Mr Williams replied that this would be fine. Mr Dinnage told Mr Williams that he needed to be on site in Greenvale at 7.30am on 25 August 2020. But that day, Mr Williams arrived at 8.30am. And on 28 August 2020, he again arrived at 8.30am.

[7] Mr Jonathan Kerle, the company’s foreman, gave evidence that during a project in June and July 2020, Mr Williams had been arriving late for work, and that he said to Mr Williams that he needed to work on his lateness because otherwise he could lose his job. Mr Kerle said that in late August 2020 Mr Williams was working with him on a project and that, over a one week period, Mr Williams was late for work on two days. Mr Kerle said that on at least two occasions between late August and mid-September 2020 he said to Mr Williams that continued lateness might result in his dismissal, and that on one occasion he used the words ‘you are going to end up without a job’.

[8] From 15 to 24 September 2020, Mr Kerle and Mr Williams were working at a site in Moorabbin. The start-time each morning was 7.30am. Mr Kerle gave evidence that Mr Williams had 7 shifts in this period and was late on each occasion, and that on 15 September 2020 he had again told Mr Williams that if he kept arriving late for work, he might lose his job. Mr Kerle said that on 21 September 2020, Mr Williams arrived at 9.00am. On 22 September 2020, he arrived at 9.50am. Then on 23 September 2020, Mr Williams did not arrive for work. Mr Kerle said that during the morning, Mr Williams called him and said that he had slept in but was on his way to work, but he never arrived. That day, Mr Kerle spoke to Mr Dinnage, and said that Mr Williams’ lateness made him unreliable and that this could mean that customers’ work was not completed on time. Later that day, Mr Dinnage called and texted Mr Williams several times but was unable to reach him. On 24 September 2020 Mr Dinnage decided to terminate Mr Williams’ employment because of his persistent lateness, and because he had failed to attend work at all on 23 September 2020. He instructed Ms Stanley to send the email referred to earlier.

[9] Mr Dinnage said that on 25 September 2020, Mr Williams called him and said words to the effect that he owed him an apology and needed to ‘get his head straight’. Mr Dinnage said that they agreed that things were not working out. Mr Kerle said that on 25 September 2020 Mr Williams called him and said that he was sorry about what had happened, which Mr Kerle understood to be a reference to his lateness.

[10] I make the following findings. I find that Mr Williams was late for work on the days referred to by Mr Dinnage and Mr Kerle. I accept the evidence of Mr Kerle that on at least four occasions he warned Mr Williams that if he continued to be late for work, he risked being dismissed. Mr Kerle was a credible witness whose evidence was clear and specific, including in relation to the words he used to convey the warnings. Mr Williams gave a bare denial of having been warned. I reject his evidence on this point. It is not disputed that Mr Williams failed to attend work at all on 23 September 2020.

Consideration

[11] The dismissal of an employee will not be unfair if it was consistent with the Code (see s 385). Section 388(2) of the Act provides that aperson’s dismissal was consistent with the Code if, immediately before the time of the dismissal, the person’s employer was a small business employer, and the employer complied with the Code in relation to the dismissal. I accept Mr Dinnage’s evidence that at the time of Mr Williams’ dismissal, the company employed two employees, and that it had no associated entities. The company was therefore a small business employer as defined in s 23 of the Act at the relevant time.

[12] In my opinion the termination of Mr Williams’ employment complied with the second limb of the Code. First, the company gave Mr Williams a reason why he was at risk of being dismissed, namely his lateness for work. Secondly, the reason was plainly a valid reason based on the employee’s conduct. Thirdly, Mr Kerle explicitly warned Mr Williams that he risked being dismissed if there was no improvement. (As to warnings and the Code, see Law v Linehan, [2018] FWC 57 at [50] and [51]). Fourthly, Mr Williams was provided with an opportunity to respond to the warning. On each occasion that he was warned, Mr Williams could have raised any relevant matters in his defence. Fifthly, Mr Williams was given a reasonable chance to rectify the problem, because after each warning he had the chance to ensure that he arrived for work on time, or, if there was a legitimate reason for arriving late, to explain this to the company. Instead of responding to or rectifying the problem of his lateness, Mr Williams continued to be late. Sixthly, the company did not refuse to allow Mr Williams to have a support person attend discussions relating to the dismissal. There were no such discussions. Finally, the company has provided ample witness evidence of its compliance with the Code. Each of the requirements of the second limb of the Code has clearly been met.

Dismissal not unfair (s 387)

[13] Had I reached a different conclusion in relation to the Code, I would have found that the dismissal was not unfair, taking into account the considerations in s 387.

[14] In my opinion, the company had two valid reasons to dismiss Mr Williams (s 387(a)). The first was his persistent lateness for work. The second was his failure to attend for work at all on 23 September 2020. Mr Williams was notified of the reason for his dismissal by Ms Stanley on 24 September 2020 (s 387(b)). He was not given an opportunity to respond to the reasons for dismissal (s 387(c)) at the time immediately before his dismissal, but I consider that the gravity of the conduct outweighed this consideration, particularly given that he had previously been warned numerous times about being late. There was no refusal of any request for a support person to attend meetings (s 387(d)). And the dismissal related to conduct, not performance, therefore the consideration in s 387(e) is not relevant. The company is a small enterprise and evidently did not have human resources specialists (387(f) and (g)), but I do not consider these matters to carry any significant weight. As to other relevant matters (s 387(h)), I note that Mr Williams was notified of his dismissal by an email, however Mr Dinnage had made efforts to contact Mr Williams directly, and had on previous occasions found him to be unresponsive to his calls and messages. It was not unreasonable in the circumstances for Mr Dinnage to ask Ms Stanley to convey the termination decision to Mr Williams by email.

[15] Finally, I consider that, even leaving aside Mr Williams’ history of lateness, his dismissal for the second valid reason alone was entirely fair. Mr Williams did not come to work. He slept in. He called the company to say he would arrive later. On the drive to work, he pulled over to have nap. Then he drove home again. He did not call Mr Kerle back to say that he was unwell, or that he was not coming to work after all. There is nothing unfair about Mr Williams’ dismissal in these circumstances.

[16] Having regard to s 387, I would not have considered the dismissal of Mr Williams to have been harsh, unjust or unreasonable. The dismissal occurred for good and substantiated reasons. It was not harsh, unjust or unreasonable. It was not unfair.

Conclusion

[17] Mr Williams was dismissed in conformity with the Code. The dismissal was therefore not unfair. Mr Williams application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

A. Williams for himself
A. Crocker of counsel for Dinnage Shopfitting Pty Ltd

Hearing details:

2020
Melbourne
16 December

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