Alexander Atlagic v Charlie and Son Electrical Contracting Pty Ltd

[2016] FWC 3826

[2016] FWC 3826

FAIR WORK COMMISSION

DECISION

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

Alexander Atlagic
v
Charlie and Son Electrical Contracting Pty Ltd
(U2015/14881)

COMMISSIONER CAMBRIDGE SYDNEY, 17 JUNE 2016

Application for unfair dismissal remedy - valid reason for dismissal - procedural deficiencies assessed - dismissal consistent with small business fair dismissal code.

[1] This matter involves an application for unfair dismissal remedy made under s.394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 9 November 2015, and it was made by Alexander Atlagic (the applicant). The respondent employer was identified as Charlie & Son Electrical Contracting Pty Ltd (the employer).

[2] The application indicated that the date the applicant’s dismissal took effect was 28 October 2015. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 13 April 2016.

[4] At the Hearing, the applicant was represented by his mother, and the applicant provided evidence as the only witness called in support of the unfair dismissal claim. The employer was represented at the Hearing by Mr B Ciric, who was a Director of the employer. Mr Ciric gave evidence as the only witness called on behalf of the employer.

Factual Background

[5] The date of the actual dismissal of the applicant was the subject of some conflicting evidence. However, the applicant was provided with a letter dated 28 October 2015, which confirmed the termination of his employment. The applicant had been employed as an apprentice Electrician for a period of approximately 1 year and 8 months.

[6] The employer operates a small electrical contracting and air conditioning installation and repair business. The employer is a small business, and it has only two or three employees.

[7] In January 2015, the applicant suffered a significant injury at work involving ligament damage to his knee. The workplace injury necessitated the applicant’s absence from work until June 2015, when he returned on a rehabilitation programme involving initially restricted duties.

[8] Following his return to work from injury, the applicant also attended numerous medical treatment procedures which required further absences from work. These various absences to attend medical appointments were paid as time worked by the employer without dispute. However, in addition to his absences for medical treatment purposes, the applicant also took a substantial amount of personal leave. In the period between his return to work in June, and his dismissal in October, the applicant took what the employer described as 14 additional unexplained sick days.

[9] On 23 August 2015, the applicant, along with the employer’s two other employees, were warned about particular aspects of unsatisfactory work performance. The employer was concerned about various aspects of general workplace behaviour of its employees, including excessive mobile phone use during working time. Further, and in respect to the applicant specifically, the employer warned the applicant about the requirement for him to resume his attendance at TAFE. These warnings which were provided to inter alia, the applicant, were conveyed verbally by the employer’s Director, Mr Ciric.

[10] On 16 September 2015, the applicant was provided with a further verbal warning from the employer’s Director Mr Ciric. On this occasion, Mr Ciric spoke with the applicant individually, and warned him about various aspects of inadequate work performance including excessive absenteeism.

[11] On Monday, 19 October 2015, the applicant attended work but he was unable to perform any tasks because he complained of a sore stomach. On that evening, the applicant sent a text message to Mr Ciric which advised that he would not be attending for work on the following day, Tuesday, 20 October, because he had a sore back. Mr Ciric attempted to contact the applicant on both Tuesday and Wednesday afternoons to see whether he was coming to work, but the applicant was not contactable.

[12] On Thursday evening, 22 October, the applicant sent a text message to Mr Ciric enquiring about his work location for the following day. Mr Ciric then telephoned the applicant and commenced to inquire as to why he had been “missing in action” for the past two days. During this conversation, Mr Ciric commenced to further warn the applicant about his excessive absenteeism, his apparent refusal to re-enrol in TAFE, and his general attitude towards his employment.

[13] Mr Ciric warned the applicant with words to the following effect; “If you keep on going like this, I will get rid of you.” In response the applicant said words to the effect; “Well if you’re planning on getting rid of me, there’s no point me continuing on.” At this point, Mr Ciric then advised the applicant that he could consider that his employment was terminated. Mr Ciric told the applicant that he was supposed to work a two week notice period. The applicant indicated that in those circumstances there was no point in his returning to work under notice of termination, and the conversation ended.

[14] The applicant was subsequently provided with a termination of employment letter dated 28 October 2015, 1 which included the various reasons for dismissal, and advised that the applicant would be paid up until 11 November 2015. The applicant has sought alternative employment since the dismissal. However, he has only managed to obtain some short-term engagement in other employment.

The Case for the Applicant

[15] The applicant was represented by his mother, and unfortunately his case has suffered from a surprising absence of basic preparation. Particularly in the case of self-represented and obviously inexperienced Parties, the Commission generally adopts a practical, informal and flexible approach to the provision of material upon which an unfair dismissal case may be advanced or defended. However, there is a fundamental requirement for an applicant to produce some documentary material which asserts the factual circumstances which make out the basis for the claim, and upon which a respondent employer would be required to reply.

[16] In this instance, the respondent employer raised a jurisdictional objection asserting that the dismissal of the applicant was consistent with the Small Business Fair Dismissal Code (the Code). Consequently, the employer was directed to provide material both in support of its objection, and also in respect to the merits of the claim. Similarly, the applicant was directed to provide material both in opposition to the objection raised by the employer, and also in respect to the merits of the matter generally.

[17] Regrettably, the applicant did not provide a witness statement from himself, and he failed to provide any material in respect to the jurisdictional objection raised by the employer. Further, the applicant did not provide written submissions or other documentation.

[18] At the Hearing, the applicant gave evidence as a witness, and the Commission assisted the case for the applicant with the introduction into evidence of a document that had been written by the applicant’s mother. 2 The applicant’s mother cross-examined Mr Ciric who gave evidence as a witness, and she also provided verbal submissions.

[19] The verbal submissions made by the applicant’s mother during the Hearing challenged the alleged basis for the dismissal. The applicant’s mother submitted that the applicant had been treated unfairly and that the employer knew that he, the applicant, had injuries. The applicant’s mother further submitted that the applicant had been taken advantage of. The applicant’s mother also said that the employer had disrespected the applicant. Further, the applicant’s mother said that the applicant had been wrongly treated.

The Case for the Employer

[20] The submissions of the employer were articulated by Mr Ciric. Mr Ciric said that the termination of employment of the applicant was solely for the reasons that were given, and it had nothing to do with the applicant’s injuries.

[21] Mr Ciric said that the reasons for the dismissal of the applicant involved his poor attendance at work, not attending TAFE, and his attitude towards work.

[22] The Commission has inferred from the submissions made on behalf of the employer that it believed that the dismissal of the applicant was compliant with the Code. Further, the Commission has inferred that the employer believed that the claim for unfair dismissal should be dismissed.

Consideration

[23] Section 385 of the Act stipulates that the Commission must be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:

(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.

[24] In this instance, there was contest regarding subsections 385 (b) and (c) of the Act. The Commission has been required to determine whether; the dismissal of the applicant was consistent with the Small Business Fair Dismissal Code; and potentially, whether it was harsh, unjust or unreasonable.

[25] Further, s.396 of the Act requires that the Commission must decide a number of specified matters before considering the merits of any application for unfair dismissal remedy. In this instance, the jurisdictional objection arose from the provisions of subsection 396 (c) of the Act. The particular provisions of s. 396 of the Act are:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

Small Business Fair Dismissal Code

[26] The employer is a small business and the provisions of subsection 385 (c) of the Act require consideration. Specifically, it is necessary to determine whether the dismissal of the applicant was or was not consistent with the Small Business Fair Dismissal Code (referred to as “the Code”). Logically, and because of the requirements of s.396 of the Act, a determination of any application of the Code should precede any more general contemplation of whether the dismissal was harsh, unjust or unreasonable.

[27] The Code is in the following terms:

“Small Business Fair Dismissal Code

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.”

[28] In this case, the applicant was dismissed with notice for reasons of alleged unsatisfactory conduct and performance. Therefore, that part of the Code relating to Other Dismissal would appear to have potential application to the particular circumstances surrounding the dismissal of the applicant.

[29] Although there were some difficulties with the evidence that was presented in this case, the Commission has been able to establish a coherent basis upon which to make findings of fact about key elements of the circumstances surrounding the dismissal of the applicant. These factual elements relate to the particular requirements of the Other Dismissal provisions of the Code.

[30] Firstly, it was clear that the employer gave the applicant a series of valid reasons why he risked being dismissed. These reasons related to, in particular, his excessive absenteeism, his failure to attend TAFE, and his general failure to display enthusiasm and diligence towards his work. The validity of these reasons was abundantly confirmed by inter alia, the unexplained absences of the applicant on 14 occasions in the period between June and October 2015.

[31] Secondly, the applicant was warned that he risked being dismissed if there was no improvement in respect to matters including his level of absenteeism, his failure to attend TAFE, and his general failure to display enthusiasm and diligence towards his work. Regrettably, these warnings were not provided in writing. However, the evidence has confirmed that the warnings were provided verbally on 23 August, and 16 September 2015.

[32] Thirdly, the applicant was provided with an opportunity to respond to these warnings and he had a chance to rectify these problems. However, the further unexplained absences of the applicant on 21 and 22 October, combined with his failure to respond to or make contact with the employer until the evening of 22 October, represented sound basis for the employer to conclude that the applicant was either unable or unwilling to rectify matters such as his excessive absenteeism, and his somewhat cavalier attitude towards communicating with his employer.

[33] Fourthly, it would have been preferable for the applicant to have had another person (perhaps his mother), present at times when Mr Ciric spoke with the applicant about concerns such as his absenteeism, his failure to attend TAFE, and his general failure to display enthusiasm and diligence towards his work. However, in the context of a very small business, and the particular arrangements by which the applicant and the employer communicated about work-related matters, there was considerable impracticality in having another person present at times when Mr Ciric spoke with the applicant in circumstances where dismissal was possible, such as the telephone conversation on the evening of 22 October 2015.

[34] Fifthly, the employer provided evidence as required by the Code, in the form of firstly, the completed Small Business Fair Dismissal Code checklist which was signed and dated 2 November 2015, 3 and secondly, the termination of employment letter dated 28 October 2015.4

[35] Consequently, upon analysis, the dismissal of the applicant was consistent with the Other Dismissal elements of the Code. Therefore, the claim for unfair dismissal remedy must fail by virtue of the operation of subsection 385 (c) of the Act. However, for abundant caution I have also considered that if, hypothetically, the dismissal was not consistent with the Code, whether it would satisfy the other relevant contested element of s.385 of the Act, namely, whether the dismissal was harsh, unjust or unreasonable.

Harsh, Unjust or Unreasonable

[36] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

387 (a) - Valid reason for the dismissal related to capacity or conduct

[37] In this instance, the evidence has established that the applicant was dismissed for capacity and conduct reasons relating to excessive absenteeism, his failure to attend TAFE, and his general failure to display enthusiasm and diligence towards his work. In particular, the applicant’s dismissal was precipitated by his further absences on 21 and 22 October, which occurred without the applicant providing notification or explanation to the employer.

[38] The evidence established that, notwithstanding the proper accommodation for the applicant’s absences in respect to medical treatment for his workplace injury, the employer had legitimate and reasonable basis for complaint about the excessive absenteeism of the applicant. The evidence confirmed that the applicant displayed a cavalier disregard for the employment relationship generally.

[39] Upon analysis, the dismissal of the applicant was for a valid reason related to his capacity or conduct.

387 (b) - Notification of reason for dismissal

[40] The employer provided written notification of the reasons for the applicant's dismissal in the termination of employment letter dated 28 October 2015.

387 (c) - Opportunity to respond to any reason related to capacity or conduct

[41] The employer provided the applicant with an opportunity to rectify the concerns that it had about the applicant’s excessive absenteeism, his failure to attend TAFE, and his general failure to display enthusiasm and diligence towards his work. This opportunity was provided after the verbal warning given specifically to the applicant on 16 September 2015. The applicant did not use the opportunity provided to him, and he failed to rectify his conduct to meet the reasonable requirements of the employer, when he again failed to attend for work without notification or explanation for his absences on 21 and 22 October 2015.

387 (d) - Unreasonable refusal to allow a support person to assist

[42] The employer did not facilitate the presence of a support person to assist the applicant. However, in the particular circumstances of the employment arrangements that were established in this instance, it would have been impractical to have provided for the attendance of a support person, particularly in respect to the telephone conversation between the applicant and Mr Ciric on the evening of 22 October 2015.

387 (e) - Warning about unsatisfactory performance

[43] There was evidence that the applicant had been provided with verbal warnings about various unsatisfactory aspects of his work performance or conduct, in particular his excessive, unexplained, and un-notified absenteeism.

387 (f) - Size of enterprise likely to impact on procedures

[44] The Commission has recognised that the employer is a small business, and accommodation should be accordingly made for significant informality in respect to employment matters.

387 (g) - Absence of management specialists or expertise likely to impact on procedures

[45] The employer is a small business which did not have dedicated employee relations management specialists. Once again, accommodation for significant informality in respect to employment matters should be provided.

387 (h) - Other relevant matters

[46] It is relevant to note certain aspects of the evidence provided about the telephone conversation between the applicant and Mr Ciric on the evening of 22 October 2015. Although it would have been clearly preferable for these communications to have occurred face-to-face, the applicant’s reaction to the reasonable, renewed warning given by Mr Ciric, essentially invited Mr Ciric to dismiss him during the telephone conversation.

[47] Ordinarily, advice of dismissal conveyed by telephone would be severely criticised as being at the very least, unreasonable. However, in the context of consideration of a very small business, and the particular circumstances of this matter, the verbal advice of dismissal during the telephone conversation was understandable. Further, written confirmation of the termination of employment was provided shortly after the verbal exchange.

[48] Consequently, having regard for the various factors contained in s.387 of the Act, the dismissal of the applicant, if it was not consistent with the Code, was not harsh, unjust or unreasonable.

Conclusion

[49] In this instance, the applicant was dismissed on the basis of various conduct and performance issues. The employer has asserted that as a small business, the dismissal of the applicant was consistent with the Code.

[50] The Commission has undertaken a careful consideration of all of the evidence regarding the somewhat unfortunate circumstances surrounding the dismissal of the applicant. The evidence has firmly established that the dismissal of the applicant was consistent with the Code.

[51] Further, by way of an alternative, hypothetical analysis, the Commission has concluded that even if the dismissal of the applicant was not consistent with the Code, it would have nevertheless, not been harsh, unjust or unreasonable. Therefore, on either basis, via the operation of subsection 385 (c) or subsection 385 (b) of the Act, the dismissal of the applicant was not unfair.

[52] As the dismissal of the applicant was consistent with the Small Business Fair Dismissal Code, subsection 385 (c) of the Act operates as a jurisdictional bar to the claim for unfair dismissal remedy. Therefore, the application for unfair dismissal remedy must be dismissed accordingly.

COMMISSIONER

Appearances:

Ms J Atlagic appeared for the applicant.

Mr B Ciric, Director appeared for the employer.

Hearing details:

2016.

Sydney:

April 13

 1   Exhibit 2.

 2   Exhibit 5.

 3   Exhibit 3.

 4   Exhibit 2.

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