Andrew Martin v 3D Windows

[2014] FWC 1446

[2014] FWC 1446

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Martin
v
3D Windows
(U2013/14125)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 28 FEBRUARY 2014

Application for relief from unfair dismissal - small business fair dismissal code - application dismissed.

[1] Mr Andrew Martin claimed that the termination of his employment by 3D Windows Pty Ltd (3D Windows) on 10 September 2013 was unfair.

[2] Mr Martin said that on 4 September 2013 he was assaulted outside of working hours and as a consequence he had to attend hospital and was not discharged until 7:00am the next day. He said he sent a text message to the factory manager that he would not be at work that day.

[3] The next day he again sent a text message to the factory manager telling him he would be back at work on Monday. Mr Martin then took a tablet, which he described as strong narcotic, dispensed to him for pain relief and fell asleep.

[4] At approximately 7:00am he received a phone call from Mr Daniel Strode, one of the company directors, about him not being at work. Mr Martin described the call as bullying and harassment and he eventually told Mr Strode to “fuck off”. Mr Martin claims that Mr Strode then dismissed him.

[5] Mr Strode describes the conversation differently. He said the Mr Martin was expected at work on Friday and on the Friday he sent a text saying he would not be in. He said it was 3D Windows’ policy that employees were supposed to ring if they were sick and not send text messages so he decided to ring Mr Martin to find out what was going on. He denied bullying and harassing Mr Martin. He said he asked him what was going on because they needed him at work. He said Mr Martin then became abusive towards him so he hung up on Mr Martin. He denied telling Mr Martin that he was sacked.

[6] Mr Andrew Nassan gave evidence that he heard the telephone conversation between Mr Strode and Mr Martin and he confirmed Mr Strode’s recollection of the conversation.

[7] Mr Martin said he then rang the factory manager who said to him “I think you have been sacked” and then other employees messaged him about his dismissal and he said he would be in to pick up his tools.

[8] Mr Martin then attended work on the Friday to collect his tools and was told by an unnamed person that the factory manager had first told them he had been sacked and then told them that he had not been sacked. The factory manager confirmed he had not been sacked.

[9] Mr Martin attended work on Monday. On Tuesday, Mr Strode met with him and the factory manager. It was Mr Martin’s evidence that he was given two warning letters, one dated 4 September 2013 and one dated 6 September 2013. The first warning advised that his employment would be terminated if his performance did not improve. The second warning was about the incident with Mr Strode on the Friday morning and advised him that this was his first and final warning.

[10] Mr Strode said that Mr Martin had received the warning letter, dated 4 September 2013, on that day. He gave Mr Martin the second warning on 10 September 2013 because he had not seen Mr Martin on the 9 September 2013. Before he gave him the letter he told Mr Martin that he was giving him a week’s notice and he could finish up then. He said Mr Martin walked out of the office and started to yell.

[11] Mr Strode said that Mr Martin had previously received verbal warnings about the quality and quantity of his work. For example, the number of windows done by Mr Martin had declined from 40 per day to 20 per day. Mr Strode said he had asked Mr Martin if there were any problems and he had gone through the jobs with Mr Martin to ensure the problem was not caused by something outside of Mr Martin’s control. He concluded that something outside of work was causing Mr Martin’s problems.

[12] Mr Darran Strode, the managing director of 3D Windows, provided a late witness statement in which he stated that he had given Mr Martin several verbal warnings.

[13] Mr Darran Strode gave further evidence by telephone in which he said that Mr Martin’s work had deteriorated and in July 2013 he and Mr Daniel Strode had spoken to Mr Martin about his work performance. The quality and quantity of Mr Martin’s work was not acceptable.

[14] Mr Darran Strode told Mr Martin that he would keep an eye on his work over the next six weeks and it needed to improve. He said that the quality of his work did not improve and he gave him a further verbal warning. Mr Darran Strode was on holidays when Mr Martin’s employment was terminated.

[15] Mr Martin denied receiving any verbal warnings.

[16] It is not disputed that this is a small business.

[17] The Fair Work Act 2009 at s.385 provides that a person has not been unfairly dismissed if the Fair Work Commission (the Commission) 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.”

[18] It is not disputed that the Small Business Fair Dismissal Code (the Code) applies.

“The 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.”

[19] I find that the dismissal was consistent with the Code. I prefer the evidence of Mr Darran and Daniel Strode that they had given Mr Martin verbal warnings about the declining quality and quantity of his work. I accept that they made their expectations clear. In fact, Mr Martin gave evidence that he knew what was required of him.

[20] I also prefer Mr Daniel Strode’s evidence that he gave Mr Martin a written warning about his work performance on 4 September 2013.

[21] The incident that occurred on 6 September 2013 was described by Mr Daniel Strode as the final straw. It was his evidence that he did not accept that he should be spoken to as he was by Mr Martin.

[22] I agree with Mr Strode. There was nothing in the evidence of Mr Strode and Mr Nassan that suggested that Mr Strode was doing anything more than asking why Mr Martin was not able to attend work. I accept that Mr Martin was not able to attend work but that did not justify him using abusive language to Mr Strode.

[23] While that incident by itself may not have warranted the termination of Mr Martin’s employment, I accept Mr Strode’s explanation about why the termination occurred when it did.

[24] The Code requires the employer warn the employee about any performance issues, 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. Mr Martin had received verbal warnings since July 2013 about the performance of his work. He had an opportunity to respond and was given a chance to rectify the problem. His performance did not improve.

[25] While the incident on 6 September 2013 was not about the performance of work, the decision to sack Mr Martin after that incident did not alter the fact that the termination of Mr Martin’s employment for poor performance was consistent with the Code.

[26] I therefore dismiss Mr Martin’s application for dismissal remedy.

DEPUTY PRESIDENT

Appearances:

Mr A. Martin appearing for himself.

Mr D. Strode appearing for 3D Windows Pty Ltd.

Hearing details:

2014:

Melbourne;

5 February.

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