Anthony Dunne v RePipe Pty Ltd

[2015] FWC 3390

[2015] FWC 3390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Dunne
v
RePipe Pty Ltd
(U2014/1953)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 27 MAY 2015

Application for relief from unfair dismissal - small business fair dismissal code - continuing misconduct - valid reason - dismissal not unfair.

[1] On 2 June 2014 Mr Dunne lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW act) in relation to the termination of his employment with Repipe Pty Ltd (Repipe). Mr Dunne’s application was initially considered in the context of a submission relative to an apprehension of bias, by Williams C. A decision 1 was issued on 8 October 2014. Notwithstanding this decision, the application was referred to me for determination on 8 April 2015. It was the subject of a hearing in Perth on 15 May 2015.

[2] At this hearing Mr Dunne represented himself. Mr Howlett of counsel represented Repipe pursuant to a grant of permission made under s.596(2)(a) of the FW Act. Mr Dunne did not oppose that permission request.

[3] Mr Dunne commenced working for Repipe in January 2011. He worked as a plumber. His employment was summarily terminated on 19 May 2014. Mr Dunne lodged his application within the statutory time limit and there is no dispute that he was a person who was protected from unfair dismissal.

[4] There is no dispute that at the time of the termination of Mr Dunne’s employment, Repipe employed fewer than 15 employees and that the Small Business Fair Dismissal Code (the code) therefore has operation.

[5] Section 385 states:

“385 what is an unfair dismissal

A person has been unfairly dismissed if the FWC 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.”

[6] This means that, if the termination of Mr Dunne’s employment was consistent with the code, it cannot be unfair. Section 396 requires that I consider this issue as an initial issue.

[7] Whilst I have considered all of the material provided to me, I have briefly summarised the evidence in the following terms.

[8] Mr Dunne’s evidence was that the termination of his employment on 19 May 2014 occurred during a telephone call from Ms Outram about which he had not been given any advance notice. Mr Dunne asserted that he was not told of the reason for his dismissal. Mr Dunne advised that he thought that it could relate to his challenge to the safety practices followed by Repipe during the use of class B high pressure water jetting. Mr Dunne asserted that he was told that he was summarily dismissed and that he was required to immediately remove his tools from his work car. His evidence was that he was not paid his entitlements for some time. Mr Dunne asserted that the termination of his employment was inconsistent with the Repipe disciplinary procedure which he endorsed on 17 September 2011 and that he had not been warned relative to his work performance or behaviour. Mr Dunne advised that he obtained alternative employment within a week of his dismissal.

[9] I note at the outset that I found Mr Dunne to be a witness substantially lacking in credibility. He was evasive and, in a number of instances, simply dishonest in his evidence. For instance, his evidence was that, immediately following the termination of his employment “I was then asked to remove all my tools from the company car, on the side of road, which was not the best place to check that all my tools were accounted for.” 2 In his evidence he later conceded that Ms Outram’s evidence that “the applicant asked, and it was agreed that the COO would escort the applicant in a separate vehicle to our shed at 52 Corona Way, Belhus. This was to enable the applicant more time to remove his hand tools.”3 A further example relates to Mr Dunne’s denials that he was the subject of reprimand or warnings. It seems that, where he disagreed with the evidence of Ms Outram or that of Ms English, he simply characterised discussions as being something other than warnings or reprimands. I have concluded that Mr Dunne simply excluded from his evidence, matters which did not suit his argument that he had been unfairly dismissed. To the extent of differences between the evidence of Mr Dunne and the other witnesses, I have not favoured Mr Dunne’s evidence. I also note that Mr Dunne advised that he has pursued this application in order to achieve a finding that the termination of his employment was unfair and to achieve payment of four week’s pay in lieu of notice.

[10] Ms English is the Repipe Manager, Corporate Services. Her evidence went to her understanding of the work functions undertaken by Mr Dunne and her involvement in various meetings between Mr Dunne, other employees and Ms Outram. Ms English’s evidence went to her knowledge of deficiencies in his completion of “pre-start” work inspections and banking requirements. Ms English detailed various of her dealings with Mr Dunne where she asserted that he failed to follow normal and required procedures and was rude and abusive. She recounted how she had overheard Ms Outram reprimand Mr Dunne on a number of occasions in relation to the requirement that he complete time sheets and pre-start checks. Ms English reported Mr Dunne’s continuing abusive language to Ms Outram. Ms English’s evidence was that on 16 May 2014 she advised Ms Outram that Mr Dunne was still not completing his banking requirements. Ms English’s evidence was that she was asked to provide to Ms Outram, timesheet information in relation to Mr Dunne. Ms English’ evidence also went to how Mr Dunne was escorted from the premises after his dismissal and the manner in which he returned the work mobile telephone.

[11] Ms Outram is the Repipe Chief Executive Officer. Her evidence went to Mr Dunne’s employment and responsibilities. Ms Outram’s evidence was that, in 2011, she became aware that Mr Dunne had dyslexia and was unable to complete the majority of written and verbal tasks, including the calculation of quotes. She gave evidence about the subsequent changes she made to his role and to reporting arrangements to accommodate this. Her evidence was that a continuing requirement was that Mr Dunne had to complete a weekly timesheet template. Her evidence went to her assessment of poor performance on Mr Dunne’s part and her agreement with him about how this should be addressed.

[12] Ms Outram’s evidence went to the implementation of, and training in, a risk management plan which required equipment pre-start inspections. Ms Outram’s evidence was that she emailed Mr Dunne in relation to his poor work performance on several occasions between January and June 2012. She advised of coaching sessions involving Mr Dunne between July 2012 and July 2013 and other steps she took to assist in managing his performance. Ms Outram detailed particular concerns over Mr Dunne’s performance including his failure to service his work car and to undertake ‘pre-start checks’ as requested. Ms Outram’s evidence was that she issued a lengthy and severe reprimand 4 to Mr Dunne on 23 July 2013 in relation to submitting falsified risk assessments, failing to perform pre-start checks and to provide the necessary paperwork in the appropriate time limits. She advised that she told Mr Dunne that if he did not meet these requirements he would be dismissed.

[13] Ms Outram advised that she was on site in the Pilbara from September 2013 and was unable to check Mr Dunne’s compliance with her instructions. However, in May 2014 she was made aware that Mr Dunne had not completed 7 of the 20 required time-sheets.

[14] Ms Outram gave evidence that she reprimanded Mr Dunne by telephone on 16 February 2014 in relation to his failure to attend an after-hours call out and his abusive language toward Ms English. On 23 April 2014 she gave Mr Dunne a further warning about his rude behaviour toward Ms English. She advised him that she considered the employment relationship to be “unsalvageable”. 5 Ms Outram proposed that Mr Dunne find alternative employment.

[15] Ms Outram detailed her assessment of material provided to her by Ms English and her conclusion that Mr Dunne had not completed all of his time-sheets and had falsified various of those timesheets such that his recorded work hours were inconsistent with his work schedule. Her evidence detailed the steps she then took to advise Mr Dunne of the termination of his employment and to her statement to him of the reasons for that dismissal.

[16] Ms Outram’s evidence also went to information she obtained after the termination of Mr Dunne’s employment which she asserted confirmed the extent of his falsification of time records and his behaviour in restricting access to his work phone by a password. Ms Outram also detailed the information she obtained after the termination of Mr Dunne’s employment which disclosed his extensive use of his work provided mobile telephone in breach of the instructions provided to him.

Findings

[17] The Code states:

“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.”

[18] While Mr Dunne was summarily dismissed on 19 May 2014 I have noted that Ms Outram’s advice to him of 23 April 2014 put him on notice that she considered that the employment relationship would be terminated shortly. In this respect Ms Outram’s evidence was that:

“53. ....

....

(b) On 23 April 2014 I issued a lengthy and serious reprimand to the applicant with regard to rude and disrespectful behaviour toward Tiffany and other administrative employees. During this phone call i advised the applicant that:

(i) I would not tolerate disrespectful behaviour.

(ii) I considered our working relationship had deteriorated to a point where it was unsalvageable.

(iii) the applicant needed to find a role with another employer.

(iv) I considered the applicant would work better in an environment where he had constant supervision and received daily or weekly feedback about his performance.

(v) I was flying back to the Pilbara in 2 hours but I would call him as soon as I “had a minute” to finalise the discussion.” 6

[19] Notwithstanding that this advice could be construed as the provision of notice, the lack of certainty associated with it means that I have applied the requirements of the Code in relation to summary dismissal.

[20] I have concluded that these requirements were met. The information provided to Ms Outram by Ms English provided reasonable grounds for her to conclude that Mr Dunne was falsifying his timesheets in a manner that involved fraud and was serious misconduct. I consider that the previous warnings given to Mr Dunne about his behaviour were such that Ms Outram was entitled to form that view that Mr Dunne was clearly aware of the mandatory requirements expected of him and had elected not to comply with those requirements.

[21] Having reached these conclusions it is not essential that I deal with the procedural aspects of the termination of Mr Dunne’s employment. However, even if Mr Dunne’s dismissal had not met the requirements necessary for summary dismissal, I am satisfied that the other requirements of the Code were substantially met. I have accepted the evidence of Ms Outram that she advised Mr Dunne of the reasons why he was dismissed and that these reasons related to essential elements of the job and reasonable requirements of him as an employee. I am satisfied that the evidence of Ms Outram establishes that Mr Dunne was warned on multiple occasions and that Mr Dunne had the opportunity to remedy specified performance issues. If Mr Dunne’s dismissal is reviewed in this context it seems clear that the advice provided to him on 23 April 2014 put him on notice that his employment would be terminated. That termination took effect three weeks later.

[22] Consequently, I am satisfied that the requirements of the Small Business Fair Dismissal Code have been met such that the termination of Mr Dunne’s employment cannot be regarded as unfair. In reaching this conclusion I have had regard to the Full Bench decision in Pinawin t/a RoseVi.Hair.Face.Body v Domingo 7 in which the Full Bench made the following observations relative to the capacity of an employer to form a reasonable concern about an employee’s behaviour:

“[38] Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee. We are concerned in this case that no discussions took place about the implications of Mr Domingo’s conduct for his future employment. However this is a very unusual case. The employer was very small. The owners knew Mr Domingo well. They directly observed his behaviour. They believed that he had made lifestyle choices that involved drug-taking and this directly related to his capacity to perform his work. His work involved close personal dealings with clients. At the time they made their decision, Mr Domingo was hospitalised. They were conscientious in considering the grounds for summary dismissal in regulatory material available on the internet. In these unusual circumstances we are of the view that the employer, when considering Mr Domingo’s recent erratic and unusual behaviour, formed the belief that Mr Domingo had engaged in conduct that justified immediate dismissal on reasonable grounds. Our conclusion should not be seen as one that would necessarily be reached in all cases of out of hours misconduct or drug-taking.”

[23] In this case I have formed the view that Mr Dunne’s behaviour and approach to his work were such that Repipe was able to form the conclusion that his behaviour represented serious misconduct without having a further discussion with him. Nevertheless, I accept that there may be an element of doubt in this respect.

[24] Consequently, I have reviewed the evidence before me against the criteria in s.387 of the FW Act. I would have reached the same conclusion about the termination of Mr Dunne’s employment if this section was applicable.

[25] Section 387 states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”

[26] I have considered each of these factors.

Valid reason

[27] Notwithstanding subsequent changes to the legislation, I have applied the general principles set out by Northrop J in Selvachandran v Peterson Plastics Pty Ltd 8.

[28] I have concluded that Mr Dunne’s refusal to comply with the reasonable instructions given to him by Ms Outram in relation to the conduct of prestart checks of his vehicle and nominated equipment, 9 represented a valid reason for the termination of his employment.

[29] Mr Dunne’s manner of completion of his timesheets such that he was unable or unwilling to account for significant quantities of time represented a valid reason for his dismissal. In this respect I have accepted the evidence of Ms Outram in the following terms:

“54. ....

(a) .... My review of the Timesheets confirmed that the Applicant:

(i) Had failed to submit 7 timesheets of the 20 required for the same period.

(ii) Had submitted falsified Timesheets. The Applicants Timesheet and his appointment schedule for the week commencing 24 March 2014 is attached as JQ26. The Applicant’s timesheet indicates that he worked 45.5 hours however, the schedule confirms the applicant only worked 35.5 hours.” 10

[30] Mr Dunne’s manner of communication to Ms English, including his text communication messages, was contrary to the instructions given to him such that it also represented a valid reason for his dismissal. An example of that behaviour is set out in Ms English’s evidence in the following terms:

“Within a few minutes I received a telephone call from the applicant who was extremely rude”. The applicant complained that it was his wedding anniversary and “why the fuck should I attend.” I asked him to call Jaqui if he had any issues but he continued using foul and aggressive language which caused me to hang up the phone.” 11

[31] Additionally, I am satisfied about the authenticity of information made available to Repipe after the termination of Mr Dunne’s employment in relation to the inappropriate uses he made of his work provided mobile phone, and his use of passwords he also used for work functions so as to access numerous other sites. 12

[32] The frequency of Mr Dunne’s use of these sites, the extent to which he did so at times when he was at work and his use of password access which coincided with his access codes for Repipe functions all represent valid reasons for the termination of his employment.

Notification of the reason

[33] I am satisfied that Mr Dunne was advised of the reasons for the termination of his employment at the time he was dismissed on 19 May 2014.

Opportunity to respond

[34] I am not satisfied that Mr Dunne was given an opportunity to respond to the proposed termination of his employment. It is clear that Ms Outram had decided on that course of action before she initiated the telephone call to him on 19 May 2014. This is a factor indicative of unfairness but I have substantial doubt that such a discussion involving Mr Dunne would have altered the outcome given the nature of the discussions which had occurred between the two people on 23 April 2014. Simply put, Mr Dunne was on notice that Ms Outram did not consider him to be a suitable continuing employee and had told him to look for other work. 13 Mr Dunne’s subsequent behaviour in terms of his time records simply compounded that earlier position. Whilst Mr Dunne disputes the extent to which he was given these advices, the evidence of Ms English confirms Ms Outram’s version of two of these discussions.14

Warnings relative to poor performance

[35] I have accepted the evidence of Ms Outram to the effect that she had given Mr Dunne warnings or reprimands on numerous occasions before the termination of his employment. The reprimands referred to by Ms Outram on 23 July 2013, 16 February 2014 and 23 April 2014, are relevant in this regard.

[36] To the extent that Mr Dunne disputes these were warnings, I do not consider his evidence to be credible. Again I have referred to Ms English’s evidence which was consistent with that of Ms Outram when she stated:

“25. A few minutes later I overhead Jaqui call the Applicant and reprimand him with regard to his rude behaviour toward myself and other administrative employees. I also overheard Jaqui tell the Applicant that he “needed to find another job”. 15

Size of the Repipe business - effect on policies and procedures and access to human resource management expertise

[37] Repipe is a small business. I have concluded that it did not have policies and procedures which addressed behavioural issues of the nature that Mr Dunne displayed. Further, Repipe did not have access to human resource management expertise. Indeed, Ms Outram’s location, in Pilbara at the time of the termination of Mr Dunne’s employment, would have made that access even more difficult.

Other factors considered relevant

[38] I have noted that Mr Dunne has relied on the Repipe disciplinary policy and has asserted that, firstly, he was not accorded three warnings consistent with that policy, and secondly, that he was unaware of changes to the policy. I have concluded that the reprimands given to Mr Dunne substantially met the initial policy requirements. In any event, his continuing behaviour and substantial misconduct in using his work provided mobile phone to communicate with some 200 dating services or sexually oriented internet sites over a 4 month period must represent conduct which would not require that maintenance of a three warning policy.

[39] Mr Dunne has not asserted that the termination of his employment was harsh because of its effect on him. His evidence was that he gained alternative employment a week after he was dismissed. I am unable to regard the termination of his employment as creating an element of harshness in this respect.

Conclusion - s.387

[40] For the reasons I have set out above, even if I had not concluded that the termination of Mr Dunne’s employment was consistent with the Small Business Fair Dismissal Code, I would have concluded that, having considered the factors in s.387, it was neither harsh, unjust or unreasonable. It was not harsh, in that termination of employment was appropriate given Mr Dunne’s various forms of established misconduct. It was not unreasonable as Mr Dunne was dismissed for reasons that were established as facts. It was not unjust in that it is clear that Mr Dunne’s behaviour was inconsistent with the reasonable obligations on him as an employee.

[41] Accordingly, Mr Dunne’s application will be dismissed. An order (PR567495) to this effect will be issued.

Appearances:

A Dunne on his own behalf.

D Howlett counsel for the respondent.

Hearing details:

2015.
Perth:
May 15.

 1   [2014] FWC 7018

 2   Exhibit A1, para 4

 3   Exhibit R3, para 55

 4   Exhibit R3, para 48

 5   Exhibit R3, para 53

 6   Exhibit R3, para 53(b)

 7   [2012] FWAFB 1359

 8 (1995) 62 IR 371 at 373

 9   Exhibit R2, para 48

 10   Exhibit R3, para 54

 11   Exhibit R4, para 21

 12   Exhibit R3, JQ35 - [email protected] ; [email protected] ; [email protected]

 13   Exhibit R3, para 53

 14   Exhibit R4, para 25

 15   Exhibit R4, para 25

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<Price code C, PR567494>