Anthony Manning v Lady Smith Feed Lot T/A Lady Smith Feed Lot

[2013] FWC 6110

[2013] FWC 6110

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Manning
v
Lady Smith Feed Lot T/A Lady Smith Feed Lot
(U2012/16725)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 28 AUGUST 2013

Application for unfair dismissal remedy.

Introduction

[1] On 7 December 2012, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Anthony Manning (the Applicant).

[2] The Applicant was employed by Lady Smith Feed Lot t/as Lady Smith Feed Lot (the Respondent) in June or July 2010. In any event, the Applicant was made permanent on 10 November 2010. He was dismissed on 3 December 2012.

[3] The reason for dismissal in the application was “serious misconduct” and “unsatisfactory work performance”. A telehandler machine had been damaged, but the Applicant denied he was responsible. As well, he said he “was never told anything about my job”.

[4] The Respondent’s “Employer Response” form said that the Applicant was dismissed because of $10,000 damage to the Respondent’s property (the telehandler), and unsatisfactory work performance, despite written and verbal warnings.

[5] The telephone conciliation set down for 16 January 2013 did not proceed because the Applicant could not be contacted

[6] Listings for arbitration hearing in Wodonga in May and June did not proceed.

[7] A pre-hearing telephone conference was conducted on 17 June at which the Applicant did not appear.

[8] On 19 June the Applicant made a formal application for the matter to be heard in Wagga Wagga, which is the location of the worksite and was more convenient for both parties.

[9] The 22 July proceedings in Wagga Wagga took the form of a determinative conference with the agreement of the parties.

[10] The Applicant appeared for himself, with his mother Ms A. Manning. The Respondent was represented by Ms G. Kusuma of the New South Wales Farmers’ (Industrial) Association.

[11] The Applicant’s submission and witness statement was filed on 16 May 2013.

[12] The Respondent’s submission was filed on 14 June 2013. Witness statements and evidence in person were provided by Ms Briana Daly, the Manager and Ms Tess Herbert, a co-owner of the Respondent. A range of documentary evidence was also tendered, including four affidavit accounts of events by employees.

Background

[13] The Applicant denied that he had damaged the telehandler. He said that it must have been driven by other employees on Friday, 30 November 2012.

[14] The Applicant denied that he had excessively used his mobile phone previously and had only used it for work.

[15] The Applicant said that he had been discriminated against and not been provided with opportunities to advance.

[16] When presented with written warnings, the Applicant denied that he had signed them.

[17] The Respondent submitted that the Applicant had been consistently performance managed due to his substandard work performance. He had been given at least three written formal warnings commencing in October 2011. A meeting that Ms Daly had with the Applicant on 20 June 2012 also dealt with excessive mobile phone use on site. Verbal counselling took place up to the telehandler incident at the end of November.

[18] On 28 November 2012, an employee, whose affidavit was tendered, saw the Applicant “performing burnout whilst driving the telehandler”. Another reported that the machine had been damaged on 30 November. The machine’s retailer then took it to his workshop. The employees then reported to Ms Daly what had happened.

[19] The retailer’s report was that the damage was caused by “the driver’s gross misuse of the machinery”.

[20] The Applicant was interviewed on the afternoon of Monday, 3 December, issued with a third and final warning and dismissed.

Protection from Unfair Dismissal

[21] An order for reinstatement or compensation may only be issued where I am satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[22] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[23] There is no dispute, and I am satisfied, the Applicant has completed the minimum employment period, was covered by a modern award and was below the high income threshold with an annual salary of $39,520 per annum. Consequently, I am satisfied the Applicant was protected from unfair dismissal.

Was the dismissal unfair?

[24] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“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.

Was the Applicant dismissed?

[25] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the Act. Section 386 of the Act provides that:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[26] There is no dispute that the Applicant was dismissed.

[27] The Respondent had 14 employees at the feedlot but others within the company.

[28] Ms Kusuma stated that no reliance was placed on the Small Business Fair Dismissal Code. There was no argument that the Applicant was a case of “genuine redundancy” pursuant to s.385 (d) of the Act.

Harsh, unjust or unreasonable

[29] Having dealt with each of s.385(a),(c)-(d) of the Act, I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at 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, 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.”

[30] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[31] The Applicant submits the dismissal was harsh, unjust or unreasonable because:

● He denies that the act of serious misconduct for which he was dismissed took place.

● He denies that he burnt out the machine and was therefore responsible for the damage.

● He says that management and the employee witness were “out to get him”.

● He denies that there were previous problems with his work performance and denies that he signed the records of interview and warnings that were given.

● He says that he was not given an opportunity to advance within the workplace.

● Reinstatement was not sought but $30,000 compensation was claimed.

[32] The Respondent submits the dismissal was not harsh, unjust or unreasonable because:

● The Applicant was summarily dismissed because of his gross misuse of the telehandler which cost the Respondent $14,298 to repair.

● They relied on the evidence of employee witnesses that the Applicant was seen “burning out” the machine.

● The machine’s retailer confirmed that this was the cause of the damage.

● The Applicant had received a number of performance reviews relating to the standard of his work commencing on 24 July 2011 with a warning which was in evidence.

● The Applicant received a written warning on 20 June 2012 for excessive mobile phone use and a second warning regarding his work performance. These were signed by the Applicant and stated that “any further warnings will result in loss of job”. Monthly meetings with the Applicant took place thereafter. Some improvement was shown but his performance was still considered to be below standard.

● The Respondent submitted that, given the Applicant’s past record and the seriousness of the misconduct which damaged the telehandler, it acted appropriately on 3 December 2012 by dismissing him.

[33] I am under a duty to consider each of these criteria in reaching my conclusion, Sayer v Melsteel[2011] FWAFB 7498.

[34] I will now consider each of the criteria contained in s.387 of the Act separately.

Valid Reason - s.387(a)

[35] The Respondent must have a valid reason for the dismissal which should be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced” Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (Selvachandran). The question is whether the Respondent’s summary dismissal action was justified.

[36] Regulation 1.07 of the Act defines “serious misconduct”:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”

[37] I found the Respondent’s case and the evidence of the Respondent’s witnesses persuasive. For a relatively small employer, the Respondent handled the matter quite professionally. A copy of the Employee Handbook, which the Applicant signed, was in evidence as were the records of each interview and written warnings. The statement and evidence of Ms Daly, in particular, was a credible account of events. The documentary evidence of damage to the machine and its cause was persuasive.

[38] I find that the evidence which was a combination of witnesses, witness statements and documentary material establishes on the balance of probabilities that the Applicant’s actions led to the damage to the telehandler. These actions amounted to gross misuse of the employer’s property.

[39] I find that the action of the Applicant was serious misconduct which was wilful and deliberate and inconsistent with the continuation of the employment contract. The reason for dismissal was “sound, defensible and well founded” (Selvachandran).

[40] In addition, the Applicant had been given a number of previous written warnings in relation to mobile phone use and poor work performance. The last of these made it clear that his employment would be terminated if there were any further problems.

[41] I find that there was a valid reason for the dismissal.

Notification of the Valid Reason - s.387(b)

[42] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”    Ibid at 151.

[43] Ms Daly’s evidence was that “the Directors agreed that Anthony should be terminated, effective immediately, unless if there is any other matter that arise that requires further consideration”. (Paragraph 24 of Ms Daly’s witness statement of 5 June 2013). This was confirmed in her evidence at transcript PN [873].

[44] The Applicant was advised of the meeting on the afternoon of 3 December in writing. The record of the meeting shows that the accusation about the telehandler was put to him and he had an opportunity to refute it. See transcript PN [1757].

[45] I am satisfied that the Applicant was notified of the reason for dismissal.

Opportunity to respond - s.387(c)

[46] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.

[47] I am satisfied that the Applicant was given an opportunity to respond to the reason for dismissal. He was also aware of the previous written warnings that had been given, including that any further issues would lead to dismissal.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[48] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[49] The evidence was that the Applicant was specifically told he was welcome to bring a witness to the 3 December meeting, but he chose not to do so.

[50] I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person in attendance.

Warnings regarding unsatisfactory performance - s.387(e)

[51] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal.

[52] Clearly, there had been formal written warnings about mobile phone use and performance leading up to the telehandler incident which was the immediate trigger for dismissal.

Impact of the size of the Respondent on procedures followed - s.387(f)

[53] The size of the Respondent’s enterprise probably did impact on the procedures followed to effect the dismissal. However, as said earlier, the Respondent dealt with the issue in a very professional manner with each step being appropriately documented.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[54] The absence of dedicated human resource management or expertise in the Respondent’s enterprise did not really impact on the procedures followed in effecting the dismissal, as noted above.

Conclusion

[55] I accept the evidence of the Respondent’s witnesses as being the most reliable account of events. I have found that the conduct of the Applicant was a valid reason for dismissal. The Applicant was given notification and opportunity to respond in accordance with s.387(b) and (c). The serious misconduct was the culmination of previous warnings for work performance.

[56] Having considered each of the matters specified in s.387, I am satisfied the dismissal of the Applicant was not harsh, unjust or unreasonable.

DEPUTY PRESIDENT

Appearances:

A. Manning, Applicant on his own behalf with A. Manning.

G. Kusuma from the New South Wales Farmers’ (Industrial) Association with T. Herbert and B. Daly for the Respondent.

Hearing details:

2013

Wagga Wagga:

July 22.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR540713>