Aodhan Wray-Smith v Titan 360
[2023] FWC 1816
•24 JULY 2023
| [2023] FWC 1816 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Aodhan Wray-Smith
v
Titan 360
(U2023/2235)
| COMMISSIONER SIMPSON | BRISBANE, 24 JULY 2023 |
Application for unfair dismissal remedy – Applicant a second year apprentice carpenter - Applicant continually late for work – Applicant demonstrated poor attitude – Dismissal not unfair – Application dismissed.
On 19 March 2023, Mr Aodhan Wray-Smith (the Applicant) made an application for unfair dismissal remedy against Titan 360 Projects Pty Ltd (the Respondent). The Applicant commenced employment as an apprentice carpenter with the Respondent on 5 April 2021 and was dismissed from his employment on 1 March 2023.
It is common ground that the Respondent employs more than 15 employees and there are no other jurisdictional matters that would prevent the determination by the Commission as to whether the dismissal was unfair.
A hearing was conducted on Friday 14 July 2023 by Microsoft Teams. The Applicant relied on an initial written submission of 19 June 2023,[1] and a reply submission of 10 July 2023,[2] which were admitted into evidence.
The following persons provided witness statements and gave oral evidence for the Respondent. Mr Phil Kemp the Construction Manager,[3] Mr Eric Clementson the Director of the Respondent,[4] Ms Eva Clementson Marketing and Staff Development,[5] Ms Leanne Goos the Estimator/Senior Management,[6] Mr John Pook, Management Team,[7] Mr Darcy Kingston,[8] and Mr Brad Camer a Site Supervisor Carpenter.[9]
Background
The Applicant said his termination came from an accusation that he was late on multiple occasions and received multiple warnings that he chose to ignore. He said this is not the case. The Applicant said he was never late in excessive amounts to warrant being dismissed. The Applicant said there were never any formal warnings indicating that his job was on the line if he was to be late. He said the only verbal warning was given in a group setting at a meeting attended by the two other apprentices.
The Applicant said that during his employment with the Respondent he would say he was late as many times as you would expect an average employee to be late. He said on times where he was late, it was mainly due to traffic, trying to find adequate parking or other situations that were out of his control. He said in the end these would only make him no more than a few minutes late.
The Applicant said if he knew he was going to be late, he would always follow proper protocol by informing whoever he was working with in charge that day. The Applicant said on many occasions while he had the work truck, he would arrive on time but be forced to find parking further away from the site. Therefore, after unpacking the truck, gathering tools, and walking to site, he would be late.
Mr Phil Kemp said he has been employed as a Construction Manager by the Respondent since 17 January 2022. Mr Kemp said during this time he has come to know the Applicant employed by the Respondent as an Apprentice Carpenter.
Mr Kemp said he initially found the Applicant to be a shy and introverted young man who needed guidance and mentoring. Mr Kemp said the Applicant’s attitude towards work and authority was very poor and it seemed to Mr Kemp that the Applicant thought he was protected within the Respondent.
Mr Kemp said that he was told by all the Supervisors that the Applicant was always late. Mr Kemp said he organised a one-on-one meeting with the Applicant outside of the office, and explained that he needed to improve his attitude and to ensure that he was on time for work, ready to start at 7.00am each day so the Supervisors could schedule works for the day. Mr Kemp said the Applicant did improve for a short time but soon went back to his old ways. The Applicant accepted that such a meeting did occur however his evidence was to the effect that this discussion was more about his attitude then lateness.
Mr Clementson said he can confirm that the Applicant was terminated from the Respondent due to a number of issues but specifically being late to work sites. Mr Clementson said the Applicant had a history of being late, and at times would turn up late with breakfast and eat this prior to starting. Mr Clementson said the Applicant had been spoken to by himself on both his attitude and lateness.
Ms Eva Clementson, the Marketing and Staff Development Manager said she has known the Applicant since the day he started with the Respondent. Ms Clementson said her role is to sign up and look after the Apprentices, co-ordinate with the Training Providers and follow up on Apprentices' progress.
Ms Clementson said that the termination was not unfair dismissal. Ms Clementson said it was brought to her attention by onsite supervisors early in the Applicant’s Apprenticeship, that the Applicant tended to turn up late for work on a regular basis, taking longer than the allowed (20min) for his morning tea break, often taking 15-20 min to go to the shops then spending time sitting down eating. Ms Clementson said this was not just a one off but happened regularly.
Ms Clementson said on one occasion the Applicant apparently turned up a half hour late for work in the morning, then preceded to eat his breakfast before starting work.
Ms Goos said despite the Applicant’s claims of traffic or alarm malfunctions, it became apparent that the Applicant consistently arrived late to the site. Furthermore, upon his arrival, he often had coffee and breakfast in hand, indicating that he had ample time to make unnecessary stops but chose not to prioritize punctuality.
Ms Goos said in addition to his tardiness, it was observed that the Applicant would leave the site during lunch breaks to purchase his lunch, resulting in extended breaks of up to 15-20 minutes. Ms Goos said the Applicant displayed a lack of organisational skills and often disregarded the instructions provided by the Site Supervisor. Ms Goos said as an apprentice, he was expected to follow instructions and display a respectful attitude towards authority figures, however the Applicant’s negative attitude and refusal to comply with directions were repeatedly brought to the attention of the management team.
Mr John Pook gave evidence that as a member of the Management team, he has worked with the Applicant on different worksites over the last two years. Mr Pook said in 90% of the time, the Applicant was late from anywhere from 15-20 minutes and most of the time he never called or sent a text that he was going to be late. Mr Pook said he has tried on several occasions to talk to the Applicant about the importance of being on time and the effects not only on co-workers but the work itself.
In responding to Mr Pook’s evidence, the Applicant claimed this 90% figure was an exaggeration, and when asked the proportion of times he believed he was late himself, he estimated it to be 30% of the time.
Mr Kingston said he has worked with the Applicant on several jobsites and from his experience he usually turned up late, at least 15 minutes or more, and Mr Kingston said he had spoken to the Applicant regarding this on several occasions, and his attitude was that 'it will be alright'. Mr Kingston said he never received a text or notification that the Applicant was running late. Mr Kingston said in his opinion the Applicant lacked a good work ethic.
In response to the evidence of Mr Kingston, the Applicant said he wouldn’t have worked with Mr Kingston more than a handful of times since he started, and nor would it have ever been a time when he was late.
Mr Camer said that as a Site Supervisor Carpenter he had worked with the Applicant on several occasions and on different job sites. Mr Camer said the times the Applicant worked with him, he was late often, nearly every day and only on a few occasions did he let Mr Camer know by text or call that he was running late.
Mr Camer said he talked to the Applicant regarding being late and the importance of being on time and ready to start at 7am. Mr Camer said he gave the Applicant several verbal warnings to turn up on time and be ready to start at 7am. Mr Camer said at times he told the Applicant to perform a task/do a job and the Applicant refused to do it. Mr Camer said he also had to pull the Applicant up several times for using his mobile phone while they were working or just standing around looking at his mobile.
In response to the statement of Mr Camer, the Applicant said that the only time he refused to do a task was when Mr Camer tried to force him to clean out his truck. The Applicant said he told Mr Camer that was not his role as an apprentice and carried on with his work. The Applicant said another apprentice was bullied into cleaning it out. The Applicant said the only time he would be on his phone was during a break.
The Applicant said he is someone who doesn’t sit back and take attempted bullying that would go on during work, and he said he reported this on many occasions to Mr and Ms Clementson, and Ms Clementson would respond “You’re an apprentice, you have to just take it”. He said he learned to either ignore the person or stand up for himself, and this is where the “attitude” comes from. The Applicant said he didn’t appreciate the accusations of a “lack of cooperation and inability to take instructions” as he said his work ethic and abilities were never a concern. The Applicant said it became apparent that some of the carpenters couldn’t be bothered to teach him or the other apprentices so they would end up doing very unrewarding work or be their lacky for the day.
The Applicant said at times he would arrive with breakfast and eat it during toolbox talks. He said the main complaint he got was that he didn’t get a coffee for everyone else. The Applicant said he would be made to do smoko runs for everyone else, even if he brought his own lunch to work, meaning he would be getting food for multiple people and would take some time.
Staff Meeting on 21 February
Mr Kemp said that during a staff meeting held on the 21 February 2023, he had received numerous complaints from the Supervisors about the Applicant’s attitude and continual lateness, lack of cooperation and his inability to take instruction. Mr Kemp said the staff also complained about the two other Apprentices. Mr Kemp said although the other Apprentices were mostly on time to start work, their attitudes were poor. Mr Kemp said he discussed these issues with the Company Director Mr Clementson, who advised him to use his initiative/position to try to change the Apprentices attitudes.
Ms Leanne Goos, said the Applicant received multiple warnings from Mr Kemp, herself and the Site Supervisors regarding his consistent tardiness and failure to adhere to the agreed-upon start time. Ms Goos said a management meeting was held specifically to address the issue of punctuality and lunch breaks, and during this meeting, it was collectively decided that the apprentice employees, including the Applicant would be given one last and final warning.
Meeting on 22 or 23 February 2023 with the three Apprentices
The Applicant said in his written material that the only verbal warning he received was in a group meeting with fellow apprentices and Phil Kemp on the 22 of February 2023. The Applicant said in the meeting Phil Kemp didn’t call on anyone specifically but mentioned that they were to pick up their act or they would be let go. The Applicant said this was the first time he heard his job being on the line.
Mr Kemp said on or around the 23 February, he organised a meeting with the three apprentices and ‘laid it on the line’ that all of them needed to change their attitudes and ensure they are on site ready to start work at 7.00am and it is now time to grow up as the other employees of the Respondent were very frustrated with them and didn’t want them on their sites.
Mr Clementson said on 23 February 2023 Mr Kemp facilitated a meeting with all of the apprentices, and Mr Kemp made it very clear that all apprentices be ready to start work at 7am or no later and to stay off mobile phones and have a positive attitude and respect for supervisors and site staff.
Ms Goos said that to address the ongoing issues, Mr Kemp conducted a meeting with the Applicant and the other apprentices, emphasising the importance of punctuality and readiness for work by 7am, and it was clearly communicated that this would be their final warning.
23 or 24 February
Mr Kemp said the next morning he was to meet the Applicant and a Supervisor at a job at 7.00am. Mr Kemp said even after the meeting the previous day, the Applicant was late again. Mr Kemp said his excuse, again, was traffic that was bad to which Mr Kemp said he responded that he needed to leave home earlier.
The Applicant said Mr Kemp’s evidence that he was late the day after the talk on 22 February was a lie. The Applicant said he was scheduled to be on a job at 6am that day, and the text message he provided shows Mr Kemp was scheduled to be at another site at 7am, so he did not see the Applicant or have a discussion with him on that day nor were there any excuses. The Applicant said he was not late on that day or the following day as his parents lived a street over from the job site and he stayed with them during his time on that job.
Ms Goos said the Applicant arrived late the next day after the meeting with Mr Kemp, knowing that the Manager would be present at 7am to discuss site works, and this demonstrated a lack of respect for clients, colleagues, and the management of the company, leading to his termination.
Mr Clementson said on 24 February the Applicant turned up late and was warned by the site supervisor that start time is 7am.
Allegation of lateness again
Mr Kemp said he was advised by a Supervisor that the Applicant was again late, later that week also. Mr Kemp said against his better judgement he let this one go and said nothing. The Applicant denied this.
1 March 2023 - Date of Dismissal
The Applicant said that he had stayed at his girlfriends’ place on the Sunshine Coast the night before (his dismissal) and had a plan to leave early the next morning on 1 March. He said the drive was around an hour and a half, so he left on time to ensure he arrived on site at 6:50am. The Applicant said during the drive there was traffic which meant he would then arrive at 6:55am.
The Applicant said about 30 minutes before arrival his fuel light came on and he knew he wasn’t going to make it without stopping for fuel. He said he informed ‘Joel’, who he was working with that day, that he was going to be late and ‘Joel’ said it was fine. The Applicant claimed he ended up walking onto site 5 minutes late. The Applicant said Mr Kemp was there when he arrived but didn’t say anything to him. The Applicant said he continued his work for the day and then later ‘Joel’ got a call from Mr Kemp that the Applicant was to meet Mr Kemp at the office at 3pm. The Applicant said Mr Kemp handed him his termination letter without any chance to explain himself.
Mr Kemp said early the following week after the meeting where the final warning was given, he went to a site and the Applicant was late again at which stage he decided enough was enough and contacted the Director of the Company Mr Clementson who advised him it was his call, so he called the Applicant into the office and issued him with his termination letter.
Mr Clementson also said one week after the earlier incident of lateness the Applicant and a Site Tradesman were to meet with Mr Kemp on site at 7am, and the Applicant again turned up late. Mr Clementson said he had at various times during the Applicant’s employment spoken with the Applicant about being on time.
Mr Clementson said Mr Kemp then spoke with the Applicant and advised him that his employment was now terminated, due to not following company guidelines and instructions. Mr Clementson said the Applicant had been given sufficient warnings, and in the end the dismissal was due to the Applicant not caring about both the Respondent’s guidelines or verbal warnings / meetings.
Mr Kemp said the Applicant was not happy with the termination letter and became defensive, angry and refused to accept his decision. Mr Kemp said he told the Applicant that he didn’t care if he accepted the decision, and he was given ample time and chances to change his attitude and correct his continual lateness. Mr Kemp said he left the letter on the table on the rear verandah with the Applicant and went back inside the office to continue work. Mr Kemp said the Applicant then came back into the office with a completely different attitude and asked Mr Kemp if the Applicant could get Mr Clementson to give him another chance would Mr Kemp withdraw his Termination. Mr Kemp said his response was that he does not own the business and if he was instructed by the Director to give the Applicant another chance then he would have to.
Mr Kemp said apparently, the Applicant rang Mr Clementson and told him that Mr Kemp said that he would give the Applicant another chance and Mr Clementson’s response was “if Phil wishes to give you one more chance then I am happy for that to happen”.
Mr Kemp said the Applicant then came back into the office and told Mr Kemp that the Director said that he would give the Applicant one more chance to which Mr Kemp said his response was “if the Director has agreed to give you one more chance then that’s his decision and I will comply with his direction”. Mr Kemp said he told the Applicant that he would call Mr Clementson to confirm what he had been told and then the Applicant left the office.
Mr Kemp said he rang Mr Clementson, and Mr Clementson communicated to him that Applicant said that he had agreed to give him one more chance so Mr Clementson agreed. Mr Kemp said he told Mr Clementson this was not the case and told Mr Clementson that he said to the Applicant that if Mr Clementson gave him one more chance then he would abide by Mr Clementson’s decision to which Mr Clementson said he didn’t agree to give the Applicant one more chance.
Mr Kemp said that obviously the Applicant was playing himself and Mr Clementson off against each other to retract his termination. Mr Kemp said he then messaged the Applicant and told him that after talking with the Director, that the termination of his position with the Respondent was valid and still stands.
The Applicant said that Mr Kemp’s evidence that there was never talk of a two-week review period and his recount of what happened on the day of the Applicant’s termination is false. The Applicant said he did become angry and defensive because it was clearly unfair. The Applicant said after Mr Kemp left the letter on the table and went inside, he called Mr Clementson to express his unhappiness with this decision. The Applicant said Mr Clementson explained that it wasn’t necessarily his decision to terminate the Applicant and he was just going along with Mr Kemp’s decision. The Applicant said Mr Clementson suggested a two-week review if Mr Kemp would also agree to it. The Applicant said he went back into the office and asked to speak with Mr Kemp again, and he explained that Mr Clementson had suggested a two-week review only if Mr Kemp agreed to it as well. The Applicant claimed Mr Kemp said he agreed. The Applicant said Mr Kemp then said the Applicant would have to call Mr Clementson to find work for the following day as he was not on the schedule.
The Applicant said he left the office and called Mr Clementson and told him Mr Kemp agreed with the suggested two weeks and that the Applicant was needing work for the following day. The Applicant said Mr Clementson then said for the Applicant to stay home the rest of the week to study so he can come back fresh the following Monday. The Applicant said it was the following Friday that he received a message stating that the termination was to continue.
The Applicant said on the day of his termination, he was meant to hand his tools back in so he could receive his severance pay. The Applicant said it is evident that the two-week review agreement was made because it was discussed that the Applicant didn’t need to return his tools.
Support of Applicant by Respondent
Mr Kemp said that the Applicant had some physical issues which required major surgery and time off for recovery and in his view, and the Respondent went above and beyond to support the Applicant through these issues. The Applicant during his oral evidence accepted that the Respondent supported him at this time for what were non work related injuries.
Ms Clementson said the Applicant has required several medical appointments due to his surgery last year and the Respondent has accommodated these (both prior to and after surgery) even though on several occasions he has 'forgotten' to tell the Respondent about upcoming appointments and they have had to contact him as he did not turn up for work. Ms Clementson said the Respondent also supported the Applicant prior to surgery as he was quite anxious at times, and the Respondent offered him days off and to her knowledge both Mr Clementson as Director, and Mr Kemp, as Construction Manager, have had talks to the Applicant to support him, but also to inform him about the importance of turning up on time, attitude towards his supervisors and respect for Senior Carpenters and the Construction Manager .
CONSIDERATION
(a) Whether there was a valid reason for dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
Having considered the evidence overall I am satisfied that it reveals that the Applicant had a pattern of lateness for work that was unacceptable. I am also inclined to prefer the Respondent’s witnesses version of the way in which discussion proceeded between the Applicant, Mr Kemp and Mr Clementson on the day of his termination. Mr Kemp’s explanation of how the conversation was consistent with that of Mr Clementson and seems more likely than the Applicant’s version that an agreement had been made to given him another chance through a two week trial. Even on the Applicant’s own evidence that the pattern of lateness was approximately 30% of the time was sufficient to provide the Respondent a valid reason for dismissal.
While there is some uncertainty about the evidence concerning whether the Applicant was found to have been late on the day immediately following himself and the other two apprentices being given a clear warning about potential termination of employment, I am inclined to prefer the evidence of Mr Kemp on the issue. However, even if I were to be wrong on that, not much turns on it because I would be satisfied even if that particular incident of lateness did not occur as claimed by the Respondent, that the Respondent would have had a valid reason for termination in any event.
(b) Whether the person was notified of that reason;
The Applicant was notified of the reason for his termination in the termination letter provided to him on the day of his termination.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
It had been made clear to the Applicant over a period of time that his conduct in being continually late to work was unacceptable, however he was not given an opportunity to respond to the last instance of lateness on 1 March in that he was simply handed the letter of termination. This discussion that occurred between the Applicant and Mr Kemp, and the Applicant and Mr Clementson that followed was after his employment had been terminated.
(d) Any unreasonable refusal by the employer to allow the person to have a support person related to the capacity or conduct of the person;
The Applicant did not request a support person and this is a neutral consideration.
(e) If the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
The Applicant accepted that he was told in the course of the meeting arranged with the other two apprentices on 22 February that their employment was in jeopardy if they did not pick up their act. The evidence supports the conclusion that the Applicant had been counselled and warned about his ongoing lateness by a number of different people with the Respondent’s organisation.
(f) & (g) 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 the degree to which the absence of dedicated human resources management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;
The Respondent had 25 employees at the time of termination, and whilst it is not a small business it did not have a dedicated human resources management specialist on staff making it likely this would have impacted on the procedures followed in effecting the dismissal.
(h) Any other matters that the FWC considers relevant.
The Applicant was in the second year of an apprenticeship and his employment with the Respondent was for a duration of approximately 23 months. The termination has caused him difficulty and he said he is unlikely to want to continue his apprenticeship given his experience with the Respondent. I note from the evidence that the Respondent had been supportive of the Applicant in affording him time off for medical procedures in relation to a non-work related injury, and it would appear from the evidence had afforded him some latitude regarding his lateness before bringing the issue to a head.
HARSH, UNJUST OR UNREASONABLE
I have concluded that the Respondent had a valid reason for dismissal and the Applicant had been counselled and warned about his conduct on prior occasions. I have taken into account that the Applicant does not appear to have been given an opportunity to respond to the last instance of lateness on 1 March, however considering all of the evidence overall including giving consideration to each of matters in section 387 and on having weighed them, I have concluded that the dismissal was not harsh, unjust or unreasonable. On that basis the application is dismissed. An order dismissing the application will be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
Mr Aodhan Wray-Smith on his own behalf.
Mr Phil Kemp for the Respondent.
Hearing details:
2023
By Microsoft Teams Video
14 July
[1] Exhibit 1
[2] Exhibit 2
[3] Exhibit 4
[4] Exhibit 5
[5] Exhibit 6
[6] Exhibit 7
[7] Exhibit 8
[8] Exhibit 9
[9] Exhibit 10
Printed by authority of the Commonwealth Government Printer
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