Ben Zygmant v Braaap Pty Ltd T/A Braaap Motorcycles

[2015] FWC 6318

[2015] FWC 6318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ben Zygmant
v
Braaap Pty Ltd T/A Braaap Motorcycles
(U2015/2511)

COMMISSIONER LEE SYDNEY, 15 SEPTEMBER 2015

Application for unfair dismissal remedy - whether valid reason for dismissal - whether dismissal was harsh, unjust or unreasonable - Fair Work Act 2009 ss.387, 394

[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Mr Ben Zygmant (the Applicant) claims that he was unfairly dismissed from his employment with Braaap Pty Ltd T/A Braaap Motorcycles (the Respondent). 

[2] The application was lodged on 22 January 2015. There was an initial jurisdictional objection lodged on the basis of the Respondent being a small business and the Applicant not completing the minimum period of employment. That objection was erroneous and ultimately withdrawn by the Respondent. However, the raising of the objection did appear to cause some delay in the matter ultimately being allocated for merits hearing.

[3] The matter was listed for hearing before me on 7 July 2015 in Hobart. The Applicant appeared, represented himself and gave evidence on his own behalf. The Respondent was represented by the General Manager, Ms Smith. Mr Smith (Mechanic) and Ms Griggs (Store Manager) also gave evidence on behalf of the Respondent. The matter proceeded by way of a determinative conference.

THE LAW TO BE APPLIED

[4] Section 394 of the Act provides that a person who has been dismissed may apply to the Fair Work Commission (the Commission) for an order under the Act granting a remedy. The Act provides that an application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. It is not in dispute that the termination took effect on 5 January 2015. The application was made on 22 January 2015. The application was made within time.

[5] A person is protected from unfair dismissal if:

“Division 2—Protection 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.

Note: High income threshold indexed to $123,300 from 1 July 2012


383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time”.

[6] In this matter the evidence was that the Applicant was employed from 10 January 2014 until 5 January 2015. This is a period of less than 12 months but more than 6 months. As stated earlier, the Respondent does not contend it is a small business. The Applicant has completed a period of employment with the employer of at least the minimum employment period and thus the requirement of section 382(a) of the Act is met.

[7] The Applicant is covered by the Vehicle Manufacturing, Repair, Services and Retail Award 2010 and the Applicants’ rate of earnings are clearly below the high income threshold. The requirements of section 382(b) are met.

[8] I find the Applicant was a person protected from unfair dismissal under the Act.

[9] Section 385 of the Act sets out what constitutes an unfair dismissal;

“Division 3—What is an unfair dismissal

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.

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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

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”.

[10] With regard to s.385(a), section 386 of the Act sets out the meaning of ‘dismissed’. It is not in dispute that the Applicant was dismissed by Ms Griggs (the Store Manager) on 5 February 2015.

[11] With regard to s.385(c), as discussed above the Respondent was not a small business at the time of dismissal, within the meaning of section 23 of the Act. Therefore, the application of the Small Business Fair Dismissal Code is not relevant.

[12] With regard to s.385(d), there was no suggestion that the Applicant’s dismissal was a case of genuine redundancy. Section 385(d) does not apply in this matter.

[13] The matter for determination is whether the dismissal was harsh, unjust or unreasonable (section 385(b)).

THE EVIDENCE

Background

[14] The Applicant was, at the time he was dismissed, a first year apprentice motor cycle mechanic. He was employed full time working at the Respondents’ premises in Hobart. The Respondent also has worksites in Launceston, Tasmania and Frankston in Victoria. The Applicant’s main duties were to conduct services on and repair motorcycles. The Respondent submits that his dismissal was for poor performance. The Applicant claims his dismissal was unfair.

The dismissal

[15] Ms Griggs, the Respondent’s store manager, gave evidence that on 5 January 2015, she made a phone call to Mr and Mrs Smith (the owners of the business). In an email dated 28 May 2015 Ms Griggs stated that she arrived at work first thing on 6 January (presumably actually meaning 5 January) and that she called Mr and Mrs Smith to discuss issues and customer complaints within the Hobart business. 1 In the email, Ms Griggs states that after she had hung up the phone from Mr and Mrs Smith, she approached the Applicant and said, “Hey Ben can you come out here for a minute please?” as she wanted to have a private conversation outside of the shop. Ms Griggs’ evidence was that the Applicant then approached her and said “So I’d better go pack up my stuff then” and that she replied: “yes your work proformace (sic) just isn’t up to standards.” Ms Griggs’ evidence was that the Applicant was understanding about the matter and that he offered to continue to work. Ms Smith, who was not present at the time of the dismissal, claimed that the Applicant was “actually pleased he was put off.”

[16] I note that in her evidence at the hearing, Ms Griggs outlined a slightly different version of events. Ms Griggs’ evidence at the hearing was that the phone call was made because the Applicant was late and not wearing the correct shoes again and that the discussion with Mr and Mrs Smith was a long conversation regarding the store and customer complaints and that she “…had enough”. 2 Ms Griggs stated that; “I spoke with them and we came to the conclusion that we just didn’t have a choice but let [the Applicant] go basically.”3 Ms Griggs gave evidence at the hearing that she then hung up the phone and immediately approached the Applicant in the workshop. Her evidence was that “[the Applicant] sort of knew it was coming, I think. He had known for quite a while. I guess my face sort of gave it away a fair bit”.4 Ms Griggs stated that the Applicant came to her and said, “I’m fired aren’t I?” and that he asked “Why what have I done?”. Ms Griggs gave evidence that she replied, “Well it’s everything that we’ve been, you know, over the last few weeks. It’s the performance on-in the workplace, on your workshop, your work area, yes, with customers’ items”.5 Ms Griggs was clear that when she approached [the Applicant] the decision had already been made during the phone conversation with the Mr and Ms Smith to dismiss him.6 She also gave evidence that she personally really liked the Applicant, that he was a “great young man”. Ms Griggs stated that she didn’t have “…any personal thing against him and all the staff got along well. So, yes, it was-like, it did suck but for the company we had to do it”.7

[17] The Applicants’ evidence is consistent in a number of respects with the evidence about the dismissal given by Ms Griggs at the hearing. The Applicant agreed that Ms Griggs, after finishing the phone call came up to him looking quite upset and that she was in tears. 8 The Applicant says that he asked “Have I been fired?”, that Ms Griggs said yes, and that he asked what the reason was. The Applicant asserts that Ms Griggs told him that it was because he didn’t believe in the product, that he didn’t believe in Braap enough.9 The Applicant stated that Ms Griggs said she was told by Ms Smith to fire him.10 Ms Griggs denies that was the reason given.11 The Applicant claims that this conversation took place at 4.30pm in the afternoon which is inconsistent with the email of Ms Griggs.12 However Ms Griggs did not provide any evidence directly addressing what time the phone call took place or when the conversation dismissing the Applicant took place.

[18] The Applicant claims that the reason that he asked the question, “Have I been fired?” was because he had become aware in the morning of 5 January that he had been granted leave for a period and he had become aware that Ms Griggs had been granted leave for the same period. He thought that it was odd that both leave requests were granted at the same time and that this was suggestive that he was not coming back to a job. There is also the evidence of the Applicant that when Ms Griggs approached him she was in tears as “she didn’t want to do it”. 13

[19] There is an important difference in the evidence as to whether the Applicant was understanding about the dismissal. The Applicant gave strident evidence that he said to Ms Griggs, during the conversation on 5 January, that:

“Well look they can’t do this. I’m on a contract. I’m an apprentice as well. There are steps that you are meant to do; to go through the Apprenticeship Board and say, “Look, we’re having issues”, which none were ever raised with the Apprenticeship Board. They had no record of any issues existing. I said, “You can’t do this”, and she stated to me that she did not want to do it. I said, “Okay look, it is not coming from you. I know it is coming from [Ms Smith] through you.” I said. “You’re just the messenger.” I said “Don’t worry about it.” I said. “I will sort it.”  14

[20] The Applicant was clear in his evidence that after the conversation with Ms Griggs he then completed some work that needed doing before going home at 6pm whereas Ms Griggs claims that the Applicant left the workplace immediately. In any event, the Applicant returned to work the next day and it is not contested that he offered to continue working, though it was not clear if the offer was to work out his notice period or whether he was hoping for a reprieve from his dismissal. In any case, it is common ground that Ms Griggs advised him to leave the premises though the Applicant claims she asked him to leave some notes on some motorbikes as to where he was up to with them. 15 The Applicant left the workplace and returned later that day with his mother to collect his belongings, including his tools. Allegations were made about a physical altercation between the mother of the Applicant and Ms Griggs that occurred while the belongings were being collected. The Applicant strongly denies that allegation.

The alleged conduct and performance issues.

Alleged failure to wear safety boots in the mechanical workshop.

[21] The Respondent submits that the dismissal was brought about because of the Applicants’ poor performance. Ms Smith stated, “[The Applicant] was with us for 12 months. During this time it became apparent that his performance, his work ethics and standards were not suitable to sustain a career in motorbike mechanics.” 16

[22] A particular concern was raised about the alleged failure of the Applicant to wear the correct work shoes. Ms Griggs gave evidence that she had to remind the Applicant “almost every single morning about his shoes” 17, Ms Griggs said that the Applicant “…had Blundstones that he used to wear when I could get him to wear them.”18 She stated that in the morning he would walk in with his high tops on, she would tell him to put his Blundstones on and that he would then comply and put them on.19 There was no suggestion from Ms Griggs that he refused requests to wear them. However, Mr Smith claimed that the Applicant “…constantly refused to wear suitable work shoes.”20 During the hearing Mr Smith said he knew the Applicant had some steel capped boots that he occasionally wore.

[23] The evidence of Ms Smith contradicts somewhat that of Ms Griggs and Mr Smith. Ms Smith stated that she never saw the Applicant wear his safety boots or “solid shoes” at any time. 21 Ms Smith stated that the requirement for shoes was “…not so much safety boots but solid shoes.” 22

[24] All the Respondents’ witnesses gave evidence that the wearing of safety shoes was an occupational health and safety requirement. Only Ms Griggs was able to point to the possible source of the requirement that either solid shoes or safety boots be worn. Ms Smith said there is a document called “How we do things”. She first claimed she was sure it was in that document but then stated that it may be in there but she was not sure. 23 Mr Smith when asked to point to a particular safety procedure was unable to do so and said it was a “common sense thing.”24 Ms Griggs believed that when mechanics went to TAFE they were told about occupational health and safety. She stated that the requirement to wear safety boots was in the procedures manual.25 The procedures manual was not produced.

[25] The Applicant put it to Ms Smith that she was required to supply him with safety boots as part of the occupational health and safety requirements of the apprenticeship contract. Ms Smith stated that she did not know that she had to supply boots and claimed that if she did supply them that he probably wouldn’t wear them. 26 Ms Griggs agreed that the Applicant had requested to be supplied with work boots. She refused as in her view it was his own requirement to supply them and that he got a TAFE allowance for tools and safety equipment.27

[26] The Applicant admitted that for the first six months he was working for the Respondent that he did not wear safety boots, but that up until July he was not told that he was required to. He was wearing black high top shoes. 28 His evidence was that in July 2014, Ms Briggs inspected his uniform and he was wearing black high tops but that she stated at that time that these were fine and that the high tops they didn’t want him to wear were the “…big bright coloured bogun looking things.”29 His evidence is that around July 2015 was when staff were told that they definitely had to wear boots and that this was communicated via a Facebook post. It was after that, that he requested to be supplied with boots and when this was denied he wore his own boots.30 The Applicants’ evidence was that he left his safety boots in the workshop and put them on when he came to work. The Applicant agreed that there was one occasion, in December last year, where he had entered the shop at the start of work and was standing behind the counter. He was still wearing his high-tops after the walk to work. Ms Griggs asked him where his boots were and that he must wear his boots. He responded that they were in the workshop and that he would wear them as soon as he was in the workshop. He claims that Ms Griggs said in response to that “ok, that’s ok”.31 The Applicant also claimed he would take off his safety boots if he went riding at lunchtime but would then put them back on.32

Alleged poor mechanical work

[27] The Respondent made numerous claims, with specific examples, about the poor workmanship of the Applicant. The most detailed evidence on this was from Ms Griggs. She set out a number of examples of alleged poor workmanship of the Applicant. A summary of the evidence is as follows: A brake line on a 50cc bike was run onto the engine near the spark plug causing it to melt; A 125cc bike left the store without the speedo and the electric start working; A 125cc bike with a throttle that was “rolling forward”; and a 50cc bike that wouldn’t start after one hour of use as there was a kink in the fuel line. 33There was also an event where an axle on a motor bike was not done up properly and was loose.

[28] Mr Smith gave evidence that the Applicant did not have “natural ability.” That it took him a while to get a grip of mechanical issues but that “…he would get there”. His concern was that the Applicant did not “finish things off” properly and was not thorough. 34 In the hearing, Mr Smith said [the Applicant] was a good young bloke and he had the ability, however he was concerned about the lack of cleanliness in the workplace and that basic work was not being done properly. Mr Smith made no reference to the evidence about the specific examples of alleged poor performance detailed by Ms Griggs.

[29] The Applicant provided in his evidence responses on each of the claimed examples of poor performance mentioned above. Indeed he raised an additional example, not raised by the Respondent where a bike he assembled was returned with a handlebar problem which he claimed was a design fault. It is not necessary to detail the responses of the Applicant to the various claims. I considered the Applicants explanations were well articulated and reasonable explanations. He conceded that the loose axle incident did occur, in July of last year and that he was given a verbal warning about that incident at that time. 35 The Applicant was not challenged on his claim that he was fast tracking through his modules at TAFE and achieving scores of 100%.36 Having considered the evidence of the claimed poor performance against the responses from the Applicant I am not satisfied that the various claims of poor performance were soundly based, with the obvious exception of the loose axle incident for which the Applicant accepted responsibility.

[30] In any case, to the extent that the Applicant may have made some errors, it has to be considered against the significant backdrop of the low level of supervision provided to him despite him being a first year apprentice. The Respondent’s evidence is that the Applicant was often without a mechanic supervisor in the Hobart store, nor was there any other qualified mechanic working in the Hobart workshop. The Applicants’ supervisor was Mr Smith, who is a qualified motorcycle mechanic. Initially, Mr Smiths’ evidence was vague as to the amount of time he spent in the Hobart store but ultimately he conceded he was present in the Hobart store 20 to 25% of the time. 37 The Applicants’ evidence is that he was there even less time than that, “[o]nce a month if he was lucky”.38The rest of the time Mr Smith was at the Respondent’s other stores in Launceston or in Frankston in Victoria. Therefore the Applicant, despite his obvious inexperience given he was a first year apprentice, was frequently left alone to complete the work in the workshop, needing to rely primarily on phone contact with his supervisor when he needed advice. This is a significant concern for the most obvious of reasons. It is of considerable concern that an apprentice mechanic was left without supervision for such substantial periods of time. Indeed it raises significant questions about the Respondents’ compliance with the apprentice training contract.On this point, Mr Smith gave evidence that the “trainers” and the Applicants father had agreed to this arrangement.39 I am concerned if this is true. In my experience, apprenticeship training contracts require regular on the job supervision by a qualified or suitably experience person.

[31] The Applicant gave evidence that when he started in the role, he thought that Mr Smith would be coming to the store once a week at least but that over time his attendance would be more frequent as there was a plan to put someone in the Frankston store. The Applicants’ evidence on how he struggled with the lack of supervision is telling:

“So prior to doing the apprenticeship - I’m not from a motorcycle background, so it’s not a case of I know exactly what I’m doing, so therefore you can leave me be. I do have a mechanical background just from interest and that sort of thing, so I am switched on in that way, but I did not have supervision and so I didn’t have someone to go, “Hang on, here is this. How do I do this correctly?” If I was to need to ask a question, I would have to ring him. He wasn’t always available, but then he would help me over the phone if he could. Again, it’s still - I don’t have someone checking my work. I don’t have someone to turn to straightaway and go, “Is this correct? Is this - am telling someone the correct information? Am I” - yes, that sort of thing”. 40

…

Because my understanding of a first year is someone that observes and does really minimal of the actual work, whereas I was building bikes for the road, building bikes for dirt, out of a box, with no instruction and not anyone there, going, “Okay, this is the way you do it.” It was a lot of the case of work it out yourself and if you have questions then you can ring Paulie, but you can’t go, “I’m looking at this, can you just exactly describe what I’m looking at and hope you understand.” It’s – yes, it just makes it quite difficult. So, yes, it was building complete bikes, servicing bikes, completely rebuilding engines, doing everything that a fully qualified mechanic would be doing as a first year. The day I started there was an engine completely disassembled on the bench and I got told to put it back together, so – with no instruction, no nothing, and Paul was no there when I started originally, so he was not there on my first day as such. So – yes, it was very much sort of thrown in the deep end with that sort of things”. 41

[32] It is not an answer, as was put by Mr Smith, to say that the Applicant agreed that this is how it would be. The clear evidence is that the Respondent was operating a workshop staffed not by a mechanic but by a first year apprentice for the majority of the time. Customers may have complained about the service on occasion, but first year apprentices will make errors. That is why there is an apprenticeship system, so that they can learn from their mistakes and have the protection of supervision.

[33] The Applicants’ evidence is that after leaving the axle loose and receiving the verbal warning in July 2014, that he asked Ms Griggs for supervision, and that his plea was ignored. Ms Griggs was asked did she agree he made a request for supervision and that it was denied. Her response was: “[h]e did make a request for a full time person with him which was just-you know, which is sort of not even applicable in the business sort of in the situation for the store…”. 42 This response is not only incomprehensible, it is appalling. The Applicant should not have had to ask for the supervision. It should have been there from the outset.

The alleged messy workshop

[34] Ms Smith claimed that the Applicant would not clean up his workspace and that his workspace was always filthy. 43 Mr Smith stated that he was constantly on him about his work area and how untidy he was.44 Ms Griggs made a reference to the Applicant being spoken to about his work area.45

[35] Photos of the workshop were tendered into evidence. Ms Smith claimed that the photos evidenced the claims that the Applicant’s workspace was messy. She claimed that the photos were taken, “all at one minute that same day that you left, and the reason that we took them was because in case something like this happened today”. 46 Mr Smith stated that he didn’t know when the photos were taken but was certain they were taken while the Applicant was still employed.47 The Applicant stated that the photos could not have been taken while he was still employed as his toolbox and his motorbike, which he removed after he was dismissed, are not in the photos.48 The Applicant also gave evidence that WorkSafe conducted an inspection in October/November 2014 and at that they did not raise any concerns about the workspace being messy or unsafe.49

[36] In any case, the photos show a workshop with tools, a workbench with a grinder and motorbikes in some level of disassembly. The pictures show spare tyres and parts and a motorbike in pieces. There is a picture of some drums with rubbish in them but it was accepted by the Respondent witnesses that the bulk of this rubbish was not the Applicants’, but it was claimed that it was his responsibility to keep it neat.

Worksheets

[37] The Respondent also submitted that the Applicant failed to correctly complete workshop sheets that recorded the time spent on particular jobs. Workshop sheets were tendered into evidence that were partly completed but did not record dates and times of the work completed. The Applicants’ evidence was that he found it difficult to fill out the sheets given the pressure he was under, particularly going back and forth from the workshop to customer service. He claimed that there were promises to provide stop watches he could put on the particular bikes he was working on so that he could record the exact amount of time he was spending on each one. However the stop watches were never supplied. 50 He also gave evidence that he had never seen the mechanic in Launceston fill out a sheet.51

Mobile phone use

[38] There were some vague allegations about excessive mobile phone use. Ms Griggs said that he was constantly distracted by his phone. There was no other evidence on the alleged excess phone use other than hearsay evidence from Ms Smith. The Applicant denied the excessive phone use. 52

Was the Applicant warned about his performance?

[39] The Respondent witnesses gave evidence that the Applicant was warned numerous times about his performance. The claim was that these warnings were both in writing and were verbal. The Applicant disputes that he was warned at all in writing or otherwise, with the exception of the event of the loose axel in July 2014. That warning was given by a Mr Brad Smith according to the Applicant 53, not Ms Smith. The Applicant maintains that he was never told his employment was at risk.54

[40] Ms Smith submitted in the Form F3 – Employer Response to Unfair Dismissal Application that she had issued the Applicant with two written warnings. In her statement she claimed that he had been issued with three written warnings. Of considerable significance to the controversy as to whether warnings were issued was an email exchange between Ms Griggs and Ms Smith. 55 It appears that the email found its way into the evidence courtesy of Mr Smith submitting intact an email chain leading to the ultimate preparation of Ms Griggs’ witness statement. It was apparent that it was not until the day of the hearing that the Respondent realised that this had occurred.

[41] The email chain shows the following exchange between Ms Griggs and Ms Smith:

(From Ms Griggs to Ms Smith)

“On Monday the 6th of january I arrived at work first thing in the morning i called to discuss issues and customer complaints within the Hobart business with Andrea and Brad smith. I had been Receiving more complaints within the last 3 months then within my whole time at braaap combined and they were all down to Human error on the Motorcycle assembly servicing or repair. Ben and i had had numerous talks about the quality of his work and time and time again the quality of his work continued to decrease. Before this date Ben had been given warning after warning and a lot of warnings about warnings also. One including when he wrongly assembled a wheel by forgetting to tighten the wheel nut on a road bike this could have been a fatal mistake. I gave ben a second formal warning for not wearing his shoes, after he was asked time and time again I gave ben at least three informal warnings before giving him this formal warning. Ben received his Third warning again about his uniform and footwear. Andrea Brad an i discussed all of the above as well as other issues and came to the unfortunate agreement that we had to let ben go. After hanging up the phone i returned to the shop to have the talk to ben. I said “hey ben can you come out here for a minute please?” i was going to take him into the flat so the conversation was private. Ben replied with “so id better go pack up my stuff then” ovbiously ben knew this had been coming for a long time and had shown no effort to keep his position. I then told ben “Yes I’m sorry but your work proformace just isn’t up to standards.” On the monday Ben was very understanding and nice about the matter he offered to continue work i told him Thank you for the offer but it would not be necessary. Ben collected a small amount of his belonging and left saying he would be back the following day for the rest.”

(Response from Ms Smith to Ms Griggs )

“Thanks Ally but I requested the dates for his two earnings (sic) and why he got them.

Pardon the briefness of this email, but as a convenience, it is sent from my iPhone”.

(Ms Griggs to Ms Smith)

“I do not have the dates, we can make them up?”

(Ms Smith to Ms Griggs)

“yep make them up xx

Pardon the briefness of this email, but as a convenience, it is sent from my iPhone”.

(Ms Griggs to Ms Smith)

“On Monday the 6th of january I arrived at work first thing in the morning i called to discuss issues and customer complaints within the Hobart business with Andrea and Brad smith. I had been Receiving more complaints within the last 3 months then within my whole time at braaap combined and they were all down to Human error on the Motorcycle assembly servicing or repair. Ben and i had had numerous talks about the quality of his work and time and time again the quality of his work continued to decrease. Before this date Ben had been given warning after warning and a lot of warnings about warnings also. One including when he wrongly assembled a wheel by forgetting to tighten the wheel nut on a road bike this could have been a fatal mistake this was given on the 13th of November 2014. I gave ben a second formal warning for not wearing his shoes, after he was asked time and time again I gave ben at least three informal warnings before giving him this formal warning this warning was recived on the 4th of December Ben received his Third warning again about his uniform and footwear on the 19th of December. Andrea Brad an i discussed all of the above as well as other issues and came to the unfortunate agreement that we had to let ben go. After hanging up the phone i returned to the shop to have the talk to ben. I said “hey ben can you come out here for a minute please?” i was going to take him into the flat so the conversation was private. Ben replied with “so id better go pack up my stuff then” ovbiously ben knew this had been coming for a long time and had shown no effort to keep his position. I then told ben “ Yes I’m sorry but your work proformace just isn’t up to standards.” On the monday Ben was very understanding and nice about the matter he offered to continue work i told him Thank you for the offer but it would not be necessary. Ben collected a small amount of his belonging and left saying he would be back the following day for the rest.”

(Ms Smith to Ms Griggs)

“thanks darling. Love you xx”

(Ms Griggs to Ms Smith)

“If i get done with fraud im asking for double my wage. you too xx”

(Ms Smith to Ms Griggs)

“it’s all true it’s just the dates that may be wrong xx” 56

[42] This exchange is telling as it clearly indicates collaboration to confect dates that the warnings were said to have occurred. This coupled with the fact that Ms Smith claims that she does not have a single copy of the written warnings given and her overall lack of credibility as a witness, lead me to strongly prefer the Applicants’ evidence, that he was not given any written warnings. It is not in dispute that he was warned about the error with the loose axle. That warning was given in July last year. I accept the Applicants’ evidence that the warning regarding the axle was given verbally.

Consideration

[43] The Applicant was dismissed on 5 January 2015. The only people that witnessed the dismissal were Ms Griggs and the Applicant. While there is a great many aspects of their versions of what happened that day that are common, there are some significant differences. The Applicant struck me throughout the proceedings as a very confident and capable young man. His evidence on most matters was clear and considered. Ms Griggs in contrast provided inconsistent evidence on a number of matters. In particular, her preparedness to knowingly submit evidence as to the dates that the written warnings were allegedly issued, despite stating that she understood the seriousness of making a false statement to the Commission, lead me to prefer the Applicants evidence.

[44] I find that the Applicant was dismissed in the afternoon of 5 January 2015. The applicants’ evidence is that he asked Ms Griggs if he was fired because of the uncertainty in his mind about the granting of leave to them both for the same period. Combined with the evidence of Ms Griggs that her face, “probably gave the game away” provide a plausible explanation as to why the Applicant asked if he was sacked when approached by Ms Griggs. Further, the suggestion by the Respondent that the applicants querying “Am I sacked” is evidence that he knew of the reason for the dismissal does not reconcile with his immediate demand to know why he was sacked.

[45] The evidence does not support a finding that the Applicant was happy about the dismissal, or as Ms Griggs stated, happy until his mother became involved. There is nothing other than the unreliable testimony of Ms Griggs and Ms Smith to support this proposition.

[46] The Applicant was achieving excellent scores in his TAFE studies and accelerating through his apprenticeship. He is then terminated with no consultation and asks why he was terminated. I accept the evidence of the Applicant that he was clearly unhappy about the termination.

[47] The Respondents evidence on the wearing of safety boots was inconsistent. Ms Smith was particularly vocal in her evidence on the issue of the safety boots. She claimed that he never wore what she described as “solid shoes” at all during his period of employment, despite claiming that the wearing of them was an occupational health and saefty requirement. Ms Smith’s claim that she never saw the Applicant wearing solid shoes contradicts both of the other Respondent witnesses. I should note at this point that I found Ms Smith to a particularly troublesome witness. She was warned by me on no less than 3 occasions to stop asking the Applicant questions when he was given the opportunity to ask her questions by way of a cross examination. She was clearly a party to the arrangement with Ms Griggs to deceive the Commission as to the dates of the alleged warnings to bolster her case. When I put to Ms Smith that this was a serious issue she indicated that she didn’t think it would really matter. 57 Overall, I found Ms Smith to be lacking in credibility and prone to exaggeration as well as fabrication of the truth. I prefer the Applicants’ evidence generally where there is a contest on the evidence with Ms Smith. Her evidence on the wearing of safety boots or solid shoes was not credible.

[48] Ms Griggs said that the Applicant would wear his safety boots when he was asked, Mr Smith claimed that he often asked the Applicant to wear his shoes. Only Ms Griggs could point to a source of the requirement that safety boots be worn though the source document was not produced. I have already dealt with the concerns about the credibility of Ms Griggs evidence. Mr Smith’s claim that he often asked the Applicant to wear his boots has to be considered against the evidence that he was there only a minority of the time.

[49] For his part, the Applicant accepts that he was directed to wear safety boots in the workshop from July 2014 and having been so directed he then complied. That he wore his high tops to work and when riding his bike at lunchtimes. I prefer the Applicant’s evidence on this point.

[50] There is then the evidence pertaining to the allegations of poor mechanical work by the Applicant. The specific evidence on this point was from Ms Griggs. Ms Griggs is neither a mechanic nor an apprentice and is not in a strong position to make detailed assessments as to the quality of the Applicants work. Nor is Ms Smith mechanically qualified. In contrast the Applicant provided well-articulated and credible responses to all of the specific claims of poor performance. The Applicant concedes the error of the loose axel that occurred 6 months before he was dismissed. Mr Smith as his supervising mechanic is in a position to attest to the Applicants’ ability. The evidence of Mr Smith is that he was a good young bloke and had the ability but lacked attention to detail. However, the fact that the Applicant was a first year apprentice left to fend for himself for much of the time is a significant factor in the consideration of the claimed performance issues. Considering all of the factors, I am not satisfied that the claims of poor performance are a sound and defensible reason for the dismissal. 58

[51] The evidence does not support the claim that the Applicants’ workshop was overly messy. There was no clear testimony as to when the photos were taken other than the Applicant’s evidence that it is apparent they were taken sometime after his dismissal as his belongings, such as his motorbike, do not appear in the picture. I am left with the evidence of Ms Griggs and Ms Smith who I have found to be the most unreliable of witnesses. I have considered the evidence of Mr Smith who claims that the Applicant kept a messy workshop again against the fact that he was rarely there to supervise the Applicant. Further, it was not contested that WorkSafe had inspected the worksite and did not raise any concerns with the state of the workshop. While I accept, largely on the evidence of Mr Smith that he, when he was actually there, spoke to the Applicant about keeping the workshop tidy, I do not think that this was a sound basis for dismissing him from his employment. I think that the claims that the Applicant kept a messy workshop are exaggerated.

[52] I will now consider the worksheets and the alleged failure to complete them. The Applicant claimed that the manner in which he filled them out, combined with the email trail making clear the date they were completed was considered sufficient by the employer when he worked there. Worksheets that were (in the Respondent’s opinion) filled out correctly were tendered into evidence. However, these sheets were filled out well after the time the Applicant was employed. In my view, the evidence does not establish that the Applicant completed the sheets in a manner different to what he was instructed. However, even if I am wrong about that, to the extent that he failed to complete them correctly, this has to be considered against what I consider to be the unrealistic expectations that were being put upon a first year motorcycle mechanic apprentice.

[53] As to the alleged use of the mobile phone during work hours, the evidence on this was vague. The Applicant denied excessively using his phone. I prefer the Applicant’s evidence on the point.

[54] As to the alleged warnings from Ms Smith and Ms Griggs, their evidence on this is tainted significantly by their obvious attempts to confect the dates that the warnings were given. The actions of Ms Griggs in engaging in conduct designed to mislead the Commission is as deplorable as the willingness of Ms Smith, her employer, to become party to it. Importantly, the alleged written warnings were never produced.

[55] Aside from the email I have, Ms Smith claimed in the Form F3 that there were three written warnings given. Then in her evidence before the Commission she claimed that there were 2 given by her. Ms Griggs’ evidence is that she never gave the Applicant any written warnings. The question of who gave the third written warning is not answered as Ms Griggs says that she never gave any written warnings and Mr Smith did not give any evidence on written warnings.

[56] Further the dates the warnings were said to be given do not stand up to scrutiny. In particular, the claim by Ms Griggs that the warning about the loose wheel axle was given in November when it is abundantly clear that the incident happened in July demonstrates the lack of credibility in the evidence. The claims of Ms Smith that the Applicant was given numerous warnings and “warnings about his warnings” lacks credibility. On the balance of probabilities, I find that the Applicant was given one verbal warning in July 2014 about the loose axle. I believe the Applicant understood the gravity of the error and it is not in contest that in response, rather than ignoring the issue, recognised that he needed greater supervision and asked for it. His plea fell on deaf ears.

Was the dismissal harsh, unjust and unreasonable? (s. 385(b))

[57] As set out above, the criteria for considering whether a dismissal was harsh, unjust or unreasonable is set out in section 387 of the Act.

Section 387(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);

[58] Having regard to my consideration of the evidence above I am not satisfied that there is a valid reason for the dismissal. The only issue of conduct or performance which I am satisfied occurred is the loose axle on the motorbike. While this is a serious matter which may, depending on the circumstances be a valid reason for dismissal, in the circumstances of this case, which I have already extensively canvassed, I do not consider it to be a valid reason.

Section 387(b) - whether the person was notified of that reason.

The evidence shows that on the day of the dismissal he was not notified of the reason for dismissal before the decision to terminate was made, in explicit terms nor in plain and clear terms. 59 The evidence of Ms Griggs is the decision was already made.

Section 387(c) - whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person.

[59] This is not relevant as I have found there was no valid reason. 60. I note that even if I am wrong on whether there was a valid reason, it is clear on the evidence that he was not given an opportunity to respond before the decision to terminate was made. The decision was made to terminate him before any conversation with the Applicant took place.

Section 387(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.

[60] There was no refusal to allow a support person. However, there was no discussion relating to the dismissal other than the actual dismissal itself. Therefore, in the circumstances of this case there was no opportunity for the Applicant to consider asking for a support person.

Section 387(e) - if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal.

[61] Other than the loose axle incident, I am not satisfied on the evidence that the Applicant was warned about his performance..

Section 387(f) - the degree to which the size of the employer’s enterprise would be likely to impact on procedures followed in effecting the dismissal and Section 387(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

[62] The Respondent’s submission is that not having human resource management specialists or experts had no impact on the procedures that were followed and that it was thought the opposite may be true as being a small entity there were no barriers between management and employees. 61

Section 387(h) - any other matters FWA considers relevant.

[63] Overall, I believe the Applicant has been treated in an appalling manner by the Respondent. He has been left largely to his own devices to try and battle through complex mechanical tasks despite being a first year apprentice. Despite this, he has been held to account for performance at a level someone of his experience should not have been expected to perform at. I am concerned that there is an apparent failure by the Respondent to observe the basic requirement of properly supervising an apprentice and that having done so, the Respondent has then unfairly blamed the Applicant for failing to perform to standards that are unreasonable.

Conclusion as to the nature of dismissal

[64] For the reasons set out above, I find that the Respondent did not have a valid reason to dismiss the Applicant from his employment. I am satisfied he was not notified of the reason for the dismissal nor given an opportunity to respond. Nor, with the exception of the loose axle issue am I satisfied that he was warned about his performance. The lack of a support person in the circumstances of this case is a neutral consideration. I have considered the size of the Respondent’s enterprise and the evident lack of human resources expertise. The Respondent does not consider their size to be a disadvantage and indeed possibly an advantage. I am concerned at the apparent failure of the Respondent to properly observe its obligations to a first year apprentice under its supervision.

[65] The dismissal was harsh, as it has robbed the Applicant of the opportunity to complete his apprenticeship and his prospects for securing another apprenticeship are likely to be limited. The dismissal was unjust, as there was no valid reason for the dismissal. It was unreasonable, as the Applicant, a first year apprentice, was expected to work with hardly any supervision and when requested supervision was denied it. In all of the circumstances I find that the dismissal was harsh, unjust and unreasonable.

Remedy

[66] Having found that the dismissal was harsh, unjust and unreasonable, I must now turn to the appropriate remedy to order.

[67] I do not have sufficient information to determine remedy. I will therefore invite the parties to make further written submissions on that question.

[68] I will issue directions for the filing of further submissions on the issue of the appropriate remedy. Those directions will be issued concurrently with this decision.

COMMISSIONER

Appearances:

Mr Zygmant appeared on his own behalf

Ms Smith appeared on behalf of the Respondent

Hearing details:

2015

Hobart:

July 7

 1   See Exhibit Z2

 2   Transcript PN864

 3   Ibid

 4   Ibid

 5   Ibid

 6   Transcript PN872

 7   Transcript PN864

 8   Transcript PN124

 9  Transcript PN126

 10   Ibid

 11   Transcript PN800

 12   Exhibit Z2 and PN124

 13   Transcript PN124

 14   Transcript PN126

 15   Transcript PN128

 16   Witness Statement of A Smith, marked Exhibit S3

 17   Exhibit S5

 18   Transcript PN 825

 19   Transcript PN 827

 20   Witness Statement of P Smith, marked Exhibit S6

 21   Transcript PN585 and PN746

 22   Transcript PN735

 23   Transcript PN739-741

 24   Transcript PN957

 25   Transcript PN 838

 26   Transcript PN628

 27   Transcript PN821-822

 28   Transcript PN135

 29   Ibid

 30   Transcript PN140

 31   Transcript PN136

 32   Ibid

 33   Exhibit S5

 34   Witness statement of P Smith, marked Exhibit S6

 35   Transcript PN156, and PN158

 36   Transcript PN154

 37   Transcript PN934-935

 38   Transcript PN103

 39   Transcript PN933

 40   Transcript PN107

 41   Transcript PN156

 42   Transcript PN834

 43   Respondent’s Outline of arguments: merits, marked Exhibit S2

 44   Witness statement of P Smith, marked Exhibit S6

 45   Witness statement of A Griggs, marked Exhibit S4

 46   Transcript PN232

 47   Transcript PN963

 48   Transcript PN142

 49   Transcript PN149

 50   Transcript PN150

 51   Transcript PN311

 52   Transcript PN298 – 300

 53   PN160

 54   Transcript PN 163

 55   Exhibit Z2

 56   Exhibit Z2

 57   Transcript PN 728

 58   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

 59   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137

 60   Chubb Security Australia Pty Ltd v John Thomas [Print S2679]

 61   Respondent’s Outline of arguments: merits, marked as Exhibit S2

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<Price code C, PR571804>