Brett Martin v DecoGlaze Pty Ltd
[2011] FWA 6256
•15 SEPTEMBER 2011
[2011] FWA 6256 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Brett Martin
v
DecoGlaze Pty Ltd
(U2011/8460)
COMMISSIONER RAFFAELLI | SYDNEY, 15 SEPTEMBER 2011 |
Termination of employment.
[1] This decision concerns an application made by Mr Brett Martin (the Applicant) who alleges that his dismissal by his former employer Deco Glaze Pty Ltd (the Respondent) was unfair.
[2] Section 385 of the Fair Work Act 2009 (the Act) defines unfair dismissal as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA 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.”
[3] In this matter before me the only matter that need concern me with is whether or not the dismissal of the Applicant was harsh unjust or unreasonable.
[4] The Applicant was employed from September 2006 until his dismissal in May 2011. In February 2011 he had been promoted to the position of a spray painter/foreman.
[5] The Respondent manufactures glass splash backs including for kitchens. To help the paint adhere to glass an additive, Silane is added to the paint.
[6] The Applicant agreed that it was his job to maintain stock including Silane. At about March 2011 he noticed that the stock of Silane was getting low. He informed his production manager, Mr Brian James. Mr James agreed to provide him with the name of a supplier. There was some delay in Mr James’s response. Ultimately, Mr James provided him with details and the Silane was ordered.
[7] Unfortunately, it became clear that there would be a delay in receiving the material and there was no Silane available at the factory for a few days. The Applicant said he informed Mr James of this.
[8] The Applicant’s evidence was that he was left with a tough decision to make. He had to cease production on those jobs which require the additive or continue without adding the Silane. In coming to his decision he was aware that in the past glass had been completed by accident without the additive.
[9] It was also his evidence that he informed Mr James of the options. He had asked Mr James what he (the Applicant) should do. He said that Mr James left the decision to the Applicant. The Applicant said that he told Mr James that he intended painting without the additive. Mr James did not tell him not to go ahead.
[10] Some week later on 13 May 2011, he was about to fly out of Australia on a holiday. At 9.43 am he received a telephone text message from the Respondent’s managing director, Mr Jason Hedges. The message chastised the Applicant for not using Silane. Mr Hedges referred to several jobs coming back defective. A subsequent text message from Mr Hedges referred to $74,000 needing to be outlaid to replace defective painted glass. A further text message was sent informing the Applicant that he had been instantly dismissed.
[11] The Applicant was shocked and attempted to ring Mr Hedges. They finally spoke and Mr Hedges told him that they would talk further when the Applicant returned from his holiday.
[12] He returned to work on 31 May 2011. Mr James informed him that he had been dismissed.
[13] In the Applicant’s view, the Respondent had not given him an opportunity to defend himself. He had discussed the matter with Mr James, the production manager and Mr James had not dissuaded him from his decision to proceed without Silane.
[14] He also raised the inappropriateness of being terminated whilst on leave and by text message.
[15] He stressed that his actions were not made for personal gain but rather to assist production.
[16] It was the evidence of Mr Hedges that the Applicant was dismissed because of his wilful actions which caused risk to the Respondent’s reputation and profitability.
[17] He denied that the Applicant was not given an opportunity to defend himself. In the telephone conversation of 13 May 2011, the Applicant apologized for his actions and asked not to be terminated.
[18] The Respondent informed the Applicant of its decision by text but later followed this in writing. A separation certificate was issued and final payments made. The use of text messaging was necessary as the Applicant was away on leave and about to go overseas.
[19] The evidence of Mr James included that the Applicant had approached him to indicate that the Silane stock was running low. He provided some contacts to the Applicant for sourcing the product.
[20] He denied being told by the Applicant that the Silane had run out and production would continue without the Silane.
Conclusion
[21] Section 387 of the Act provides that in considering whether a termination is harsh, unjust or unreasonable, Fair Work Australia must take into account several factors. I propose to do so.
[22] As to whether there was a dismissal of the Applicant related to his conduct, it is clear that the Applicant admitted that he consciously proceeded to make product without the use of Silane. It is clear that it was his responsibility to maintain paint product. The Applicant referred to some past situation where, by accident, Silane had not been used without much consequence. The difference here is that this was not an accident. He deliberately decided to proceed without it.
[23] Although the Applicant suggested that the Respondent has exaggerated the consequence of his actions, I prefer to accept the evidence of Mr Hedges that the Applicant’s conduct caused the Respondent to spend monies to repair damaged product. Just as important, the actions threatened the Respondent’s reputation, and therefore its viability, with clients and prospective clients. I also accept the Respondent’s position that the use of Silane was a necessary part of the process and that the Applicant knew this.
[24] I have noted that the Applicant says he raised the issue of not using Silane with Mr James. Mr James denies that this was ever raised with him. The evidence is that there were several discussions between the Applicant and Mr James over the period when Silane was running low. I have no doubt that the Applicant believes he raised the non-use of Silane with Mr James. However, I strongly doubt that Mr James would, if informed of the fact, have allowed it to occur. I find that the decision was the Applicant’s and his alone and Mr James played no part in the decision to not use Silane.
[25] I find that the Applicant’s conduct in deciding to produce material using paints without Silane was an act of misconduct and represents a valid reason for dismissal.
[26] I find that the Applicant was notified of the reasons for his dismissal.
[27] As to whether the Applicant was given an opportunity to respond, I note that Mr Hedges said that given that the Applicant was away on leave and about to go overseas the use of text messaging was appropriate. While it might have been better if there had been a face to face meeting and this could have awaited the Applicant’s return from leave, it was also understandable for Mr Hedges to get to the bottom of the issue quickly to minimise potential problems with customers.
[28] In most situations, termination of employment by telephone texting is not appropriate. However, in this case I am not prepared to be too critical of the Respondent. Indeed, even if there had been a face to face meeting, the outcome would probably have been the same. It was not, after all, the Applicant’s case that there was anything that he could have told the Respondent that he did not put in the telephone conversation of 12 May 2011.
[29] The maters raised in section 387(d), (e), (f), (g) and (h) are either not relevant or are of minimal effect.
[30] Taking all matters into consideration, I find that the Applicant’s dismissal was not harsh, unjust or unreasonable.
COMMISSIONER
Appearances:
B. Martin Applicant.
J. Hedges Respondent.
Hearing details:
2011
Sydney:
September 7.
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