Carl Seffelaar v M & P Painting Contractors Pty Ltd
[2016] FWC 2825
•5 MAY 2016
| [2016] FWC 2825 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Carl Seffelaar
v
M & P Painting Contractors Pty Ltd
(U2014/13414)
DEPUTY PRESIDENT KOVACIC | MELBOURNE, 5 MAY 2016 |
Application for unfair dismissal remedy – jurisdictional objection – small business employer, dismissal was consistent with the Small Business Fair Dismissal Code – application dismissed.
[1] On 23 October 2014 Mr Carl Seffelaar (the Applicant) filed an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by M & P Painting Contractors Pty (the Respondent) on 25 September 2014 was unfair.
[2] In its Form F3 – Employer Response to Unfair Dismissal Application the Respondent raised two jurisdictional objections, the first contending that the application had been lodged outside the 21 day statutory timeframe specified in s.394(2) of the Act and the second that it was a small business and that Mr Seffelaar’s dismissal was consistent with the Small Business Far Dismissal Code (the Code).
[3] The first jurisdictional objection was the subject of hearings before Commissioner Ryan on 9 January and 19 February 2015. In a decision handed down in transcript 1 on 19 February 2015, Commissioner Ryan determined that Mr Seffelaar was an employee of the Respondent and that his application was lodged within time. Commissioner Ryan issued an Order2 to that effect on 20 February 2015.
[4] The Fair Work Commission (the Commission) subsequently issued Directions on 26 June 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the matter.
[5] The application was heard by the Commission on 14 and 15 September 2015. At the hearing, Mr John Ellingham appeared for Mr Seffelaar (Mr Ellingham had previously been granted permission by Commissioner Ryan to represent Mr Seffelaar), while Mr Mario Ierardi, the Respondent’s Director, appeared for the Respondent. Mr Seffelaar gave evidence on his own behalf, together with his wife, Ms Samantha Seffelaar (nee Williams), his father, Mr Carl Jacobus Seffelaar, and his mother, Mrs Wendy Seffelaar. Mr Ierardi gave evidence for the Respondent, together with his wife, Mrs Poppy Ierardi, and Mr Matthew Pilgrim, an apprentice painter employed by the Respondent.
[6] The Commission issued further Directions issued on 16 September 2015 requiring the parties to file further material going to the issue of remedy should the Commission find that Mr Seffelaar had been unfairly dismissed. The further material related to the period of Mr Seffelaar’s unemployment following his dismissal and the quantum of compensation. The final piece of material provided in accordance with those Directions was received by the Commission on 22 October 2015.
[7] For the reasons set out below, I have found that Mr Seffelaar’s dismissal was consistent with the Code and that, as such, his dismissal was fair. Mr Seffelaar’s application is therefore dismissed.
Background
[8] Mr Seffelaar was employed by the Respondent as a painter for 16 years before he took a break for two years and then returned to work for the Respondent in December 2012. While the precise dates are disputed, it appears that Mr Seffelaar was dismissed by the Respondent around March/April of 2014 for a period of a few weeks before returning to work for the Respondent.
[9] An incident occurred at work on 25 September 2014 which resulted in Mr Ierardi dismissing Mr Seffelaar. The incident involved Mr Seffelaar having a heated argument with his co-worker, Mr Andrew Jonkers. Mr Ierardi attested that he stepped in and said words to the effect of “Stop Carl. Just stop”; “Look I’m sick of you. Just go”; and “Pack up your bags. Pack up your tools. You’re never working for me again. You’re finished. Just go.” 3
[10] Mr Ierardi sent Mr Seffelaar a text message at 4:17 pm that afternoon saying “Don’t go to Sale tomorrow”, with Mr Seffelaar responding at 6:02 pm that day saying “So where do I go dole office” 4.
[11] Mr Seffelaar contended that he was not aware that he had been dismissed, adding that he only became aware that he had been dismissed on 14 October 2014 when visiting the offices of Incolink.
[12] In other developments, Mr Seffelaar visited a doctor on 26 September 2014 as he was feeling stressed about incidents at work and was issued with a WorkCover certificate stating that he was unfit for work. Mr Seffelaar subsequently unsuccessfully tried to call Mr Ierardi to advise him of this and later that evening contacted Mrs Ierardi and asked her to get Mr Ierardi to call him. Mr Seffelaar contended that Mr Ierardi did not call him until three days later and that during that conversation he said “come back in a few days and show more respect.” This is disputed by Mr Ierardi. Mr Seffelaar also contended that during the abovementioned telephone conversation with Mr Ierardi nothing was said about his termination, that he believed he was on sick leave and that he heard nothing further from Mr Ierardi. Mr Seffelaar also lodged an unsuccessful workers’ compensation claim based on stress.
[13] By way of background, I would note that just about every issue in this matter was disputed. This is perhaps best reflected in the following remarks by Mr Ellingham when commencing his closing submissions:
“Just there seems to be a diametrically opposed version on every single matter, no matter what it is. There are two completely diametrically opposed versions of the events.” 5
[14] The only issue that was not disputed was that the Respondent was a small business employer as defined in s.23 of the Act.
The statutory framework
[15] The Commission exercises its powers in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. The relevant provisions from Part 3-2 of the Act are set out below.
“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.
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.
388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”
[16] The Code declared by the Minister pursuant to s.388(1) of the Act is as follows:
“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
Was the Applicant’s dismissal consistent with the Code?
[17] The threshold issue to be determined is whether Mr Seffelaar’s dismissal was consistent with the Code. If it was, by virtue of s.385(c) of the Act the dismissal was not unfair and Mr Seffelaar’s application will be dismissed. If, however, I find that Mr Seffelaar’s dismissal was not consistent with the Code, then I will need to consider whether his dismissal was harsh, unjust or unreasonable. I will deal with the threshold issue first.
The Applicant’s case
[18] Mr Seffelaar did not address the Code in his written submissions. At the hearing, Mr Seffelaar submitted that:
- it was unclear in his mind as to whether or not his dismissal was a summary dismissal, adding that there was some confusion because it could be submitted that on one level it was a summary dismissal because no notice was paid 6;
if his dismissal was not a summary dismissal, the Code required procedural fairness 7;
to the extent that Mr Seffelaar’s failure to comply with health and safety was relied upon as a reason for the termination, it was noteworthy that the termination did not occur at the time Mr Seffelaar was observed as not wearing appropriate personal protective equipment (PPE) but more than 24 hours later 8;
the circumstances regarding the heated argument with Mr Jonkers and whether or not he was dismissed at that time were disputed 9; and
the other reasons relied upon by the Respondent for dismissing Mr Seffelaar appear to be performance related and therefore would not warrant summary dismissal 10.
[19] Mr Seffelaar in his witness statement 11 deposed that on 25 September 2014 there was a conflict between him and Mr Ierardi which resulted in him having to clean windows to remove paint overspray, a task which he contended was not part of his job description. Mr Seffelaar further deposed that as a result of this he felt demeaned in front of junior employees. Beyond that, Mr Seffelaar also deposed, inter alia, that on 25 September 2015:
- Mr Ierardi complained that to him that he was not speaking to Mr Jonkers;
- Mr Jonkers was difficult to talk to and was someone who did not follow instructions;
- Mr Ierardi asked him as he left work whether he was coming to work tomorrow, adding that he was taken aback by this as he did not know what Mr Ierardi meant.
[20] Mr Seffelaar made no mention of a heated argument with Mr Jonkers in his witness statement.
[21] At the hearing, Mr Seffelaar’s oral evidence regarding the argument with Mr Jonkers was as follows:
“MR ELLINGHAM: ... Were you asked to clean the windows before or after you were shown that text message? -I was cleaning windows from the morning. So I cleaned windows from when I got there till when I had a argument with Poopsie.
What was that argument over - and sorry, let me ask the question who’s Poopsie? -Andrew.
Andrew? -Jonkers.
Okay, and he was as you call it a junior employee? -Yes.
That’s the person you’re referring to as the junior employee? -Yes.
And you had an argument with him? -Yes.
What was that argument over? -He asked me to go for smoko early on in the day and I said “No, I’m not interested” and then he walked down the corridor and he goes “Oh, what’s up with you?” and I said “Oh it’s got nothing to do with you. Fuck off” and then I was standing on a trestle and then he come back and he goes “Whah, you shouldn’t be talking to me like that” and I said “Oh fuck off, will ya?” then he stepped in and that was it. He told me to pack up my stuff.
Were you - - -
THE DEPUTY PRESIDENT: So just let me ask a question here. So you said a moment ago that you were cleaning windows from the start of that day? -Yes.
Okay, and you’re doing that off your own back? -Yes.
How does that line up with what you’ve got at paragraph 6 of your witness statement which says - - -? -Minimal spray?
So:
A conflict between myself and the respondent which resulted in me being forced to clean windows.
? -Well that’s - they were painting and I was cleaning windows, so that’s how the day started.
So you were cleaning windows before Mr Ierardi came onto the site? -Yes I was.
Okay, and so who told you to clean the windows? -He did.
When? -The day before when he rang me up, and then he turned up with - - -
Sorry, I don’t see that anywhere in your witness statement? -I don’t know why.
You say in your witness statement:
There was a conflict between myself and the respondent –
And this was on 25 September:
- which resulted in me being forced to clean windows which is not part of my job description.
That seems to be inconsistent with what you’ve just said? -Well I’ve got no idea. I don’t know. That’s what happened.
Well, that makes two of us in the sense that you’re saying that you were told the day before to clean windows, yet in your witness statement you say that:
There was conflict between myself and the respondent, Mr Ierardi, which resulted in me being forced to clean windows.
And that was on the 25th, which is the day - you can see the inconsistency I’m trying to get an understanding of? -Yes. Yes.
Which is it? -Look, probably the second one.
Okay, but you also said a moment ago that you were cleaning windows from the start of working that day and that you started and Mr Ierardi only came onto the site later? -Yes, but he rang me - - -
And that your argument was with Mr Jonkers? -And Mario.
After as part of that? -Mm-hm.
But you were cleaning windows before Mr Ierardi appeared onsite? -That - yes, the day before.” 12
The Respondent’s case
[22] The Respondent submitted at the hearing that it was relying on the Code and that Mr Seffelaar had been summarily dismissed for:
- failing to comply with health and safety regulations in not wearing PPE;
- underperformance and failing to comply with duties of the position to the standard required;
- unacceptable behaviour in the workplace;
- disruptive and negative behaviour that impacted on co-workers; and
- refusal to carry out lawful and reasonable instructions consistent with the employment contract. 13
[23] Mr Ierardi deposed in his witness statement 14 that at around 2.00 pm on 25 September 2014 he noticed that Mr Jonkers appeared upset and that he asked him what was wrong to which Mr Jonkers replied that he was upset about the way that Mr Seffelaar was treating him. Mr Ierardi further deposed that Mr Seffelaar and Mr Jonkers then started having words to each other, with Mr Seffelaar becoming very aggressive and “in” Mr Jonkers face. Mr Ierardi
also stated in his witness statement that he then stepped in and told Mr Seffelaar that “im [sic] sick of his behavouir [sic], not wearing PPE and told him to get of [sic] site and told him he will never work for me again.”
[24] In his oral evidence, Mr Ierardi attested, among other things, the following regarding the incident of 25 September 2014 between Mr Seffelaar and Mr Jonkers:
“MR ELLINGHAM: I’m not going to any paragraph. I’m asking you what was the conversation you had. I’ll withdraw that. How many conversations did you have with Mr Seffelaar on the day that you say you terminated him? -Well, I had a conversation was around 2.00 o’clock with him when he was having words with - - -
Did you have any other conversations? -I can’t recall.
What about 11.00 o’clock? -On the day I sacked him?
Yes - sorry, I withdraw that. I withdraw that.
THE DEPUTY PRESIDENT: Do you actually just want to conclude your answer to the conversations that you had? -Him and Andrew Jonkers were - got into an argument. Quite a heated argument. Andrew Jonkers - he’d be about 40 years old. They got into a very heated argument. Andrew was sort of towards the wall. Carl had come right up to him. Right in his face. And swearing and carrying on and I stepped in.
And what did you say? -I said, - I sort of said, “Stop, Carl. Just stop.” I said, “Look, I’m sick of you. Just go.” I said, “Pack up your bags. Pack up your tools. You’re never working for me again. You’re finished. Just go.”
MR ELLINGHAM: And you say that constituted a termination? ---Yes. He was very violent towards Andrew. Andrew was shaking. Petrified.
It was clear and unambiguous and needed no further reinforcement that you had clearly terminated in your mind at that point in time? -It wasn’t in my mind. I terminated him, John. It wasn’t in my mind. I terminated him.
The question I’m putting to you is it was in your mind, it was clear and unambiguous that you had terminated him at that point? -I’d terminated him at that point.
So there was no need for anything further. It was clear, done, finished, ended? -Yes.
Didn’t need any follow-up? -I wanted to have something in writing. So I sent him a text later that afternoon and said, “Don’t come to Sale tomorrow.” I just wanted to have something in writing, John. And that was the last - - -
You wanted something in writing that confirmed that you’d terminated him? -Yes.
So you sent him an email that said, “Don’t come to Sale tomorrow.”? -No, I didn’t send an email.
Sorry, you sent him a text message? -Yes.
You sent him a text message saying, “Don’t come to Sale tomorrow.”? -Yes.
That could be interpreted a number of ways, couldn’t it? -No. I only had the one job at the time, John.
How would Mr Seffelaar know that? -He knows what job I’ve got on. He knows. Of course he knows.” 15
Consideration of the issues
[25] The summary dismissal aspect of the Code was considered by the Full Bench in Jeremy Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services 16(Ryman) which determined that it operated in the following way:
“[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin 17, we consider that the “Summary dismissal” section of the Code operates in the following way:
(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.
(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.” (Footnote added)
[26] As per the decision in Ryman, the first issue which the Commission needs to determine is whether Mr Seffelaar was summarily dismissed. As noted above, the Respondent submitted that Mr Seffelaar had been summarily dismissed. However, Mr Seffelaar submitted that it was unclear as to whether or not his dismissal was a summary dismissal.
[27] The issue of when Mr Seffelaar became aware that he had been dismissed was traversed in his oral evidence in the following way:
“MR ELLINGHAM: When did you get that medical certificate? -The day I went to the doctors.
Which was? -The day after I was shafted.
THE DEPUTY PRESIDENT: When you say “shafted”, what do you mean by “shafted”? -Well, not - it’d be like you saying to this guy here don’t come tomorrow, and he doesn’t know what’s going on. It’s the same as me, I didn’t know what was going on.
But you used the word “shafted” which has a particular meaning and what did you mean by it? -Well I thought he’s going to shaft me again.
You used “shafted” as in past tense so it’s already been - you had already been shafted. What did you mean by that? -Got the arse.
So you interpreted the text message that Mr Ierardi sent you as - “Don’t go to Sale” as you getting the flick? -Yes, well he didn’t say that I was sacked, he just said don’t come to Sale. So I thought well - - -
So you thought you’d got the sack? -Yes, I thought I did, yes.
That’s why you went back with that text message, “Where do I go to the dole office”? -Yes.” 18
[28] The above extract from Mr Seffelaar’s oral evidence indicates that, consistent with Mr Ierardi’s evidence, he considered that he had been dismissed on 25 September 2015. This, together with the absence of any evidence suggesting that Mr Seffelaar had been paid notice in lieu, supports a finding that Mr Seffelaar had been summarily dismissed on 25 September 2015 at the time of the incident with Mr Jonkers. As such, the “Summary dismissal” section of the Code applies.
[29] As stated in Ryman, “In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.” I turn now to consider those issues.
[30] Firstly, as to whether the Respondent in this case carried out a reasonable investigation, I would note that as Mr Ierardi witnessed the heated argument between Mr Seffelaar and Mr Jonkers and had previously observed Mr Seffelaar not wearing PPE and had to deal with several complaints regarding the quality of Mr Seffelaar’s workmanship that there was no real need for him to investigate the issues further. Further, based on the material before the Commission, it appears that the argument between Mr Seffelaar and Mr Jonkers was the proverbial “straw that broke the camel’s back”, particularly when viewed against the backdrop of the various concerns which the Respondent had regarding Mr Seffelaar’s conduct and performance.
[31] As previously noted, most of the issues in this matter were disputed with Mr Seffelaar and Mr Ierardi at times having diametrically opposed recollections of the same event. In this regard, I note that Mr Seffelaar’s oral evidence was at times inconsistent with his witness statement, e.g. his evidence regarding the argument with Mr Jonkers. Further, there were also inconsistencies in his oral evidence, e.g. at one stage Mr Seffelaar responded to a question asked by Mr Ellingham that it was not true that he did not wear his hard hat on the RAAF site, yet in response to the very next question from Mr Ellingham said “When I was spraying the units. It was in every room with me but it was not on my head.” 19 For these reasons, I prefer Mr Ierardi’s evidence, particularly as his oral evidence was not only consistent with his witness statement but also with the Respondent’s Form F3.
[32] The Code provides that “Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures” (underlining added).
[33] Regulation 1.07 of the Fair Work Regulations 2009 (the Regulations) defines serious misconduct as follows:
“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) ...
(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) ...
(iii) assault; ... [Underlining added]
[34] Based on the material before the Commission, I am satisfied that Mr Ierardi was genuinely of the belief that Mr Seffelaar’s conduct in intimidating/threatening Mr Jonkers was sufficiently serious to justify his immediate dismissal. Mr Ierardi’s oral evidence regarding the incident that “He [Mr Seffelaar] was very violent towards Andrew [Mr Jonkers]. Andrew was shaking. Petrified” 20 supports that finding.
[35] While Mr Seffelaar may not have assaulted Mr Jonkers as per Reg 1.07 in the sense of having physically hit him, I note that the conduct cited in Reg 1.07 is not an exclusive list and that Mr Seffelaar’s conduct, when regard is had to the impact it had on Mr Jonkers as described above by Mr Ierardi, posed a serious and imminent risk to Mr Jonker’s safety. This in turn supports a finding that Mr Ierardi’s view that Mr Seffelaar’s conduct warranted his immediate dismissal was based on reasonable grounds.
[36] The above analysis supports a finding that Mr Seffelaar’s dismissal was consistent with the Code, i.e. that his dismissal was fair.
[37] In view of that finding, I do not need to consider whether Mr Seffelaar’s dismissal was harsh, unjust or unreasonable.
Conclusion
[38] For all the above reasons, I find that Mr Seffelaar’s dismissal was consistent with the Code and that, as such, his dismissal was fair.
[39] An order dismissing Mr Seffelaar’s application will be issued in conjunction with this decision.
Appearances:
J. Ellingham for C. Seffelaar.
M. Ierardi for M & P Painting Contractors Pty Ltd.
Hearing details:
2015.
Melbourne:
September 14-15.
1 Transcript of 19 February 2015 at PN2432-2471
2 PR561296
3 Transcript of 15 September 2015 at PN2887
4 Exhibit I5 at Attachment R-2
5 Ibid at PN3121
6 Ibid at PN3162-3165
7 Ibid at PN3167
8 Ibid at PN3366-3371
9 Ibid at PN3371-3380
10 Ibid at PN3380
11 Exhibit E1
12 Transcript of 14 September 2015 at PN1264-1294
13 Transcript of 15 September 2015 at PN3278
14 Exhibit I5
15 Transcript of 15 September 2015 at PN2882-2897
16 [2015] FWCFB 5264
17 (2012) 219 IR 128
18 Transcript of 14 September 2015 at PN214-221
19 Transcript of 14 September 2015 at PN278-279
20 Transcript of 15 September 2015 at PN2888
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