Christopher Riley v Go Electrical Pty Ltd

[2014] FWC 1890

[2014] FWC 1890

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Riley
v
Go Electrical Pty Ltd
(U2013/1248)

VICE PRESIDENT WATSON SYDNEY, 21 MARCH 2014

Application for relief from unfair dismissal - whether dismissal harsh, unjust or unreasonable - application dismissed - Fair Work Act 2009 - ss. 387,394, 587.

Introduction

[1] This decision is amended from the transcript on 7 March 2014. It concerns an application by Mr Christopher Riley against Go Electrical Pty Ltd for unfair an dismissal remedy made by under s.394 of the Fair Work Act 2009 (the Act). The application was made on 17 April 2013.

[2] Mr Chris Riley was dismissed from his employment with Go Electrical Pty Ltd on Monday 15 April 2013. Evidence has been led by Mr Riley, by way of a witness statement and further evidence given from the witness box. On behalf of the employer Mr Brookhouse, submitted a witness statement with various documents attached and also gave oral evidence.

[3] The question that I have to determine on the basis of the evidence before me is whether the termination of Mr Riley's employment was harsh, unjust or unreasonable. Section 387 of the Act requires me to have regard to a number of criteria relevant to determining that overall question. The first matter that I am required to have regard to is whether there was a valid reason for the dismissal relating to the person's capacity or conduct, including its effect on the safety and welfare of other employees.

[4] The evidence before me establishes that on a number of occasions - although the precise number is disputed - Mr Riley was late in his attendance for work at the employer's business. The evidence establishes to my satisfaction that Mr Riley's manager spoke to him in relation to these late arrivals and diarised those entries. Those entries occurred in particular in the early part of 2013 and continued through to the week prior to the termination of employment.

[5] The final event on 13 April was a more serious issue because Mr Riley was responsible on that date for opening the premises for business, and he did not attend at 7 am as scheduled. He did not arrive until approximately 9.30, after being woken by the manager who rang him at home to inquire why he was not in attendance at work. That was regarded by the employer as the final straw following on from a number of other less serious late arrivals.

[6] It is not alleged that the conduct amounted to serious misconduct, but rather that the performance and conduct was unacceptable or unsatisfactory, and that Mr Riley was given warnings of the unsatisfactory performance and an opportunity to improve, and he did not do so. The notion of a valid reason is one that is sound, defensible and well founded and not fanciful. Attending work on time is a legitimate work requirement, and repeated failure to attend work on time is clearly unsatisfactory performance.

[7] Regardless of whether all of the dates are accurate, given the disputed evidence, I believe there was clearly admitted unsatisfactory behavior. I am satisfied on the evidence that Mr Riley was spoken to in relation to these matters and, given the final event on 13 April, I consider that there was a valid reason for the dismissal relating to Mr Riley's conduct.

[8] The second factor to take into account was whether the person was notified of that reason, and I find on the evidence through the diary notes and in the email provided to Mr Brookhouse that the late arrivals were the subject of various conversations. They may not have been formalised as warnings as such, but they were raised with him and on the date of termination Mr Riley was notified that those factors were the reason for the dismissal.

[9] The next factor is whether Mr Riley was given an opportunity to respond to any reason relating to capacity or conduct. In this regard I think that it is likely that the procedures were informal and perhaps not as complete as they could have been if they were to comply with best practice of the employer. Where there are performance difficulties or conduct which is unsatisfactory it is appropriate to make very clear the seriousness of those matters, and that employment is at risk if that conduct continues.

[10] The only evidence that this actually occurred was the content of diary notes and a mention of, "Told Chris enough is enough". That is suggestive of a clear warning that employment is at risk. Mr Riley contests that that was ever said, or that he was late on that particular day, and it is difficult for me to make a finding one way or the other in that regard. It would have been preferable and more advisable if a written warning was provided to him, and that question could be then answered beyond doubt. In relation to that factor I simply cannot be sure that there was an adequate opportunity to respond to the oral warnings given.

[11] Further, on the date of dismissal it appears that the conversation was to the effect of communicating the decision of the employer, rather than for the purposes of discussing whether employment should be terminated, and giving Mr Riley an opportunity to give reasons why employment should or should not be terminated. In other words it appears to have been presented as a fait accompli rather than a genuine opportunity to respond to the proposition that employment should be terminated. To that extent, I regard the evidence and this factor as pointing towards injustice, rather than supporting the fairness of the termination.

[12] The next factor I am required to have regard to is any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal. There is no evidence of any request. It appears that such discussion, as limited as they were, were informal and I do not believe there is anything unreasonable in the employer's actions in that regard.

[13] The next factor is if the dismissal related to unsatisfactory performance by the person, whether the person had been warned about that unsatisfactory performance before the dismissal. As I have indicated, I find that Mr Riley's manager did raise his concerns about the lateness on a number of occasions. The precise number of warnings is in dispute. They appear to be all of an oral nature recorded in diary notes, but I find that there was warning as to the unsatisfactory performance for the purposes of that criterion.

[14] The next factor I am required to have regard to is 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 factor after that is related, it says further 1:

“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.”

[15] On the evidence before me, I find that although the business has approximately 150 employees it is nevertheless a relatively small, or perhaps a medium sized, business. It operates somewhat informally and does not appear to have established procedures for formal warning and counselling and recording of those matters. A business of that size probably should have some more formality, but I have regard to the nature of the business and its size and I think the way in which it has grown, in taking into account those factors.

[16] The Commission is required to have regard to any other matters that the Commission considers relevant. In this regard I think what is raised by Mr Riley includes the personal impact of the termination, which has been significant. I note also that the employer, as a consequence of the termination and the arrangement it has made to sponsor his employment in Australia, was also required to pay for his return air fare to the UK following his termination.

[17] I think it is also relevant under this heading to consider whether termination of employment was the appropriate disciplinary action to take in all of the circumstances, in comparison to other disciplinary action such as a final written warning. I take all of those factors into account and, given the existence of a valid reason and a procedure which may not have been perfect but did involve warnings as to the performance difficulties, I am of the view in an overall sense that the termination was not harsh, unjust or unreasonable.

[18] In the light of that finding, I dismiss the application. An Order to that effect 2 is published with this decision.

VICE PRESIDENT WATSON

Appearances:

Mr C Riley appeared on his own behalf.

Mr C Brookhouse on behalf of Go Electrical Pty Ltd

Hearing details:

2014.

Sydney.

March, 11.

Final written submissions:

Mr C Riley, 20 January 2014.

Mr C Brookhouse, 31 January 2014.

 1   s.387(g).

 2   PR548826.

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