Christopher Scott Gillespie v William Peter Gradwell, Gradex Civil Contractors Pty Ltd, Lennox Meadows Estate Pty Ltd, Lennox Sand Pit T/A Retaining Walls NSW Pty Ltd & PGRM Pty Ltd
[2010] FWA 5767
•12 AUGUST 2010
[2010] FWA 5767 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Christopher Scott Gillespie
v
William Peter Gradwell, Gradex Civil Contractors Pty Ltd, Lennox Meadows Estate Pty Ltd, Lennox Sand Pit T/A Retaining Walls NSW Pty Ltd & PGRM Pty Ltd
(U2010/7497)
COMMISSIONER RAFFAELLI | SYDNEY, 12 AUGUST 2010 |
Application for unfair dismissal remedy
[1] This is an application by Christopher Scott Gillespie (the Applicant) for an unfair dismissal remedy. Section 385 of the Fair Work Act 2009 (the Act) defines unfair dismissal as:
“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.”
[2] There is no doubt that the Applicant has been dismissed by his former employer (section 385(a)). While there was initial confusion as to the identity of the former employer, it is now agreed that the former employer was Peter Gradwell (the Respondent).
[3] Again, notwithstanding its earlier position, the Respondent does not now suggest that the termination was consistent with the Small Business Fair Dismissal Code (s385(c)).
[4] It is agreed that the dismissal was not a case of genuine redundancy (s385(d)).
[5] The only live question is whether the termination of the Applicant was harsh unjust or unreasonable. In that regard section 387 of the Act provides:
“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
[6] The background to the termination was that the Applicant was employed by the Respondent in 2005. He was terminated on 10 March 2010. The termination was effected at the BP Service Station in the Ballina Industrial Estate, Ballina.
[7] The reason given by the Respondent for dismissing the Applicant was set out in a written letter dated 10 March 2010 (Exhibit Gradwell 1/F). That letter was not however given to the Applicant on that day.
[8] The reasons set out in the letter refer to, among other things, verbal abuse of the Respondent by the Applicant, refusal by the Applicant to provide to the Respondent contact details of persons/bodies with which the Respondent’s company had dealings, excessive use of company phone and petrol cards, and general lack of cooperation and communication between the Applicant and the Respondent. Although the Applicant tried to minimise his status in the Respondent’s business, I am satisfied that he was a manager with some important responsibilities. He was the operations manager of Gradex Civil Contractors Pty Ltd one of the Respondent’s companies. He was a salaried employee earning $1500 per week.
[9] The evidence given by the Respondent included that the Applicant had performed his functions well until the latter part of 2009 when he began to be concerned that he was being sidelined from decision making. Several requests such as the engagement of the Respondent’s daughter to work on the weighbridge had been disregarded by the Applicant. He sought information from the Applicant but was not provided with such.
[10] According to the Respondent there was a failure by the Applicant to provide the Respondent with a detailed report of an inspection of the sand pit worksite by the Environment Protection Agency (EPA). In that regard the Applicant provided a half page e-mail response to the Respondent on 21 December 2009. Later that day the Respondent responded seeking more detail. The Applicant provided a further response, which was still not satisfactory to the Respondent.
[11] It is clear to me that the communication between the Applicant and the Respondent indicates a fairly tense relationship. At one point the Applicant refers to the Respondent’s “facetious comments”.
[12] On 29 January 2010 the Respondent asked for a better report. The Applicant responded on the same day by providing the same report that he had given in December. The Respondent then sought answers on a range of questions concerning the EPA visit.
[13] According to the Respondent the Applicant did not provide any response. In his evidence the Applicant said that he did not know how to write a report to the extent wanted by the Respondent. However, the email communication does not refer to such inability on his behalf. There is nothing in the emails where the Applicant says that he does not know how to provide a report.
[14] In my view, the requests from the Respondent were reasonable and the Applicant failed to provide on several occasions an adequate response. I also consider that the tone of the communication between the two indicated a very strained relationship.
[15] According to the evidence of the Respondent, he had sought information as to the history of problems with the weighbridge’s accuracy. No reply was ever provided by the Applicant, according to the Respondent. The Applicant’s evidence was that he had verbally answered by saying that another person (Ross Turvey) had all that information.
[16] I consider that the request of the Respondent was reasonable and the failure by the Applicant to provide the information would amount to a refusal to comply with a lawful direction. If it is as the Applicant says, the answer seems to suggest a fobbing off of the owner of the business from obtaining useful information, even if Mr Turvey had the information. The evidence at exhibit G2 (para 158) has the ongoing tone suggesting a strained relationship between the Applicant and the Respondent.
[17] The Respondent says that he asked for details of the Applicant’s whereabouts on 9 and 10 February 2010. No reply was received. According to the Applicant he did tell the Respondent what he was doing on those days in a telephone conversation.
[18] I am unable to determine whether there was a response given by the Applicant to the Respondent. But clearly the fact that the request for information was made at all reveals the strained relationship between the two.
[19] The Respondent put that he asked the Applicant on several occasions to provide him with a list of all contacts that he had established while working for the Respondent. The Respondent failed to provide this until 5 March 2010 when he provided the Respondent with a print out of council addresses, telephone numbers and officials of local government bodies throughout New South Wales.
[20] The Applicant’s response was to say that he was unable to separate his personal contacts from his business contacts. This explanation was not put in the Applicant’s response of 5 March 2010 (Exhibit Gradwell 1/PG1). It merely said “NSW Council Contacts”. There was no explanation that he had difficulty separating business and personal contacts.
[21] In his oral testimony (PN252 - PN285) the Applicant’s response reveals a continued failure to appreciate that the Respondent was seeking customer contacts, and providing a list of all New South Wales local government bodies is not responsive to that request.
[22] In my view this represents a direct challenge to the authority of the Respondent in seeking to obtain reasonable information.
[23] On a similar vein in February 2010 the Respondent had asked for the Applicant’s contacts at Nambucca Shire Council. The response of the Applicant was to refer the Respondent to [email protected] (the council’s email address).
[24] I consider that the Respondent was entitled to control its own business. The evidence reveals his attempts to do so, including by making quite reasonable demands for the provision of information.
[25] I do not find that the Respondent was being petty or overbearing in his conduct. He was measured.
[26] On the other hand I consider that the Applicant failed to properly respond to reasonable requests and directions. His excuses are unconvincing. At the least they show a lack of civility towards his employer. At the highest it amounts to virtual insubordination.
[27] I consider that the Respondent had a valid reason, being the failure to comply with reasonable requests and directions, to dismiss the Applicant. This is particularly because the Applicant was a manager in the business.
[28] As to whether the Applicant was informed of the reason for his termination, I note that the termination occurred at the BP Service Station at North Ballina and was carried out by a third party on behalf of the Respondent. The third party informed the Applicant that he was dismissed but no specific explanation or reasons were given.
[29] Two days later the Respondent, again through the third party, tried to give the written termination letter to the Applicant. The Applicant refused to receive it and instead asked that it be directed to his solicitor. Ultimately, the written reasons were not provided to the Applicant or his legal representatives until much later.
[30] While it was not completely necessary that the explanation be given at the time of termination in all of the circumstances here present the letter should at least have been forwarded to the Applicant’s solicitor. I find that the Applicant was not informed of the reason for his termination (s387(b)).
[31] As to whether the Applicant was given an opportunity to respond to any conduct or performance issues, including whether he had received a warning, I find that no such opportunity was afforded. No doubt the Respondent had made his displeasure known to the Applicant, including in an email of 28 February (Exhibit Gradwell 1/PG1). But it was never put to the Applicant that his employment was under threat by his conduct.
[32] Whatever lack of cooperation occurred at the time of dismissal, I do not find that the employer refused to allow the Applicant to have a support person present to assist him.
[33] I note that the size of the Respondent’s business meant that it did not have access to better advice as to procedures to be followed.
[34] Finally, as to other matters for consideration, I have considered the impact of the termination on the Applicant, including on his ability to see his children given his new employment.
[35] Overall, even though the Respondent had a valid reason to terminate the Applicant’s employment, I consider the failure to put its concerns squarely to the Applicant and give him an opportunity to respond makes the termination unreasonable. In this I note the Applicant’s almost 5 years of service and consider that fact alone necessitated a better process than was applied.
[36] Having so found and given what I have said before I am satisfied that, pursuant to section 385 the Applicant was unfairly dismissed.
[37] Section 390 provides that Fair Work Australia may order an Applicant’s reinstatement or the payment of compensation. It reads:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”
In this case, I am satisfied of the necessary pre-conditions set out in section 390(1) and (2).”
[38] I have had to consider whether or not in the circumstances the Applicant ought to be reinstated. I note that the Applicant does not seek reinstatement.
[39] I am satisfied that reinstatement of the Applicant is not appropriate given the strained relationship between the Applicant and the Respondent.
[40] Pursuant to section 390(3)(b), I consider that it is appropriate to make an order for the payment of compensation in lieu of reinstatement.
[41] In determining the amount of compensation section 392(2) provides criteria for deciding the amount. It provides:
“(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.”
[42] In considering the matters above, I have considered the submissions where relevant. There is no evidence as to the effect of any order as to compensation on the viability of the Respondent.
[43] The Applicant’s employment commenced in April 2005. It is not an insignificant period.
[44] His evidence was that he found it hard to obtain employment around this area and in his usual occupation. He did finally secure employment albeit as a long distance lorry driver. The Applicant has taken action to mitigate his loss.
[45] The Applicant did not earn any other monies before securing such employment in mid July 2010. He has now begun to earn about the same amount of monies as before termination.
[46] As to the consideration of the remuneration which the Applicant would have been likely to have received from the Respondent but for his termination, it may have been that following a formal warning from the Respondent, the Applicant had begun to provide the type of information and communication required by the Respondent. The Applicant might have then worked on for months if not years.
[47] On the other hand, the parties might not have been reconciled. The Applicant may have decided that he would continue with his previous conduct.
[48] In the end, I have decided that it is more likely than other outcomes, that the Applicant would not have changed his conduct or performance. This conclusion is strengthened in my mind by the evidence of the Applicant where he largely maintains that there is nothing wrong with his conduct. At the conclusion of his written evidence (Exhibit G2/para 172) he says:
“I had at all times attempted to comply diligently with his requests. I have not been rude to him in my emails. I have been direct in trying to sort out what was concerning him”
[49] There is of course no scientific approach to these assessments. I have assessed that after some few weeks, given his unchanged attitude, he would have been fairly dismissed.
[50] There is no other matter I consider of relevance.
[51] Balancing all the circumstances, I determine that the Respondent pay to the Applicant as compensation an amount of five weeks pay at a rate of $1500 per week.
COMMISSIONER
Appearances:
J. de Vere Tyndall, solicitor for the Applicant.
C. Smith of counsel with N. Pipe solicitor for the Respondent.
Hearing details:
2010
Ballina:
July 27, 28.
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