Christopher Taylor v Quick Plumbing Group Pty Ltd
[2023] FWC 1423
•16 JUNE 2023
| [2023] FWC 1423 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christopher Taylor
v
Quick Plumbing Group Pty Ltd
(U2022/12208)
| DEPUTY PRESIDENT EASTON | SYDNEY, 16 JUNE 2023 |
Application for an unfair dismissal remedy – resignation with notice – employment ended early during the notice period – termination at the initiative of the employer – the applicant was unfairly dismissed – remedy – compensation for lost wages for the balance of the notice period reduced by scheduled leave – orders made.
to December 2022. On 8 December 2022 Mr Taylor gave written notice to resign his employment, indicating that his employment would end on 6 January 2023. The written notice included an assurance that "I would like to do anything I can to help with the transition. If I can be of assistance during this time, please let me know."
On 13 December 2022, being the third working day into the notice period, a meeting took place between Mr Taylor, Mr Ramsay Hajaj (Construction Manager) and Ms Kerrie McDermott (Finance Manager).
The employment relationship ended at the meeting on 13 December 2022.
Mr Taylor argued that he was dismissed at the meeting. Quick Plumbing Group argued that Mr Taylor was not dismissed but that he agreed to immediately end his employment early.
Did the Respondent dismiss Mr Taylor?
Mr Taylor’s account of the conversation on 13 December 2022 included the following:
(a)he was called into a meeting with Mr Hajaj and Ms McDermott;
(b)a number of alleged workplace conduct issues were raised against him without prior notice;
(c)Mr Hajaj said:
“I’ve called you into this meeting to discuss your conduct during your notice period and frankly for a long period of time. Probably the last six months. It’s clear that you do not want to be here and that you’ve been looking for other work. I think we should just finish your employment today”;
(d)Mr Taylor responded:
“Well I have been looking for other work because I’ve got another job. That’s why I resigned last week, but I’m fine. I’m doing my job like I always have. I told you on Friday that I was keen to help handover my projects”;
(e)Mr Hajaj replied:
“You are not. You have been outside on your phone making extended personal calls this morning, you are not working your required hours, you are not producing enough work. You never really have. You are in deliberate breech of your contract”;
(f)a discussion then ensued about long phone calls during work time (business and personal). Mr Hajaj then said:
“You were on the phone for one hour this morning, and I was told you were making personal calls over the last couple of days also. Show me your phone to prove it was a work call and I’ll be proved wrong”;
(g)Mr Taylor declined to show Mr Hajaj his phone, saying “no, I am okay thanks";
(h)after further discussion about telephone calls Mr Hajaj then said:
“You are in your notice period therefore a warning is not required. You are in deliberate breech of your contract, Chris … You will finish work today and be paid up to and including today”; and
further administrative arrangements were made to facilitate the end of his employment.
Quick Plumbing Group said it had concerns about Mr Taylor’s work performance for some time which, to put their case in the best possible light, crystallised after he gave his notice to resign. Quick Plumbing Group said that after Mr Taylor had given notice to resign he then spent unacceptably long periods of time on personal calls. It seems that both Ms McDermott and Mr Mario Martinovic (Maintenance Manager) noticed Mr Taylor making long personal calls and both managers, apparently without any prompting, took it upon themselves to raise a concern with Mr Hajaj. Neither Ms McDermott nor Mr Martinovic worked closely with Mr Taylor on a day-to-day basis.
Mr Hajaj said that when he called Mr Taylor into a meeting on 13 December 2022 and when he raised the company’s preference that Mr Taylor finish his employment early, Mr Taylor very quickly agreed. Mr Hajaj said that the rest of the conversation on 13 December 2022 was only about the money - meaning how much of the balance of the notice period Mr Taylor would be paid.
Mr Hajaj’s and Ms McDermott’s account of the meeting both record Mr Hajaj raising allegations of misconduct with Mr Taylor - specifically "most recent attitude, lack of work being produced, extended time spent away on … numerous 30-40 minute personal phone calls during work time". Mr Taylor was told that Quick Plumbing Group regarded this conduct as "a deliberate breach of his employment contract", and also that a warning was not warranted "given it was during an employee notice period and his conduct was a deliberate breach".
After the meeting on 13 December 2022 Ms McDermott sent Mr Taylor a letter that included the following:
“On 13/12/22 you met with Ramsay Hajaj and Myself. In that meeting it was agreed by you that your employment would end at the end of this pay week 13/12/2022 and you would paid to the end of the pay week 13/12/2022. Your employment will end immediately. You will also be paid your accrued entitlements, up to and including your last day of employment."
Mr Taylor did not reply to this letter.
The next day Ms McDermott sent a follow up email:
"I would just like to follow up to confirm that you have received the letter sent yesterday.
In addition, prior to the payment of your ETP, [Quick Plumbing Group] will require the return of the Surface Dock you currently have in your possession and for you to confirm the agreement."
Ms McDermott's email drew the following reply from Mr Taylor:
"I don't agree to those terms and I'm currently seeking legal advice on an application for unfair dismissal.
The dock is in the post. The tracking number is …”
A few days later on 19 December 2022 Ms McDermott followed up Mr Taylor again, spelling out in plain terms Mr Taylor's options;
"Please take tomorrow to consider your options and advise in writing, of your agreement to the terms which you verbally agreed to on the 13.12.2022 in my presence and outlined in the termination letter.
Should we not receive a response from you by 3pm tomorrow, we will process your termination as being for misconduct and make the required adjustments to the employment termination payout."
Mr Taylor does not appear to have responded to this email. As foreshadowed, on 20 December 2022 Quick Plumbing Group sent Mr Taylor a letter in the following terms:
"Termination of your employment
I am writing to you about the termination of your employment with Quick Plumbing Group Pty Ltd.
I refer to our meeting on 13/12/2022 which was attended by you and Ramsey Hajaj and Kerrie McDermott. During the meeting we discussed lack of work being produced, extended time spent away on numerous personal phone calls and conduct during your resignation notice period.
Withstanding the fact that on the 13.12.2022 you agreed verbally to the terms mentioned in the termination later. Your termination will now be classified as termination for serious misconduct:
· deliberate breach of employment contract clauses 3 & 7, specifically:
1. arrive at work approx. 8am and depart before 4pm. During this time: have coffee breaks, numerous extended personal phone calls away from your desk, leave the office for 60-105mins around lunch time.
2. complete minimal work during the minimal hours that you choose to work EG time take to compile the FFE schedule for Griffith hospital, this task could be done in a few hours, you worked on it for days, and failed to complete it correctly.
· This was deliberate conduct in the course of your employment, and in the circumstances your continued employment during a notice period would be unreasonable.
We consider that your actions constitute serious misconduct warranting summary dismissal.
We have reviewed the activity logs in your CPUs user profile, and they illustrate your failure to comply with clause 3 of your employment contract, and an adjustment for previously paid but unworked wages will be deducted from your Termination pay. You will also be paid your balance of accrued entitlements and any outstanding pay up to and including your last day of employment and superannuation.
You may wish to seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at termination payments may give rise to waiting periods for any applicable Centrelink payments. If you need to lodge a claim for payment you should contact Centrelink immediately to find out if there is a waiting period.
Yours sincerely,
Ramsey Hajaj
Construction Manager”
On Mr Taylor’s version of the conversation on 13 December 2022, he had no option but to agree to his employment ending straight away. On balance I accept this to be the case.
It is clear that Mr Hajaj decided by day three of the notice period that Mr Taylor’s employment had to finish earlier than the end of the notice period. By the words used by Mr Hajaj, if Mr Taylor did not agree at that moment to his employment ending by "mutual agreement" he would have been dismissed.
As such, I am satisfied that Mr Taylor's employment was terminated “on the employer's initiative” (per s.386(1)(a)) on that day.
I am fortified in this view by the terms of Ms McDermott's email of 19 December 2022, specifically the express ultimatum given by Quick Plumbing Group that if Mr Taylor did not respond and "advise in writing of [his] agreement" then Quick Plumbing Group "will process [his] termination as being for misconduct".
In my view this ultimatum issued after the meeting was no different to the "choice" offered to Mr Taylor in the meeting on 13 December 2022.
As such I find that Mr Taylor was dismissed on 13 December 2022.
Did the Respondent dismiss Mr Taylor unfairly?
Section 387 of the FW Act requires me to take into account the following matters in determining whether Mr Taylor’s dismissal was harsh, unjust or unreasonable:
(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.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. I set out my consideration of each below.
Fairness consideration: Valid Reason (s.387(a))
To be a valid reason, the reason for the dismissal should be sound, defensible or well founded and should not be capricious, fanciful, spiteful or prejudiced. However, in assessing the validity of the reason(s) for dismissal the Commission will not stand in the shoes of the employer and determine what the Commission would do in the same position.
The test is whether, on the evidence before the Commission, there was a valid reason for dismissal connected with the employee’s capacity or conduct.
The reasons for dismissal relied on by Quick Plumbing Group were recorded in its letter dated 20 December 2022 (see paragraph [14] above), viz:
“… Your termination will now be classified as termination for serious misconduct:
• deliberate breach of employment contract clauses 3 & 7, specifically:
1. arrive at work approx. 8am and depart before 4pm. During this time: have coffee breaks, numerous extended personal phone calls away from your desk, leave the office for 60-105mins around lunch time.
2. complete minimal work during the minimal hours that you choose to work EG time take to compile the FFE schedule for Griffith hospital, this task could be done in a few hours, you worked on it for days, and failed to complete it correctly.
• This was deliberate conduct in the course of your employment, and in the circumstances your continued employment during a notice period would be unreasonable.”
None of the stated matters were serious misconduct. Each of the matters are concerns that Quick Plumbing Group could have raised with Mr Taylor and, if they have a legitimate connection to Mr Taylor’s capacity or conduct, been the subject of a formal warning and could have been valid reasons for dismissal at a later time.
I find that there was no valid reason for dismissal on 13 December 2022.
Fairness consideration: Notification of valid reason (s.387(b))
Because I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances (per Read v Cordon Square Child Care Centre [2013] FWCFB 762 at [46]-[49]).
Fairness consideration: Opportunity to Respond (s.387(c))
This factor is similarly not strictly relevant to the present circumstances because I have not found that there was a valid reason related to dismissal.
I do note that Mr Taylor was given a proper opportunity to respond to the allegation that he had spent a long time on a personal call during work time on the morning of 13 December 2022.
Fairness consideration: Support Person (s.387(d))
This factor is not a relevant consideration in this matter.
Fairness consideration: Warnings about unsatisfactory performance (s.387(e))
Mr Taylor was not warned at all about his allegedly unsatisfactory performance.
Fairness consideration: size of the Respondent’s enterprise (s.387(f))
Neither party submitted that the size of Quick Plumbing Group’s enterprise was likely to impact on the procedures followed in effecting the dismissal, and I find that the size of Quick Plumbing Group’s enterprise had no such impact.
Fairness consideration: absence of dedicated HR expertise (s.387(g))
In this matter the absence of dedicated human resource management specialists or expertise in Quick Plumbing Group’s enterprise did impact on the procedures followed by Quick Plumbing Group in dismissing Mr Taylor.
Quick Plumbing Group operated under the erroneous assumption that it was not required to issue warnings during a notice period. Had Quick Plumbing Group obtained proper advice it would have approached things significantly better.
Fairness consideration: other matters (s.387(h))
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Mr Taylor commenced employment in April 2021 and was promoted to the position of Plumbing Project Manager in October 2021. Mr Taylor’s salary was over $140,000. As such there should have been some flexibility about working hours and the like and flexibility in taking personal calls in business hours and taking business calls outside of business hours.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
I find that the dismissal of Mr Taylor was harsh, unjust and unreasonable.
Mr Taylor was called in to a meeting and dismissed without any prior discussion about the issues relied on by Quick Plumbing Group. If Mr Taylor’s timekeeping and phone calls were so significant that his employment was at risk, then Quick Plumbing Group should have made it clear to Mr Taylor in no uncertain terms what its expectations were before dismissing him.
It is likely that once Mr Taylor gave notice of his resignation that Quick Plumbing Group decided to accelerate Mr Taylor’s exit from the business. It also seems likely that Mr Taylor’s minor annoyances (such as eating breakfast at his desk in work time) became major shortfalls once he gave notice of resignation.
As a result, the dismissal of Mr Taylor without any prior warning was unfair.
Remedy
Being satisfied that Mr Taylor made an application for an order granting a remedy under section 394, was a person protected from unfair dismissal and was unfairly dismissed within the meaning of section 385 of the FW Act, I may order Mr Taylor’s reinstatement, or the payment of compensation to Mr Taylor, subject to the FW Act.
Mr Taylor did not seek reinstatement and reinstatement would not be appropriate given that Mr Taylor had given notice to resign prior to his dismissal.
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. The question whether to order a remedy remains a discretionary one (per Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 at [9]).
Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion (per Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171 at [5]-[7]).
Despite giving four weeks’ notice Mr Taylor would have worked 8 or perhaps 9 days of the notice period because he was due to take approved annual leave (8 days) and three public holidays fell in the notice period.
Mr Taylor was paid his untaken leave upon termination and so was paid the 8 days of annual leave he would otherwise have taken if he had not been dismissed.
Mr Taylor was due to commence annual leave on Wednesday 21 December 2022, although there a contest in the evidence about whether Mr Taylor would have taken 22 December 2022 as annual leave because, he says, he planned to attend the staff Christmas lunch. Quick Plumbing Group’s staff worked on the morning of 22 December 2022 then attended the lunch and were paid for the whole day.
I am satisfied that if Mr Taylor had not been dismissed on Tuesday 13 December 2022 he would have worked on December 14, 15, 16, 19 and 20 and the morning of December 22. Importantly he would have received 6 full days’ pay for that work.
Mr Taylor suffered a loss arising from his unfair dismissal and I am satisfied that it is appropriate to make an order for compensation.
Considering the factors listed in s.392(2), I am satisfied that if Mr Taylor had not been unfairly dismissed he would have worked and received payment for 6 full days. Mr Taylor’s weekly wage was $2,723.80.
I have made an order under s.392(2) of the Fair Work Act 2009 (PR763146) that Quick Plumbing Group pay to Mr Taylor 6 days compensation plus superannuation.
DEPUTY PRESIDENT
Appearances:
Mr C Taylor, Applicant
Mr R Hajaj and Mr T Quick for the Respondent
Hearing details:
2023.
Sydney (By Video using Microsoft Teams)
May 15.
Printed by authority of the Commonwealth Government Printer
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