Christopher Wayne Sheedy v EQ Constructions Pty Ltd

[2023] FWC 447

[2023] FWC 447

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Christopher Wayne Sheedy
v

EQ Constructions Pty Ltd

(U2022/11309)

COMMISSIONER MCKINNON SYDNEY, 23 FEBRUARY 2023

Application for an unfair dismissal remedy – no valid reason – reinstatement ordered

1. On 26 November 2022, Mr Christopher Wayne Sheedy applied in time for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009. His former employer, EQ Constructions Pty Ltd (EQ Constructions), did not file any response to the application. As there are no contested facts, the application has been determined on the papers.

1. Mr Sheedy completed the relevant minimum employment period of 6 months with EQ Constructions and his annual earnings of $110,000 gross at the time of dismissal are below the high income threshold. Mr Sheedy is protected from unfair dismissal.

1. EQ Constructions is not a small business employer. As a result, the dismissal could not have been consistent with the Small Business Fair Dismissal Code. The dismissal of Mr Sheedy was not a case of redundancy, genuine or otherwise.

1. The question is whether the dismissal of Mr Sheedy was unfair, and if so, what should be done about it.

Relevant facts

1. The facts are as they are disclosed in the materials and summarised below.

1. Mr Christopher Sheedy was employed by EQ Constructions as a Construction Worker from 1 March 2022 to 14 November 2022. On 14 November 2022, Mr Sheedy was dismissed from his employment.

1. Mr Sheedy lives in Seven Hills, NSW. During his employment, his primary place of work was Bowral, NSW. On 9 August 2022, Mr Sheedy’s driver’s licence was suspended on the spot. He rang Mr John Wetherell, the site health and safety officer, who picked him up and drove him to Campbelltown train station. From that time, instead of driving to work, he caught public transport. He was sometimes late, but he was never cautioned about it and the work site was close to Bowral train station. Mr Sheedy subsequently lost his driver’s licence for 3 months from either 28 September 2022 or 10 October 2022.

1. On 12 October 2022, Mr Sheedy suffered a psychological workplace injury. He reported the injury to the site health and safety officer, Mr John Wetherell, and ceased working. He attended his doctor on 13 October 2022, 29 October 2022 and 11 November 2022. Certificates of capacity were provided to EQ Constructions in relation to his absence from work.

1. On 14 October 2022, 21 October 2022 and 22 October 2022, Mr Sheedy spoke to Mr Nelson Lagos, WHSE Manager for EQ Constructions. He was told to remain at home until 28 October 2022 and to speak to ACTIVATE to arrange counselling for his injury.

1. On 23 October 2022, Mr Sheedy complained to Mr Wetherell about being “stood off” because of his injury and made a number of allegations about how he had been treated at work, including being asked to drive a vehicle for which he was not licensed, working while his co-worker watched porn and played the pokies, not being given appropriate training or instruction and whether he could be responsible for damage to a machine he was not licensed to drive.

1. On 24 October 2022, Mr Lagos confirmed his conversation with Mr Sheedy three days earlier that he should “take the rest of this week off” pending further contact from the business.

1. On 7 November 2022, Mr Lewis Yazbek, General Manager of EQ Constructions, wrote to Mr Sheedy about his “Employment with EQ Constructions”. He noted the recent suspension of Mr Sheedy’s driver’s licence, which he asserted meant Mr Sheedy could not perform the inherent requirements of his role “regardless of” his recent certificates of capacity. The letter also raised “other concerns”, including pending charges against Mr Sheedy in relation to alleged possession of unlawful pornography with a court appearance in November 2022 and alleged unlawful possession of a firearm, with a court appearance in February 2023. Mr Yazbek asserted that these charges had real potential to cause the business reputational harm due to Mr Sheedy’s employment, despite there being no conviction, and advised that EQ Constructions was considering terminating his employment. Mr Yazbek requested a response by Friday 11 November 2022, despite the certificate of capacity then in place. He also “vehemently denied” that Mr Sheedy had been asked to “do illegal operations” (driving machines without a licence).

1. On 8 November 2022, Mr Sheedy prepared his response to the letter from Mr Yazbek, He rejected the various premises upon which it relied and confirmed his intention to return to work once medically fit, using public transport to get to work until his licence was reinstated. He advised that two individuals and all site foremen knew about the firearms charge before he was employed, noting he had been allowed to leave work early each Monday to meet his bail conditions. He asked EQ Constructions to commence his weekly worker’s compensation payments under s.266 of the Workplace Injury Management and Workers Compensation Act 1998. He alleged that EQ Constructions had required him to break the law by driving a telehandler with a jib and a scissor lift without holding a high-risk work license. He explained that he had asked for help with his mental health in September, and a meeting was held with Mr Wetherell and two others – Mr Alan Gilbert and Mr Isaam Abayechi. He was told that a counsellor would be made available but that did not occur. A further meeting in October 2022 was held once he “really went down hill”, including with Mr Lagos. He accused Mr Abayechi of telling lies. Mr Sheedy sent the letter to EQ Constructions on 10 November 2022.

1. On 10 November 2022, EQ Constructions responded to Mr Sheedy. It noted that there had been no response to the assertion in relation to pornography offences and gave him a final opportunity to address those. It rejected assertions that any staff of EQ Constructions knew about the firearms offences before his employment commenced. It alleged that in this regard, Mr Sheedy had made a false representation about an important matter and had not been honest and truthful with it. EQ Constructions invited Mr Sheedy to explain why it should not terminate his employment on notice by 5.00pm the following day, 11 November 2022.

1. Mr Sheedy responded to the letter of 10 November 2022 as requested. He rejected the assertion that management did not know about his gun charges when he was employed and advised that he had witnesses to that effect. He noted that his contract of employment did not require disclosure of previous criminal history or bail status, and that there was no duty to volunteer facts of this kind if not asked to do so. He explained the pornography charges in a way that on its face, presented a plausible defence. He denied that his situation was likely to cause reputational damage to EQ Constructions, including because the pornography charges against him were sealed, he had pled not guilty and was likely to be found not guilty. He asked when he could return to work and noted that the show cause processes had only come about after he went on mental health leave.

1. On 11 November 2022, EQ Constructions wrote to Mr Sheedy. It asked for his urgent advice as to who knew about the firearms charges before he was employed, noting that two people it had spoken to had denied the same. It reiterated the concern that Mr Sheedy had been dishonest in this regard with the intent to mislead EQ Constructions. It sought a response by 14 November 2022.

1. On 13 November 2022, Mr Sheedy provided his response. He listed five employees of EQ Constructions who were aware of his firearms charges before he started employment, restating that they had let him leave early each Monday to meet his bail conditions. He advised that he looked forward to a long and mutually beneficial relationship with EQ Constructions.

1. On 14 November 2022, Mr Sheedy was dismissed without notice for serious and/or wilful misconduct. The reason given for dismissal was that Mr Sheedy had now “twice made written false representations” about site management’s knowledge of his firearms charges prior to employment. In this context, EQ Constructions asserted that when Mr Sheedy was allowed to leave work early on Mondays, this was because of a driver’s license issue, not for any other reason, and “certainly not for firearm charges”. EQ Constructions asserted that its site managers were “appalled” that he had misrepresented their knowledge on important matters and could no longer work with him. It also asserted that Mr Sheedy had breached his common law obligation of good faith and fidelity.

1. Also on 14 November 2022, Mr Sheedy made a formal worker’s compensation claim in relation to his employment with EQ Constructions.

Was the dismissal harsh, unjust or unreasonable?

1. Valid reason: I find no valid reason for the dismissal of Mr Sheedy. In my view, the allegations against him were confected in a bid to justify dismissal after Mr Sheedy ceased work due to his injury and provided certificates of capacity in connection with a worker’s compensation claim. Specifically:

1. The notion that Mr Sheedy could not perform the inherent requirements of his job because he could not get to work ignores the fact that he had been doing exactly that for approximately two months; that his work site was close to the train station; and that he used an e-scooter to travel to and from the station.

2. I accept Mr Sheedy’s evidence that site management were aware of his firearms charges before he commenced employment. This is because he was allowed to leave early on Mondays to meet his bail conditions, and the sequence of events does not permit a finding that this was approved by site managers because of an issue with Mr Sheedy’s driver’s license. Mr Sheedy commenced work in March 2022. The firearms charges, his bail conditions, and presumably his approval to leave work early on Mondays, were in place by that time. Mr Sheedy’s driver’s licence was not suspended until August 2022. There is no evidence of any other issue with his driver’s licence before then.

3. The pornography charges did not present a reputational risk to EQ Constructions at the time they were laid. Mr Sheedy had advised EQ Constructions that the case was sealed and names were not published in connection with the charges. Mr Sheedy also had a plausible defence on the face of the record. In the circumstances, dismissal was a disproportionate response to the fact that charges had been laid. I also note that the charges have since been withdrawn by NSW Police.

1. Whether reason was notified to the employee: There was no valid reason for dismissal. This is not a relevant consideration.

1. Opportunity to respond: Mr Sheedy had an opportunity to respond to the various allegations against him, and did so.

1. Unreasonable refusal in relation to support person: There is no evidence of any request for a support person by Mr Sheedy.

1. Warnings about relevant unsatisfactory performance: There is no evidence that Mr Sheedy’s performance was unsatisfactory.

1. Degree to which the size of the employer’s business and absence of dedicated human resources management specialists or expertise would be likely to impact on procedures followed in effecting the dismissal? There is no evidence of these matters before me. To the best of Mr Sheedy’s knowledge, EQ Constructions has 100 or more employees. The tone of its correspondence with Mr Sheedy in relation to the dismissal suggests that it has access either to a lawyer or workplace relations adviser. I find no reason why the procedures followed in connection with the dismissal were likely to be affected by either the size of the business or the absence of relevant expertise.

1. Other relevant matters: Mr Sheedy sought an unfair dismissal remedy instead of a remedy for breach of the general protections in Part 3-1 of the Fair Work Act 2009. Given my findings in relation to valid reason, it is likely that the dismissal was not only unfair but also unlawful. This is because in my view, Mr Sheedy was dismissed for exercising workplace rights in connection with his absence from work due to a workplace injury.

1. Having considered each of the matters specified in section 387, I find that the dismissal was unjust. Mr Sheedy was unfairly dismissed.

What is the appropriate remedy?

1. Reinstatement is the primary remedy under the Act for unfair dismissal. I am satisfied that reinstatement is the appropriate remedy in this case because there was no valid reason for dismissal and Mr Sheedy wishes to return to work once he is medically fit to do so. This is so even though EQ Constructions appears to have been placed in administration and is subject to a “court case”. On the limited available information, I am not satisfied that the business has or will soon cease trading such that an order of reinstatement would have no utility. As Mr Sheedy has made a worker’s compensation claim, appropriate support is likely to be available to him in connection with his return to work and EQ Constructions has a duty to Mr Sheedy in this regard. Reinstatement will also create the impetus for EQ Constructions to address the serious complaints made by Mr Sheedy about the safety of the environment in which he worked.

1. Mr Sheedy seeks an order for lost remuneration in the period between dismissal and reinstatement. However, there is no evidence about whether Mr Sheedy’s worker’s compensation claim has been accepted, and if so, to what extent. In the circumstances, the appropriate course is to order that Mr Sheedy be paid lost remuneration less any weekly worker’s compensation payments received in the relevant period.

1. An order giving effect to this decision [PR751018] will issue separately.

COMMISSIONER

Hearing details:

Determined on the papers.

Printed by authority of the Commonwealth Government Printer

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