Craig Sanders v The Roller Door Doctor

[2014] FWC 8746

[2014] FWC 8746

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Sanders
v
The Roller Door Doctor
(U2014/13078)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 9 DECEMBER 2014

Application for relief from unfair dismissal - jurisdiction - Small Business Fair Dismissal Code.

[1] On 7 October 2014 Mr Sanders lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with The Roller Door Doctor (the RDD). The application was referred to me for determination. The RDD has agreed that the application was lodged within time, that Mr Sanders was a person protected from unfair dismissal and that the termination of his employment was not a redundancy. The RDD asserted that it was a small business for the purposes of the FW Act and that the termination of Mr Sanders’ employment was consistent with the Small Business Fair Dismissal Code (the Code).

[2] Section 396 of the FW Act requires that the Fair Work Commission (FWC) is satisfied about specified initial matters before considering the merits of an unfair dismissal application. Accordingly, Mr Sanders’ application was listed for consideration of the Code through a telephone hearing convened on 4 December 2014. Both parties provided an outline of their respective positions and witness statements consistent with the directions issued on 30 October 2014.

[3] At the telephone hearing on 4 December 2014 Mr Sanders was represented by Mr Kourbelis, of counsel pursuant to a grant of permission made under s.596(2)(a) of the FW Act on the basis that I was satisfied that his involvement would enable the matter to be dealt with more efficiently. The RDD was represented by Ms Hinton of Business SA on the basis that the RDD is a member of that organisation.

[4] The background to the application is that Mr Sanders was employed by the RDD for approximately 15 months. His employment was terminated on 22 September 2014. Mr Sanders contends that both the basis for that employment termination and the manner in which it was conducted, was unfair.

The evidence

[5] Mr Rix is the Managing Director for the RDD. His evidence went to the number of employees engaged by the RDD on 22 September 2014 and the matters that led to the termination of Mr Sanders’ employment. Mr Rix’s evidence went to his conduct of the meeting on 22 September 2014 and to the issues he raised with Mr Sanders and Mr Sanders’ responses.

[6] Ms Bryant is the Office Manager for the RDD. Her evidence went to matters that had arisen in the course of Mr Sanders’ employment and his participation in the meeting on 22 September 2014.

[7] Mr Sanders’ evidence went to the various issues which had arisen in the course of his employment and to his particular concerns about the manner in which the 22 September 2014 meeting was conducted.

Findings

[8] Section 385 states:

“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.”

[9] A small business is defined in s.23 of the FW Act. The parties both agreed that the RDD was a small business for the purposes of the FW Act.

[10] The Small Business Fair Dismissal Code states:

“The Code

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.”

[11] I have considered the application of this Code on the basis that, if I am satisfied that the Code has been complied with, the termination of Mr Sanders’ employment cannot then be unfair.

[12] I have reached a number of conclusions on the evidence before me. I am satisfied that Mr Sanders was given a first and final written warning on 11 August 2014 in relation to an incident which occurred on 8 August 2014 whereby he sent inappropriate text message to another employee. He was advised that this was inappropriate and that he must refrain from behaviour described as “bullying behaviour”. This warning advised that his employment would be terminated if his behaviour did not improve.

[13] In addition, I have concluded that the evidence of Mr Rix is to be preferred over that of Mr Sanders to the extent that Mr Sanders had been counselled and warned over:

● his conduct toward to members of the general public in a public car park whilst he was wearing the RDD uniform,
● his refusal to train a new employee,
● his refusal to attend emergency callouts.
[14] In this respect I do not accept Mr Sanders’ evidence that these matters were not raised with him. His contentions in this respect are inconsistent with the evidence he gave about the meeting on 22 September 2014 where various of these concerns were raised again.

[15] The evidence of Mr Rix establishes that, as a result of escalating concerns about Mr Sanders’ behaviour he was requested to attend a meeting on 22 September 2014. The catalyst for this meeting was concern over Mr Sanders work performance and a number of complaints from customers. I accept that Mr Rix asked Mr Sanders if he wanted a support person to attend this meeting with him but that Mr Sanders declined this offer. I accept Mr Rix’s evidence that he then raised at least six issues relative to Mr Sanders’ work performance with him. I am satisfied that Mr Rix did not regard the majority of Mr Sanders’ responses as untoward. However, as the meeting progressed, those responses included advice from Mr Sanders that he was “sick of this” and didn’t want to work there anymore. This evidence is consistent with that of Ms Bryant. Mr Rix’s evidence was that:

“Ms Hinton: So you said previously Andrew that the meeting was never intended to result in a termination. When did that change and why did that change?

Mr Rix: Basically when he said he hates the place and he doesn’t want to be here, I felt like I was wasting my time in trying to turn him around to be a model employee.” 1

[16] Ms Bryant’s evidence was that:

“Approximately half way through the meeting, concerns about the rework rates on his work was discussed. The Applicant stated that he didn’t want to work for the Respondent and that “it’s hard to perform when you don’t want to be (there)”. 2

[17] Mr Sanders’ evidence about this part of the meeting was, at best, evasive. He initially denied making statements of that nature but subsequently acknowledged that he did so after references made in the meeting to his partner, who was also an RDD employee and who had suffered an injury at work. Mr Sanders asserts that he was treated differently at work after his partner had that injury and that in this context he said he did not want to be there.

[18] Having considered the evidence I have concluded that it supports the RDD position that Mr Sanders said he did not want to be there.

[19] I am satisfied that it was at this point in the meeting that Mr Rix then decided that Mr Sanders’ employment should be terminated and advised him of this. Mr Sanders then became aggressive and abused both Mr Rix and Ms Bryant. Mr Sanders left the meeting and, despite an attempt to do so on the part of Mr Rix, was not prepared to further discuss notice arrangements. In reaching this conclusion I have again preferred the evidence of Mr Rix and Ms Bryant to that of Mr Sanders. Notwithstanding this, the evidence of Mr Sanders is clearly indicative of his abusive language. That contradictory evidence was that:

“I deny abusing Andrew, Kerri and the office staff as I left the premises.” 3

and then:

“Andrew asked me to collect my tools and personal items which were located in the back of the work vehicle. As I was getting my tools out of the work vehicle, I said to Andrew, ‘are you doing Tracey’s dirty work once again’. I did not ask him whether he had any balls. I said to Andrew as I was removing the tools, you are a soulless cunt - I have a baby on the way.” 4

and further:

“I deny calling Kerri and Andrew cunts.” 5

[20] Mr Rix’s evidence was that he anticipated that Mr Sanders would complete his notice period and that RDD needed him to work for at least the next week because of its work demands. Mr Rix’s evidence was that:

“On learning that his employment was being terminated, the Applicant immediately became aggressive and began shouting abuse at us and calling Kerri and me foul names. He stormed out of the room and slammed the door behind him.

I followed the Applicant outside to try to discuss the notice period with him. He was sitting in a company vehicle. I asked his to step out of the vehicle and, after three such requests, he did. He then began throwing tools out of the van onto the ground and was still behaving very aggressively. As a result, there was no opportunity to discuss the notice period with him.” 6 (sic)

[21] Mr Sanders denied throwing tools around although he acknowledged “dropping” his tool bag. His evidence was that he understood he had been instantly dismissed and that he intended to take his work car home to clean it but that Mr Rix stopped him from doing this.

[22] I have preferred the more consistent evidence of Mr Rix to the effect that Mr Sanders’ behaviour and language after the meeting on 22 September 2014 did not enable any further discussion of notice arrangements. The evidence of Mr Sanders was that he left the workplace and waited for friends to collect him.

[23] I have also accepted the evidence of Mr Rix that he did not intend to summarily dismiss Mr Sanders and that the RDD subsequently sought advice about what payments were due to Mr Sanders from the Fair Work Ombudsman given that he did not work out the minimum notice period prescribed in the relevant award.

[24] I have taken that Award to be the Manufacturing and Associated Industries and Occupations Award 2010. Clause 22 of this award states:

“22. Termination of employment

22.1 Notice of termination is provided for in the NES.

22.2 Notice of termination by an employee

The notice of termination required to be given by an employee is the same as that required of an employer except that there is no requirement on the employee to give additional notice based on the age of the employee concerned. If an employee fails to give the required notice the employer may withhold from any monies due to the employee on termination under this award or the NES, an amount not exceeding the amount the employee would have been paid under this award in respect of the period of notice required by this clause less any period of notice actually given by the employee.

22.3 Job search entitlement

Where an employer has given notice of termination to an employee, an employee must be allowed up to one day’s time off without loss of pay for the purpose of seeking other employment. The time off is to be taken at times that are convenient to the employee after consultation with the employer.”

[25] I consider that the issue of payments due to Mr Sanders for a minimum of one week after 22 September 2014 may well be a matter in dispute but I am not satisfied that this is determinative of non-compliance with the Code.

[26] The Code refers to summary dismissal as a dismissal without notice or warning. I have considered whether the fact that no further payments were made to Mr Sanders after 22 September 2014 means that his dismissal was then summary dismissal. I am satisfied that the RDD did have a reasonable expectation that Mr Sanders would work out his notice period and that it was Mr Sanders behaviour which prohibited the implementation of arrangements to that effect. Consequently, I do not consider that the cessation of payments to Mr Sanders with effect from 20 to September 2014 means that the termination of his employment should be regarded as a summary dismissal because that circumstance was neither intended nor expected by the RDD.

[27] The RDD paid Mr Sanders up to 22 September 2014 and provided written advice to him of the termination of his employment.

[28] Mr Sanders was given verbal and written advice that he risked being dismissed because of his behaviour. He had the opportunity to respond to the 11 August 2014 warning. That warning stated:

“This letter is to confirm the details of the discussion we had on 11th August 2014, during which you were formally advised that your conduct in relation to a phone call and text message sent to Kelsey Proctor was unacceptable.

Please find attached a copy of the Employee Warning form, which serves as a record of the issues raised during our discussions and the agreed outcomes that must be achieved by you.

As explained, this is your first and final ‘formal’ warning and should this type of behaviour occur again it will result in the termination of your Contract of Employment.

If you have questions about the issues contained in this letter, or feel that you require assistance to achieve the standards that have been made clear to you during this process, you must contact me immediately.

Please sign the attached copy and return it to us for placement on your Personnel File.” 7

[29] This warning was signed by Mr Sanders.

[30] Additionally, Mr Rix’s evidence was that:

Other issues with the Applicant’s performance and conduct throughout his employment included:

a. A refusal to train a new employee.
b. A refusal to perform emergency call-outs on weekends (such tasks being a normal part of a technician’s role).
c. A refusal to speak to my business partner (and wife) following a meeting to discuss the requirement to respond to emergency call-outs.
d. An inappropriate message set to another employee which was the subject of a first and final warning on 11 August 2014.

Each of these incidents were discussed with the Applicant as they arose. 8

[31] The evidence indicates that issues associated with damage to the RDD vehicle allocated to Mr Sanders were also previously identified to him.

[32] It is clear that the meeting on 22 September 2014 which concluded with the termination of Mr Sanders’ employment was intended to address further issues associated with his work performance.

[33] Mr Sanders had the opportunity to have a person present to assist him in the discussions on 22 September 2014. Mr Sanders could have asked that this meeting be delayed to a time when he could arrange for a person to assist him. He did not do so.

[34] I have concluded that the culmination of a series of unacceptable behaviours on Mr Sanders’ part led to the termination of his employment. Mr Sanders bought this situation to a logical conclusion when he advised at that meeting on 22 September 2014 that he did not want to be at RDD anymore. In that circumstance, Mr Rix was entitled to conclude that there was no utility in further discussions as Mr Sanders’ attitude and approach to his work was clearly unacceptable.

[35] As a consequence, I am satisfied that the requirements of the Code have been met. I note that, even if I had found that the termination of Mr Sanders’ employment was a summary dismissal, his behaviour at, and immediately after the meeting on 22 September 2014, was of a nature that it too meet the requirements of the Code.

[36] For the reasons set out above, RDD has established to me that the termination of Mr Sanders’ employment was consistent with the Small Business Fair Dismissal Code and, as a consequence that dismissal cannot be regarded as unfair. The application will be dismissed accordingly. An Order (PR558599) to this effect will be issued.

Appearances (By telephone):

P Kourbelis counsel for the applicant.

V Hinton agent for the respondent.

Hearing details:

2014.

Adelaide:

December 4.

 1   Transcript Sound Recording, 4 December 2014, 10:53:50 am

 2   Exhibit R3, para 9

 3   Exhibit A2, para 85

 4   Exhibit A2, para 87

 5   Exhibit A2, para 93

 6   Exhibit R2, paras 18 and 19

 7   Exhibit R5

 8   Exhibit R2, para 9.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR558598>