Darren Kemp v Railway Sand Supplies Pty Ltd
[2014] FWC 4150
•24 JUNE 2014
[2014] FWC 4150 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Darren Kemp
v
Railway Sand Supplies Pty Ltd
(U2013/16128)
DEPUTY PRESIDENT KOVACIC | MELBOURNE, 24 JUNE 2014 |
Application for relief from unfair dismissal — whether dismissal was harsh, unjust or unreasonable — dismissal not harsh, unjust or unreasonable — application dismissed.
[1] On 20 November 2013 Mr Darren Kemp (the Applicant) filed an application under s.394 of the Fair Work Act 2009 (the FW Act) alleging that the termination of his employment by Railway Sand Supplies Pty Ltd (Railway Sand - the Respondent) on 4 November 2013 was harsh, unjust or unreasonable.
[2] Mr Gary Dircks appeared with permission for the Applicant, while the Respondent was represented by Mr Anthony Dalton of the Australian Industry Group.
[3] Mr Kemp and his partner, Ms Verdon, gave evidence for the Applicant, while for the Respondent evidence was given by Mr David Thomas, Railway Sand’s Quarry Manager, Mr Wayne Vella, General Manager - Railway Sand, and Mr Michael Couch, an Operator at Railway Sand.
[4] For the reasons set out below, I have found that Mr Kemp’s termination was not harsh, unjust or unreasonable and therefore dismiss the application.
Background
[5] Mr Kemp was employed by Railway Sand as a night shift plant operator on 4 November 2010. Several months later Mr Kemp was appointed the night shift supervisor and performed that role for the bulk of the period of his employment with Railway Sand. It is not disputed that Mr Kemp was dismissed or that he was protected from unfair dismissal.
[6] Attendance issues resulted in Mr Kemp being transferred to the day shift in late July 2013. However, Mr Kemp returned to the night shift in early August 2013, though it is disputed whether this was at Mr Kemp’s request or at Railway Sand’s initiative.
[7] The attendance issues continued after Mr Kemp returned to his night shift supervisor role in early August 2013 with several absences in August and September 2013. In early October 2013 Mr Kemp was absent from work as a result of illness for a period of two weeks commencing on 7 October 2013. Issues arose regarding Mr Kemp’s notification of his absence. On his return to work on 21 October 2013, Mr Kemp was counselled and subsequently issued with a warning about “Absent from work, notification” 1. The warning notice, which was signed by Mr Kemp, states that Mr Kemp’s response was that “Darren attendance needs to improve + he is aware of notification process.”2 Mr Kemp was transferred to the day shift on 21 October 2013 where he worked as a dump truck operator.
[8] On 31 October 2013 Mr Kemp was absent from work as a result of having to take Ms Verdon, who was unwell, to the Monash Medical Centre. While he informed a colleague of his absence at around 4.50 am that morning, attempts to contact Mr Thomas by mobile phone were unsuccessful until early afternoon that day, though he did send Mr Thomas a text message that morning advising him of his absence. After they had spoken, Mr Thomas sent Mr Kemp a text message mid-afternoon asking him to provide a medical certificate to support his absence. The following day (a Friday) Mr Kemp was late for work, with the reason provided that he had a flat tyre. His shift was scheduled to commence at 7.00 am, though he did not alert Mr Thomas or anyone else of the fact that he would be late until around 8.00 am that morning (the precise time is disputed). When he arrived at work, he met with Mr Thomas and indicated that the reason for him being late was that he had slept in and had a flat tyre on the way to work. The meeting concluded on the basis that Mr Thomas would need to discuss “what proceedings are going to happen” with Ms Rhonda Barro, a Director of the Barro Group which owns Railway Sand 3. Mr Kemp worked as normal for the remainder of the day and also worked the following day (Saturday).
[9] On Monday, 4 November 2013 Mr Kemp was called to a meeting in Mr Thomas’ office. It was at that meeting that he was dismissed for the following reason as stated in the Termination of Employment Notice “Away Thursday 31.10.13, late Friday 1.11.13 after previous counselling + warning notice 21/10/13 he was to improve his attendance. No certificate.” 4
The Applicant’s submissions
[10] Mr Kemp submitted that the reasons for his dismissal were not sound or defensible, contending that his absence from work on 31 October 2013 was for a legitimate reason in that he had to take his partner to the Monash Medical Centre for medical attention as she had been unwell overnight. Further, it was submitted that Mr Kemp’s late attendance on 1 November 2013 was an isolated incident, in part related to his recent move from night to day shift, his recent illness and having to take his partner to the Monash Medical Centre in Melbourne the previous day. More particularly, it was highlighted that the formal warning received by Mr Kemp related to his failure to notify Railway Sand promptly of his absence due to illness. Reliance on that warning, it was submitted, was misplaced as the warning was unwarranted as both at the time of Mr Kemp’s absence due to illness and his absence on 31 October 2013 either he or Ms Verdon tried without success to contact Mr Thomas on his mobile phone to inform him of the absences as soon as possible. Accordingly, Mr Kemp could not be held responsible for difficulties in contacting Mr Thomas. Furthermore, with regard to Mr Kemp’s absence due to illness, as a night shift worker who commenced his shift at 5.00 pm he should not be required to notify his absence by 7.00 am that day.
[11] As to remedy, Mr Kemp sought reinstatement and payment for lost wages. 5
The Applicant’s evidence
[12] Mr Kemp attested 6 that his employment at Railway Sand had been going well until Mr Thomas commenced work at the site around late August/early September 2013. Mr Kemp considered that Mr Thomas took a dislike to him. In his witness statement, Mr Kemp alluded to a number of events outside work which were also affecting his circumstances. First his partner, Ms Verdon, got sick around July or August 2013 and had ongoing health issues and, second, he was involved in a court case which required him to have time off to meet with his solicitor and/or attend court. In short, he attested that he was sometimes late to work or needed to leave work early as a result of these personal issues. Further, he had informed the previous Quarry Manager, Mr Chilcott, and Mr Couch of these appointments and that he would notify them beforehand if he knew the date of the appointment. Mr Kemp contended that both Mr Chilcott and Mr Couch appreciated him letting them know.
[13] With regard to his absence due to illness for the fortnight commencing 7 October 2013, Mr Kemp attested that he contacted Mr Thomas to advise he was ill and would be away that week. He further attested that both he and Ms Verdon unsuccessfully sought to contact Mr Thomas on his mobile phone at the start of the second week to advise that he was still unwell, with the response on Mr Thomas’s mobile being that it was either switched off or out of service. Ms Verdon delivered the medical certificate relating to the second week of Mr Kemp’s absence to Mr Thomas on the afternoon of Wednesday, 16 October 2013 at which time Mr Thomas asked that she inform Mr Kemp that he would be transferred to the day shift upon his return to work. Mr Kemp contacted Mr Thomas later that day and was advised that he was to be issued with a final warning for not advising him of his continued absence at 7.00 am on Monday, 14 October 2013.
[14] On his return to work on 21 October 2013, Mr Kemp attested that prior to being interviewed by Mr Thomas and Mr Couch he was asked if he wished to have a support person present, which he declined. Following the interview, he was issued with a counselling report and shortly thereafter a warning. Mr Kemp attested that Mr Thomas indicated at that interview that he thought it would be a better idea if Mr Kemp remained on day shift for a while. When questioned as to why, Mr Kemp stated that Mr Thomas responded to the effect that it was hard on the other night shift employees to run the shift a man down.
[15] As to the absence on 31 October 2013, Mr Kemp’s evidence was that he contacted a colleague at 4.50 am that day to let him know that he wouldn’t be in that day and that he would contact Mr Thomas later that day. Mr Kemp attested that he did this as a result of an instruction given to employees at a toolbox meeting run by Mr Couch the previous week. The instruction was that employees on an early shift (i.e. 5.00 am start) should initially inform a colleague of their absence and subsequently contact management once they start work at 7.00 am. Mr Kemp’s further evidence was that after unsuccessfully trying to call Mr Thomas on his mobile phone he sent him a text message stating that Ms Verdon was unwell and that he was taking her to the doctor and would call him when he was done. He subsequently contacted Mr Thomas early that afternoon who told him that he was not required to come into work that day. At 2.50 pm that afternoon, Mr Kemp stated he received a text message from Mr Thomas asking that he provide a medical certificate for his absence.
[16] The following morning Mr Kemp attested that he was late for work as a result of having slept in and having a flat tyre on the way to work. He stated that he informed Mr Thomas he would be late for work by text message at around 7.30 am and arrived at work at around 8.00 am. On arriving at work he met with Mr Thomas, with that meeting concluding on the basis that Mr Thomas would need to discuss “what proceedings are going to happen” with Ms Barro. During the course of the day Mr Kemp’s evidence was that he had an argument with Mr Couch, who he described as abusive, regarding a number of issues regarding a bulldozer. Before leaving work that day, Mr Kemp stated that he asked Mr Thomas whether he had heard anything from Ms Barro. Mr Thomas’ response was that he hadn’t heard anything.
[17] Mr Kemp’s evidence was that on starting work on Monday, 4 November 2013 he was called to a meeting with Mr Thomas and Mr Couch at which he was summarily dismissed.
[18] Under cross examination Mr Kemp stated, inter alia, that:
(a) the expectation in terms of notification of absences was that you would “just phone in before the start of your shift, ... if you were going to be sick” 7;
(b) he had never seen a written procedure on the issue of notification of absences 8;
(c) he did not have a work number to ring in circumstances where he was unable to make contact via mobile phone, adding that he did not know the work number 9;
(d) he did not attempt to obtain a medical certificate for his absence on 31 October 2013 as it wasn’t he that was sick and because he wasn’t aware that employees had to supply a medical certificate for absences other than on a Monday or Friday 10;
(e) since being dismissed he had found part-time employment from which he had earned between $3,000 and $3,200 11;
(f) Mr Couch had placed him on day shift in late July 2013 “as a disciplinary action” 12;
(g) there could have been a couple of occasions where he had not advised management or had their permission to either leave early or turn up late 13;
(h) Mr Thomas had discussed his attendance with him at around the time he commenced with Railway Sand 14;
(i) he and Ms Verdon had attempted to contact Mr Thomas on 7 October 2013 to advise him the he was ill but could not get through until the following day 15;
(j) Ms Verdon had unsuccessfully tried to contact Mr Thomas on 14 October 2013 16;
(k) Mr Thomas had advised him on 21 October 2013 that he was to be moved to the day shift because of the problems his absences caused on the night shift 17;
(l) he did disregard, ‘in a fashion’, Mr Thomas’ request that he obtain a medical certificate for his absence on 31 October 2013 18;
(m) he accepted that his tardiness in contacting Mr Thomas on 1 November 2013 to advise that he would be in late was, on that occasion, probably indicative of his cavalier attitude to contacting the company as “he didn’t know what to say or do ... I was trying to do everything in my power to bloody keep my job and make amends for everything” 19;
(n) he had operated the wash plant with two operators for four months, though he acknowledged that it would operate with ease with three operators 20;
(o) he did not understand that his job was at risk if he failed to provide the requested medical certificate relating to his absence on 31 October 2013 21; and
(p) he did not accept that the appropriate procedure in adverse weather conditions was for employees to attend work with a decision as to whether they work or not made once they were at work 22.
[19] Ms Verdon’s evidence was that at one stage while Mr Kemp was ill in October 2013 she unsuccessfully tried to call Mr Thomas on his mobile phone. The message on Mr Thomas’ phone was that it was either switched off or out of service. Ms Verdon further attested that when she delivered a medical certificate for Mr Kemp to Mr Thomas he indicated to her that Mr Kemp would be put on day shift and that he would speak to Mr Kemp on his return to work. Ms Verdon also attested that on 31 October 2013 she was quite sick and needed Mr Kemp to take her to the doctor in Melbourne, adding that on the way he sent Mr Thomas a text message advising him of his absence after unsuccessfully trying to call him on his mobile phone. Mr Kemp did however manage to contact Mr Thomas on their way home. 23
[20] Under cross examination, Ms Verdon maintained that Mr Kemp had unsuccessfully tried to contact Mr Thomas on his mobile phone while driving her to the Monash Medical Centre on 31 October 2013 24.
The Respondent’s submissions
[21] Railway Sand submitted that Mr Kemp’s application should be dismissed as his dismissal on 4 November 2013 was not harsh, unjust or unreasonable. Railway Sand further submitted that Mr Kemp’s absence on 31 October 2013 and his lateness for work the following were day were not isolated incidents, but rather were the latest in a series of similar events over a period of months and followed earlier warnings and counselling of Mr Kemp regarding his attendance issues. Specifically, Railway Sand submitted that in the period April to 4 November 2013, Mr Kemp had been absent or late without notifying his manager on nine occasions and during the same period had been absent without providing any evidence to substantiate his absence. Further, Mr Kemp had been given a verbal warning by Mr Couch in July 2013 when he had been transferred from night to day shift.
[22] Railway Sand also submitted that Mr Kemp had not been dismissed for having to take Ms Verdon to the hospital on 31 October 2013 but for the reasons to do with his attendance issues, the failure to provide the requested medical certificate and lateness. As to the requested medical certificate, it was submitted that at the meeting with Mr Thomas on 1 November 2013 Mr Kemp expressed the view in fairly colourful terms that he should not have to provide a certificate as it was not him that was ill. With regard to the termination meeting on 4 November 2013, it was submitted that Mr Kemp was informed of the purpose of the meeting and offered but declined to have a support person attend the meeting. 25
The Respondent’s evidence
[23] In his witness statement 26 Mr Thomas described the series of events leading to Mr Kemp’s dismissal on 4 November 2013. His description is consistent with the background as outlined at paragraphs 7 to 9 above. Key aspects of Mr Thomas’ evidence were that:
(a) on the day he (Mr Thomas) commenced work with Railway Sand, i.e. 25 September 2013, Mr Kemp was absent from work and did not contact the company to advise of his absence;
(b) later that day, Mr Couch informed him that during the previous three months when he had been working as the Quarry Manager he had had a number of issues regarding Mr Kemp’s attendance and his failure to notify the company when absent or late;
(c) he met Mr Kemp for the first time the following day and, among other things, said to him that his attendance needed to improve;
(d) Mr Kemp did not contact him on either 7 or 14 October 2013 to advise that he would be away ill, though he did make contact on the following day in each case;
(e) in his telephone conversation with Mr Kemp on 16 October 2013 he told Mr Kemp to report for work at 7.00 am on 21 October 2013 and that he would be issuing him a warning for failing to notify him of his absence on 7 and 14 October 2013;
(f) Mr Kemp was offered but declined the opportunity to bring a support person to the meetings of 1 and 4 November 2013; and
(g) the incident with Mr Couch around lunch time on 1 November 2013 was not a factor in Mr Kemp’s summary dismissal.
[24] In his witness statement Mr Thomas also disputed several aspects of Mr Kemp’s witness statement, in particular Mr Kemp’s evidence that on several occasions he unsuccessfully tried to contact Mr Thomas on his mobile phone only to receive a message that the phone was either switched off or out of service. Mr Thomas’ evidence was that his mobile phone was always on and he did not receive any notification of a missed call, adding that Mr Kemp’s excuse appeared to be a recurring theme and that other employees did not appear to have similar difficulties contacting him on his mobile phone. Mr Thomas also disputed Mr Kemp’s version of their discussion of 21 October 2013 and his evidence that employees were directed at a toolbox meeting on 24 October 2013 to contact colleagues rather than management if they were to be absent from work.
[25] Under cross examination Mr Thomas:
(a) stated that at the toolbox meeting on 24 October 2013 employees were told that they were to inform management when they weren’t going to turn up to work 27;
(b) indicated that company policy regarding carer’s leave was that a medical certificate was required, adding that he could not be certain that there was a written procedure to that effect and confirming that he had not provided any such written procedure to Mr Kemp 28;
(c) acknowledged that there was a bit of a dead spot in terms of mobile phone coverage between Melbourne and Korumburra (the location of the quarry) at Koo Wee Rup, adding that there were no problems with communication on the site that he knew of and pointing to the office number as an alternative point of contact 29;
(d) stated that while he dismissed Mr Kemp the decision was made by Mr Moschini of the Barro Group and Ms Barro given that Mr Kemp had not provided a medical certificate to substantiate his absence on 31 October 2013 and as a result of his ongoing attendance issues 30;
(e) indicated that he was not aware of any previous occasion where an employee had been dismissed for not providing a medical certificate in respect of an absence for carer’s leave 31;
(f) confirmed that the warning given to Mr Kemp on 21 October 2013 did not relate to lateness 32;
(g) stated that Ms Barro had directed him to ask Mr Kemp to provide a medical certificate for his absence on 31 October 2013 33;
(h) indicated that the warning given to Mr Kemp on 21 October 2013 was because his attendance record in the past had been below par, adding that Mr Kemp’s failure to notify the company of his continuing absence on 14 October 2013 had brought matters to a head 34;
(i) stated he was told to transfer Mr Kemp to day shift from 21 October 2013 by Mr Vella 35 and that Mr Moschini had previously instructed him to issue the warning to Mr Kemp36;
(j) confirmed that, if there were a clean slate regarding Mr Kemp’s attendance, there was no issue with lateness other than on 1 November 2013 37;
(k) indicated that Mr Kemp was transferred to day shift as he was too unreliable for night shift where his absences could not be covered 38;
(l) stated that from his commencement with Railway Sand there was a requirement that employees provide a medical certificate when not at work, though he acknowledged that this requirement had not been clearly communicated to employees 39;
(m) disputed Mr Kemp’s characterisation of his comments in their meeting on 1 November 2013 regarding the need to balance his work and personal commitments 40; and
(n) indicated that Mr Kemp was advised at the commencement of the meeting on 4 November 2013 that the meeting would discuss the termination of his employment and that this occurred before he was asked whether he wished to have a support person attend 41.
[26] Similarly, Mr Couch in his witness statement 42 set out the events leading up to Mr Kemp’s dismissal on 4 November 2013 and disputed aspects of Mr Kemp’s witness statement. However, his evidence provided a more detailed outline of the attendance issues which preceded the warning issued to Mr Kemp on 21 October 2013. Key aspects of Mr Couch’s evidence were that:
(a) he was not an experienced manager, nor had he had any management or human resource training 43;
(b) his diary notes revealed that, in the three months he supervised the Applicant, Mr Kemp was absent on ten occasions and on four of those occasions had not made contact with him on the day of absence 44;
(c) Mr Kemp was also late to work on a number of occasions during that period 45;
(d) he had spoken to Mr Kemp on a number of occasions during that period regarding his absences and his failure to make contact in a timely way 46;
(e) there were also occasions when Mr Kemp left work early without having discussed this with him 47;
(f) early notification of absence on the night shift provided an opportunity to try and back fill the role 48;
(g) Mr Kemp was absent for the period 24 to 26 July 2013 which resulted in him being transferred to the day shift from 29 July 2013 49;
(h) he considered he had given Mr Kemp a verbal warning at the time of this transfer but that it was not recorded on Mr Kemp’s personnel file 50;
(i) Mr Kemp returned to the night shift on 5 August 2013 but was absent from work on 13 August 2013 and did not advise Mr Couch of the absence, though Mr Kemp claimed to have sent Mr Couch a text message which he did not receive 51;
(j) he discussed the matter with Mr Kemp on 15 August 2013 52;
(k) Mr Kemp was again absent on 4, 6 and 24 September 2013 53;
(l) employees on the night shift had raised with him their concerns about Mr Kemp’s absences and his leaving early, with Mr Couch expressing the view that Mr Kemp “would do as he wanted” 54; and
(m) he did not make any statements or give any instructions at the toolbox meeting of 23 [sic 24] October 2013 to the effect that employees should contact colleagues to advise them of their absence and that the minutes of the meeting do not record any such statement or instruction 55.
[27] Under cross examination Mr Couch:
(a) indicated that with regard to Mr Kemp’s absence on 13 August 2013, Mr Kemp had shown him a text message on 15 August 2013 which he allegedly had sent him on the day of absence but that he was not sure whether what he had been shown was a sent message 56;
(b) was unable to point to any documented policy which made it clear that a medical certificate was required for any absences relating to sick or carer’s leave, though he did indicate that the issue was addressed in employee inductions and alluded to a company policy and procedures folder which employees could peruse at any time 57;
(c) stated that he agreed to Mr Kemp returning to night shift in early August as he had had no problems with him during the week he worked day shift and in view of the assurance given to him by Mr Kemp that he would change 58;
(d) described Mr Kemp as unreliable 59;
(e) stated that at the time of Mr Kemp’s transfer from night to day shift his employment was not in jeopardy, even though he considered the transfer to be a verbal warning 60;
(f) acknowledged that the wash plant could be run effectively with only two people but that it was safer and more productive to have three persons operating the plant as per the standard protocol 61; and
(g) discussed the copy of the diary notes 62 for the site which recorded Mr Kemp’s absences from 15 July 2013 until his dismissal, indicating that of the ten occasions Mr Kemp was absent while he was acting Quarry Manager there were four occasions where Mr Kemp did not make contact with him on the day of the absence63.
[28] Mr Vella’s evidence set out in broad terms the discussions he had with Mr Couch and Mr Thomas regarding the issues they were having with Mr Kemp’s attendance. In short, his evidence was that he could recall three separate occasions where Mr Couch rang him and at least five occasions when Mr Thomas rang him to discuss these issues. 64
The statutory framework
[29] The Fair Work Commission (the Commission) exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the FW Act. In this case there is no contest that Mr Kemp is a person who is protected from unfair dismissal pursuant to s.382 of the FW Act. In the context of this matter, the relevant provisions of the FW Act are ss.385 and 387 which read as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if 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.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWC 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 FWC considers relevant.”
[30] There is no dispute that Mr Kemp was dismissed, so s.385(a) of the FW Act is satisfied. Mr Kemp contends that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. While Railway Sand itself employs less than fifteen workers, it is part of the larger Barro Group. As such, s.385(c) is not a relevant consideration. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether Mr Kemp was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).
Was the dismissal harsh, unjust or unreasonable?
[31] In considering whether a dismissal was harsh, unjust or unreasonable, the FW Act requires the Commission to have regard to the criteria set out in s.387. I will address each of those criteria separately.
(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)
[32] In Rode v Burwood Mitsubishi (Rode’s Case) 65a Full Bench of the then Australian Industrial Relations Commission canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd.66 The following is an extract from the Full Bench’s decision in Rode’s Case:
“[17] In relation to the meaning of "valid reason" the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:
"Section 170DE(1) refers to a 'valid reason, or valid reasons', but the Act does not give a meaning to those phrases or the adjective 'valid'. A reference to dictionaries shows that the word 'valid' has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: '2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value. ' In The Macquarie Dictionary the relevant meaning is 'sound, just or wellfounded; a valid reason'.
In its context in s 170DE(1), the adjective 'valid' should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must 'be applied in a practical, commonsense way to ensure that' the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC."
[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).
[19] We agree with the appellant's submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”
[33] As previously noted, Mr Kemp submitted that the reasons for his dismissal were not sound or defensible.
[34] Railway Sand on the other hand submitted that it had a valid reason to dismiss Mr Kemp due to his ongoing attendance issues, the lack of a satisfactory explanation for his absences, the failure to notify it of his absences in a timely way and issues concerning lateness 67.
[35] The diary notes tendered by Railway Sand 68 indicate that Mr Kemp was absent from work for 5 days in July (15 and 23-26 July), 3 days in August (1 and 13-14 August), 7 days in September (2-4, 6, 19 and 24-25 September) and 11 days in October (7-18 and 31 October). Together these absences total 26 days. Medical certificates were provided for 14 of these 26 days of absence (i.e. 2-4 & 6 September 201369 and 7-18 October 2013). The diary entry for 26 July 2013 attributes Mr Kemp’s absence to illness. Beyond that, the absence on 1 August 2013, given that it occurs during the week Mr Kemp was working day shift where Mr Couch’s evidence was that he had no issues with Mr Kemp, appears to be the acknowledged day of annual leave which Mr Kemp took during that week. Taking these two days into account, the diary notes do not indicate a reason for absence in respect of the remaining 10 days of Mr Kemp’s 26 days of absence from July until his termination on 4 November 2013. Assuming a five day working week (which results in 91 working days over the period 1 July to 4 November 2013 inclusive), this roughly equates to one unexplained absence in every nine working days over the period.
[36] Mr Couch’s evidence was that his diary notes revealed that, in the three months he supervised the Applicant, Mr Kemp was absent on ten occasions and on four of those occasions had not made contact with him on the day of absence. That evidence is not inconsistent with the above analysis of the diary notes.
[37] With regard to Mr Kemp’s absence on 14 August 2013, the diary note states that Mr Kemp sent a message advising of his absence. The diary note also includes the following comments regarding Mr Kemp’s absence “Well U did not call yesterday U would not return calls So as far as I’m concerned things have not changed U will be getting a first & final warning It’s not on”. Mr Kemp’s evidence under cross examination is somewhat unclear on whether or not he communicated these comments to Mr Kemp. At one stage he stated that he sent a text message in those terms to Mr Kemp 70, though he later stated that he did not indicate to Mr Kemp on 14 August 2013 that he was intending to issue him a warning71. As noted at paragraph 27(a) above, Mr Couch’s evidence regarding Mr Kemp’s absence on 13 August 2013 was Mr Kemp had shown him a text message he allegedly sent Mr Couch but that he was not sure whether what he had been shown was a sent message. The diary note indicates that the text message was sent on 14 August 2013, the second day of Mr Kemp’s absence, and that he made no contact on 13 August 2013 regarding his absence that day.
[38] Beyond this, the diary notes describe the site conditions on six days where Mr Kemp was absent in the period July-September 2013 as wet or rain affected, though the practice as to the requirement to turn up on wet days is disputed. On two of those six days (26 July and 6 September), Mr Kemp was absent due to illness. As previously noted, under cross examination Mr Kemp did not accept that the appropriate procedure in adverse weather conditions was for employees to attend work with a decision as to whether they work or not made once they were at work. Conversely, Mr Couch’s evidence was that employees still needed to attend when the site was wet with the decision to be made by the shift supervisor as to whether or they were required to work. I prefer Mr Couch’s evidence in this regard. The practical effect of this is that Mr Kemp, who was the night shift supervisor for all but one week of the period July until October 2013, would have been expected to attend work if only to make a decision as to whether or not work could be undertaken. In other words, site conditions would not justify Mr Kemp’s absences/failure to attend work.
[39] While it was acknowledged that Mr Kemp had indicated to Mr Couch that he needed to attend appointments related to the court case he was involved in, no evidence was led as to whether, if they did at all, those commitments aligned with any of Mr Kemp’s absences as recorded in the diary notes.
[40] In short, the evidence indicates that Mr Kemp had up to ten unexplained absences over the period July until his termination on 4 November 2013, with notification not provided in respect of some of those absences.
[41] With regard to the notification of absences, s.107 of the FW Act places the onus on the employee to provide notice to his or her employer regarding the taking of personal/carer’s leave. Specifically, s.107 of the FW Act provides that:
“107 Notice and evidence requirements
Notice
(1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.
(2) The notice:
(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and
(b) must advise the employer of the period, or expected period, of the leave.”
[42] As to Railway Sand’s policy on notification, the evidence indicates that the issue was discussed at a toolbox meeting on 24 October 2013. However, the nature of the discussion is disputed. Mr Kemp contended that the instruction given to employees at that meeting was that if they were working on an early shift (i.e. 5.00 am start) they should initially inform a colleague of their absence and subsequently contact management once they start work at 7.00 am. However, under cross examination he described the expectation in terms of notification of absences somewhat differently stating that the expectation was that you would “just phone in before the start of your shift ... if you were going to be sick” 72. On the other hand, Mr Thomas’s evidence was that at the toolbox meeting on 24 October 2013 employees were told that they were to inform management when they weren’t going to turn up to work. Similarly, Mr Couch attested that he did not make any statements or give any instructions at the toolbox meeting to the effect that employees should contact colleagues to advise them of their absence and that the minutes of the meeting do not record any such statement or instruction. I prefer the evidence of Mr Thomas and Mr Couch regarding the nature of the discussion at the toolbox on this aspect.
[43] Much was made of the alleged difficulties Mr Kemp encountered in contacting Mr Couch and Mr Thomas by mobile phone to advise of his absences. Mr Couch’s and Mr Thomas’ evidence was that other employees did not report similar problems. While mobile phone coverage issues do arise from time to time, they do not diminish an employee’s obligation under the FW Act to provide notice as soon as practicable, particularly where there are alternative avenues of contact.
[44] As to the evidentiary requirements applying at Railway Sand in respect of personal/carer’s leave, the evidence in this matter supports a finding that there was not a documented policy and/or a policy that had been clearly communicated to employees. Nevertheless, it is not disputed in this case that Mr Thomas asked Mr Kemp to provide a certificate to substantiate his absence on 31 October 2013. The request is consistent with s.107(3) of the FW Act which provides that:
“107 Notice and evidence requirements
Evidence
(3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:
(a) if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or
(b) if it is unpaid carer’s leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or ...”
[45] Mr Kemp’s evidence was that he did disregard, ‘in a fashion’, Mr Thomas’ request that he obtain a medical certificate and that he did not attempt to do so. Despite the lack of clarity regarding the policy in this regard, I find it surprising that Mr Kemp would effectively ignore a request from his manager in circumstances where he had been disciplined, counselled and warned over his attendance issues over a period of months. To have not even have made an attempt to obtain the requested medical certificate in the circumstances is difficult to comprehend.
[46] As to the issue of lateness, the diary notes do not record those shifts where Mr Kemp either commenced late or left early. However, Mr Kemp under cross examination conceded there could have been a couple of occasions where he had not advised management or had their permission to either leave early or turn up late (see paragraph 18(g) above). Mr Couch’s evidence was that also during that period Mr Kemp was late to work on a number of occasions and there were occasions when Mr Kemp left work early without having discussed this with him (see paragraphs 26(b) and (d) above). This does not support Mr Kemp’s contention that his late attendance on 1 November 2013 was an isolated incident 73.
[47] It is not clear from the evidence whether the issue of lateness was canvassed with Mr Kemp by either Mr Couch or Mr Thomas when they raised their concerns regarding his attendance. However, it is not disputed that concerns were raised with Mr Kemp regarding lateness as a result of the incident on 1 November 2013. This supports a finding that the issue of lateness would not of itself warrant dismissal. However, the instances of Mr Kemp’s lateness and/or leaving early cannot be viewed in isolation from the broader concerns Railway Sand had regarding his overall attendance.
[48] Finally on the issue of lateness, it is worth noting for reasons of clarity that while time sheets for Mr Kemp were attached to the Respondent’s Outline of Submissions 74, the time sheets were not tendered as part of witness evidence and therefore not subjected to any scrutiny. Accordingly, I have not had regard to that material in coming to my decision.
[49] Taken together, all of the above factors support a finding that Mr Kemp’s attendance issues over a period of several months did constitute a valid reason for his dismissal. Further, drawing on the language in Rode’s Case, the evidence does not support a finding that Mr Kemp’s dismissal was “capricious, fanciful, spiteful or prejudiced’.
(b) Whether the person was notified of that reason
[50] Mr Kemp submitted that he was not notified of the reason for his dismissal 75.
[51] Railway Sand submitted that at the termination meeting of 4 November 2013 Mr Kemp was advised that he was to be dismissed as a result of his failure to obtain the requested medical certificate and his lateness and that these reasons were reiterated in the Termination of Employment Notice 76.
[52] Mr Kemp’s evidence was that he was not aware that his job was at risk if he did not obtain the medical certificate requested by Mr Thomas. However, that evidence is undermined by his statement under cross examination that his tardiness in contacting Mr Thomas on 1 November 2013 was because “he didn’t know what to say or do ... I was trying to do everything in my power to bloody keep my job and make amends for everything”.
[53] Further, as previously noted, the meeting on 1 November 2013 concluded on the basis that Mr Thomas would need to discuss “what proceedings are going to happen” with Ms Barro. Mr Kemp was sufficiently concerned about this to ask before he left work for that day Mr Thomas whether he had heard anything from Ms Barro.
[54] Finally, the Termination of Employment Notice cites as the reason for the termination “Away Thursday 31.10.13, late Friday 1.11.13 after previous counselling + warning notice 21/10/13 he was to improve his attendance. No certificate.” 77
[55] Taken together, the above supports a finding that Mr Kemp was notified of the reason for his dismissal.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[56] Mr Kemp submitted that he was not given a proper opportunity to respond to the reason for his dismissal 78.
[57] Railway Sand submitted that, at the meeting of 1 November 2013 with Messrs Thomas and Couch, Mr Kemp was provided with an opportunity to respond/provide reasons for his lateness that day and his failure to provide a medical certificate to substantiate his absence the previous day. In doing so, Railway Sand highlighted Mr Kemp’s response at that meeting that he should not have to provide a certificate as it was not him that was ill 79.
[58] The evidence indicates that Mr Kemp was spoken to about his attendance issues on several occasions over the period from July until his dismissal. These occasions were:
- Mr Kemp’s transfer to day shift in late July which he acknowledged was for disciplinary reasons;
- the discussion Mr Couch had with Mr Kemp on 15 August 2013 regarding the latter’s absence on 13 August and the lack of any notification of the absence 80;
the discussion which Mr Thomas had with Mr Kemp on 26 September 2013 at which attendance and notification issues were discussed 81; and
on his return to work on 21 October 2013 when he was counselled and subsequently issued with a warning about “Absent from work, notification” 82. The warning notice, which was signed by Mr Kemp, states that Mr Kemp’s response was that “Darren attendance needs to improve + he is aware of notification process.”
[59] Further the written warning issued to Mr Kemp makes it clear that “... unless the required standards of performance and or conduct are met, further disciplinary action is likely to be taken. Possible outcomes of this include termination of your employment.” 83
[60] The evidence supports a finding that Mr Kemp was given ample opportunity over an extended period of time to respond to the concerns regarding his attendance.
(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
[61] It is not disputed that Mr Kemp was offered the opportunity of bringing a support person to the meeting of 4 November 2013 but that he chose not to do so.
(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[62] Mr Kemp submitted that the warning he received on 21 October 2013 was unjustified as both he and Ms Verdon had taken reasonable steps to inform Railway Sand of his absence and the reason for it. Further, Mr Kemp highlighted that the reason cited in the termination letter was different to the reason for the warning 84.
[63] On the other hand, Railway Sand submitted that Mr Kemp had received a verbal warning from Mr Couch regarding attendance issues in July 2013 when he was transferred to the day shift. It also pointed to warning and counselling notice which had been issued to Mr Kemp on 21 October 2013 and the various discussions which Mr Couch and Mr Thomas had with Mr Kemp regarding his attendance as indicating that he had been previously warned about his attendance issues 85.
[64] Paragraph 58 above sets out the chronology of events and/or discussions that were had with Mr Kemp by either Mr Couch and/or Mr Thomas regarding his attendance issues. That chronology supports a finding that Mr Kemp had been warned about his unsatisfactory attendance before his dismissal.
(g) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
[65] Mr Kemp submitted that the manner in which the dismissal was effected was harsh and that he was denied a ‘fair go’, notwithstanding the absence of specialist human resources involvement in the dismissal 86. Railway Sand did not submit that its size was a mitigating factor in the matter87.
[66] Accordingly, I do not consider the size of the employer’s enterprise is a relevant consideration in this matter.
(h) 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
[67] As noted above, Mr Kemp submitted that the manner in which the dismissal was effected was harsh and that he was denied a ‘fair go’, notwithstanding the absence of specialist human resources involvement in the dismissal 88. Railway Sand in its submissions pointed out that there are no specialist human resources management resources on site89.
[68] An objective assessment of the procedure followed in this case suggests that the process was not as sequential or as well documented as best practice might dictate. This in part reflects the absence of human resource specialists and Mr Couch’s self acknowledged inexperience as a manager.
[69] However, the question that flows from that assessment is whether the procedure resulted in Mr Kemp being denied a “fair go’. When looked at in totality, the evidence does not support a finding to that effect. If anything the evidence supports a finding that Railway Sand demonstrated considerable patience in dealing with Mr Kemp’s attendance issues and provided Mr Kemp with ample opportunity to address those issues.
(h) Any other matters that FWC considers relevant
[70] Mr Kemp submitted that Railway Sand had not treated him in a good and considerate manner, relying on Nettlefold v Kym Smoker Pty Ltd 90(Nettlefold). However, Nettlefold can be distinguished from this case in that the applicant in that matter, Ms Nettlefold, was described by Lee J as having:
“... worked well and diligently in her first regular employment. A good and considerate employer would be aware that a sudden and unexpected termination of Mr Nettlefold’s employment would cause her embarrassment and the lowering of her self-esteem.” 91
The concept of “good and considerate manner” espoused by Lee J in Nettlefold connotes a degree of reciprocity which appears somewhat lacking in this case.
[71] Mr Kemp further submitted that Railway Sand treated him in a harsh and discriminatory way by removing him from the night shift and transferring him to the day shift in retribution for his absence due to illness, adding that no reasonable employer would treat an employee in such a punitive way in circumstances of illness and having to care for their partner 92.
[72] Conversely, Railway Sand cited the adverse impact of Mr Kemp’s failure to provide notification of his absences in a timely way on the operations of its wash plant, Mr Kemp’s lack of remorse and his period of service as relevant considerations 93.
[73] Mr Couch’s uncontested evidence that night shift employees raised concerns with him regarding Mr Kemp’s attendance together with Mr Thomas’ evidence that Mr Kemp was too unreliable for night shift as his absences could not be covered do not support a finding that the transfer was not punitive but rather that the transfer was reflective of the business’ needs.
[74] It is acknowledged that Mr Kemp had issues outside work impacting on him over the period July until his dismissal in early November 2013. However, no evidence was led as to what, if any extent, Mr Kemp’s unexplained absences were directly related to these external factors. Accordingly, in the absence of such probative evidence, no weight can be attached to the impact of these issues as a mitigating factor.
[75] One other issue raised in the proceedings was Mr Kemp’s alleged use of Railway Sand’s workshop to work on his private motor vehicle during work time. The issue was raised by Mr Couch in his witness statement as an incident which, with the benefit of hindsight, warranted a warning, though no warning was issued 94. However, Mr Couch’s evidence on this issue under cross examination was inconsistent with his witness statement. Mr Kemp contended that this inconsistency was one reason why his evidence should be preferred to that of Mr Couch95. I do not accept that submission given that the diary notes support key aspects of Mr Couch’s evidence and Railway Sand’s submissions. Nevertheless it needs to be acknowledged that the grasp of details regarding key dates and particular events exhibited by key witnesses in this matter was at times wanting. For instance, Mr Kemp’s evidence under cross examination was that both he and Ms Verdon had unsuccessfully tried to contact Mr Thomas on 7 October 2013 to inform him of his illness96, whereas Mr Thomas’ evidence was that Mr Kemp had not made contact on that day97. However, the diary note for that day clearly indicates that he did. Put another way, the diary notes constitute compelling evidence of Mr Kemp’s absences.
[76] Finally, I observe that Mr Kemp at the time of his dismissal had been employed by Railway Sand for three years. While not a short period, it is conversely not an extended period. As such, I do not consider Mr Kemp’s period of employment to be a factor which the Commission should take into account.
[77] Against that background, I am satisfied that there are no other relevant matters which the Commission should take into account.
Conclusion
[78] Drawing on the above analysis, I find that there was a valid reason for Mr Kemp’s dismissal, that he was notified of the reason and was given an opportunity to respond, that he was able to and but did not seek the assistance of a support person and that there are no other relevant matters.
[79] For all these reasons I do not consider that Mr Kemp’s dismissal was harsh, unjust or unreasonable. Accordingly, I dismiss the application. An order to this effect is attached at PR552316.
DEPUTY PRESIDENT
Appearances:
G. Dircks for the Applicant.
A. Dalton for the Respondent.
Hearing details:
2014.
Melbourne:
May 12, 13.
1 Exhibit D1 at Attachment DK2
2 Ibid
3 Transcript at PN671
4 Exhibit D1 at Attachment DK3
5 Exhibit D3 - Outline of Submissions
6 Exhibit D1
7 Transcript at PN61
8 Ibid at PN62-63
9 Ibid at PN88
10 Ibid at PN92-94
11 Ibid at PN97-104
12 Ibid at PN116-117
13 Ibid at PN153
14 Ibid at PN160
15 Ibid at PN165-170
16 Ibid at PN174
17 Ibid at PN192
18 Ibid at PN230
19 Ibid at PN242-254
20 Ibid at PN287-288
21 Ibid at PN301
22 Ibid at PN1339
23 Exhibit D2
24 Transcript at PN336-344
25 Exhibit AD5 - Respondent’s Outline of Submissions
26 Exhibit AD1
27 Transcript at PN366
28 Ibid at PN376-378
29 Ibid at PN383 and PN615
30 Ibid at PN386-391
31 Ibid at PN403
32 Ibid at PN407
33 Ibid at PN433-434
34 Ibid at PN463-468
35 Ibid at PN491-497
36 Ibid at PN527-536
37 Ibid at PN561
38 Ibid at PN563
39 Ibid at PN580-590
40 Ibid at PN657-667
41 Ibid at PN783-785
42 Exhibit AD3
43 Ibid at paragraph 10
44 Ibid at paragraph 6
45 Ibid
46 Ibid at paragraph 7
47 Ibid at paragraph 8
48 Ibid at paragraph 12
49 Ibid at paragraph 16
50 Ibid at paragraph 33
51 Ibid at paragraphs 18-19
52 Ibid at paragraph 20
53 Ibid at paragraph 27
54 Ibid at paragraphs 29-30
55 Ibid at paragraphs 42-43
56 Transcript at PN862-874
57 Ibid at PN896-921
58 Ibid at PN939-941
59 Ibid at PN965
60 Ibid at PN1004
61 Ibid at PN1118
62 Exhibit AD4
63 Transcript at PN922
64 Exhibit AD2
65 Print R4471
66 (1995) 62 IR 371
67 Exhibit AD5 at paragraph 12
68 Exhibit AD4
69 Exhibit AD5 at Attachments R1 and R2
70 Transcript at 1198-1200
71 Ibid at PN1267
72 Ibid at PN61
73 Exhibit D3 at paragraph 6
74 Exhibit AD5 at Attachment R5
75 Exhibit D3 at paragraph 25
76 Exhibit AD5 at paragraphs 56-57
77 Ibid at Attachment DK3
78 Exhibit D3 at paragraph 34
79 Exhibit AD5 at paragraphs 58-59
80 Exhibit AD3 at paragraph 20
81 Exhibit AD1 at paragraphs 8-10
82 Exhibit D1 at Attachment DK2
83 Exhibit D1 at Attachment DK3
84 Exhibit D3 at paragraphs 40-43
85 Exhibit AD5 at paragraphs 61-64
86 Exhibit D3 at paragraph 45
87 Exhibit AD5 at paragraph 66
88 Exhibit D3 at paragraph 45
89 Exhibit AD5 at paragraph 67
90 69 IR 370 at 372
91 Ibid at 374
92 Exhibit D3 at paragraphs 46-50
93 Exhibit AD5 at paragraphs 69-72
94 Exhibit AD3 at paragraphs 25-26
95 Transcript at PN1380
96 Ibid at PN165-170
97 Exhibit AD1 at paragraph 11
Printed by authority of the Commonwealth Government Printer
<Price code C, PR552315>
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