Darron Derwin v Garry Varley T/A Ezibuild Frame & Truss Pty Ltd

[2014] FWC 1294

[2014] FWC 1294

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darron Derwin
v
Garry Varley T/A Ezibuild Frame & Truss Pty Ltd
(U2013/12836)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 FEBRUARY 2014

Application for relief from unfair dismissal dismissed.

[1] Mr Darron Derwin made an application alleging his dismissal by Ezibuild Frame & Truss Pty Ltd (Ezibuild) was unfair.

[2] The application was referred to conciliation on 9 October 2013 which did not occur because neither Mr Derwin nor his representative appeared.

[3] On 10 October 2013, Ezibuild objected to the application on the grounds that it was a small business and that Mr Derwin was guilty of serious misconduct.

[4] On 20 November 2013, Ezibuild filed material in support of their objection.

[5] On 21 November 2013, the Fair Work Commission (the Commission) received an email from Mr Derwin’s representative advising that they no longer acted for him.

[6] On 6 December 2013, a non compliance hearing was held and Mr Derwin did not attend. A letter was sent to Mr Derwin on 20 December 2013 advising him that if he did not file material in opposition to the material filed by Ezibuild by 10:00am on 6 January 2014 then his application would be determined on the papers. Mr Derwin did not respond to this correspondence.

[7] Ezibuild is a small business. It terminated Mr Derwin for misconduct and paid him four weeks pay in lieu of notice.

[8] Two statutory declarations were filed by Ezibuild.

[9] Mr Garry Varley, the Manager of Ezibuild, deposed that from around 16 July 2013 Mr Derwin’s conduct deteriorated and he became threatening and abusive towards other staff. Mr Varley received complaints about Mr Derwin’s behaviour and counselled Mr Derwin however Mr Derwin response was to become abusive and threatening to Mr Varley. Mr Derwin was directed not to approach the complainant. However he ignored this direction and was again abusive towards the complainant. Mr Varley was subsequently advised by the complainant that he was fearful of Mr Derwin and this was having a negative impact on his health and work.

[10] The complainant also deposed that Mr Derwin had behaved in an abusive and threatening way towards him on 16 July 2013 and that the behaviour continued for a period of two weeks. He confirmed that he made a complaint about Mr Derwin’s conduct because it was having an impact on his health and his work. After he made the complaint he was again abused by Mr Derwin.

[11] The evidence establishes that Mr Derwin behaved in an inappropriate manner in the workplace and despite being counselled he continued to behave in an inappropriate manner.

[12] The Act at section 385 provides that a person has not been unfairly dismissed if the Fair Work Commission 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.”

[13] It is not disputed that the Small Business Fair Dismissal Code (the Code) applies.

“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 the Fair Work Commission, 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.”

[14] Mr Derwin’s conduct was such that Ezibuild would have been entitled to terminate his employment summarily. Ezibuild paid Mr Derwin four weeks in lieu of notice. Mr Derwin was warned about his behaviour and continued to behave an inappropriate manner.

[15] I find that his dismissal was consistent with the code and therefore Mr Derwin’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

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