David Wennerbom v Renegade Security Pty Ltd
[2011] FWA 4422
•29 JULY 2011
[2011] FWA 4422 |
|
DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
David Wennerbom
v
Renegade Security Pty Ltd
(U2011/5438)
DEPUTY PRESIDENT SAMS | SYDNEY, 29 JULY 2011 |
Application for unfair dismissal remedy - performance issues - alteration of employment contract - ‘bad mouthing’ of respondent - swearing - racist comments - warnings - position demotion - complaint to Fair Work Ombudsman (FWO) - whether applicant’s dismissal ‘harsh, unreasonable or unjust’ - mutual breakdown in employment relationship - dismissal not unfair - application dismissed.
[1] Mr David Wennerbom (‘the applicant’) was dismissed from his employment as a security officer by Renegade Security Pty Ltd (‘the respondent’) on 15 February 2011. The respondent is engaged in the provision of security and associated services in Darwin, Northern Territory. The letter terminating the applicant was expressed in the following terms:
Subject: TERMINATION LETTER
As you have continuing threat and talking bad things about Renegade Security Pty Ltd & Myself Reno Martin, and you threaten to take me to ombudsman for your false claim and you have continuing of your bad behaviour towards my business direct and in direct, Renegade Security Pty Ltd have terminate your employment from Today date: 15/02/2011 with in lieu payment of two weeks wages in total of hours = 48 hour in base, Saturday = 16 hour - Sunday = 16 hour, Total amount in Gross is = $1936. dollar. All uniform and all documents belong to Renegade Security Pty Ltd must return by Wednesday the 16/02/11 before pay day and when you have return all of belongings, we will pay you the two week wages. Renegade with you for your future for all the best and thank you for your contribution in past. Kind Regard: Reno Martin: Date 15/02/11 Director (sic)
[2] On 25 February 2011, pursuant to s 394 of the Fair Work Act 2009 (‘the Act’), the applicant filed an application for an unfair dismissal remedy. The matter was unable to be resolved during a conciliation conference on 23 March 2011, and was subsequently allocated to me for arbitration in Darwin. An original objection to the application was taken by the respondent in respect to the applicability of the Small Business Fair Dismissal Code (‘the Code’) to this matter. This objection was subsequently not pressed. Accordingly, this decision will determine the applicant’s claim that his dismissal was ‘harsh, unreasonable and unjust’, within the meaning of s 387 of the Act.
BACKGROUND
[3] The applicant commenced employment with the respondent on a casual basis on 12 June 2007. On 27 January 2010, the applicant and the respondent entered into a contract of employment in which the applicant’s employment became full time. Relevantly, cl 5.1 of the contract stated that ‘You will receive an hourly rate with a base rate of no less than a Level 4 Security Officer, with agreed amendments discussed between both parties’.
[4] A second purported employment contract became the source of heated controversy between the parties. This document was prepared by the applicant on or about 10 July 2010, and is in identical terms to the earlier agreed employment contract, save for two significant differences. Firstly, cl 5.1 was altered to provide as follows: ‘You will receive an (sic) salary rate with no less than $1,500 weekly net pay’. Secondly, the purported contract was signed by the applicant, but not by the respondent. Indeed, the respondent (in the person of Mr Reno Martin, Director) claimed the document to be ‘fraudulent’ as it was never authorised or agreed that the applicant would be paid $1,500 nett per week. On the other hand, the applicant stated that this document merely reflected what had been verbally agreed between Mr Martin and himself in June 2010. I shall come back to the evidence concerning the creation of this document and how the applicant’s belief about what he was to be paid, ultimately became one of the reasons for his dismissal. Based on both the applicant’s evidence and the respondent’s payroll records from the date of the purported second contract, the applicant was only ever paid in excess of $1,500 nett per week on four occasions in July 2010. From August 2010, his weekly wages varied from around $700 to $1,000 nett per week, depending on overtime.
[5] On 4 February 2011, the applicant was advised by the respondent that he would be paid fortnightly rather than weekly. He vigorously opposed this change. On 8 February 2011, the applicant wrote to the respondent referring to:
- the alleged agreement to pay him $1,500 per week since June 2010;
- a verbal agreement with Mr Martin to temporarily reduce his salary when the respondent was suffering financial hardship;
- an outstanding amount of $15,289 being the difference between $1500 per week and what he was actually paid;
- the requested payment of all outstanding monies within 21 days; and
- informing the respondent that unless he heard from him within seven days he would consider approaching the Fair Work Ombudsman (FWO) to investigate and assist in resolving the matter.
[6] Very soon after these demands, the applicant received two written warnings. On 9 February 2011, Mr Martin wrote:
Subject: Position demotion:
Renegade Security Pty Ltd have decide to strip you off your position from second in charge because of your bad behaviour from the 4/02/11. Also Renegade Security Pty Ltd give you warning of using abusive language to myself on the 4/02/11 by phone messaging this is unacceptable and next time you will be terminated from your employment. Effective from 4/02/11 your status in Renegade security Pty Ltd is a normal guard with the payment continuing as per contract dated 27/01/10 in hour rate of time work and completed your shift as per roster not in salary cap like the false contract you have reprinted on 19/01/11 and you have changed some part of that without agreement by Renegade security Pty Ltd. As you no longer in charge I want you to return the lap top and the mobile phone no later than Monday the 14/02/11. In response to your letter and claims dated 08/02/11 I will respond to you in writing when I have an answer from the ombudsman. Also I need to see my lawyer regarding the car you have crash in 2009 while we working in drilling site and the false contract you have changed on 19/01/11 and backdated to 10/07/10 as my understanding this document have been a fraud document by you for your personal interest. Kind regard: Reno Martin. (sic)
[7] Then on 14 February 2011, Mr Martin wrote:
Subject: Last warning:
As you have continuing threat and talking bad things about Renegade security Pty Ltd & Myself Reno Martin, I want to warn you this the last warning to remind you to behave in the good faith of Renegade security Pty Ltd. Because I have lots of people you have been talking to, they have inform me about what you have saying to them and you have continue to propaganda saying Reno is a bad guy, that’s again not acceptable while you still working for Renegade security Pty Ltd, you need to performance in in a good manner at all the time other ways your employment will be terminate in the favour of Renegade security Pty Ltd interest.
Regarding to your claim for $1500 in Net pay per week Renegade security have owing you $0.00 dollar {Zero} I have see fair work ombudsman and I wish you to go and see them or lodge the complaining to them.
Also I have pay you more than awards but if you want to go and complaining to them about it I will wait for that and see, you might ended to pay me back some money because you have been pay too much for not doing enough hour to earn that money. My Lawyer have looked all this matter and will lodge to the court for your dishonest and try to fraud and change the contract and all the money you have owning for you have crash the working car in 2009. Also will be follow by debt Collector. And last subject here is you might get charge with breach of your contract with Renegade security Pty Ltd for leaking information and privacy of Renegade security Pty Ltd to other people. Kind regard, Reno Martin. (sic)
EVIDENCE
[8] There was no statement filed by the applicant, nor any statement/s from persons supporting his application.
[9] In other filed documents, Mr Martin made a number of allegations against the applicant. Firstly, he claimed that he had been ‘bad mouthing’ the business and approaching the respondent’s clients in order to jeopardise the business. Secondly, the applicant had been abusive and swore at him. Thirdly, the applicant had made racist comments about him and other of the respondent’s employees. Fourthly, he had created a false employment contract demanding payment of $1,500 per week, without Mr Martin’s authorisation, signature or knowledge. Mr Martin believed this was deliberate, wrongful and dishonest behaviour. Fifthly, the applicant had applied for a new job without informing the respondent or telling him he was unhappy and looking for another position. Mr Martin also said this action was deceitful. Sixthly, the applicant owed the respondent $20,500 for the damage he caused to a work vehicle in 2009 when he was driving without a licence and without the respondent’s knowledge or permission.
[10] Mr Martin further noted that after the applicant had been dismissed, he went on to ‘Facebook’ and said he left (his employment) of his own accord and it was ‘the best thing I have done in my life. I left Renegade Security so please don’t call me on the work phone’.
[11] The applicant relied on his originating application. In answer to Question 3 of Form F2 - Application for Unfair Dismissal Remedy, the applicant said the reasons why his dismissal was unfair were:
• Demoted without notice
• Bullied to change worksites
• Informed by parties other than Renegade Security Services Pty Ltd of demotion
• Emotional blackmail to comply with changes
• Bullied into changes of work conditions (don’t like it quit).
[12] Mr Martin denied bullying the applicant. Moreover, all the work of the respondent is the same on all sites. Mr Martin said that the applicant was paid for more hours than he worked. He had been provided with a free mobile phone and laptop. Mr Martin said that when he moved to fortnightly pays to save administrative costs, the applicant had texted him and said ‘its fucken bullshit, i am going for a casino job and going to give workplace ombo (FWO) a call’. Mr Martin said he replied ‘don’t threaten me, do what ever you want’.
[13] In oral evidence, Mr Martin confirmed that he had saved this text message from the applicant. Mr Martin said that as a result of this conversation he demoted the applicant from Operations Manager and he advised his clients of the demotion at the same time.
[14] Mr Martin said that the applicant was looking for another job while still employed by him and he was telling other staff he was going on a holiday and not coming back. At the time, Mr Martin was unaware of this and now believed it to be a conflict of interest.
[15] Mr Martin agreed that the respondent’s claim for reimbursement of the cost for damaging the car was a matter for another jurisdiction. However, Mr Martin believed it demonstrated the applicant’s bad character. Mr Martin said that Mr Ken Beaver, another security guard, saw the applicant’s posting on ‘Facebook’ and told him about it.
[16] The applicant questioned Mr Martin about underpayment of entitlements under the Award. Mr Martin said the applicant was paid far more than he was entitled to, including on termination. Mr Martin agreed that he had mentioned the applicant going to the FWO in the termination letter. Mr Martin believed the attempt by the applicant to be paid $1,500 per week under a new contract, was ‘attempted fraud’. A witness had seen the applicant printing the new contract in the office. Mr Martin agreed the document had not been signed by him.
[17] Mr Martin said the applicant did not change his behaviour of swearing after he had been warned. He kept threatening him and his performance was not 100%. Mr Martin said he had always tried to look after the applicant and had even made him Operations Manager, despite the applicant never securing any new contracts.
[18] In re-examination, Mr Martin said that the applicant’s poor behaviour did not change between the first warning on 9 February 2011 and second warning on 14 February 2011. In fact, it was getting worse and that is why he was dismissed.
[19] Mr Martin explained the verbal agreement he had with the applicant to pay him more money. He had just said that if the business ‘is going good I will pay you good money’. However, the business went down. Mr Martin said he paid the applicant according to the Level 4 Security Award rate.
[20] Mr Martin cited a number of reasons for the applicant’s dismissal, which included:
- Attempted fraud;
- The car crash;
- Bad mouthing the business to clients; and
- Racist comments about other members of staff.
[21] A number of the respondent’s employees provided statements and/or gave oral evidence. Mr Beaver said that before the applicant went on holidays he had told him he was looking for a new job because he was not getting enough money on four or five shifts. Mr Beaver said the applicant would say bad things about Mr Martin. He also told him he wanted to organise a strike over the fortnightly pay issue. When he was leaving he had said that ‘only you and the Indians are left’.
[22] In oral evidence, Mr Beaver deposed that the applicant had told him he was bullied into leaving the respondent because he had been ‘bad mouthing’ the respondent to everyone. Mr Beaver believed that by referring to the other employees as ‘the Indians’ the applicant was being racist.
[23] Mr Lovepreet Singh, Security Guard, said that the applicant told him he was looking for another job and that Mr Martin should pay him $150,000 a year and had owed him $20,000. Mr Singh believed the applicant was racist as he did not like Indians.
[24] Mr Singh deposed that the applicant was particularly racist towards Mr Nardeep Singh saying things like ‘he’d be happy when he was deported’. Mr Singh accepted that the applicant had not been racist towards him. Mr Singh deposed that the applicant was always saying to him how he was looking for another job.
[25] Mr Pardeep Singh Sandau, Security Guard, said that on one occasion the applicant told him he did not like Mr Martin and was going to quit the next morning and join Sky City (Casino).
[26] Both Mr Singh Sandau and Mr Harmeet Dhalimal, Security Guard, acknowledged that the applicant had not been racist towards them.
[27] Mr Nardeep Singh, Security Guard, said he had learnt about what the applicant was saying about him from others. Mr Singh said he was in the office when the applicant printed out the second purported contract. He saw it was signed by the applicant and left for Mr Martin on the desk. He did not go through the document, but was told about its contents later.
[28] Ms A Shaw, the applicant’s adviser, was granted leave to ask the applicant questions in the absence of any evidence in chief from him.
[29] The applicant said that up to 9 February 2011, Mr Martin never had any cause to question his performance. Moreover, he was never given any time frame in which to improve his behaviour (the swearing) and it was not specified what it was he was alleged to have said. He noted that he was dismissed the day after the second warning. The applicant said that Mr Martin never sat down with him to discuss anything he was unhappy with. He had found Mr Martin ‘elusive’ and ‘distant’. The applicant did not believe his behaviour warranted instant dismissal.
[30] In respect to the second employment contract, the applicant had assumed it was agreed as the next few weeks’ wages reflected the amount he said was agreed upon. The applicant accepted that the respondent had lost a big contract in July 2010, which dramatically reduced the number of employees and the number of shifts worked by the remainder. A meeting with all employees was held to announce the changes. Prior to losing the contract, the applicant was paid around $1,500 per week, which reflected the number of shifts he worked, although he was the Operations Manager.
[31] In further oral evidence, the applicant firstly said that he did not crash a work vehicle in 2009. He then agreed he had, because the earlier question was not specific. He said he had a licence at the time, but then clarified his answer to be a learner’s licence. He was aware that he was not allowed to drive the car and it cost thousands of dollars to repair.
[32] The applicant acknowledged swearing at Mr Martin, but said that it had to be seen in proper context. The text message was a general outburst, not directed at Mr Martin and this was the only occasion he had sworn. The applicant claimed he had not ‘bad mouthed’ the respondent – it was his personal thoughts and what he was obliged to disclose to the clients by law. He denied approaching one of the respondent’s clients whose business was subsequently lost. The applicant could not recall how many times he may have told clients Mr Martin was not doing a good job. The applicant claimed that he did not refer to his work colleagues by race, but may have referred to some of them as those ‘Indian boys’.
SUBMISSIONS
For the respondent
[33] Ms O Go, Solicitor, submitted that the applicant was not unfairly dismissed and the respondent had complied with the Code. He had been given two warnings and his conduct hadn’t changed. He ‘bad mouthed’ the respondent, attempted fraud, made racist comments and crashed a work car. On the fraud issue alone, the applicant deserved to be summarily dismissed. However, the respondent did not take that course.
For the applicant
[34] The applicant submitted that the respondent did not comply with the Code. A number of witnesses denied being subject to racism and the allegations of ‘bad mouthing’ the respondent and Mr Martin were hearsay. He also believed his privacy was breached when clients were told of his demotion before he had been. The applicant said he secured employment immediately after his dismissal with another security company. However, he claimed his reputation was damaged and he had suffered emotional stress from the dismissal. He claimed compensation of an unspecified amount.
CONSIDERATION
[35] At this juncture, I note that the applicant was unrepresented and that this created all the usual difficulties. In addition, there was no statement filed by the applicant. The respondent’s documentary material was repetitive and had been clearly prepared without proper advice. Nevertheless, the proceedings could only best be described as haphazard and free flowing. To have imposed a strict discipline on the parties as to the relevance of evidence and ordinary procedure would, in my view, have been pointless. In any event, I am satisfied that both parties were given a fair opportunity to put whatever they wished the Tribunal take into account when determining this matter.
[36] Despite some earlier misgivings of the respondent, it seems to me the case proceeded on the understanding that:
a) the applicant was a person protected from unfair dismissal (s 382 of the Act);
b) the applicant was dismissed from his employment at the initiative of the employer (s 386 of the Act);
c) the applicant had the requisite minimum period of employment with the employer (s 383 of the Act); and
d) the dismissal was not a case of genuine redundancy (s 389 of the Act).
[37] That said, on its face, the applicant would appear to have been dismissed for serious and wilful misconduct. Indeed, this was how it was recorded by the respondent, in the Small Business Fair Dismissal Checklist. I note that Mr Martin described the applicant’s creation of a second contract as deliberate and dishonest fraud and other of his actions as not acting in the best interests of the respondent. Of course, the applicant was not actually summarily dismissed, but was paid two weeks pay in lieu of notice. In addition, by adopting the Code, particularly as to warnings, the respondent appears to have treated the termination of employment, both as a summary dismissal and one based on poor performance and conduct, for which two warnings had been given.
[38] Notwithstanding these observations, and in light of the informality of the proceedings, little turns on whether this was a dismissal for serious misconduct, or one based on the ordinary understanding of a dismissal for poor performance. This is so because no different considerations arise when the Tribunal is required to determine whether the applicant’s dismissal was ‘harsh, unreasonable or unjust’ within the meaning of s 387 of the Act (see Magers v Commonwealth of Australia (Department of Health and Ageing)[2010] FWAFB 4385). Unsurprisingly, neither party relied on any authorities of the Tribunal as to the tests to be applied in a case such as this. However, in order for both of them to understand and appreciate the principles under which FWA operates in deciding this matter, I set out the legislative framework underpinning the application, the commonly cited authorities as to the meaning of ‘harsh, unreasonable and unjust’ and the meaning of what constitutes a ‘valid reason’ for dismissal.
[39] A ‘valid reason’ for dismissal must be one that is ‘sound, defensible or well founded’. It cannot be a reason which is ‘capricious, fanciful, spiteful or prejudiced’. These words are extracted from a well known decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, at page 373:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. 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 reasons 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 treated fairly”.
[40] In Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, the High Court discussed the meaning of ‘harsh, unreasonable and unjust’ and said:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted”.
[41] Section 387 of the Act below, sets out the matters FWA is required to take into account when determining this matter:
(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 FWA considers relevant.
[42] It should not be lost sight of that underpinning the unfair dismissal jurisdiction of FWA, are the object and principles found in s 381 of the Act, which are as follows:
381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.
[43] In assessing all the evidence in this case (such as it was), I am able to comfortably arrive at one positive conclusion; the applicant was not happy in his job and was actively seeking alternative employment. He did not, and could not, deny that he was looking for another better paid job. His comment in the text message to Mr Martin ‘Its fucken bullshit, i am going for a casino job and going to give workplace ombo a call’, is a rather inelegant, yet neat summation of how he felt about Mr Martin and his job. The later ‘Facebook’ entry described his leaving as the best thing he had ever done. Moreover, other of his work colleagues attested to his desire to leave the employ of the respondent for something better. Nitpicking over whether he was paid weekly, or fortnightly, merely reinforced his discontent. In my assessment, it was only a matter of a short time before the employment relationship would have ended, at one or other of the parties’ initiative.
[44] In what was rapidly descending into a toxic relationship between the applicant and Mr Martin, it is perhaps unsurprising that the applicant would lose all interest in at least maintaining a semblance of loyalty and fidelity to the employment relationship, as he was obliged to do. This notion was referred to by McHugh J in Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160, as:
“The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law:
“[c]conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ...[T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.”
In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the “confidence” essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer’s counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company’s service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee’s summary dismissal.
It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal.”
[45] With the above observations in mind, I accept the evidence that the applicant:
- swore at, and was therefore, disrespectful to his employer;
- was less than honest with his employer as to his commitment and loyalty to the respondent;
- breached his duty of confidentiality in the employment relationship by ‘bad mouthing’ the respondent to its clients. While I accept the evidence on this matter is hearsay, it seems to me to be entirely consistent with the applicant’s other behaviour and is therefore found to have occurred on the ‘balance of probabilities’; and
- made a claim against the respondent which had no basis in any agreement with, or acknowledgment by, Mr Martin.
[46] In respect to this last matter, I accept Mr Martin took great offence at being threatened by an FWO investigation. As the claim had no basis in fact or law, I do not accept that this was a reason for his dismissal. It was the way he went about altering the contract, not necessarily a threat to take an unsustainable claim to the FWO which plainly angered Mr Martin. True it was that the applicant had received in excess of $1,500 nett per week for the month of July 2010. But it cannot be ignored that a significant downturn in business during that month saw a dramatic loss of work and reductions in pay for the employees. The applicant was part of, and accepted these arrangements. It was only when his leaving seemed inevitable that the claim of underpayments was re-agitated. I hasten to add that, while the applicant’s alteration of his contract was improper, and at best a little cheeky, I would not characterise it as ‘fraud’ or ‘attempted fraud’. This is so because the respondent knew, at all relevant times, that such an unsigned contract had not been enforced, nor was it enforceable. Put simply, the respondent has not been defrauded of anything.
[47] As to the 2009 car crash, while it may have been a convenient excuse and a bit of ‘quid pro quo’ for the respondent to raise this matter when the employment relationship was breaking down, in my opinion, it could not reasonably form a valid basis for the applicant’s dismissal, many months later. This is so, given there was no evidence that the respondent had sought recovery of the costs it had incurred until the employment relationship was on the brink of collapse. In any event, this is a matter that may be pursued in another place, should the respondent be so inclined.
[48] In addition, I also find the evidence as to the applicant’s alleged racism to be insufficient for it to be a valid reason for the applicant’s dismissal. Firstly, there had been no independent complaint made about this allegation, nor any investigation into it by the respondent. Secondly, at least three employee witnesses denied that the applicant had made racist remarks to them.
[49] Notwithstanding my rejection of two of the grounds cited by the respondent for the applicant’s dismissal, I consider the matters I earlier found proven, constitute in combination, a valid reason for the applicant’s dismissal.
[50] This brings me to the Code. From the forgoing consideration as to the applicant’s conduct, reliance on the Code by the respondent (including in respect to warnings) was not strictly necessary. However, in deference to the applicant’s argument that the Code was not followed, I make the following observations.
[51] As I apprehend the applicant’s argument, his only complaint was that the warnings issued by the respondent and his subsequent dismissal the day after the second warning, did not provide him with a reasonable amount of time to improve his conduct. (See Question 8(b) of the Code’s checklist.) I reject this proposition. Firstly, while the warnings were rather loosely crafted, the applicant would have been under no illusions on 9 February 2011, about the reasons for his demotion. Notwithstanding this understanding, his behaviour continued until the second warning of 14 February 2011. The intervening period was more than sufficient time for the applicant to have modified his behaviour. Moreover, it seems the loss of trust and confidence in the applicant was not reversed, but, in fact, accelerated to its inevitable result. While it might be said that one day between the second warning and dismissal was very short, in my opinion, it must be seen in the wider context of the complete breakdown in the employment relationship, by that time. Indeed, on one view, the applicant’s notorious text message of 4 February 2011 could well have been grounds for instant dismissal. It is noted that his employment survived for a further 10 days and may well have continued had he not set about on a course of forcing the respondent’s hand. Nevertheless, I am satisfied that the respondent complied with its obligations under the Code. I turn now to the other criteria in s 387 of the Act, which FWA is required to take into account when considering whether the applicant’s dismissal was unfair.
[52] There can be no doubt that the applicant was notified of the reason/s for his dismissal subsection (b), although as I said earlier two of the reasons were not valid. Subsection (c) requires that a person be given an opportunity to respond to the allegations. In my opinion, this subsection presumes that the person wants to defend his / her position in order to have the employer change its mind as to a proposed dismissal. Given that the applicant had every intention of ending the employment relationship and, indeed, welcomed it, it would have been an absurd exercise for him to be given an opportunity to respond in order to save a job he didn’t want. Subsection (d) is similarly not relevant to the circumstances of this case. I have already dealt with the issue of warnings given by the employer (subsection (e)).
[53] It was abundantly clear that the respondent was a small employer and that Mr Martin did not have a sophisticated knowledge of industrial relations laws or practices. Obviously, he was aware of the Code; however, the evidence in this case demonstrated a lack of human resource management expertise. In my view, Mr Martin was acting largely on an innate instinct as to what was ‘right and wrong’ with the employment relationship. To that extent, the principles of what constitutes a ‘fair go all round’ have particular resonance in this case. The other matters I have taken into account have been discussed earlier, but the primary one was the applicant’s conduct and behaviour did not evince any intention by him that he wished the employment relationship to remain on foot. In fact, quite the contrary.
[54] In addition, I have also had regard for the fact that the applicant secured alternative employment immediately after his dismissal. This is to his credit. He therefore suffered no financial detriment. However, he claimed to have suffered a loss of reputation and emotional stress from the dismissal. As to his loss of reputation, I do not apprehend how that argument can be sustained, given it did not seem to hamper, at all, his capacity to secure immediate alternative employment. As to emotional stress, I am bound to observe that almost every case of dismissal involves some degree of emotional stress for the dismissed employee; particularly when it is in circumstances such as here disclosed. The applicant is no ‘Robinson Crusoe’ in this respect. In any event, there was no medical evidence sought to be adduced by the applicant to substantiate this claim. However, more significantly s 392(4) of the Act, specifically proscribes such considerations being taken into account by FWA in ordering compensation. The section is expressed as follows:
(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
[55] For all the aforementioned reasons, I am not satisfied that the applicant’s dismissal on 15 February 2011, was ‘harsh, unreasonable or unjust’ within the meaning of s 387 of the Act. His application for an unfair dismissal remedy is dismissed. An order to that effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Mr D Wennerbom, unrepresented
Ms O Go, Solicitor for the respondent
Hearing details:
2011
SYDNEY
21 April
Decision Summary
TERMINATION OF EMPLOYMENT – misconduct – Small Business Fair Dismissal Code – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant abusive to, swore at and bad mouthed respondent – racist comments made to colleagues – damaged work vehicle – combination of reasons formed valid reason for dismissal – satisfied respondent complied with Small Business Fair Dismissal Code – mutual breakdown in employment relationship – dismissal not harsh, unreasonable or unjust – application dismissed. | ||||
Wennerbom v Renegade Security P/L | ||||
U2011/5438 | [2011] FWA 4422 | |||
Sams DP | Sydney | 29 July 2011 | ||
Citation: Wennerbom v Renegade Security P/L [2011] FWA 4422 (29 July 2011) | ||||
Printed by authority of the Commonwealth Government Printer
<Price code C, PR511421>
0
3
0