[2020] FWC 1908

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Davide Foffi
v
AHS Contracting WA Pty Ltd
(U2019/10290)

DEPUTY PRESIDENT SAMS

SYDNEY, 25 MAY 2020

Application for an unfair dismissal remedy – maintenance plumber – reinstatement sought – allegations of falsifying timesheets – unwillingness to perform the inherent requirements of the role of a plumber – history of incidents and warnings – no written or formal warnings – claim of no opportunity to challenge or explain the respondent’s allegations – denial of any warnings or discussion about conduct or performance – support person not present at warnings – allegations of bullying and harassment not sustained – failure to disclose previous back injury – warnings need not be in writing or in presence of support person – conflicting evidence – applicant’s evidence not credible and inconsistent – numerous warnings given and no change in behaviour – client directs applicant not to attend site – no other assignment options - reputational damage– valid reason for dismissal – no procedural unfairness – alternative casual employment obtained – mitigating factors not outweighed by seriousness of conduct and lack of trust and credibility – dismissal not harsh, unjust or unreasonable – application dismissed.

[1] Mr Davide Foffi (the ‘applicant’) has filed an application with the Fair Work Commission (the ‘Commission’), pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) in which he seeks reinstatement to his former position as a Plumber employed by AHS Contracting WA Pty Ltd (‘AHS’ or the ‘respondent’), following his dismissal on 12 September 2019. The applicant commenced employment on 27 March 2017. He was paid an all-purpose hourly rate of $40 for a 38-hour week (as at the date of dismissal) under the Anchor Hydraulic Services Pty Ltd Enterprise Agreement 2015 (the ‘Agreement’). AHS is not defined as a ‘small business’ employer, although I note it only has 25 employees.

[2] The confirmation of the applicant’s termination of employment was set out in a letter, dated 11 September 2019 (effective 12 September 2019), which reads as follows:

‘Dear Davide,

TERMINATION OF YOUR EMPLOYMENT

I refer to the meeting with myself, Andrew Page, Chris Blakeley, yourself and your support person, on 6 September 2019, and our commitment to advise of our decision in regard to your employment with AHS by COB today.

AHS gave you notice of its proposal to terminate your employment and invited you to show cause as to why your employment should not be terminated in a meeting held on 30 August 2019. You were asked to provide a response to the concerns.

You provided your response in the meeting held on 6th September, in the presence of your support person.

The specific issues that led to us asking you to show cause were:

• You continuing to falsify timesheets to obtain additional payment for hours not worked after repeated formal warnings. This behaviour has led to several clients advising that Davide will not be allowed access to work on their sites as there is no trust in him.

• Ongoing issues with you being either unwilling or unable to perform the physical requirements of your role.

• Your refusal to change your behaviour and practice, despite acknowledging your wrongdoing.

• Your unwillingness to respond, communicate or participate in the improvement process over the past year.

In making our decision on disciplinary options, we have taken into account the following:

• The history of incidents and warnings you have received since commencing employment;

• The notice we gave to you that your employment had become untenable and would be terminated if the ongoing refusal to take instruction re: claiming additional hours not worked; resulting in an inability to place you on particular sites continued; and your lack of change or response despite this;

• Your responses to our show cause notification (on 30th August) in the meeting held on 6th September in the presence of your support person;

• The personal circumstances you disclosed to us; and

• The likelihood of a continuation of the behaviour that is damaging our reputation and our business.

After taking these factors into consideration, we have made the decision to terminate your employment for behaviour and conduct that is in breach of AHS requirements. This termination will be effective as of 5pm Thursday 12th September 2019.

AHS will reimburse your annual leave entitlements for the period you were asked to take annual leave (whilst we made our determination about your ongoing employment). This period 28th August to 12^th September will be paid out to you, along with any other accrued annual leave entitlements, and 2 weeks in lieu of notice.

AHS will make this payment to you following your prompt return of all AHS property currently in your possession.

Yours sincerely

Michael Daffen
Director – AHS’

[3] The applicant filed this application on 12 September 2019, and the matter was the subject of an unsuccessful conciliation conference with a Commission conciliator on 28 October 2019. The matter was subsequently reallocated to me for hearing and determination to assist with workload issues in the Commission’s Western Australian list. In accordance with my usual practice, I convened a further conciliation conference by phone on 18 November 2019. This was unsuccessful and directions were issued (later amended), and a hearing was listed in Perth on 3 and 4 February 2020.

[4] The applicant appeared with a support person and spokesperson, Mr A Rajaratnam, Director, A22 Business Solutions, and with the assistance of an Italian interpreter. Mr Andrew Page, Chief Financial Officer (‘CFO’), appeared for the respondent.

THE EVIDENCE

[5] The following persons provided statement/s and oral evidence in the proceedings:

• the applicant;

• Mr Andrew Page, CFO;

• Mr Michael Daffen, Director; and

• Mr Chris Blakeley, Director.

The applicant

[6] The applicant’s evidence was that he had never received any formal verbal warnings or written warnings and had never been asked to attend any meeting to discuss his performance. The applicant said he had been instructed to account for every hour on the job, which included time in the workshop, travel, picking up parts and at the prisons. He had nothing to gain by falsifying timesheets, because he was paid a fixed wage and all times are recorded through the online timesheet system (‘Deputy’) and the hardcopy sheet is signed off by the client. He noted that he had no access to the Deputy system. He queried why, if there was systematic timesheet abuse, he had access to the prisons until 20 August 2019.

[7] In specific response to the allegations in the termination letter, the applicant added that:

• All clients sign for the plumbing work.

• He was happy to do manual handing safely. However, he had been repeatedly told to carry in excess of 20-25 kg steel tanks, without mechanical aid. He was just told ‘be careful, just do it’.

• He had never acknowledged any wrongdoing.

• He had been asked to maximise his time in the Deputy system and had always assisted and participated in the improvement process.

• He had taken the ‘show cause’ notice seriously. He had been called names such as ‘Pingu’, ridiculed, joked about and victimised. He had refused to accept any wrongdoing because he had not done anything wrong.

• He had worked around his work schedule to provide support and assistance to his family including his, wife, who is recovering from a serious illness.

• He had never deceived the company or clients. He was recognised as the best employee and was appreciated for being willing to be on ‘call out’ rosters. He had only added extra hours where he was securing parts or materials or in the workshop preparing for specific jobs.

[8] The applicant claimed he was told to drive in his own time from the yard to the client site, which he believed was unfair. He proposed an ‘efficiency gain’ by reference to Google Maps.

Respondent’s statement evidence and the applicant’s response

Mr Andrew Page

[9] Mr Page said that in the absence of a dedicated HR specialist, he together with the other Directors, Mr Blakeley and Mr Daffen, ensure all employees are aware of, and understand their employment terms and conditions and the Company’s policies and procedures.

[10] Over the course of 2019, Mr Page became aware of a number of instances where the applicant’s claimed hours on signature slips were not correct. In April 2019, he discussed with him the contractual terms for charging time to client jobs, and requested he cease charging for incorrect times.

[11] Mr Page believed that the applicant was aware that client representatives were not paying attention to what they were signing, and in some cases he had developed a level of familiarity with client representatives, and could ‘abuse’ their trust by obtaining signatures for false information. In some cases, the applicant obtained signatures on charges in advance of his attendance on site and after he had left site (when he could not be collecting materials). Mr Page claimed it was difficult to correlate exact times on the site to the timesheets and vice versa, despite his reconciliation attempts to do so.

Mr Page’s commentary on the applicant’s responses

[12] The applicant denied it was difficult to establish exact times on site, as the Deputy system is GPS enabled to track location. Moreover, he was never given an opportunity to challenge or explain his position.

[13] Mr Page felt that the applicant was almost certain that he could get away with incorrect charging. Mr Page had told him just because the client signed for the job, did not make his practice right. The applicant’s response demonstrated he fully understood what was expected and had been directed by management, but dismissed them. The applicant said this was a false allegation and sought documentary evidence of such discussion.

[14] Mr Page said that from April 2019 onwards, there had been approximately 12 formal and informal meetings with the applicant, sometimes with the other Directors, to advise him the Company was not comfortable with his charging practices. The applicant sought the specifics and documents to demonstrate these meetings actually occurred.

[15] Mr Page told the applicant that his behaviour was a risk to the business, and it must stop immediately. He was concerned the problem would escalate and discussion was had about him being ‘free to leave and work elsewhere’, without repercussions. The applicant said there is no evidence of any risk to the business. He had started to look for other work because Mr Daffen had also suggested he do so.

[16] Mr Page claimed that despite the above warning, the applicant’s practice continued, and it became necessary to re-credit hours charged for the applicant’s time to appease clients’ complaints, notwithstanding the applicant’s claim that there was no evidence of any client complaints.

[17] Mr Page referred to an incident reported to him on 16 June 2019, where another employee was called out to Hakea Prison. Prison staff were surprised not to see the applicant and said there was no fault to be fixed, but they knew the applicant ‘liked the weekend overtime’. Mr Page believed this may have been an agreed practice to help the applicant. The applicant responded by saying that the timesheets show he worked from 1pm - 5pm. Deputy shows 1.30pm to 5pm. However, Deputy shows he started at 9am and finished at Casuarina at 1.30pm and then worked at another prison site. The applicant said this was a vexatious allegation made by an employee who had abused him at the Company Christmas Party.

[18] Mr Page’s evidence was that no other plumber (approximately 20) had engaged in the behaviour of the applicant and no other discrepancies had been found involving any other employee.

Mr Chris Blakeley

[19] Mr Blakeley was the applicant’s direct supervisor and was responsible for managing his work performance, work ethic, his failure to follow reasonable directions regarding time recording and charging and his inability to perform the physical requirements of his role. The applicant replied by stating he had complied with all management requests.

[20] Mr Blakeley said the applicant had never raised any complaint that he had been asked to perform work outside safe work requirements. The applicant said he had been asked to undertake manual handling beyond safe limits. It was Mr Blakeley’s evidence that he had told the applicant again and again that all hours were correctly allocated against each specific work order and he was not to exaggerate times, or add hours, as the Company would be checked and audited. He also told him he was not to come to the office to start his work day, simply for convenience and he should start work at the specific work site (Hakea Prison). This was not time that could be charged to the client. Time was counted where the tasks involved picking up materials or tasks. The applicant said he had gone to the workshop to get parts and necessary items and had been advised to charge it to the job.

[21] Mr Blakeley was informed by Mr Page on 20 August 2019 of a further discrepancy in call out hours charged to a client, and he received an email from a client at another site about concerns with the applicant’s work ethic and charged times. The client asked for his removal from a site, the Bandyup Prison. This email read:

‘Hi Niall,

I would just like to raise my concerns and the concerns of the senior management team here at Bandyup, regarding the contracted plumber that attends Bandyup regular.

We would prefer that David Foffi from AHS plumbing does not attend Bandyup in the future due to his poor work ethic and adjusting his timesheets to record times that

he is not on site.

He has just submitted a timesheet for an hour that he says he completed back on the 9/7/2019.

This is not the first time that he has been questioned regarding his timesheets and the time he is on site.

Mr Newell hasstated [sic] that he is refusing to pay for this receipt.’

[22] The applicant said there was no evidence of historical allegations before this date. There had been no warnings, no documented meetings, no due process and no opportunity to explain his position in the presence of a support person. In respect of the email, he claimed there may be a valid reason for the extra hour, but he had never been given an opportunity to explain or challenge his unfair and unjust termination.

[23] Mr Blakeley called the applicant to a meeting on 22 August 2019. He explained the complaints against him and the evidence of his inflated hours, travelling to the office and claiming time, rather than going direct to the site and his ban on the Bandyup Prison site. Mr Blakeley asked him to take paid leave while the matter was further discussed by Management.

[24] Mr Blakeley said that on 6 September 2019, he and Mr Page met with the applicant and his support person, Mr Rajaratnam. After further deliberations and discussion, a decision was made on 10 September 2019, to dismiss the applicant and he was advised in a letter dated 11 September 2019.

Mr Michael Daffen

[25] Mr Daffen was not required for cross examination. His evidence was largely consistent with that of Mr Page and Mr Blakeley.

[26] Mr Daffen said he had cause to discuss performance and behavioural concerns, both informally and in formal meetings with the applicant on numerous occasions. The issues raised included unproductive time claimed when he was not even on site, and refusing to do physical work required by all plumbers within safe work requirements. He had not denied the applicant from bringing a support person to any of these meetings.

[27] Mr Daffen said that apart from these issues, the applicant was well liked and fitted in well with colleagues and management. This was inconsistent with his claim of harassment or bullying. A t-shirt with his nickname on it, was a common company practice, meant in fun and not with any intent to offend. At no time, until now, had the applicant raised any concerns in this regard.

[28] Mr Daffen said that on 21 June 2019, he had met with the applicant and told him for the reasons above, his ongoing employment was becoming untenable. On 20 August 2019, Programmed Facilities Maintenance (‘PFM’) sent an email to the Company requesting the applicant not be sent to Bandyup Prison in the future for the same reasons as above; see: [21] above. Mr Daffen was on leave when the applicant was stood down, but he agreed with this decision. On 29 August 2019, the Company received the following email from the applicant:

‘Hi guys,

In regards to the prisons jobs, I been kicked off from bandyup, with no reason ,hakea (sic) the same and Banksia all of us.

Just to remind you that I tried to collecting hours like what you guys expect us to do ,even (sic) all my colleagues know that.

Anyway, I'm sure that I can still easily carry out jobs in wooroloo, karnet, melaleuca, woondoo , schools, courts ecc ... (sic)

So there is no point to let me doing forced holiday even if you know that I already booked 1 month of holiday to back in Italy, this is really unfair!

More than this, I expect that people answer to the phone like I had night and day in the last 2 years to cover all the call out for your business.

Please reply as soon as you can to this email so I can understand the best way to proceed’.

[29] On 30 August 2019, he and Mr Page met with the applicant to discuss all the issues – essentially a show cause meeting. Mr Daffen provided detailed notes of this meeting. The applicant was directed to respond on 2 September 2019. On that date, the applicant sought further time for him to respond with his support person present. This was agreed and a further meeting was arranged on 6 September 2019. Mr Daffen provided further detailed notes of this meeting.

[30] At the meeting, the applicant’s back injury was discussed. It was pointed out that he had not disclosed his injury in his employment application. The applicant said he had never made a workers’ compensation claim and his back injury had not impacted on his work performance. After further consideration, a decision was made to terminate the applicant’s employment on 10 September 2019.

[31] Mr Daffen said he considered the following factors in determining the applicant’s dismissal:

‘(a) whether there was any room for confusion about the time recording requirements;

(b) was the information provided to me factual and from a reliable source;

(d) did he receive appropriate warnings and opportunities to improve;

(e) Mr Foffi's responses, whether he accepted responsibility, and was genuinely trying to change his behaviour;

(f) the consequences or risks of further breaches of the requirements, which in this case was a serious risk to our main contract with our client;

(g) how could we have contributed to this behaviour and situation; through our instructions or lack of correction or clarity; and

(h) his family and financial stresses as mitigating factors.’

The applicant

[32] In cross examination, the applicant claimed it had never been made clear to him to stop his practice of overcharging clients. All he and the other employees were told was to match the timesheets with Deputy. It was immaterial to him because he did not get any benefit. He stressed that he was a good worker with the ‘best paperwork’. He believed he was a ‘scapegoat’, because the Company was in trouble with its contracts. He claimed his name came up the most because he worked the most – sometimes 98 hours per week.

[33] The applicant denied he was told a number of times not to come to the yard before work and instead go straight to the site. Moreover, the yard was on the way to all the sites. He further denied charging the client from 7am, rather than when he got to the site around 8am. He had simply followed the directions of his boss (Mr Blakeley) and was ‘pushed’ to do it by him. He claimed he did not know the contract was based on the hours he was on site. His hours matched the timesheet at the prison and the prison officer signed it off. The applicant said he lived the furthest from the Prison, but Mr Page said at least one other plumber lives further away and doesn’t have the same issue. The applicant replied that maybe that person worked less than him or was ‘more lucky’.

[34] Mr Page asked why the applicant finally admitted in the last meeting that he was doing the wrong thing, and had stopped doing it, but now claims he had done nothing wrong at any time.

[35] In questions from me, the applicant said he started looking for another job because the situation became unsustainable. He was just the ‘scapegoat’, even though he was always available for call outs and he was sent to ‘unsafe’ jobs.

[36] The applicant said he had started casual work as a plumber through a recruitment agency the week before (week of 26 January 2020). He can do any plumbing job, despite having a back problem, unrelated to work for which he had an operation in Italy in 2008. Nevertheless, he seeks reinstatement, because he needs a full-time job to support his family.

[37] The applicant said he now challenged all of the alleged warnings given by Mr Blakeley, Mr Page and Mr Daffen, because his support person told him that warnings must be in writing and he should have had a support person present. The applicant then agreed that warnings and a support person is not necessary in all circumstances, except where there is an actual threat of termination of employment. The applicant said that, in any event, the warnings did not happen.

Respondent’s oral evidence

[38] The respondent’s three witnesses were cross examined by Mr Rajaratnam.

Mr Andrew Page

[39] Mr Page said that the Company provides maintenance plumbing services to various state Government agencies (courts, prisons, schools etc.), through a contract known as the Maintenance Services Agreement and Support Group through a facility manager, PFM. Mr Page said he first became aware of the applicant falsifying timesheets in late 2018. He was concerned that the contract should stand on its own merits and not depend on overcharging a client. He had a number of discussions with the applicant, because as the CFO, he has direct responsibility for the accounts and the charging. He was very risk averse. Mr Page said the meetings with the applicant became more frequent. He was pleading for him to stop. Mr Page accepted that the applicant was popular on site and in the business. His paperwork was otherwise good and there was plenty of work for him. Unfortunately, he did not heed the warnings about overcharging clients.

[40] Mr Page’s evidence was that his initial discussions with the applicant were informal; usually in the yard kitchen, but the issue became more urgent and became a bigger problem when a client raised his work ethic and overcharging.

[41] Mr Page acknowledged that the Company yard is not a supplier, so from time to time the Company relied on the tradespeople to use their own judgment when collecting parts or materials. However, the applicant had been told, on numerous occasions, not to charge the client from when he came to the yard and proceed directly to site.

[42] Mr Page was asked if the Company believed the applicant was rorting public money and that prison officers were complicit in falsifying timesheets and ‘phantom’ overtime, why it was not reported to the Head Contractor. Mr Page responded as follows:

‘We internally tried to manage this. We gave Davide many, many warnings. I was pleading with Davide, 'Please stop doing this.' Now, I don't believe that we're under any obligation to have to report this. We tried to manage it internally. We did it a number of times, but Davide continued to defy us and defy the instructions that were given him, and we don't understand why. There was no reason for him to continue doing what he was doing, but we expect to try and carry out a sanity check of when the tradespeople are charging the client on site compared to the payroll system. If Davide had put that he got to site - that he came to the yard at 7.30 but he didn't to the site until quarter past 8, he would have been paid from the time that he started at 7.30. There was no reason for Davide to try and synchronise the times other than the fact that it makes it very hard for us to try and perform a sanity check on the hours if someone is synchronising them so well - synchronising them too well. It's too convenient. Now, we did not ask Davide to do that. He was asked a number of times to stop doing that.’

[43] Later, Mr Page said that PFM had actually alerted the Company as to how serious the issue was. While Mr Page accepted that the applicant had not obtained any direct financial benefit, there was a measure of lost productivity and if the applicant was able to manipulate timesheets, the Company could not have any trust (in him). Mr Page explained that the applicant developed an unhealthy culture of noting that others would not check what they were signing for. He abused their trust and knew he could do ‘whatever he wanted’.

[44] Mr Page denied saying in an earlier meeting, that the applicant’s activities may constitute a criminal offence. Nevertheless, his conduct was most certainly grounds for dismissal. In addition, the Company had to credit the overcharged hours to the client. Mr Page added that there is a financial gain when the applicant could get the signature slip signed and then he could be wherever he wanted to be, based on the false signature slip. He had been given ‘many, many, many warnings’.

[45] Mr Page conceded that no warnings were documented, and in hindsight, it would have been desirable to have done so. He wished there had been, but the Company had been optimistic he would change his behaviour; he mused, maybe he should have been dismissed earlier. Mr Page agreed that the Company had sophisticated technology including GPS to locate employees, but the Company did not want to watch over every employee all the time to make sure they were doing the right thing.

[46] Mr Page’s evidence was that there was plenty of work for the applicant, but there was no job available, without jeopardising the contract. He had been initially employed at Hakea when complaints began. The Company persevered and gave him the benefit of the doubt. He was then sent to Bandyup where there were further complaints to the point the client requested he not be sent there. Other alternatives, such as in education, included manual handling and digging. Given the applicant’s back issues, he had asked for an assistant. This was not feasible given the client could only be charged for one person. In addition, Mr Page said that the applicant did not disclose, in his employment application, that he had a back injury when he claimed he had not.

[47] Mr Page said it was coincidence the issue came to a head when the applicant was booked to go on annual leave to go overseas. Mr Page claimed the Company is still dealing with the reputational damage caused by the applicant’s behaviour. Mr Page said it was agreed that the applicant could look for another job. This was offered because the Company was aware of his family circumstances. Further, it is easier to get another job when you are in a job. Mr Page went away for a few weeks in July and had hoped the applicant might find alternative employment during that time.

[48] Mr Page said that the incident on 16 June 2019 reported to him; see: [17] above, was put to the applicant. His response was it was outside his control as to what the prison officers do.

Mr Chris Blakeley

[49] In cross examination, Mr Blakeley said that in general, the Company tries to limit travel time to 20 minutes, and it tries to place employees close to the site to where they live. This time is not charged to the client. The client would be charged for any specific tools or material requirements from the yard. This would be discussed with the client. In callouts, the Company pays employees a minimum of 3 hours for all travel time and the job itself, no matter if the job took 10 minutes and 20 minutes travel each way. If the total time was ten hours, then ten hours would be paid for. Mr Blakeley said he had never directed callout employees to go home (if not at home), get changed, get to the job, come home, shower and get changed and the employee can then clock off.

[50] Mr Blakeley said he was not aware of any instances where the applicant had refused work due to any physical requirement of the role. However, he had given him approximately five to seven warnings over several months (about the overcharging), but could not be specific. He considered the applicant had useful skills, but the problem arose of him overcharging clients which had been brought to the Company’s attention. There had not been a similar problem with any other employee. In respect to recrediting overcharged time to a client, this related exclusively to the applicant. It included other employees’ signatures being put on signature slips by him.

[51] Mr Blakeley acknowledged the Deputy system can track clock on and clock off and can tell when an employee is at any particular time. However, the signature slip and the GPS locator are not the same thing. This was the issue raised with him numerous times over several months. They were not formal reprimands; just a direction to get his act together and be on site when he is actually there and not claim for time at the yard socialising with work mates or charging for unnecessary time collecting tools or materials. There had been no need to report the practice to PFM or the prisons, as they had reported it to the Company, which then had to explain the position informally.

[52] Mr Blakeley believed the applicant had been treated in a dignified and reasonable manner. Employees were highly respected, and the Company was on ‘foreign ground’ when dealing with the applicant’s behaviour. The issues of concern were raised with the applicant discretely; not in front of other employees. The fact the applicant was going on leave had nothing to do with the Company’s concerns – it was purely coincidental.

Final oral submissions

[53] Although offering the parties an opportunity to review the transcript and to file final written submissions, both Mr Rajaratnam and Mr Page were content to proceed to final oral submissions. I note that both parties had provided written submissions, which I have considered and taken into account.

For the applicant

[54] Mr Rajaratnam submitted that the applicant had not been provided with any documented processes or policies as to how timesheets should be treated to demonstrate he had only ever worked according to Management’s directions. Mr Rajaratnam noted that the applicant lived 5 minutes from work, and 45 minutes from the prison clients. Mr Rajaratnam said that the Company had plenty of opportunities to find suitable alternative work for the applicant, as he has proven he is physically fit and has passed all of the requirements to obtain his current casual work.

[55] Mr Rajaratnam said that the applicant maintained there was no documentary proof of him ever being warned and he had not received any written or verbal warning. He was not provided an opportunity for a support person to be present at warning meetings.

[56] Mr Rajaratnam submitted that there was no financial gain for the applicant in adjusting, or modifying the timesheet and there was no documented evidence suggesting he had ever done so in 20 months of employment.

[57] Mr Rajaratnam referred to the applicant’s extenuating personal circumstances and despite seeking alternative employment over the Xmas/New Year period, he had not obtained full time employment. He seeks reinstatement to his former position.

For the respondent

[58] In written submissions, the respondent addressed each of the matters in s 387 of the Act and summarised its position as follows:

‘3.1 The Respondent denies that the applicant's dismissal was harsh, unjust or unreasonable and says:

(a) it had a valid reason for dismissing the applicant, being prolonged and deliberate misconduct that was causing a serious risk to the reputation, viability and profitability of the business and was inconsistent with the continuation of the employment where the applicant:

(i) persistently failed to follow a lawful and reasonable instruction to comply with the requirement to only charged hours worked to the client; misrepresenting hours worked;

(ii) was unwilling, or unable, to perform the inherent physical requirements of his role on a number of occasions;

(iii) refused to participate in discussions about the improvements required in terms of his behaviour over a prolonged period of time; displaying disregard for our lawful instructions;

(iv) continued the behaviour despite many informal and formal discussions where he acknowledged that he understood his wrongdoing, but did it anyway.

(b) he was afforded procedural fairness throughout the dismissal process as required by section 387 of the FW Act; and

(c) its decision to dismiss the applicant is consistent with its approach to managing misconduct and is consistent with earlier disciplinary decisions.

3.2 If the Fair Work Commission (Commission) accepts that the applicant's dismissal was unfair, which the Respondent does not concede, the Respondent submits:

(a) the applicant should not be reinstated because:

(i) the Respondent has lost confidence in the applicant's ability to work in accordance with its procedures; and there is no trust between the Respondent, its major client and the Application

(ii) any continuation of the applicant's employment will undermine the Respondent's reputation and put contracts (and therefore the business viability) at risk;

(b) any compensation awarded should be discounted due to:

(i) the fact that the applicant's misconduct contributed to the reason for dismissal’

[59] In supplementing the Company’s written submissions, Mr Page submitted that during 2019 it was becoming increasingly obvious that the signature slips submitted by the applicant, were inaccurate, resulting in clients being overcharged. The issue was raised with him on numerous occasions. Mr Page believed he knew exactly what he was doing in signing for times before and after leaving the site and when he was not on site. It was acknowledged that there were no written warnings, but there were numerous discussions and verbal warnings.

[60] Mr Page said it was possible the applicant was receiving a financial benefit because falsifying times with signatures allowed payroll time to be falsified. There can be some slippage with travel times, but not to the extent engaged in by the applicant. No one else then, or since, has caused any problem in this respect. Mr Page said there were many examples of the applicant being at the yard at 7am or 7.30am with the Deputy system showing him on site at the same time. Mr Page pointed out that the GPS is not that sophisticated. It simply plots where a person starts and finishes.

[61] Mr Page said it was very uncommon to come to the yard every day, as there is no supply of materials. Where materials are required, they are sourced close to the prison sites. Mr Page claimed he pleaded with the applicant to stop his practice and in the end the risk to the contract was too great. By April/May the problem had escalated to the Company being directed by a client (Bandyup Prison) that the applicant not be sent to their site.

[62] Mr Page stated that the applicant actually did admit to his overcharging practice in late August, but it was too late, and the damage had been done. Attempts were made to look for work at other sites, but there were physical requirements which prevented the applicant from working unassisted. This was not tenable. It was observed that the applicant had not disclosed his back injury or surgery, when initially applying for employment with the respondent.

[63] Mr Page said that even to this day the applicant’s name was being raised and reputational damage persisted. While the Company had been very patient and understanding of the applicant’s personal circumstances, in June it was mutually agreed that the applicant would look for alternative employment, as this was easier while still in a job. This did not work out. The Company is not a large business and it had no scope to reinstate the applicant to other sites.

[64] Mr Page submitted that the applicant’s dismissal was not unfair. In the alternative, reinstatement was impractical and not seriously sought by the applicant. If compensation was to be ordered, consideration of the applicant’s conduct should be taken into account.

[65] In reply, Mr Rajaratnam put that the applicant had simply answered ‘no’ to all the questions in the employment application, including ‘are you willing to do drug and alcohol tests’, yet he was employed. In any event, the back injury had occurred 10 years earlier; he had no pain and no complications and there had been no workers’ compensation claim. Mr Rajaratnam submitted that if the applicant had been rorting public money for over 20 months (during which he had received pay increases), without anyone easily checking the dates on Deputy, bringing his alleged misconduct up as a reason for his dismissal, was wrong. He should have been given adequate warnings and training. The Company merely tolerated his behaviour and rewarded him for his work.

CONSIDERATION

Preliminary matters

[66] Before considering the merits of this application, a number of preliminary matters must be determined in accordance with the intersection of s 385 of the Act, as to the definition of an ‘unfair dismissal’, and s 396 referring to these initial matters. I set out both sections below:

385 What is an unfair dismissal?

A person has been unfairly dismissedif the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.

[67] At this juncture, I make the following preliminary findings:

• The applicant’s unfair dismissal application was lodged within the 21-day time limit set out in s 394(b) of the Act;

• The applicant was a person protected from unfair dismissal in that:

(a) he had completed the minimum employment period, set out in s 382 and s 383 of the Act; and

(b) he was employed under an Agreement; see [1] above, in accordance with s 382(b)(ii) and, in any event, his annual rate of earnings was less than the high income threshold (s 382(b)(iii).

[68] As neither sub-s (c) or (d) of s 396 are relevant to this matter, the only remaining definition of an unfair dismissal to be determined, is whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’ (s 385(b)). I shall return to this matter shortly.

The evidence

[69] The applicant’s case and Mr Rajaratnam’s role as a support person and advocate on behalf of the applicant, reflected a fundamental misunderstanding of the nature of evidence in civil proceedings and before the Commission, in particular. This is not to be critical of Mr Rajaratnam’s strong support and advocacy on behalf of the applicant, given he is not legally trained, but for reasons I will explain shortly, I am not satisfied the applicant was a credible witness.

[70] The applicant’s case was predicated almost exclusively on his claim that he had never been formally warned on numerous occasions by Mr Page, Mr Blakeley or Mr Daffen, not to engage in his practice of overcharging clients. Noting the words ‘formal warning’ used by the applicant, it followed, so it was argued, that as there was no written warnings or contemporaneous notes of any such discussion and further, the Company did not allow him to have a support person, then the Company could not prove it had warned him at any time about these matters.

[71] In unpacking this argument, it is of course the case that there were no written documents to establish the warnings said to have been given to the applicant on numerous occasions. I accept that the Company is a relatively small business (though not defined as one under statute) where considerable autonomy and sound judgment was expected from its tradespersons. Mr Page’s evidence was that the Company had never been in this position before, and in hindsight it would have not waited so long to act. In addition, it should have made notes of its discussions with the applicant (this matter goes to sub-s 387(f) and (g) of the Act). Such self-critical admissions are understandable and accepted.

[72] While it would have been obviously preferable to have notated the warnings given to the applicant, written warnings are not mandatory. It will be sufficient for the oral evidence, found to be proven on the balance of probabilities, to satisfy the usual procedural requirements for an employee to have been warned their conduct is unacceptable.

[73] Secondly, the applicant’s claim invites the Commission to find that not only should corroboratory evidence of three Company Directors not be accepted, but they must have actively collaborated to give false evidence to the Commission. Such a ludicrous, implausible proposition must be rejected. In any event, I have had the opportunity to observe Mr Page and Mr Blakeley, in particular, give sworn evidence as to the numerous warnings given to the applicant over several months. They were persuasive and impressive witnesses who, to my mind, gave honest and truthful evidence. Moreover, the Company had no other ulterior motive to dismiss the applicant, given his work was good and he was well regarded, there was work he could perform, and they had exhibited considerable patience over several months in light of the applicant’s personal circumstances, in the forlorn hope that their warnings would be heeded. It was not to be. In truth, they could have acted more decisively and very much earlier. There was simply no evidence that the applicant was a ‘scapegoat’ for any Company failing, let alone that the reason for the dismissal was that the Company’s contract was at risk. The risk lay plainly at the fault of the applicant in that his conduct was unacceptable and he demonstrated no willingness to change his behaviour, despite numerous warnings.

[74] Thirdly, in any event, there was email evidence that the applicant was banned from the Bandyup Prison site due to his poor work ethic and for adjusting his timesheets to record times that he was not on site. The email dated 20 August 2019, from Mr Steve Hinde, Senior Officer, was not even to the Company, but to the prime contractor, PFM, who onforwarded it Mr Blakeley the next day with the message ‘See attached disappointing email from the site at Bandyup yesterday’. The applicant really had no answer to this email; save for his complaint that he had not seen it and had been given no opportunity to explain. It cannot seriously be suggested that Bandyup Prison had also been part of a collaboration with the Company to improperly manufacture documentary evidence, to injure the applicant’s employment. If the applicant wants documentary evidence of his conduct, then this was it without a doubt.

[75] As I said during the proceedings, I have difficulty reconciling a submission which, on the one hand, completely denies any warnings, with the other submission (not expressed as an alternative) that even if there had been verbal warnings, they were not valid because they were not documented, and the applicant had not been given the opportunity to have a support person present.

[76] Putting aside that there is no requirement for an employer to offer a support person where it is discussing an employee’s conduct and directing it not continue, the applicant seems to have mistaken theories of what he believes should have happened, and conflates his beliefs with the reality of the circumstances, and the legal obligations on the employer in these circumstances. In short, it makes no sense to me, how the applicant can advance his case based on a denial of procedural fairness, with his primary position that he had never been warned about any concerns with his conduct at any time. These submissions are illogical and inconsistent. Moreover, his denials of warnings are entirely inconsistent with Mr Page’s evidence that at one of the later meetings, the applicant had acknowledged his conduct and agreed to end it. How is it logical to deny poor conduct and warnings, and at the same time, acknowledge it? In any event, given my preference for Mr Page’s evidence, I accept his evidence in this respect.

[77] In addition, I do not accept the applicant’s evidence that he agreed to look for alternative employment because the Company had made his position untenable and he was being made a ‘scapegoat’ for its own shortcomings. While it was a rather unusual and unorthodox approach to deal with the applicant’s failure to heed warnings of poor conduct, I accept the Company’s reasons were well-motivated and well-intentioned; most notably, that the Company was aware of the applicant’s personal circumstances and it was preferable to look for alternative employment while still employed, and not after an employee is out of work, particularly where the employee had been dismissed for cause.

[78] As to the applicant’s claims of being forced to perform unsafe work, in my view, this was an afterthought to paint the company in a bad light and to falsely demonstrate it had always intended to get rid of him for false reasons. Two things can be said about this. Firstly, there was no evidence that the applicant was ‘forced’ to perform unsafe work or that he had ever raised these concerns with the employer or the appropriate agency in Western Australia (WorkCover WA).

[79] Secondly, the Company was later aware of the applicant’s past unrelated injury to his back. It was apparent he could not work without an assistant on the school work. However, it is clear from his employment application, dated 22 March 2017, that he was less than forthcoming when he disclosed no physical restrictions as to his plumbing work and answered ‘no’ to the following two questions:

• Have you had an injury or illness which may impact your ability to do the job?

• Do you have or have you ever had back, neck, shoulder, knee or joint problems?

[80] While I am prepared to give the applicant the benefit of the doubt and accept he may not have remembered undergoing back surgery in Italy in 2008, it must be clearly understood that providing false information in an employment application, particularly going to the employee’s capacity to physically perform the job, may be a valid reason for an employee’s later dismissal; noting of course, that this was not the reason for the dismissal here.

[81] Mr Rajaratnam’s submission that the applicant had no pain, no complications and had filed no workers’ compensation claim is at odds with the applicant’s own evidence that he could not perform certain physical work. Further, the fact there was no workers’ compensation claim is irrelevant, as the original injury had not been work-related.

[82] Although not strongly pressed in the hearing, the applicant raised a claim that he had been subject to bullying and harassment, even racism in the workplace. The highest the evidence got in this respect was a commonly accepted and encouraged workplace practice of employees being given nicknames and he had a work shirt with his nickname ‘Davidelino’ printed on it. It is difficult to see how this practice constituted bullying and harassment, let alone racism in the workplace. I accept Mr Daffen’s evidence that this was a means of demonstrating affection and employee engagement, with no intention to offend. Of course, inappropriate nicknames can be offensive, unwelcome, or intended to cause upset or distress; but to suggest a play on the applicant’s name fell into any of these categories is to draw a ‘very long bow’ indeed. Moreover, the applicant’s claim of bullying begs three questions:

• If he was offended by the shirt, why did he wear it?

• Why is he smiling broadly in the photo he tendered which he says demonstrates the bullying?

• If the Company was racist, how did he get the job in the first place, when it would have been patently obvious he was from Italian heritage?

[83] More significantly, there was no evidence that the applicant had ever raised any concerns about the nickname until the two final disciplinary meetings where he realised his employment was at risk. There is no substance to these allegations; they are little more than weak and clumsy ‘red herrings’ designed to deflect attention from his own poor conduct and behaviour.

[84] For the above reasons, I am satisfied that where the applicant’s evidence, particular in respect to the conflict over verbal warnings given, or not given, differs from that of Mr Page, Mr Blakeley and Mr Daffen, it is their evidence which I prefer and accept.

[85] It is against these findings on witness credit that I now turn to the considerations of the factors the Commission must take into account under s 387 of the Act, as to whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’.

[86] Section 387 of the Act sets out the matters which must be taken into account in determining this question. They read:

(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 the FWC considers relevant.

[87] Findings on each of these matters must be made, even if they are not relevant to the circumstances of a particular case. In this exercise, each matter must be given appropriate weight (including no weight or neutral, where not relevant) having regard to the findings of fact made by the Commission and taking into account the submissions of the parties. Where there is a statutory mandate to take into account a particular matter (as in s 387) it means that it is a relevant consideration that the Commission is bound to take into account. So much so is evident from the decision of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend and ors (1986) 162 CLR 24 at [15] where His Honour said:

‘The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s.5(2)(b) of the ADJR Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions’

I summarise these propositions from His Honour’s judgment as follows:

(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision.

(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.

(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.

(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.

[88] The meaning of the phrase ‘harsh, unjust or unreasonable’ in the context of an unfair dismissal case, is found in the oft quoted judgment of the High Court (McHugh and Gummow JJ) in Byrne andFrew v Australian Airlines (1995) 185 CLR 410 at 465:

‘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.’

[89] I turn then to each of the discrete matters in s 387 of the Act.

Whether there was a valid reason for the dismissal (s 387(a))

[90] The meaning of ‘valid reason’ in s 387(a) is drawn from the judgement of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’). This meaning has been considered and applied by members of the Commission and its predecessors for many years. For example, in Rode v Burwood Mitsubishi Print R4471, a Full Bench of the then Australian Industrial Relations Commission (‘AIRC’) discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and by citing Selvachandran. The following is an extract from the Full Bench’s decision at [17]-[19]:

‘[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v [Peterson] 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.

See also: Nettleford v Kym Smoker Pty Ltd (1996) 69 IR 370.’ (citations omitted)’

[91] Given my earlier findings as to witness credit, I am satisfied, on the balance of probabilities (Briginshaw v Briginshaw (1938) 60 CLR 336), that the applicant engaged in a pattern of behaviour which, at the very least, amounted to inappropriate conduct for which he was warned on numerous occasions to stop and he refused to do so. At its highest, his determination to persist with his practice of overcharging clients by arriving late or leaving early and recording incorrect times, constituted a persistent refusal to comply with a lawful and reasonable direction from the employer. Such conduct caused reputational damage to the Company and risked its ongoing contracts to provide plumbing services to Government clients. In my view, the applicant’s conduct was such as to constitute a ‘valid’ reason for his dismissal, in the sense that it was ‘sound, defensible and well founded’. Given this finding, it is unnecessary for me to make further comment or findings on the Company’s other allegation, that the applicant was unable or unwilling to perform the inherent requirements of his role; suffice to note that this contention is not without some substance.

Further matters to be considered under s 387 of the Act

[92] Subsections (b)-(e) of s 387 are generally grouped under the rubric of ‘procedural fairness’ or ‘natural justice’ issues. To highlight the importance of procedural fairness issues, I cite three authorities on the subject in unfair dismissal cases. In Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137 a Full Bench of the AIRC said at [73]:

‘As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment.’

[93] In Wadey v YMCA Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations concerning an employee’s conduct. His Honour said:

‘In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.’

[94] Nevertheless, procedural fairness steps should be applied in a common-sense and practical way. The next citation has a particular resonance to the circumstances of this case. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1, Wilcox CJ said at [7]:

‘Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.’

Whether the person was notified of that reason (s 387(b))

[95] It is common ground the applicant was notified of the reason for his possible dismissal in a meeting on 22 August 2019 and more expressly, in the ‘show cause’ letter of 30 August 2019. The reason for his dismissal was reiterated in the letter terminating his employment, dated 11 September 2019. Given the many occasions the applicant was warned of the reasons which ultimately resulted in his dismissal, there can be no doubt he was aware of the reasons, and understood them. This is a neutral consideration.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person (s 387(c))

[96] The applicant had three opportunities to respond to the reasons for his dismissal; in meetings on 22 August, 30 August and 6 September 2019. This later meeting had been postponed so as to allow his support person to attend. Given my preference for accepting the Company’s evidence, I accept that the respondent did not rush to judgment, but had considered the applicant’s responses (actually non-responses and implausible excuses). Moreover, the Company’s patience over a number of months, in the face of the applicant’s continued failure to make any change in his timekeeping practices, even when acknowledging wrongdoing, but doing nothing about it, demonstrated the Company had not taken the dismissal decision in haste, or without reasonable justification.

This factor weighs against a finding of procedural unfairness.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal (s 387(d))

[97] As I said at [76] above, there is no requirement for a support person to be present when an employee is given a written or verbal warning. Such a proposition would be unworkable and unnecessary. Moreover, the applicant misunderstands s 387(d) as allowing an employee to request a support person for every verbal or written warning. Section 387(d) refers to an ‘unreasonable refusal… at any discussions relating to dismissal.’ It is plain that until the more formal meetings (22 August, 30 August, and 6 September 2019), all of the proceeding warnings or discussions were not related to dismissal; in fact, the reverse. These warnings were intended to prompt a change of behaviour to prevent dismissal. In any event, as I said earlier at [76] above, if the applicant’s position is that he was never warned, it is absurd that he would now complain that he was not offered a support person for warnings he says never happened. That said, there is no evidence the applicant was refused the opportunity to have a support person in the formal meetings earlier referred to. Indeed, the applicant requested and was granted an adjournment of a meeting set for 2 September 2019 to 6 September 2019, in order to allow Mr Rajaratnam to attend as his support person.

This is a neutral factor in this case.

If the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal (s 387(e))

[98] Even assuming the applicant was dismissed for unsatisfactory performance, I accept that from April 2019 until 22 August 2019, the applicant had been warned on numerous occasions by Mr Page, Mr Blakeley and Mr Daffen to cease his timekeeping practices and by the 22 August 2019 meeting, he was on clear notice, his employment was at risk, if the same warnings were not heeded (which they weren’t).

This factor weighs against a finding of procedural unfairness.

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 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 (ss 387(f) and (g))

[99] While the Company is not a defined small business, having 20-25 employees, neither is it a large business. Mr Page frankly acknowledged that, in hindsight, the Company should have acted sooner to address an escalating problem, and it would have been desirable to make contemporaneous notes of discussions, then verbal warnings about the applicant’s conduct. It would seem that employee issues, including disciplinary processes, were shared between the three Directors, all of whom were not qualified in employment or industrial relations matters. Mr Page described this experience as being ‘foreign’ to the Company’s experience. I am prepared to accept that while the process might have been better handled and more focussed on rectifying a growing problem, the Directors acted sympathetically and were genuinely optimistic in wanting to change the applicant’s poor behaviour. They were consistently rebuffed, until there was only one option left.

[100] I have taken this factor into account and consider the Company’s less than pristine processes were nevertheless reasonable and understandable, in all the circumstances. This factor weighs against a finding of procedural unfairness.

Any other matters the Commission considers relevant (s 387(h))

[101] I have taken into account the applicant’s relative short service and the fact he has recently secured alternative employment, albeit casual employment. While I am sympathetic to the applicant’s personal and family circumstances, I am unable to conclude, on balance, that these matters outweigh the other factors, which justify the applicant’s dismissal. In addition, I also have had regard to the evidence of the applicant in this case which was evasive, inconsistent and less than satisfactory on crucial matters. His evidence of no warnings was not credible or believable.

[102] A significant other relevant matter I discussed in Hilder v Sydney Trains[2019] FWC 8412 (‘Hilder’) was the acknowledgement by the applicant in that case of his wrongdoing, his contrition and remorse for a ‘one-off’ incident of poor judgment, and where at [126] I said:

‘[126] Given the facts and circumstances of this case, in my opinion, there could hardly be a more meritorious and justified example of the ‘harshness’ component of the expression ‘harsh, unjust and unreasonable’, than the dismissal of Mr Hilder. Of particular significance for me in this case, unlike many other cases I have decided, was Mr Hilder’s openness, honesty, remorse and contrition, which I accept was genuine, well-intended and expressed from the outset of the investigation of his conduct. In this respect, I refer to a recent Full Bench decision of the Commission in Hatnell v EssoHatwell v Esso Australia Pty Ltd t/a Esso[2019] FWCFB 2895 which granted permission to appeal on two public interest grounds; one being:

‘(1) the appeal raises a significant issue of general application concerning the relevance to the evaluation of the appropriateness of reinstatement of a failure on the part of an unfair dismissal remedy applicant to apologise or acknowledge wrongdoing, in circumstances where there has been found to be a valid reason for dismissal based on the applicant’s misconduct’.

Later in the decision, the Full Bench said at [28]-[29]:

‘[28] Mr Hatwell’s first ground of appeal concerns the Deputy President’s conclusion that Mr Hatwell’s failure to apologise or acknowledge wrongdoing in respect of the misconduct which the Full Bench found constituted a valid reason for his dismissal was a matter which weighed determinatively against a finding that reinstatement was appropriate. It cannot in our view be reasonably contended that this was not a material consideration. In circumstances where Mr Hatwell had been found to engage in misconduct constituting a valid reason for his dismissal, but that there were mitigating factors which rendered the dismissal harsh, a critical issue was necessarily whether there were grounds for confidence that Mr Hatwell would, if reinstated, not engage in the same or similar conduct again having regard to the continuing presence of Mr Flens and other employees of the maintenance contractor at the Longford site. The role of an apology or an acknowledgment of wrongdoing in that context was explained in the Full Bench majority decision in Mt Arthur Coal Pty Ltd v Jodie Goodall as follows:

“[78] The primary issue which arose for consideration before the Commissioner in respect of remedy was whether there were proper grounds for confidence that Mr Goodall would, if reinstated, never again engage in conduct of the type which occurred on the night shift of 10-11 November 2015. That confidence was what was necessary to make the employment relationship workable. As we have already stated, the Commissioner with the advantage of having seen and heard Mr Goodall give his evidence was persuaded that he had a sufficient understanding that his conduct was inappropriate, unacceptable and not to be repeated. Nothing which has been put to us by Mt Arthur Coal has articulated a proper basis for the Commissioner’s findings in this respect to be disturbed on appeal. That being the case, there was a reasonable and rational basis for the Commissioner to conclude that Mr Goodall would be able to regain the trust of his colleagues and thereby re-establish a viable working relationship.”

[29] The circumstances of the proceedings here meant that once the question of remedy was remitted by the Full Bench to the Deputy President for determination, Mr Hatwell had the opportunity to give evidence, or make a statement via his counsel, to demonstrate that he understood that the conduct which was found to constitute a valid reason for his dismissal was “inappropriate, unacceptable and not to be repeated” such as to form a basis for confidence that a viable working relationship could be re-established. This might have taken the form of an apology to Mr Flens, an acknowledgment that the conduct he was found to have engaged in was wrong, or a commitment to never engage in such conduct in the future and to treat fellow workers with respect. However Mr Hatwell declined to take advantage of this opportunity, and as a result we consider that it was reasonably open to the Deputy President to conclude, as he did, that this meant there was a risk of a recurrence of the behaviour if reinstatement was granted, and to treat this as a matter of determinative weight.’

[103] In the present case, none of the factors I found in Hilder were demonstrated by the applicant; indeed, here the applicant maintained a complete denial of any warnings, despite overwhelming and persuasive evidence to the contrary. There was no acknowledgement of any wrongdoing. There was no apology – no remorse – no contrition.

[104] In these circumstances, I have no confidence that the applicant would conduct himself any differently, such as to correct his false time keeping practices, if he was returned to the workplace. The risk to the Company is absolutely manifest and reinstatement cannot be an acceptable outcome in such circumstances.

These matters weigh against a finding of unfairness.

CONCLUSION

[105] For the abovementioned reasons and in weighing all of the matters the Commission is required to take into account in s 387 of the Act, I am satisfied that the applicant’s dismissal on 12 September 2019, was not ‘harsh, unjust or unreasonable’. Finally, s 381(2) of the Act is a significant overarching object of Part 3-2 – Unfair Dismissal of the Act. It is expressed 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

(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 Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

[106] The outcome in this case is consistent with the object of Part 3-2 of providing a ‘fair go all round’ to both the applicant and the employer.

[107] Accordingly, application U2019/10290 is dismissed and these proceedings are concluded. I so order.

DEPUTY PRESIDENT

Appearances:

Mr A Rajaratnam for the applicant

Mr A Page for the respondent

Hearing details:

2018:

3 February

4 February

Perth.

Printed by authority of the Commonwealth Government Printer

Davide Foffi v AHS Contracting WA Pty Ltd

[2020] FWC 1908

25 MAY 2020

DECISION