Dylan Bullas v Engineering Solutions Pty Ltd
[2021] FWC 5652
•10 SEPTEMBER 2021
| [2021] FWC 5652 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Dylan Bullas
v
Engineering Solutions Pty Ltd
(U2021/2951)
DEPUTY PRESIDENT LAKE | BRISBANE, 10 SEPTEMBER 2021 |
Application for an unfair dismissal remedy.
[1] Dylan Bullas (the Applicant) brought an application seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act), claiming he was dismissed from his employment with Engineering Solutions Pty Ltd (the Respondent) and that dismissal was harsh, unjust and unreasonable. He had been employed with the Respondent since around 28 June 2018 as a full-time draftsperson.
[2] It was uncontroversial that the Applicant was dismissed on 26 March 2021 and that he lodged this application with the Fair Work Commission (the Commission) on 8 April 2021, within 21-days, as required by the Act. 1 It is also undisputed that the Applicant is protected from unfair dismissal and the dismissal did not involve a genuine redundancy.2 The Respondent filed its response on 15 April 2021, purportedly raising a jurisdictional objection, though upon further consideration that objection related to the merits of the case.
[3] Directions were made for the filing of material. The Respondent’s outline of submissions dated 11 June 2021 raised a further jurisdictional objection, that is, that the Respondent is a small business and has complied with the Small Business Fair Dismissal Code (the Code) and that the Applicant’s employment had been terminated for serious misconduct.
[4] Both the jurisdictional objection and merits were dealt with at the hearing that occurred on 21 June 2021, via Microsoft Teams. Mr Bullas was represented by Ms Kait Teague from the Australian Manufacturing Workers’ Union (the Union), while Mr Daniel Poacher (the Respondent’s director) appeared on behalf of the Respondent.
Summary of the disciplinary process
[5] On or around 1 December 2020, a meeting was held between the Applicant and Mr Poacher. The Applicant stated that this meeting related to his alleged sick leave and general welfare. He submitted that no performance issues were raised or expectations set by the Respondent, nor had any formal performance issues been raised or warnings issued prior to this meeting. The Respondent disagrees, stating that performance issues had been raised verbally at least twice prior to this meeting and were again raised at the December meeting.
[6] On 11 March 2021, the Applicant received a letter which highlighted and referenced performance issues which were raised in the December 2020 meeting and noted a few more examples and proposed a further meeting to discuss the contents and that any written feedback would be invited, advising the Applicant that his progress would be monitored.
[7] On 12 March 2021, the Australian Workers’ Union (the AWU), through the Applicant’s mother who is an Organiser for that union, wrote to the Respondent on the Applicant’s behalf making a series of assertions regarding the letter. The response, which sought to characterise the 11 March 2021 letter as a warning or disciplinary note, was copied to the Australian Manufacturing Workers’ Union (the AMWU) (as the Applicant was a dual member).
[8] On 12 March 2021, the Applicant received a letter in response to the communication from the Respondent. The letter stated that to the extent that the letter constitutes a written warning, it was withdrawn. The letter still stood as a record of what the Respondent had observed following the meeting in early December.
[9] I noted while reviewing the letter was that it had not been headed or otherwise identified within the body of the text as a warning letter. The letter did not contain any warning or threat to employment, nor was any disciplinary action proposed or threatened. Simply, it contained observations of conduct by the Applicant that fell short of what had been previously discussed with the Applicant regarding expectations and proposed a future meeting date, as well as suggesting that he could provide a written response.
[10] On 14 March 2021, Mr Poacher sent a text to the Applicant directing him to take one week of annual leave immediately. The AWU emailed Mr Poacher reminding him of the terms of the Applicant’s employment contract. After receiving legal advice, the Respondent provided the Applicant with a week of paid leave.
[11] On 18 March 2021, the Respondent issued a letter confirming again that to the extent that the letter dated 11 March was a warning letter, it was withdrawn. In a section headed “Show Cause”, the 18 March 2021 letter outlined the allegations that the Respondent wanted the Applicant to respond to. The body of that letter reads:
“1. Your performance at work from approximately October 2020 until 11 December 2020 has deteriorated significantly, in particular, you have:
a. displayed a poor attitude when in the workplace and when interacting with me [Mr Poacher] and other staff members, for example, you have isolated yourself from staff communications, you have been disrespectful to staff members and you have had little or no regard for deadlines;
b. repeatedly taken time away from the office (i.e. between September 2020 and December 2020) you have taken sick leave on the basis that you ‘you do not like working under pressure’ – while the Company recognises your entitlement to take leave and does not discourage its employees from accessing their entitlements;
i. the perception that you have as to feeling under pressure is not something that the Company can reasonably control or alter – it would require you to access relevant support; and
ii. the leave that you are taking as a result of your perception, in particular, the leave with little to no notice is impacting upon workflow and placing your colleague at the Company under additional stress to meet deadlines, both yours and their own;
c. displayed a distinct lack of interest in your employment at the Company, which has been a change from your previous great interest and while not alone an allegation, has resulted in you failing to meet required deadlines and to perform at the required standard;
d. failed to communicate sufficiently with me and other members of staff to ensure that your workload can be managed – that is, instead of communicating directly with me, in advance of a deadline, you have, repeatedly, failed to meet a deadline or told me at the last minute that you were not going to meet a deadline.
2. Each of the above performance concerns, have continued to occur after you returned from leave in January 2021.
3. Each of the performance concerns set out above, and in particular, your perception or inference that the job is placing too much pressure on you, also calls into question your ability to meet the inherent requirement of the role.
4. Despite agreeing in your employment agreement that you would, when required, work reasonable additional hours, you have consistently, since October 2020, failed to work any additional hours despite the few requests that have been made to you being inherently reasonable and only made to you, to the extent necessary to meet a client deadline. That is a breach of your employment agreement as well as numerous lawful and reasonable directions.
5. You have been informed that, at the very least, in our meeting in December 2020 and informally, before that meeting, there is a requirement for all staff members to work as a team to assist in meeting client expectations. Your lack of teamwork is resulting in disharmony in the workplace and causing stress and tension within the team. Further, your apparent lack of desire to meeting any client deadlines, evidenced by your repeated failure to meet those deadlines (as explained above), is causing further stress and tension within the team. As you know we are a small business with a relatively small team. Any poor examples of teamwork can be extremely detrimental not only to business performance but also to the health and wellbeing of each of our team members.
As you should be aware, as well as the Company’s responsibilities, you have a personal obligation to ensure the safety and wellbeing (including mental safety and wellbeing) of persons in the workplace. Your failure to comply with that obligation (i.e. by engaging in the conduct outlined above) is making it extremely difficult for the Company to meet its responsibilities to ensure the safety of other persons within the workplace.
6. You have repeatedly failed to follow lawful and reasonable workplace directions issued to you, both formally and informally, to let me know how long you expect a task will take you to complete and/or, failed to update me when your expectation for the completion of a task, changed.
7. In around mid-February 2021, without prior consider or approval, you chose to start work 3 hours early and left the office 3 hours before the end of the day. That is a breach of your employment agreement and the Company policy and a lawful and reasonable workplace direction.
8. On Wednesday 10 March 2021, you advised at 7:40am that you would like to take an annual leave day as you “feel flat and exhausted and don’t think I would be effective working today”. As you are aware, there are processes in place with respect to annual leave and you did not follow those processes. That is a breach of Company policy and a breach of a lawful and reasonable direction.
9. Notwithstanding that at every monthly BMS meeting the Company requests and lawfully directs all staff to complete accurate time sheets daily, on Tuesday 16 March 2021 I needed to ask you to updated your time sheet to be accurate in terms of the time you spend on specific projects on Monday 15 March 2021. Further to this matter it has been established that you have only logged an average of 30 hours per week since your return from annual leave in January which is well below the required work hours in your employment agreement. It is noted also that your time sheets for Tuesday 16 March 2021 and Wednesday 17 March 2021 are not yet complete as per Company direction at the time of writing this correspondence which again is a breach of Company policy and a breach of a reasonable and lawful direction that has been repeatedly made to you.
Dylan, I am personally extremely disappointed by the allegations set out above and if they are accepted by the Company, they are so serious that they may result in termination of your employment. I am concerned, as Director, that the Company may no longer be able to hold the required level of trust and confidence in you, given the allegations set out above.”
[12] The letter went on to inform the Applicant that he had to attend a meeting to respond to each of the allegations and that he could bring a support person to that meeting. It was originally proposed to be on 22 March 2021, but to ensure the Applicant’s support person could attend, it was rescheduled to 24 March 2021.
[13] On 24 March 2021, that meeting took place with Mr Poacher, the Applicant and the Applicant’s support person. The Applicant was given the opportunity to discuss the show cause notice and the surrounding work relationship, with the Union representative present. The Respondent states the Applicant was given every opportunity to speak to Mr Poacher directly about any concerns or issues and was encouraged to add any of his thoughts on the situation. Mr Poacher stated that at this stage he remained hopeful that the Applicant would show an intention to continue working with the Respondent, but it became clear to him that the Applicant had no interest in continuing his employment. Rather than speaking to Mr Poacher directly, the Applicant provided a written response to each of the allegations in the show cause notice. Those responses were as follows:
“Response 1: I categorically deny Particular 1, Particular 2, Particular 3 and 4 due to the following reasoning outlined below:
My attitude within the workplace to both work colleagues and other people within the workplace has always been one of professionalism and respect. Never have I isolated myself from other workmates to the effect of limiting correspondence (IE: Email Correspondence) nor have I been disrespectful in any instanced to my workmates. If this allegation where [sic] true why have none of my work colleagues come forward with any complaint in support of this claim? I value my relations with my work colleagues and I am very concerned at this allegation against me.
If anything, the dynamics between myself and other workmates has changed has changed within the last 9 months due to offensive comments being made to myself regarding my personality referring to me as “White Bread” (indicating that I have no personality) for months on end until I had to outright state that the name, they were calling me was hurtful (even after months of me saying it wasn't funny nor did I approve of it). You were made aware of this conduct when it started and it seems no actions were taken by you to stop the misconduct.
Please note that you have not provided any evidence as to where or when or to whom this apparent breach of workplace code of conduct has been investigated leading me to believe that Particular 1 is unsubstantiated.
During September 2020 and December 2020, I have taken sick leave a total of two times (one of which was for half a day) both of which I had been sick on those days. At no point in time have I admitted that those days in particular I had taken due to stress. Furthermore, it is concerning that you make reference for sick days within a 4-month period of time yet have not provided the dates at which I took sick leave.
The perception that the pressures of work life can be controlled is based off the notion that Esq as a company can (refer employment contract clause 3) authorise overtime which should be in my view a last resort as it is inefficient and costs more overall. Furthermore, never have I been made aware of any support routes to assist with deadlines and/or workload for myself, with dealing with work related stress at the impromptu meeting held on 1 December 2020 nor at anytime during that meeting with I advised of any existing support.
It is my perception that the only leave taken by myself that has triggered this formal procedure has been on the 10 March 2021 in which I have not affected deadlines that I am aware of. Nor do I believe that I put any of my work colleagues under any additional stress. my perception is due to your text message on Sunday evening at 5:48pm informing me that “We a bit short on drafting at present. Given we do not have much on take a weeks annual leave this week starting tomorrow.” not only is this particular invalid due to your own correspondence via text message but you have also refused to provide me with any incoming work in any way during the week that I attended work and did not take a weeks annual leave thus I believe you are in breach of my employment agreement. (Refer employment contract clause 3).
Due to the above it would appear that Particular 2 (and its sub-particulars) are unsubstantiated.
In Particular 3 you make reference to my interest in work becoming lacking. My interest in work has never changed, I still remain enthusiastic and diligent within the work that I do. Any form of my alleged “failing to meet required deadlines and to perform at the required standard” within Particular 3 is not supported by any evidence relating as to how or why you believe this to be true. At no time before I received a written warning letter from you did you arrange to meet with me with these concerns nor did you at anytime offer me any support assistance. It is my opinion, that Particular 3 is unsubstantiated.
Finally, I would refer you to my response to Allegation 5 for my response to Particular 4.
…
Response 2: I would refer you to my response to Allegation 1 namely my response to Particular 1 in Allegation 1 regarding my alleged poor attitude.
I would refer you to my response to Allegation 1 namely my response to Particular 2 in Allegation 1 regarding my alleged unlawful time away from the office.
I would refer you to my response to Allegation 1 namely my response to Particular 1 in Allegation 1regarding my alleged displayed lack of interest .
I would refer you to my response to Allegation 6 namely, Paragraphs 1, 2 and 3 regarding my alleged lack in communication.
…
Response 3: Allegation three makes reference to my apparent/alleged lack of performance in my job role and my ability to meet the inherent requirements of the role in addition to my perception or inference that the job is placing too much pressure on myself.
I categorically deny this allegation. Due to my reasoning provided within Allegations 1, 2, 4, 5 and 8.
…
Response 4: I categorically deny this allegation. Refer reasoning outlined below:
During the time of October 2020 to president I have not received verbal or written direction from either you or my manager regarding overtime. In fact, the only time that I have completed overtime within the aforementioned timeframe at your verbal request was on the 18 February 2021 where we had a deadline to meet. Please note that I have not been paid for that amount of overtime as of yet.
Outside of your aforementioned timeline within allegation four I had completed overtime to meet a deadline multiple times (March 2019 , June 2019, November 2019) all of which occurred with your approval prior to commencement and a written agreement of a rate of pay between us (typically 150% my regular rate of pay). This process was not followed within the time frame that you have specified him with indicate that the conversation regarding overtime did not occur as we have a process to follow as outlined within my employment agreement and company policy regarding overtime (Refer Employment contract clause 3).
…
Response 5: Mention has been made to my alleged repeated failure to meet my obligations and responsibilities within my job role yet no evidence (dates and times etc.) has been provided to support these statements. Therefore, I would consider this allegation to be untrue and groundless.
For me to complete my obligations in the workplace I am required to work with other people within the workplace. As stated in response 9 I have accrued a billable utilisation of 75% on average which would not be achievable if I was not functioning as a productive and cooperative team member. In addition to this my attitude/manner towards my work colleague has always been of a high standard of professionalism whether it be verbally or in writing. At no time has this been raised with me.
In addition to this I would like to make reference to my professional ESQ (written and approved by ESQ) Curriculum Vitae where is states all of my demonstrated abilities. The relevant abilities being: “Good communication skills”, “Ability to follow instruction and work as a team member” and “Professional, attentive to detail & with confidentiality”. Why would I be referred to in this way and advertised as such if the allegations are in any way true?
Furthermore, at no point in time have I engaged in any conduct that would be considered endangerment of personal safety and wellbeing (both physical and mental). In fact, other employees during early to mid-2020 have referred to me as “white bread” (indicating that I have no personality) for months on end until I had to outright state that the name, they were calling me was hurtful (even after months of me saying it was not funny nor did I approve of it). You were made aware of this conduct when it started and it seems no actions were taken by you to stop the misconduct. It is my perception that you have failed in your duty of care to me in the work place (section 19 Work place [sic] Health and Safety Act 2011).
To conclude this allegation, I consider it to be completely untrue, groundless and in my opinion, unsubstantiated. It raises question’s [sic] in regards to my co-workers’ ability to meet their obligation to ensure the personal safety and wellbeing (both physical and mental) of myself and other co-workers.
…
Response 6: This allegation is unfounded and completely untrue.
After my leave taken in December 2020 and the following Christmas Break, I had made the decision to send you updates on my current workload and my expected timelines to better communicate with yourself on what I have on my worklist at the time. (IE: Email correspondence) At this interval I provided an updated status in writing to you that it would be at least once a week (if I am only working on one project) or once a day (if I am working on multiple projects at the same time). You had actually praised my in front of other co-workers on my communication process when I had implemented it.
During the time at which I had been providing these emails I had updated you when the timeline of the project had been pushed back or whether I was going to miss deadlines. The only project that this was not the case was Boundary Road where we had a daily group meeting to discuss timelines and workloads.
On several occasions where design reworks needed to occur no allowance for rework on my behalf was made. There was no clear communication from other employees regarding these changes leading to inflated delivery times for documentation. No clear or reasonable management direction was given to my knowledge to the other employees to work as a team and include me, this is why after my return from my Christmas holidays, I decided to implement the current workload and timeline email updates as a means to protect myself within the workplace for being blamed for other employees’ failure to meet their own deadlines.
You have referenced in your allegation on multiple occasions that I have allegedly failed to follow lawful and reasonable workplace directions formally and informally. I am at a loss to understand where and when and what these ‘lawful directions’ are. This allegation I believe is unfounded and unsubstantiated.
…
Response 7: I categorically deny this allegation. Refer reasoning outlined below:
Due to the need to meet a deadline It was my belief that I would need to start earlier on the 16th of February 2021 to meet the expected deadline. The day before (15th February) I had said to my line manager Craig Birt that “I would need to start early tomorrow to be able to get what I am working on (the drainage plan set) to you by the time you wanted to check them, is that ok?” Craig had not raised any concerns with me starting early on that day so I did so.
On the 16th of February about one and a half hours before I was due to go to lunch, I had told my line Manager that I would be going on lunch and then heading off home since I started 3 hours early after which no concerns were raised with myself until the following day where I was approached by you querying whether I was feeling alright yesterday because I left early. I responded by explaining what I had done as detailed above, after which I had asked “was I not clear enough when I asked Craig? (in a polite manner) do you want me to come to you next time for approval?” to which you had replied that it was not an issue. At no time during that interaction with you did you advise me that I would need to seek approval with you in regards to starting/leaving work early.
At no point in time was I told by either Craig or yourself that my request to start early and finish early on the 16th of February was not in line with ESQ Policies and Procedures. Even when I had verbally asked “is this ok” to both yourself and Craig prior and after the 16th of February. Given that I had provided ample opportunity for both Craig and yourself to raise any concerns in relation to this one-off event, which as stated was done in order to meeting work place deadlines and to assist with work load and meeting deadlines for my work colleagues.
Due to the above reasoning, I consider this allegation to be unsubstantiated.
…
Response 8: This allegation occurred in so far as I did provide a text message to you on the day in question, however no consideration has been given regarding you instructing me to take a day off as annual leave in the past nor at any time have you met with me in relation to taking sick leave days as annual leave until such time as I received your warning letter dated 11.03.2021.
I sent you a text on the 10th March 2021 containing the following message:
‘Hi Dan. Just letting you know that I’ll be taking the day off today. Which I would like to come out of my annual leave.
Reason being is that I’m feeling flat and exhausted and I don’t think that I would be effective working today. I feel that it would be beneficial for me to take today to reset and come back tomorrow refreshed and ready to go.
Thanks for understanding.’
I did not receive a response from you on the day this message was sent nor at any other time until I was asked to enter the board room at the office the following day. At which point I asked what it was about and I was handed a letter without any further discussion or ability to reply outside of a written response to the letter itself…
At no point in time (by way of meeting or offer of support) was I notified of my alleged deficiency before escalation to a form process nor was I afforded any opportunity to correct the alleged work place deficiencies.
Furthermore, during out impromptu meeting on the 1st of December 2020, you mentioned that ‘if you aren’t sick and need the day off just put it down as annual leave’. The amount of notice provided in this instance was minimal, you could have notified me that I could not take that day off because I had not provided enough notice. After which you could have asked me to work a little bit later to catch up for lost time. Which I would have been more than happy to do.
So, in this instance I was following advice provided by you during the impromptu meeting and thus I believe I was following lawful direction. Therefore, I believe this allegation to be unsubstantiated.
…
Response 9: No opportunity was given to correct any deficiencies I may have allegedly had prior to a formal process. In fact, any alleged deficiencies that I may have had could have been raised during my probationary or annual review meetings with you. It is reasonable to assume in my view that there were no deficiencies or such meetings should and would have occurred.
During our latest BMS meeting on or around mid-February it was noted that overall, all employees’ timesheets were ‘pretty good at the moment. Keep up the good work.’
On Tuesday March 16 2021 you had asked me to update my timesheet regarding one particular project not multiple. However, I required actions to be completed by either yourself or Craig Birt to make a ask available for me to be able to put time down for that particular project. Thus, I was not able to reasonably meet my obligation to fill out my timesheet on the day. However please note that invoices go out on Tuesday afternoons so this delayed entry did not affect the running of the business.
On average my allocation of Billable work hours has been 30 hours and this average has been the same since my commencement of employment. I would have considered it appropriate that if this was indeed an issue then it should have been raised by either yourself or Craig verbally or in writing. At no time was I offered nor did I complete Probationary Review or my Annual Review.
In addition to this I was advised by Craig Birt when I was trained on the timesheet software (Abtrac) and by yourself multiple times during BMS Meetings that it would be unreasonable to expect 100% utilisation (8 hours each day). Please note that according to ESQ Policy there is an expectation of 80% utilisation and according to your claim my 75% utilisation has occurred which I believe is in keeping with ESQ policies and procedures. I believe 5% to be of minimal amount and should not warrant a formal disciplinary process or show cause.
Furthermore, there has been no allowance in regards to my meeting the 80% for any additional work activities. For example, during mid 2019 to early 2020 the company did not have an administrator to answer phone calls and I was tasked with answering phones in additional to my existing workload. Currently we do have an administrator whom only works until 1pm (at the latest) and after which all phone related duties are passed to myself. Nor has there been any allowance for time spent training new Civil-Drafts-people during early 2019 to late 2020 as I was expected to complete my projects within a reasonable timeframe while also needing to manage and mentor other workers.
In relation to me not filling out my timesheet with any data on the 16 March 2021 and the 17 March 2021. Please note, that I was not provided any work to complete by either my manager or yourself even after I had requested in writing (via Email) that if any work becomes available to please provide it to me as I have drafting capacity, thus my timesheet would not have any time on it on those days due to no work being provided to me.
Please note that the ‘reasonable and lawful direction that has been repeatedly made to you’. Was never made to me personally as an individual and was not raised until the 16 March 2021 it has always been a statement made to the workgroup as a whole during every BMS meeting I have attended.
Due to the above reasoning, I consider this allegation to be unsubstantiated.
Finally, I completely flabbergasted and deflated that such vexatious claims have been made by yourself to me. It seems that you do not want me working for your anymore and have tried to push me out the door unfairly. I have instructed Mr Edward Couch, State Organised AMWU to be my representative regarding this matter.
Yours sincerely,
Dylan Bullas”
[14] The Respondent considered the Applicant’s responses and investigated the matters raised therein by speaking with a number of other staff members.
[15] Then, on 26 March 2021, the Respondent decided to terminate the Applicant’s employment and provided him with a letter of termination. That letter stated that the dismissal was, effective immediately, though the Applicant would be paid two weeks’ notice. The reasons provided for termination were that his performance had deteriorated from about October 2020. Specifically, the Respondent stated that the Applicant:
“a. display[ed] a poor attitude when in the workplace and when interacting with staff;
b. ha[d] repeatedly taken time away from work or altered your hours of work without appropriate prior approval;
c. display[ey] a distinct lack of interest in your employment with Engineering Solutions Qld Pty Ltd;
d. ha[d] failed to communicate sufficiently with staff concerning workload and ability to meet client deadlines;
e. ha[d] unreasonably refused to work reasonable additional hours to the extent necessary to meet client deadlines; and
f. ha[d] failed to follow lawful and reasonable directions to complete timesheets accurately.”
[16] Sometime after the 24 March 2021 meeting, Mr Poacher conducted some internal investigations into the matters raised by the Applicant and produced a document summarising his conclusions. That document is dated 24 March 2021, but given it deals with the intellectual property issue, it may have been concluded later. In any event, that document stated that:
a) the Applicant’s letter demonstrates he lacks any self-awareness of what constitutes professional and respectful workplace behaviour, that his attitude has created friction in the workplace and affected staff output and productivity. Several staff members had noticed that the Applicant did not communicate appropriate, lacked motivation to meet deadlines and had used profanities during a staff meeting;
b) the Applicant’s attitude had changed dramatically in the last 9 to 12 months;
c) the name “White Bread” emerged out of a comment made by the Applicant and was stopped by staff as soon as the Applicant indicated he did not like it;
d) the notion the Applicant would be required to be given verbal or written direction to stay back at work and help other team members or to meet his own deadlines is further evidence that he lacks the self-awareness and initiative that the role requires in such a close-knit team environment;
e) no overtime request had been received;
f) the Applicant did not seek permission to start early on 16 February 2021. He simply stated that he would. He then informed Mr Birt that “because I started early, I’m leaving early”, about 30 minutes before he left. No permission was sought or given. Further, the Synergy records suggest the Applicant logged on at 5:21am not 5am as claimed and thus the Applicant’s statement was deceptive;
g) the CV was created using that of Ben Olsen’s as a template because the Applicant failed to provide his own as directed. A better indication of his performance is the “Staff Skills Matrix” that shows he is lacking in several areas;
h) the Applicant’s timesheet (as filled in by the Applicant) showed he averages 30 hours a week, which is well below the 40 hours required in his contract. Further, the Respondent says the Applicant’s comments regarding billable work are misleading and that the reason his utilisation average was high was because most of his work required re-work due to errors and inaccuracies;
i) further, and perhaps most significantly, “during the investigations it was discovered that after DB received his written warning, he created two folders, namely “transfer” and “transfer_final” whereby he saved various documents/emails and manuals including highly confidential Intellectual Property (IP) belonging to ESQ. The information was compressed into a “zip” file then emailed off site. This is a major violation of the company Email and Internet Policy and DB’s employment contract which clearly states that any such violation of the policy can result in immediate termination of employment. ESQ is currently seeking legal advice on this matter and will act according to that advice seeking the full effect of the law possible to protect the company”.
JURISDICTIONAL OBJECTION
Small Business Fair Dismissal Code
[17] Section 396 of the Fair Work Act 2009 (FW Act) requires consideration, prior to the merits of the matter, of whether the dismissal was consistent with the Code.
[18] The Code states as follows:
“Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
[19] A small business employer is one with less than 15 employees.3 The Respondent asserted that it had 10 employees at the time of the Applicant’s dismissal. While the Applicant took issue with the Respondent’s submissions regarding compliance with the Code, he did not dispute the fact that the Respondent was, in fact, a small business. Based on the evidence provided by the Respondent and in the absence of evidence to the contrary, I am satisfied the Respondent was a small business and therefore the Code could apply to the termination. I therefore turn to whether the Code was complied with in the present case.
Respondent’s submissions
[20] The Respondent submitted that under the Code, it is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee has committed serious misconduct justifying dismissal. The Respondent pointed to theft and fraud as examples of conduct that might warrant immediate dismissal.
[21] The Respondent alleges that the Applicant, upon his exit from the company, took highly confidential documents and intellectual property owned by the Respondent. They say this was confirmed by the Applicant in his statement of 26 May 2021, in which he admits to having saved the documents onto his personal USB drive. The Respondent asserts that this conduct amounted to a clear breach of the Applicant’s employment contract, company policies and the law. At the time of the hearing, the Respondent was still considering whether to the report the matter to the police.
Applicant’s submissions
[22] The Applicant submits the Respondent’s jurisdictional objection should be rejected on the basis that the Respondent has no evidence to support a finding of serious misconduct and the reason outlined in the Respondent’s submissions was not given at the time of the Applicant’s dismissal.
[23] The Applicant referred to the definition of “serious misconduct” set out in regulation 1.07 of the Fair Work Regulations 2009 (Cth) (the Regulations), to which I have had regard but will not reproduce here. The Applicant also pointed me to the Full Bench’s decision in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services which is authority for the proposition that in assessing whether the Respondent complied with the Code’s summary dismissal section, I must determine two things. Firstly, if the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and secondly, whether that belief was reasonable, when considered objectively. 4 Whether a reasonable investigation was carried out will be a relevant factor in determining if the second element is met.
[24] The Applicant asserts that the Respondent has not established that it held a genuine belief that the saving of documents on to the USB was sufficiently serious to warrant summary dismissal, nor has it demonstrated that it had reasonable grounds for holding any such beliefs. That is particularly so, the Applicant says, in circumstances where the accusations were not put, or any procedural fairness afforded, to the Applicant prior to his termination. Accordingly, the Applicant asserts that the Respondent’s conduct in dismissing him was not consistent with the Code.
Consideration
[25] There are two limbs to termination under the Code. Firstly, summary dismissal is possible if the Respondent believed, on reasonable grounds, that the Applicant’s conduct was serious enough to justify immediate dismissal. The Respondent agrees that when he made the decision to terminate the Applicant’s employment, he was not yet aware of the theft of the intellectual property. Had the Respondent reasonably believed that the Applicant had stolen that material prior to terminating his employment, that conduct may have amounted to serious misconduct. However, it was not referred to in the termination letter dated 26 March 2021 and, at the hearing, the Respondent’s evidence was that the theft of documents was discovered after the termination on 26 March 2021. On that basis, I am not satisfied that summary dismissal was available to the Respondent at the time the Applicant was dismissed. Put another way, the Respondent could not have dismissed the Applicant in accordance with the summary dismissal provisions of the Code because it was not then aware of the serious misconduct. Consequently, I must consider the other limb for termination under the Code.
[26] Under ‘Other Dismissal’, the Code requires that the employer provides a reason or reasons why the employee’s employment is at risk. The Respondent did so in the Show Cause document on 18 March in which it detailed a list of issues that it alleged demonstrated the Applicant’s continued underperformance and poor attitude and stated that the Applicant’s role was at risk. The collection of allegations demonstrates there was a significant gap between the Respondent’s expectations and the Applicant’s performance. The issues ranged from timekeeping to work performance, accuracy and communication. Combined, these matters in my view (particularly in the context of a small business) are a valid reason to consider termination. The Respondent did not come to this position quickly. Mr Poacher testified that he discussed the shortcomings with the Applicant in December and remained generally supportive of the Applicant and wanted him to succeed. His evidence was that was still the case at the commencement of the March meeting. However, in the face of continued issues at work, Mr Poacher could not continue without further addressing the matter. The Applicant contended that the work performance, feedback and other concerns raised lacked specificity or lacked documentation. I note that this is a small business and the manager (Mr Birt) provided credible evidence that he was supportive of the Applicant and attempted with others in the team to support and encourage the Applicant’s development as a draftsman. Mr Poacher and Mr Birt felt that threatening the Applicant’s employment would not assist the Applicant’s performance and, in fact, may be detrimental to the Applicant’s progress. The Applicant denies all performance issues, stating that he was not aware of the Respondent’s concerns or that, if they were raised, they were minor.
[27] The Code requires an employer to provide the employee with an opportunity to respond. The Respondent did so, and the Applicant provided a written response on 24 March 2021 denying all of the allegations.
[28] Additionally, the Code requires that the employee be provided with an opportunity to improve or address the performance gap. The Respondent claimed that there was a verbal discussion in December 2020 about the Applicant’s performance before the letter was sent in March 2021, which documented that improvement had not occurred. It also made some further observations of the deficit in performance and suggested another opportunity to further discuss. That said, the Applicant was only put on notice that his employment was at risk on 18 March 2021, and by 26 March 2021, his employment had been terminated. There was only a matter of days between the formal commencement of the show cause process and the termination of the Applicant’s employment. He was not at work for most of that period and clearly did not have a sufficient opportunity to improve during this short period of time. Accordingly, I find that the Applicant was not dismissed pursuant to the Code. The jurisdictional objection therefore fails, and I must turn to the merits of the Applicant’s substantive application.
MERITS
Applicant’s evidence
[29] The Applicant provided two witness statements and gave evidence at the hearing.
[30] The Applicant’s first statement, dated 26 May 2021, set out his personal background, the terms and conditions of his work with the Respondent and the events relevant to his termination. The Applicant stated that between June 2018 and March 2021, he had not been requested to work additional hours. The team managed to complete work on time and meet client deadlines. There were two occasions he recalled – on or around March and June 2019 – in which Mr Poacher had expressly asked to complete overtime work to meet client deadlines. The Applicant took from these occasions that Mr Poacher would initiate a conversation if overtime work was required.
[31] On or around November 2020, the Applicant began working in a team of four or five people to complete a project that had a lot of work to be done with tight deadlines. On or around 15 February 2021, the Applicant initiated a discussion with Mr Birt, suggesting that the Applicant start early the following day to complete the work he had to do, so that Mr Birt could verify his work later that day before it was sent to the client. The Applicant says that Mr Birt raised no objections. On 16 February 2021, about one and a half hours before lunch, the Applicant told Mr Birt he would be going to lunch and then heading home as he started three hours early. Again, the Applicant says that Mr Birt raised no objections.
[32] On or around 17 February 2021, the Applicant recalls Mr Poacher asking him why he had changed his hours. He gave the explanation above. The Applicant states that Mr Poacher did not raise any concerns, so the Applicant assumed this explanation had been accepted. The Applicant says he told Mr Poacher that he did not want the Respondent to pay him overtime as he was trying to save the company money. The Applicant says Mr Poacher told him he should already be working overtime for the project but made no mention of payment. The Applicant worked an additional two and a half hours that evening.
[33] In respect of the nickname “White Bread”, the Applicant says that within a few months of commencing his employment, Mr Poacher announced in a meeting that the team needed to come up with a nickname for the Applicant. The group settled on “White Bread”. The Applicant told them, “they could find a better nickname than that” but they continued to use the name. The Applicant stated he did not like the nickname because he felt it was being used to emphasise how boring his colleagues perceived him to be. He did not raise his issues with the nickname with management as he felt he had addressed it directly with the relevant individuals. In the hearing, the Applicant stated that originally his nickname was going to be “Bob Dylan” because his first name was Dylan, but it was changed to “Silent Bob” which he thought was humorous. The Applicant stated that “Silent Bob” was deemed inappropriate and then it was changed to “White Bread”, but this was never put to him.
[34] The Applicant says he was not made aware of any concerns about underperformance or any failure to meet a deadline at any time during his employment. His supervisor never held performance discussions and so the Applicant was confident and expected that he would be working with the Respondent into the future. In the hearing, the Applicant stated that he was required to set his own deadlines through giving an estimate of when the task would be completed. He gave evidence that on one occasion the client had changed direction a multitude of times leading to the rework for the entire crew, which meant the Applicant was not given enough time by the client to produce the work in a good enough form. He stated that this took another few weeks to complete, but that was the only occasion he recalled this happening.
[35] The Applicant says he provided the required notice and evidence when taking leave and had only been unwell on two occasions between September and December 2020, for which he had also provided notice. The Applicant reiterated this in the hearing, noting that he had taken sick leave twice between September 2020 and December 2020, which equalled to one and a half days.
[36] On 1 December 2020, Mr Poacher asked the Applicant to step into a meeting room. No one else attended and the Applicant did not think to ask for a support person. Mr Poacher asked the Applicant why he was taking two extra weeks of annual leave over Christmas. That leave had already been approved by Mr Birt. The Applicant said he was a little stressed out as his workload had increased a lot and he thought that the additional annual leave would assist with his stress levels. Mr Poacher asked whether the Applicant wanted to continue working for the Respondent and that he had noticed the Applicant’s enthusiasm was low. The Applicant said that his enthusiasm had not dropped but that he had been busy and wanted to step up into a design role. Mr Poacher said he did not know that the Applicant wanted to do design work and would consider this. The Applicant says that Mr Poacher did not raise any concerns with his performance or lack of teamwork. No notes were taken and no follow up meeting discussed.
[37] Following the Christmas break, the Applicant began sending Mr Poacher updates regarding his workload because he was concerned by the December 2020 discussion and wanted to show more initiative in communicating regarding the tasks he was undertaking and the deadlines he was seeking to meet. The Applicant felt there was little direction from other team members and did not want to be blamed for not meeting a deadline. The Applicant says that Mr Poacher praised him for this initiative in front of co-workers.
[38] At a meeting on or around mid-February 2021, the Applicant recalls Mr Poacher saying that overall, employees’ timesheets were “pretty good at the moment” and encouraged everyone to “keep up the good work”.
[39] The Applicant describes the events leading to dismissal:
“On 11 March 2021, I received a letter highlighting that the Respondent had substantiated a number of allegations following my meeting with Daniel on 1 December 2020 and that they would be monitoring my progress. I was surprised by this. Firstly, the matters of concern that were substantiated to provide a warning were not discussed in the meeting on 1 December 2020 and secondly, because there was no mention in the meeting that my performance was being monitored…
On 12 March 2021, the AWU wrote to the Respondent regarding my concerns in not receiving the allegations prior, not being offered a support person during discussions and not being given an opportunity to respond before receiving a warning…
On 14 March 2021, I received a text message from Daniel directing me to take one week’s annual leave, immediately…
The AWU sent a response to Daniel via email, reminding Daniel of the terms of my contract…
On 15 March 2021, I had a conversation with Daniel asking me why I came to work. I mentioned that he would have received an email the previous evening requesting that the union be present in conversations regarding the directions to take leave. Daniel’s response was ‘no, I don’t want to talk to them. I don’t want anything to do with them’ and said ‘We are not under a union award or anything. Tell me if I am wrong.’
On 16 March 2021, Daniel asked me if my timesheets were right. I replied that they were. Daniel replied that he thought that I hadn’t entered my time for Dolphin Waters posts, rails and fences.
I responded that ‘I needed to get a task entered on Abtrac for those’ and Daniel asked ‘if I had asked Craig yet’ in which I responded that ‘I needed to speak with Craig to add the time in’.
After receiving notification from Craig that he had a task created in Abtract I updated my timesheet and sent it off to Daniel at approximately 12pm.
On or around 16 March 2021, I was concerned about the warning I had received and that I had been treated unfairly since I received the warning. To protect myself, I made the decision to save documents to refute certain allegations that had been made in the warning letter regarding my performance. The documents pertained to my quality of work, include time and attendance and leave records. I saved these documents onto a USB.
On 18 March 2021, I received a letter acknowledging the lack of procedural fairness and withdrawal of the written warning. Further, the letter invited me to show cause as to why my employment should not be terminated on the same allegations raised in the previous warning letter and raised several new allegations…
On 24 March 2021, I provided a response to the show cause letter…
On 26 March 2021, I received a termination letter, effective immediately…”
[40] The Applicant also says he does not recall swearing or behaving inappropriately at a morning tea and notes that, in any event, this was not raised with him as an issue whilst he was employed. He presented his own description of the Melbourne Cup event. Similarly, he cannot recall any time during his employment that he received a verbal or written direction to complete tasks that were not completed, nor there being any competency related issues or billable hours required for re-work due to numerous errors in his drafting as alleged. He says that he cannot recall any concerns being raised about him not completing the curriculum vitae (CV). He remembers being asked to do it but was sick the following day and understood that it was, in any event, the administration officer’s role to prepare the CV for publication.
[41] The Applicant also states that he only took documents related to his performance after the warning letter was issued because he thought he may need evidence. He says he stored that information on the USB and did not email it to himself.
[42] The Applicant has been unable to find work since his termination and has taken steps to reduce his spending.
[43] The Applicant’s supplementary statement, dated 18 June 2021, states that he was hired as a draftsperson, as stated in his offer of employment. He confirmed that he would submit his work to a senior member of the team and be provided with feedback and corrections. The Applicant says these were never framed as mistakes but rather were part of learning on the job and not a performance concern. Mr Birt did not raise any concerns regarding his performance, including the volume of work conducted or corrections required. The Applicant was also never told he was not meeting deadlines. He could therefore not rectify this if it were occurring. The Applicant disagrees that Mr Poacher started to observe that his work outputs were not to his usual standards in terms of accuracy. The Applicant says problems with his work was were never raised and thus he assumed Mr Birt and Mr Poacher were satisfied with the quality of his work.
[44] The Applicant denies that he took time off on days when projects were due. He says that the days he took off were planned annual or days on which he was unwell. In any event, this had not been raised with him previously. The Applicant conceded that he did arrive late occasionally, but said he would usually text in advance, make the time up at lunchtime and this practice had never been raised as an issue with him prior to December 2020.
[45] In respect of the December 2020 meeting, the Applicant acknowledged that he had been stressed by the workload but wanted to maintain his employment. He was not told the taking of sick days was inappropriate, nor that he should be taking personal leave instead. He says that he left the meeting with Mr Poacher feeling as if his career progression would be supported by the Respondent, particularly in respect of design opportunities. He disagrees that the workload emails had been discussed with Mr Poacher and says they were proactively initiated by the Applicant himself.
[46] As to the saving of documents, the Applicant says he did this to protect himself. Having received the letter from the Respondent’s lawyers, he responded by indicating that he had not shared, nor intended to share, the confidential information and therefore thought that would be the end of the matter.
[47] In respect of engaging with his colleagues, the Applicant says that he did not feel like he was accepted socially by a few members of the team and, in the afternoons, would often wait outside for his mother to pick him up.
[48] The Applicant takes issue with the evidence given by Mr Birt in relation to the amount of rework required. He also says that if Mr Birt took issue with his conduct on 16 February 2021, he should have addressed it with the Applicant. The Applicant says there was no need to take annual leave on that day as he simply adjusted his hours and had so informed Mr Birt.
[49] In the hearing, the Applicant stated that he was working eight hours a day which would be 40 hours a week. The Applicant stated that to the best of his knowledge, he believed he had been providing enough utilisation to meet the requirement of his employment agreement. He stated that no such problem was ever raised with him or the work group in any way, shape or form, despite there having been multiple meetings where they had discussed the work group's timesheets.
Applicant’s submissions
[50] The Applicant submits there were no issues or concerns raised regarding his performance at work within the timeframe indicated by the Respondent. Further, as the show cause letter of 18 March 2021 did not raise specific concerns, the Applicant could not make a more targeted response to his alleged behaviour. The only particulars cited by the Respondent concerned a morning tea which took place over a year ago. The Applicant cannot recall this incident and it had not been raised as an issue prior.
[51] The Applicant denies being aware of performance or behavioural issues, claiming he has always behaved professionally and respectfully and has received only positive feedback from his managers. He asserts that allegations that he had a lack of interest in his employment were not substantiated or discussed prior to the inclusion in the show cause notice. Similarly, he submits that the allegations that he failed to follow reasonable directions to complete timesheets were not substantiated. He could only recall one instance during his employment where a timesheet needed to be adjusted, which was done immediately, without issue.
[52] Regarding the failure to communicate appropriately with respect to his workload and ability to meet deadlines, the Applicant submits he was never made aware of performance issues and received praise throughout his employment, so he was not to know that anything was amiss.
[53] As to the allegations that he unreasonably refused to work additional hours, the Applicant says that while other employees stayed back to work, he was never asked to, nor was his failure to do so raised as an issue during his employment.
[54] The allegation that the Applicant repeatedly took time off work or altered hours without appropriate approval, was flatly denied by the Applicant. He submits that he took 2.5 days of leave and no concerns were raised when he provided notice to the Respondent, or when the leave was taken. Specific incidences were not provided in the letter and the Applicant claims he has always sought approval prior to alteration of hours or leave.
[55] In respect of the factors in s.387 of the Act to which I must have regard, the Applicant submits the Respondent has not proved that it had a “sound, defensible or well-founded” reason for dismissal. 5 I have had regard to, but will not repeat here again, the Applicant’s submissions in relation to each of the allegations made against him. The Applicant further submits that as there was no valid reason for the dismissal, as a matter of logic, he cannot have been notified of same.
[56] The Applicant submits he was not afforded procedural fairness or an opportunity to respond before the decision was made to terminate his employment. 6 The Applicant submits that no steps taken by the Respondent in the performance management or disciplinary process, nor was there any counselling and monitoring. The only warning that was provided was retracted due to a lack of procedural fairness on the Respondent’s behalf and then the subsequent show cause letter listed general concerns, without particular details. Otherwise, the Applicant states, there were no warnings or written records regarding the Applicant’s alleged unsatisfactory performance prior to dismissal. The Applicant submits that the Respondent’s evidence regarding his performance is at best irrelevant and at worst, a disingenuous attempt by the Respondent to manufacture a reason to justify the Applicant’s dismissal. With respect to the communication of a valid reason and an opportunity to respond, the Applicant considers this to be somewhat irrelevant because there was no valid reason for dismissal.
[57] The Applicant acknowledges that a support person was present at the discussion related to his dismissal. As to the Respondent’s lack of dedicated human resources, the Applicant at the hearing pointed to Mr Poacher’s extensive experience as evidence that he would have been in roles that required the management of staff previously. More relevantly perhaps, was the fact that the Respondent sought legal advice and therefore would have had access to advice on the appropriate dismissal procedures to follow.
[58] With respect to the removal of documents from the Respondent’s computer system, the Applicant tendered an email in response to the company’s letter through their lawyers post the termination alleging the removal of company intellectual property, denying that he had the material and stating that accordingly he would not be disclosing or revealing the material. Further, he stated in his submissions that he copied material to a personal USB drive that related to him personally.
[59] Overall, the Applicant submits that a holistic consideration of the factors in s.387 of the Act should weigh heavily in favour of a finding that the dismissal was harsh, unjust and unreasonable.
Respondent’s Evidence
[60] Each of the Respondent’s witnesses provided statements in these proceedings and gave evidence at the hearing.
Evidence of Daniel Poacher
[61] Mr Poacher’s evidence was that when the Applicant commenced his employment with the Respondent, he was becoming a competent draftsperson and fitted in well with the organisation. However, Mr Poacher noticed a change in attitude and performance in mid to late 2020, observing that the Applicant’s work outputs were of a lower and less accurate standard and he was arriving to work later than usual. Around this period, the Applicant missed client deadlines which impacted his co-workers. The Applicant was also observed as taking time off work on a couple of occasions when projects were due to be delivered.
[62] Mr Poacher states that these issues were raised with the Applicant through informal discussions on several occasions before he had a more formal discussion with the Applicant in December 2020. Following that meeting, it was agreed that the Applicant would email his workload through each day for assistance in meeting deadlines. Mr Poacher’s evidence was that the Applicant continued to miss deadlines which continued to affect the team. Additionally, Mr Poacher stated that the Applicant would take time off without prior approval, in breach of the Respondent’s policies.
[63] In the hearing, Mr Poacher conceded that he did not have any formal documentation to support that he had raised the issue of the Applicant’s output quality with the Applicant. Nor did he have notes of the occasion on which he raised with the Applicant the issue of his arriving late to work, however his evidence was that this conversation did occur. Additionally, Mr Poacher also acknowledged there was not an actual example put to the Applicant regarding his tardiness, but it was a part of the overall consideration of attitude.
[64] Mr Poacher stated that several staff members had observed, and raised with him, the fact that the Applicant’s attitude and general professionalism had diminished. His investigation into these matters following receipt of the Applicant’s response to the show cause letter, found instances of friction between co-workers who felt the Applicant’s behaviour and level of respect has affected staff outputs and productivity.
[65] The Applicant was asked to complete his CV (in the Respondent’s standard format) by close of business on 11 March 2021 because it needed to be attached to a DTMR Prequalification Application submission. Most staff had completed this request the week prior. The Applicant failed to complete this task and called in sick the following day. Consequently, other staff members had to complete this task in combination with their own work. Due to the time restraints, Mr Olsen’s CV was duplicated with minor details amended. Viewed in that context, the Applicant’s reference to his CV as being truly reflective of his performance and demonstrated abilities is misplaced. The staff skill matrix in fact demonstrates that, on the contrary, the Applicant is lacking in many key areas required to carry out his role.
[66] On a certain project, the Respondent was under significant pressure to meet a deadline and other staff were working additional hours to ensure the project was delivered within time. The Applicant continued to work only his normal hours and did not assist by working reasonable additional hours as contemplated in his employment contract. This was communicated to the Applicant, and the Respondent conceded that the Applicant worked extra hours on that day. Mr Poacher gave evidence that if there is a project that has imminent deadlines and people work extensive hours, then the following week once those deadlines are hit, he did not mind if people came in a bit later or left a bit earlier as long as it was pre-arranged.
[67] As described above, on 15 February 2021, the Applicant left the office advising Mr Birt that he would come into the office early the following day to complete a project. No permission was sought for this arrangement. It was assumed the Applicant would continue to work until the end of the day, however 30 minutes prior to his departure he informed Mr Birt he was leaving early. Mr Poacher stated that no prior approval had been sought. Rather, the Applicant unilaterally adjusted his working hours. Upon further investigation, it was discovered that though the Applicant claimed to have started work three hours early, the Synergy log shows logging in at 5:21am not 5:00am as claimed. By claiming to have started a full three hours early, Mr Poacher said the Applicant purposefully misled Mr Birt and gave false information which is a further breach of his employment agreement and company policy. The Applicant’s employment contract states that a leave form must be completed and submitted for approval prior to leave being taken.
[68] Mr Poacher stated that his frustration with the mid-February incident (where the Applicant came in early and left early) was that there was no agreement and the deadline had not yet been met. Mr Poacher stated that had the project been completed, he would not have minded that the Applicant had an afternoon off. The issue was that on that occasion, the Applicant’s actions meant that two other employees had to keep going with the project in his absence.
[69] Mr Poacher’s evidence was that the Applicant took days off on project deadline days because he was getting stressed about meeting them and felt it was better to have a day off. Mr Poacher stated that the Applicant failed to meet deadlines on a number of occasions and this was verbally raised, though not recorded in writing. Mr Poacher’s evidence was that he raised it with the Applicant at the end of December, though he was unsure of the precise date. Mr Poacher firmly recalled having that discussion, though no records were made. Mr Poacher stated that the Applicant was disappointed he had not been given any design work. Mr Poacher said that while the Applicant would not be given such work now due to how busy they were, they would try to give him smaller design jobs in the New Year. Mr Poacher conceded that this was not followed up. Mr Poacher’s evidence was that there was no other planned discussion following the December meeting, including before the letter was issued. He also conceded that he did not tell the Applicant in the December meeting that if there was no improvement, he would receive a warning.
[70] Mr Poacher’s evidence was that in the preceding six months, the Applicant averaged a total of 30 hours of work per week, which is significantly under the minimum 40 hours per week stated in his employment agreement. He refuted the Applicant’s claims regarding the billable hours displayed in the Respondent’s timesheet software and explained that the timesheet in this software is not a true representation of the hours that are billed to the client but rather a measure of hours spent working on active jobs. The Applicant’s billable hour average was higher because most of his work required re-work due to numerous errors and inaccuracies.
[71] Mr Poacher made the decision to terminate the Applicant’s employment citing the Applicant’s attitude to other staff, poor work performance and breach of company policy. Mr Poacher stated he emailed the termination letter to the Applicant and there was no meeting. He further stated that the Applicant was given two weeks pay in lieu of notice. In the hearing, Mr Poacher stated that the allegation of illegally removing sensitive files were not put to the Applicant before he was terminated, as Mr Poacher only became aware after the fact when an audit was completed. Mr Poacher stated that some of the documents that the Applicant was found to have removed related to the business management system manual and procedures and some specific projects undertaken by the Respondent, which are of very significant commercial value to the Respondent. He stated that the USB that the Applicant saved these on had not been returned.
Evidence of Ben Olsen
[72] Mr Olsen worked with the Applicant for the entirety of his employment with the Respondent. During his time at the Respondent, Mr Olsen said the Applicant progressed from a trainee draftsperson to a junior draftsperson and was about to be trained for a design role before his termination. He would regularly work on projects closely with the Applicant.
[73] Mr Olsen felt the Applicant’s standard of work dropped during late 2020. On many occasions Mr Olsen found repeated mistakes in the Applicant’s work, despite the fact the errors had been commented on in previous projects. Additionally, the Applicant would ignore some comments that had been made on the drawings, and in other pieces of work, the Applicant made written comments in response to the markups that were sardonic in nature and unprofessional. During a large project, the Applicant was asked repeatedly for an estimated deadline for his portion of the project but refused to provide a response and became annoyed and unprofessional in his responses. Mr Olsen recounts an incident over a staff morning tea where the Applicant told an inappropriate story which included vulgar and offensive language. He recalled that during a morning tea at work, the Applicant was noted by staff on four occasions using the words, “fuck”, “fucking” and “cunt”. A co-worker tried to gesture for the Applicant to stop with this language which he paid no attention to and continued using the language and thus causing offence.
Evidence of Craig Birt
[74] Mr Birt worked as a project manager who reviewed the Applicant’s work for the entirety of his employment with the Respondent. Mr Birt was complimentary of the Applicant’s quality of work at the start of his employment but noted that it had deteriorated over time, specifically regarding attention to detail and obvious oversights which suggested that he was not correctly reviewing his work prior to sending it.
[75] In the hearing, I asked Mr Birt how the Applicant would know his work was not getting better. Mr Birt stated that more often than not he would be sending an increasing number of plans back to the Applicant to redo. In doing so, he might make some comments, though stated he did not make a habit of admonishing people in front of the rest of the staff.
[76] Mr Birt also noticed a decline in the Applicant’s enthusiasm for the job. This included observing more frequent periods of arriving at work late and leaving immediately at 5:00pm. Mr Birt’s evidence was that if the Applicant was running late, it would only be by about 10 or 15 minutes, but he would always leave at 5:00pm regardless of his late start.
[77] Mr Birt confirmed that the Applicant left work early on 16 February 2021. Prior to this, the Applicant told Mr Birt he would come to work early to get his work done. This arrangement had not received prior approval. The work involved fixing previous mistakes he made.
[78] In the hearing, Mr Birt gave evidence that he would not normally expect employees to work in excess of their ordinary hours it if there was no work to be done. However, if there was a deadline to be met, they would expect a little bit of extra time. If the work arose because of an individual’s errors, Mr Birt stated that he, for example, would want to try and rectify that immediately to minimise the impact on anyone else. He stated that the employees would not be paid overtime for this, nor would they be offered time off in lieu unless arranged prior.
Evidence of Charmaine Dillon
[79] Ms Dillon worked as an administration officer for the Respondent and provided evidence in relation to the administrative aspects of the Applicant’s work. While the Applicant was friendly and good natured at the commencement of his employment, towards the latter part of 2020, Ms Dillon observed the Applicant being less happy at work. He would more frequently work with headphones on and not engage with other staff. The Applicant became more unaware when calls needed to be transferred to him or when co-workers were trying to get his attention. Ms Dillon also recalled the incident at the morning tea where the Applicant told a story with a lot of expletives. When this was brought to the Applicant’s attention as being inappropriate, he repeated the expletives anyway. Her evidence was that the Applicant’s overall demeanour and attitude became more reclusive and less approachable.
Respondent’s Submissions
[80] The Respondent submits there was a valid reason for dismissal. In addition to the reasons detailed in the termination letter (outlined above), the Respondent stated Mr Poacher had become aware that after the Applicant was issued with the show cause letter, he had moved sensitive files from the Respondent’s system and saved them to a USB.
[81] The Respondent further submits that the Applicant was notified of the reasons for dismissal and offered an opportunity to respond. The Respondent states that the issues had been raised informally with the Applicant and then, on or around December 2020, Mr Poacher met with the Applicant and advised him of the issues more formally. Specifically, Mr Poacher stated that there was a requirement for all staff members to work together to meet client expectations and the Applicant’s lack of teamwork and apparent lack of desire to meet client deadlines was resulting in disharmony in the workplace and causing stress and tension within the team. Mr Poacher stated that from this meeting the Applicant was on notice that his performance and communication was being monitored and thus the Applicant had over three months to improve his conduct before more formal warnings were issued. The Respondent submits that the Applicant’s attitude and performance did not improve.
[82] On or about 11 March 2021, the Applicant was issued with a letter, which referred to the meeting in early December where several maters of conduct were referred to, including regular time away from the office, ability to meet deadlines and his level of interest in his job. The letter further says, “We agreed that your conduct in taking sick days was not appropriate and this time away from the office was in fact annual leave and should be applied for by completing the forms and submitting for approval. We agreed that improvement was required in your communication, meeting deadlines, or advising of not being able to meet deadlines.” The Applicant was offered an opportunity to respond given his conduct was not improving. The Applicant’s response to receiving this correspondence led to the further communication where the Respondent stated that as far as the letter could be viewed as a warning or disciplinary note it was withdrawn. A show cause notice was issued on the 18 March 2021. The Applicant and his support person attended a meeting with the Respondent on 24 March 2021 to respond to the allegations. He did so in writing and did not engage in any further conversation regarding the allegations.
[83] After this meeting, Mr Poacher conducted interviews with all the relevant staff to ascertain whether there was any truth to the allegations made by the Applicant. During these investigation, Mr Poacher heard some alarming accounts from staff as to the Applicant’s recent behaviour.
[84] After consideration had been given to the Applicant’s responses, the decision was then made to terminate the Applicant’s employment. The Applicant was notified of the decision in writing on 26 March 2021.
[85] Mr Poacher discovered shortly after the termination that the Applicant had removed commercially sensitive files on 19 March 2021 (the day he was given the Show Cause Letter). This was a major violation of the company Email and Internet Policy and the Applicant’s employment contract which clearly states that any such violation of the policy can result in immediate termination of employment. Though this was not relied upon at the time the decision was made to terminate the Applicant’s employment, this conduct occurred prior to the actual termination and therefore the Commission can have regard to it in considering the overall circumstances.
[86] In light of the evidence presented, the Respondent submits it is clear that the Applicant was not unfairly dismissed.
Consideration
[87] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[88] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 7
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[89] To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 8 and should not be “capricious, fanciful, spiteful or prejudiced.”9 When determining if there was a valid reason for a dismissal, the Commission must be satisfied that the evidence before it demonstrates that the employee engaged in the alleged conduct. It is not sufficient that the employer reasonably believed, after sufficient inquiry, that the employee was guilty of the conduct. 10 Rather it must be proved, on the balance of probabilities. If that is established, the Commission must then assess whether the conduct was of sufficient gravity or seriousness to justify dismissal as a sound, defensible or well-founded response.11
[90] The Commission is not limited to the reason relied on by the employer. 12 Neither is the employer limited solely to the reason given to the employee at the time of the dismissal to establish a valid reason for a dismissal. That said, relying on other reasons may have implications for the considerations in s. 387 going to procedural fairness.13
[91] The reasons given by the Respondent for the Applicant’s dismissal at the time, were his:
a) poor attitude in the workplace and when interacting with staff;
b) failure to seek adequate prior approval for taking time away from work or altering hours of work;
c) displayed lack of interest in his employment;
d) failure to communicate sufficiently with staff concerning workload and ability to meet client deadlines;
e) unreasonable refusal to work reasonable additional hours to the extent necessary to meet client deadlines; and
f) failure to follow lawful and reasonable directions to complete timesheets accurately.
[92] Subsequently, the Respondent became aware of the Applicant’s unauthorised copying and removal of the Respondent’s intellectual property. The Applicant had removed the documentation prior to his dismissal. However, the Respondent had only become aware of it after the event. At the hearing, the Respondent pointed to this conduct to also justify the termination.
[93] The evidence before me suggested that the Applicant was someone who became disengaged from their workplace and not performing as an employer might reasonably expect. As occurs frequently in small businesses, the feedback provided to the Applicant was done without detailed record keeping or formal performance documentation. I accept the Applicant may not have been aware of the depth of performance and attitude concerns the Respondent held prior to December 2020. However, after the December meeting, I do not accept that the Applicant was unaware of the performance or conduct issues. I accept the evidence that the Respondent made concerted efforts to discuss with the Applicant concerns over his performance on the job, whilst also attempting to be supportive and encouraging of someone early in their career with much to learn about the working environment.
[94] Throughout this process, the Applicant has sought to minimise, deny or divert attention from each of the matters raised by the Respondent. The observations of each of the Respondent’s witnesses was compelling and persuasive with respect to the Applicant’s deteriorating quality of work, teamwork and interactions . I am satisfied that when looked at collectively, the performance issues constitute a valid reason for dismissal. The Applicant’s attitude and output had clearly deteriorated such that they constitute, in my mind, a valid reason for terminating employment.
[95] I must also grapple with the Applicant’s removal of commercially sensitive documents without authorisation which was discovered after the Applicant’s employment was terminated.
[96] The High Court’s decision in Shepherd v Felt & Textiles of Australia Ltd, is instructive when dealing with matters of this kind. There the Court stated that it is immaterial that the applicant’s misconduct was unknown to the respondent at the time of the termination.It is sufficient that the circumstances (which could have justified the respondent’s decision to terminate) did, in fact, exist at the time of the termination and were subsequently proven. 14
[97] In Byrne v Australian Airlines Ltd, the High Court considered this concept again. In doing so, their Honours cited with approval the following passage of von Doussa J’s judgmentin Lane v Arrowcrest Group Pry Ltd:
“Whether the decision can be so justified will depend on all the circumstances. A circumstance likely to favour the decision to dismiss, would be that fraud or dishonesty of the employee had caused or contributed to the employer’s state of ignorance. A circumstance likely to weigh against the decision would be that the employer had failed to make reasonable inquiries which would have brought existing facts to its knowledge before the dismissal occurred.” 15
[98] Later in APS Group (Placements) Pty Ltd v Stephen O’Loughlin, the Full Bench expounded on this issue by stating that:
“Section 387(a) of the FW Act requires FWA to consider “whether there was a valid reason for the dismissal”. This language directs attention to whatever reason or reasons for dismissal emerge from the evidence and are relied upon by the employer. The tribunal is not confined to a consideration only of the reason or reasons given by the employer at the time of the dismissal. An employer is entitled at the hearing of an application for an unfair dismissal remedy to rely upon whatever reason(s) the employer wishes to rely upon at that time, albeit that in relation to any reason not relied upon at the time of dismissal the employer will have to contend with the consequences of not giving the employee an opportunity to respond to such reason (see s.387(b) and (c) of the FW Act).” 16(emphasis added)
[99] Turning now to the present case, the copying of the documents and removal off site was not put to the Applicant prior to his termination because it was only discovered after the event. However, the actual conduct occurred prior to his termination. Had the Respondent conducted an audit of the Applicant’s computer prior to terminating his employment, the removal of the documents would have been discovered. That said, I do not consider the circumstances of this case to be of a kind as envisaged by von Doussa J as that which weighs against the decision, that is that the employer had failed to make reasonable inquiries which would have brought existing facts to its knowledge before the dismissal occurred. Mr Poacher clearly viewed the termination decision as one necessitated because of the Applicants deteriorating performance and attitude at work. There was no reason for him to suspect that the Applicant had copied any documents without authorisation or indeed engaged in any conduct that required an audit of his computed. Consequently, in light of the authorities outlined above, it is incumbent upon me to take into account the removal of Respondent’s intellectual property when considering whether the dismissal was harsh, unjust or unreasonable.
[100] In short, given the commercially sensitive nature of some of the material taken I am satisfied the Applicant’s actions constituted serious misconduct warranting dismissal. His conduct was a clear breach of his obligations of employment and the Respondent’s policies and procedures with respect to sensitive information. It alone would have been a valid reason for terminating his employment.
Was the Applicant notified of the valid reason?
[101] I am satisfied that the Applicant was notified of reason for termination which related to his performance. I accept Mr Poacher’s evidence that the Applicant was provided feedback informally prior to the more formal meeting in December 2020 and that the Applicant was put on notice at that meeting that something needed to change.
[102] I am also satisfied that the Respondent’s letter of 18 March 2021, outlined each of the reasons for which the Respondent was then considering termination of the Applicant’s employment.
Was the Applicant given an opportunity to respond to any valid reason?
[103] I am satisfied that the Applicant was given an opportunity to respond to the reasons provided at the meeting of 24 March 2021. He read from a pre-prepared written response and was invited to verbally make any response directly to Mr Poacher. That he decided not to add anything to his written response was the Applicant’s choice. In any event, the written response was quite thorough.
Support person
[104] It was not in dispute that a support person was present at the discussion related to the Applicant’s dismissal on 24 March 2021.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[105] As I have set out above, the Applicant submits that he was not warned about his unsatisfactory performance before the dismissal. The Respondent contends he was.
[106] I am satisfied that Applicant had been made aware of the gaps in his performance in December and had continuous feedback given his work being reviewed by Mr Olsen and Mr Birt as part of normal work processes. His drawing work was either accepted or corrected and returned. Both Mr Birt and Mr Olsen commented that there was more frequent rework required. That is, work had to be returned to him for correction. Sometimes though, those errors would not be corrected in the subsequent iteration of the document when it was returned to the person who had reviewed it. This prompted growing concerns over his quality of work.
[107] That the Applicant chose to ignore or downplay all the work performance issues raised does not assist his case. In such a small team where everyone’s work is intrinsically linked, underperformance of one employee is noticeable and can have a significant and direct impact on others, as well as on the team’s overall productivity and performance. It seems the Applicant – deliberately or not – ignored the cues being provided to him about his performance.
Size of the Respondent’s Enterprise (s.387(f)) and Presence of a Human Resource Specialist (s.387(g))
[108] It is not in dispute that the Respondent is a small business that lacks dedicated human resource personnel. I was not persuaded by the Applicant’s submission that Mr Poacher’s previous senior roles meant that he was experienced in respect of dealing with human resourcing matters. I accept the Respondent had the benefit of legal advice at some time, though it is unclear when this commenced.
[109] Finally, it is worth noting that following receipt of the Union’s initial objections regarding the performance letter sent to the Applicant, the Respondent withdrew that letter to the extent that it was a warning and recommenced the disciplinary process. I do not think this factor weighs against the Respondent.
What other matters are relevant?
[110] I have had regard to the fact that the Applicant had not, at the time of the hearing, found new employment.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
[111] I am satisfied that the performance matters alone would have justified the termination of the Applicant’s employment. I am also satisfied that the other relevant factors I am bound to consider under s.387 would have demonstrated that the Applicant’s dismissal was not harsh, unjust or unreasonable. In other words, even if the performance issues alone were before me I would have been satisfied that the Applicant was not unfairly dismissed.
[112] However, the Applicant also removed commercially sensitive intellectual property from the Respondent’s computer system. It is impossible to ignore that serious misconduct. This supports my conclusion that the Applicant’s dismissal was not harsh, unjust or unreasonable. Consequently, for the reasons outlined above, I am not satisfied that the Respondent’s dismissal of the Applicant was harsh, unjust or unreasonable.
[113] Accordingly, I order that the application be dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR733720>
1 Fair Work Act 2009 (Cth) s.394.
2 Fair Work Act 2009 (Cth) s.396.
3 Fair Work Act 2009 (Cth) s.23.
4 Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264, at [41].
5 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373; Courtney v Coal Gas Camps Pty Ltd[2013] FWC 7609 at [12]-[14].
6 As required by Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151.
7 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), at [69].
8 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), (1995) 62 IR 371, 373.
9 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), (1995) 62 IR 371.
10 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
11 Bista v Glad Group Pty Ltd[2016] FWC 3009; Turvey v Roverworth Pty Ltd [2021] FWC 4593 at [67].
12 Heran Building Group Pty Ltd v Anneveldt[2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000; Turvey v Roverworth Pty Ltd [2021] FWC 4593 at [67].
13 Turvey v Roverworth Pty Ltd [2021] FWC 4593 at [67].
14 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373.
15 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467 citing with approval Lane v Arrowcrest Group Pty Ltd (Trading as Roy Alloy Wheels) [1990] FCR 427, 456.
16 APS Group (Placements) Pty Ltd v Stephen O’Loughlin[2011] FWAFB 5230, [51] (Lawler VP, O’Callaghan SDP, Roberts C).
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