Edward a Wilkinson v Ionesia Vrancuta T/A EU Fashion Style
[2010] FWA 8663
•12 NOVEMBER 2010
[2010] FWA 8663 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Edward A. Wilkinson
v
Ionesia Vrancuta T/A EU Fashion Style
(U2010/8557)
COMMISSIONER GOOLEY | MELBOURNE, 12 NOVEMBER 2010 |
[1] Mr Wilkinson’s employment with Ionesia Vrancuta (the employer) trading as EU Fashion Style was terminated in April 2010. Mr Wilkinson filed an application for an unfair dismissal remedy on 6 May 2010 and the application was conciliated on 31 May 2010 but it was not resolved.
[2] The matter was heard on 18 August 2010 and Mr Wilkinson appeared on his own behalf and Mr Petre Vrancuta, the manager, appeared for the employer.
[3] Mr Wilkinson filed a statement in this matter but no material was filed on behalf of the employer. Mr Wilkinson gave evidence on his own behalf and Mr Vrancuta gave evidence for the employer.
[4] Mr Wilkinson objected to Mr Vrancuta putting documents before the Tribunal as he had failed to comply with the directions issued in this matter. I allowed Mr Vrancuta to tender some documentary evidence. I did not permit Mr Vrancuta to tender a letter dated 17 August 2010 from Mr Salmon from CEVA Logistics (Australia) Pty Ltd (CEVA) as Mr Salmon was not available to give evidence and be cross-examined.
Evidence of Edward Wilkinson
[5] Mr Wilkinson gave evidence that he commenced employment with the employer approximately two years earlier 1. Mr Wilkinson was employed to drive trucks2 and that while he last worked for the employer in late March 20103 he was not told that his employment was terminated until 27 April 2010, approximately five weeks later.4 On his application Mr Wilkinson stated that the dismissal took effect on 2 April 2010.
[6] Mr Wilkinson’s evidence was that he was offered employment driving from Brisbane to Townsville or Brisbane to Darwin. The employer was contracted to CEVA to transport cars and the employer employed truck drivers for this purpose. Mr Wilkinson was paid a kilometre rate. 5 He could be expected to work seven days per week but if there was no work he did not get paid.6 He did not get paid sick pay and when he commenced employment he did not get annual leave.7 His evidence was that after about six months he was offered another position and after discussing this with Mr Vrancuta, Mr Vrancuta agreed to increase his kilometre rate from 36c to 37c per kilometre and to pay him four weeks holiday pay. In addition, if he loaded the truck he received an additional $100.8
[7] Mr Wilkinson’s evidence was that on the last job he performed for the employer he drove the truck to Townsville and that the truck broke down in Bowen and the vehicle was towed to Townsville. Mr Wilkinson’s evidence was that the truck was left in Townsville and he was driven back to Brisbane. He was waiting for the truck to be repaired so he could return to work. He was not aware of any decision to terminate his employment until he contacted Mr Vrancuta having heard from another driver that he was no longer driving the truck. 9
[8] Mr Wilkinson met with Mr Vrancuta on 27 April 2010 and Mr Vrancuta told him that his employment was terminated and that Mr Vrancuta would be driving the truck. 10
[9] Mr Wilkinson became aware of the grounds for his termination when he received his separation certificate. The separation certificate stated that the reason for termination was “unsatisfactory work performance - not following instruction by Scania, wrecking the engine of vehicle, damage to vehicles and unpaid fines.” 11
[10] The Form F3 submitted by the employer in response to Mr Wilkinson’s application stated that the reasons for termination were “unsatisfactory work performance (refuse to load to go as directed by CEVA, not following instructions by Scania, wrecking the engine of the vehicle, damages to vehicle, unpaid fines, swearing, being violent to CEVA’s employee, refuse to load and unload by himself.”
[11] Mr Wilkinson denied that he refused to drive the truck on different routes. 12 His evidence was that he had agreed to work the Brisbane to Townsville or Darwin route and that is what he did. He gave evidence that he did go to Melbourne but he had refused other runs because he “would have been sent around Australia and never get home.”13
[12] Mr Wilkinson denied being counselled for his behaviour towards CEVA staff but admitted that he had got into arguments with CEVA staff, had sworn at CEVA staff and had been violent toward a CEVA staff member. He further admitted that he had been spoken to by a representative of CEVA about an incident with an employee of CEVA. Mr Wilkinson’s evidence was that the CEVA allocation officer had shut a window on his head so he “just turned around and smacked him.” 14 While Mr Wilkinson admitted he had done the wrong thing he says he was not warned by Mr Vrancuta about this incident or any other incident.15
[13] Mr Wilkinson denied damaging the vehicle that broke down in Bowen and denied damaging other vehicles. In particular he denied driving the vehicle with a warning light on red. He gave evidence that the light may have been amber at times but that happened when, for example, the truck went around a corner and Mr Vrancuta knew about this. 16 17
[14] In reference to the unpaid fines Mr Wilkinson denied he had not paid fines. 18
Evidence of Petre Vrancuta
[15] Mr Vrancuta’s evidence was that he employed four employees. While not accepting that he agreed to pay Mr Wilkinson annual leave because Mr Wilkinson was employed as a casual Mr Vrancuta accepts that he agreed to pay Mr Wilkinson $500 when he wanted to take a week off. 19 Mr Vrancuta did not contest Mr Wilkinson’s evidence about the other terms of his employment.
[16] Mr Vrancuta made no jurisdictional objection to the application.
[17] Mr Vrancuta said that he terminated Mr Wilkinson’s employment because the truck driven by Mr Wilkinson was running at a loss in part due to the payments Mr Vrancuta had to make to CEVA for damage to the cars and trailers caused by Mr Wilkinson. 20
[18] Mr Vrancuta did not claim that Mr Wilkinson was made redundant.
[19] Mr Vrancuta gave evidence that when he attended Mr Wilkinson’s house on 27 April 2010 he was thinking of giving Mr Wilkinson a second chance. He gave him $500 at that time because of the length of time he had been at home. 21
[20] The Form F3 filed by the employer in response to the application filed by Mr Wilkinson advised that the date Mr Wilkinson was notified of the termination was 15 April 2010 and that was the date the dismissal took effect. This information is inconsistent with Mr Vrancuta’s evidence.
[21] Mr Vrancuta alleged that on the last job that Mr Wilkinson performed for him Mr Wilkinson had driven the truck whilst a warning light was on. The warning light advised the driver that the coolant in the truck was low. The damage report provided to Mr Vrancuta stated that the vehicle had broken down in Bowen on 30 March 2010 and it was towed to Townsville. On 31 March 2010 the truck was examined and parts were ordered. On 1 April 2010 it was noticed that “the low coolant light was staying on and truck would not build up air. Attempt to top up coolant but we found the bottom radiator hose was blown. When we asked the driver he said the low coolant light came on when he went through Proserpine and he didn’t stop to check the coolant he continued onto Bowen (68kms) when he finally stopped. Engine had no coolant in it at all.” It further stated that “Spoke with customer and suggest we remove the sump so we can inspect the big end and main bearings along with the bores as engine had run for so long without coolant.” It further stated “found while filling cooling system water pump was leaking badly through the front shaft seal possibly due to running without coolant for so long.” 22
[22] Mr Vrancuta received the invoice for that work on 13 April 2010 and at this time he would have seen the statement where it was alleged that Mr Wilkinson had driven the vehicle with the warning light on. There is no evidence that he raised this with Mr Wilkinson and sought his version of what happened.
[23] Mr Vrancuta also alleged that Mr Wilkinson had not paid fines he had incurred whilst driving.
[24] In terminating Mr Wilkinson’s employment Mr Vrancuta also relied upon the incident described above between Mr Wilkinson and an employee of CEVA though he gave no evidence that he took any action about this at the time of the incident. 23
[25] At the meeting on 27 April 2010 Mr Wilkinson’s wife gave Mr Vrancuta a letter and said “if you sack him you have to pay him everything what is in this letter.” 24 The production of this letter appears to be the catalyst for Mr Vrancuta’s decision to terminate Mr Wilkinson’s employment.
The legislation
[26] Section 385 of the Fair Work Act 2009 (FW Act) provides:
“385 What is an unfair dismissal?
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[27] Section 386 of the FW Act provides:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
[28] Section 387 of the FW Act provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
[29] The Small Business Fair Dismissal Code (the Code) provides as follows:
“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.”
Findings
[30] This is a difficult case. Neither the applicant nor the respondent put coherent submissions or evidence before the Tribunal.
[31] Mr Vrancuta was a small employer and as such the Code applies. No submissions were made by either party as to whether the Code had been complied with. I have however had regard to the Code in this decision.
[32] Mr Wilkinson was entitled to bring an unfair dismissal application. He was a casual employee with more than two years service and he was employed on a regular and systematic basis and he had a reasonable expectation of continuing employment on a regular and systematic basis. I accept that the termination date was 27 April 2010 and therefore Mr Wilkinson’s application was lodged within 14 days of the dismissal.
(a) Was there a valid reason for termination?
[33] Mr Vrancuta relies on Mr Wilkinson’s poor performance to justify the dismissal, in particular the allegation that Mr Wilkinson continued to drive the vehicle after the warning light came on and this damaged the vehicle.
[34] It is not possible on the evidence before me to determine if Mr Wilkinson did drive the truck with the warning light on. Mr Wilkinson denies this and while the reports to Mr Vrancuta support a conclusion that the vehicle was driven without coolant, it is not possible to know if this was done deliberately by Mr Wilkinson. Mr Wilkinson denies driving the vehicle without coolant.
[35] It is also not clear if the repairs made to the vehicle after it had been driven back to Brisbane were a result of the damage done to the vehicle due to it being driven without coolant. The evidence put before me by Mr Vrancuta about this was not able to be tested in any way as Mr Vrancuta did not call any evidence from those who repaired the truck.
[36] Further on Mr Vrancuta’s own evidence when he went to speak to Mr Wilkinson on 27 April 2010 he was going to give Mr Wilkinson another go. At that time he did not consider this incident warranted summary termination of his employment.
[37] With respect to the other matters relied upon by Mr Vrancuta, while evidence was put forward that there was damage caused to cars transported by Mr Wilkinson 25 Mr Vrancuta did not provide evidence that this damage was more than would be expected. Mr Wilkinson denies that he carelessly or negligently caused any damage to cars he transported. Further there is no evidence that Mr Vrancuta spoke to Mr Wilkinson about this and advised him that he was carelessly or negligently causing damage to the cars. I do not find that this was a valid reason for the termination of Mr Wilkinson’s employment.
[38] Mr Vrancuta relied upon Mr Wilkinson’s refusal to drive on other routes to justify the dismissal. However Mr Vrancuta accepted that Mr Wilkinson was engaged to drive on the Brisbane to Townsville or Brisbane to Darwin route and there was no evidence that he refused to drive these routes. While Mr Vrancuta gave evidence that the truck was now more profitable because it was driven more kilometres Mr Vrancuta did not explain what prevented him from having other drivers drive the vehicle when it was not being used for the Brisbane to Townsville or Brisbane to Darwin route. Any failure to maximise the use of the vehicle cannot be sheeted home to Mr Wilkinson. I do not consider this was a valid reason for the termination of Mr Wilkinson’s employment.
[39] Mr Vrancuta relied upon an incident between Mr Wilkinson and an employee of CEVA. There was no evidence about when this incident occurred. Mr Wilkinson admitted that the incident occurred and relies on the conduct of the other person involved in the incident to explain his conduct. Mr Vrancuta’s evidence was that he knew of the incident yet there was no evidence that he spoke to Mr Wilkinson about his conduct or that Mr Wilkinson was warned about this incident. Further Mr Wilkinson continued to be employed after the incident occurred. Mr Vrancuta also relied on other unspecified conflict between Mr Wilkinson and other CEVA employees. No specific examples of this were given though both Mr Wilkinson and Mr Vrancuta gave evidence that swearing was common in the trucking industry. I do not find that this was a valid reason for the termination of Mr Wilkinson’s employment.
[40] Mr Vrancuta relied upon fines incurred by Mr Wilkinson. Again it is not clear when these fines were incurred. I do not find that the non payment of fines, if in fact they were not paid at the time of the termination, was a valid reason for the termination of Mr Wilkinson’s employment.
[41] On Mr Vrancuta’s own evidence he had not decided to terminate Mr Wilkinson until he was advised by Mr Wilkinson’s wife that should he terminate Mr Wilkinson’s employment Mr Vrancuta would have to pay Mr Wilkinson holiday pay and redundancy pay. Even if Mr Wilkinson was incorrect about his entitlements, Mr Vrancuta’s decision to terminate Mr Wilkinson, in part because he raised the issue of his entitlements, could never be a valid reason for termination.
[42] I am not satisfied on the evidence before me that any of the matters relied upon by Mr Vrancuta warranted the summary dismissal of Mr Wilkinson on 27 April 2010.
[43] Taking into account all the evidence I am unable to conclude that Mr Vrancuta had a valid reason for terminating Mr Wilkinson’s employment.
(b) Was Mr Wilkinson told of the reason to terminate his employment?
[44] It is clear that Mr Wilkinson was not told of the reason to terminate his employment before the decision to terminate his employment was made.
[45] Mr Wilkinson was not told of the reason for his termination until he received his separation certificate which was dated 11 May 2010.
[46] In Crozier v Palazzo Corporation Pty Ltd 26 the Full Bench of the Australian Industrial Relations Commission considered whether the equivalent provision in the Workplace Relations Act 1996 (as it existed prior to Workplace Relations Amendment (Work Choices) Act 2005) required the employee to be notified before the decision was made.
[47] The Full Bench held that:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG (3) (b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted”. 27
[48] I therefore find that Mr Wilkinson was not notified of the reason for the termination of his employment.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[49] For the reasons set out above in relation to section 387(b) the opportunity to respond is a reference to an opportunity to respond before a decision is taken to terminate the employee’s employment.
[50] I find that Mr Wilkinson was not provided with an opportunity to respond to the reason for his termination.
(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;
[51] No request was made by Mr Wilkinson to have a support person present.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
[52] Mr Wilkinson was not warned about any unsatisfactory performance before the dismissal. The Code makes it clear that, except where summary dismissal is warranted, the employee must be warned that he or she is at risk of being dismissed. There is no evidence that Mr Vrancuta discussed with Mr Wilkinson his concerns about his performance or conduct or ever advised him that his ongoing employment was in jeopardy.
[53] I therefore find that Mr Wilkinson was not warned prior to termination about his unsatisfactory performance.
(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;
[54] This is a very small business and the size of the business clearly impacted on the procedures followed.
(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;
[55] There was no evidence that there were any dedicated human resource management specialists or expertise in the enterprise. Clearly the absence of such personnel had an impact on the procedures followed in effecting the dismissal. However the Code makes it clear that small business employers have obligations to their employees. There was no evidence that Mr Vrancuta had any regard to these obligations.
[56] I find that this absence of dedicated human resource management specialists or expertise in the enterprise did impact on the procedures followed in effecting the dismissal.
(h) any other matters that FWA considers relevant.
[57] Mr Vrancuta’s evidence was that he made the decision to terminate Mr Wilkinson’s employment when Mr Wilkinson’s wife, on her husband’s behalf, raised the issue of his entitlements if his employment was terminated.
[58] It is clear from his own evidence that Mr Vrancuta decided not to give Mr Wilkinson another chance because he had raised with him what he thought were his entitlements.
[59] If Mr Vrancuta had formed the view that the damage to the truck warranted Mr Wilkinson’s summary dismissal he should have notified Mr Wilkinson in early April and should not have waited until Mr Wilkinson heard about it from other sources. As a consequence of his decision to delay dismissing Mr Wilkinson until 27 April 2010 Mr Wilkinson did not seek alternative work until after 27 April 2010.
Conclusion
[60] For the reasons set out above I find that the dismissal was harsh unjust and unreasonable. I find that the dismissal was not consistent with the Code and the dismissal was not a case of genuine redundancy. I therefore find that Mr Wilkinson was unfairly dismissed.
Remedy
[61] Mr Wilkinson does not seek reinstatement. Mr Wilkinson seeks what he thought he was entitled to namely holiday pay, redundancy pay and payment for the five weeks he waited for the truck to be repaired. 28
[62] It is not the role of this Tribunal to determine if Mr Wilkinson was entitled to additional annual leave payments pursuant to his contract of employment or if he was entitled to be paid redundancy payments.
[63] It is clear that Mr Vrancuta had a number of issues with Mr Wilkinson’s performance which he had not raised with Mr Wilkinson. Mr Vrancuta had not warned Mr Wilkinson that these matters were putting his employment at risk. I accept that when Mr Vrancuta met with Mr Wilkinson on 27 April 2010 he intended giving Mr Wilkinson another chance.
[64] Given Mr Wilkinson’s response to Mr Vrancuta’s concerns when they were put to him at the hearing, it unlikely that Mr Wilkinson would have accepted any criticism of his performance had Mr Vrancuta raised them with him on or prior to 27 April 2010. Be that as it may, Mr Wilkinson was entitled to know that his performance did not meet Mr Vrancuta’s expectations and his employment was at risk.
[65] However I consider that it was unlikely Mr Wilkinson would have remained in employment with Mr Vrancuta for very long after this date.
[66] In determining the amount of compensation I have had regard to the period of time that the vehicle was under repair and Mr Wilkinson’s understanding that when the vehicle was repaired he would recommence work. I accept that it was reasonable in the circumstances for Mr Wilkinson not to seek alternative work in this period. Further I have taken into account my conclusion that Mr Wilkinson would not have remained long in employment with the employer.
[67] I have decided to award Mr Wilkinson five weeks pay as compensation. Mr Wilkinson’s wage varied from week to week but the usual wage paid to him was $1275.03 per week. I therefore order that the respondent pay the applicant $6375.15 gross minus applicable taxation within 21 days. An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
E Wilkinson on his own behalf.
P Vrancuta for Ionesia Vrancuta T/A EU Fashion Style
Hearing details:
2010.
Melbourne:
August 18.
1 Transcript PN 110
2 Ibid PN 114
3 Ibid PN 21
4 Ibid PN 23
5 Ibid PN 124
6 Ibid PN 126 and 128
7 Ibid PN 129, 130
8 Ibid PN 140
9 Exhibit A1
10 Ibid A1
11 Employer response to application
12 Transcript ON 192
13 Ibid PN 192 an d193
14 Ibid PN 231
15 Ibid PN 235
16 Ibid PN 535
17 Ibid PN 593
18 Exhibit A1
19 Transcript PN 249, 252
20 Ibid PN 258, 293
21 Ibid PN 300-301
22 Exhibit R4
23 Transcript PN 315-316
24 Ibid PN 302
25 Exhibit R2
26 Print S5897
27 Ibid [73]
28 Transcript PN 113, 115
Printed by authority of the Commonwealth Government Printer
<Price code C, PR503740>
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