Evan Dickinson v Calstores P/L - [2011] FWA 6858

Note: An appeal pursuant to s.604 (C2011/6569) was lodged against this decision - refer to Full Bench decision dated 20 January 2012 [[2012] FWAFB 692] for result of appeal.

[2011] FWA 6858

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 394 - Unfair dismissal

Evan Dickinson
v
Calstores P/L
(U2010/14038)

DEPUTY PRESIDENT SAMS

SYDNEY, 31 OCTOBER 2011

Termination of employment - whether dismissal of employee ‘harsh, unreasonable or unjust’ - numerous breaches of Company policies - admissions of employee, but claims that policy breaches did not justify dismissal - verbal and written warnings - behaviour during counselling sessions - contempt for managers - valid reason for dismissal - procedural faults do not outweigh seriousness of behaviour and attitude - dismissal not unfair - application for an unfair dismissal remedy dismissed.

[1] Mr Evan Dickinson (‘the applicant’) was employed by Calstores Pty Ltd (a subsidiary of Caltex) (‘the respondent’) as a permanent part time service attendant (‘CSA’) at its F3 Southbound service station site at Wyong in New South Wales. The applicant had been employed by the respondent for around five years prior to his dismissal on 29 October, 2010. His letter of dismissal, dated 9 November 2010, was expressed as follows:

I refer to our recent, formal discussion with you regarding your behaviour as a Customer Service Attendant.

During our meeting held on Friday 29 October 2010 we asked you to respond to allegations that you processed your own transaction on 15 October 2010 whilst another CSA was on duty, despite having being [sic] given prior warnings that this was against Calstores policy.

During this meeting you confirmed that you had processed the transaction yourself, whilst the other CSA supervised, in order to minimise disruption to the business.

We considered the information available to us and the circumstances of the matter, including your two prior written warnings. After careful consideration and as advised to you verbally on 29 October 2010, the Company terminated your employment 29 October 2010, with 3 week’s [sic] in lieu of notice, as per the terms of the Calstores 2010 Enterprise Agreement.

Your final pay including 3 weeks in lieu of notice has been electronically transferred into your nominated bank account.

The superannuation fund administrators will be advised of your separation and they will contact you separately regarding the balance of your account with them.

Kindly note that you are required to return all property belonging to the Company, including store keys, uniforms and name badges.

As will become evident during the consideration of this matter, the applicant’s dismissal and the circumstances leading up to it, are not quite as straight forward as the above letter would seem to suggest. I shall return to these matters shortly.

[2] On 11 November 2010, the applicant filed an application pursuant to s 394 of the Fair Work Act 2009 (‘the Act’), seeking to have Fair Work Australia (‘FWA’) make a finding that his dismissal was ‘harsh, unreasonable and unjust’ and to make orders for compensation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FWA 6858
Decision Date: 31 OCTOBER 2011

CaseChat Overview and Summary

Evan Dickinson brought an action against his former employer, Calstores P/L, claiming his termination of employment was unfair. The matter was heard in the Fair Work Commission. Dickinson's employment was terminated following numerous breaches of company policies, including dishonesty and gross misconduct. Dickinson admitted to the policy breaches but argued that they did not justify his dismissal. The company had provided both verbal and written warnings prior to termination and had conducted several counselling sessions with Dickinson. During these sessions, Dickinson exhibited a contemptuous attitude towards his managers, further supporting the company's decision to terminate his employment.

The Fair Work Commission considered whether Dickinson's dismissal was harsh, unjust, or unreasonable. It was necessary to determine if the company had a valid reason for the dismissal, considering Dickinson's admissions and behaviour. The Commission found that the company had a valid reason for the dismissal, given the seriousness of the policy breaches and Dickinson's contemptuous attitude during counselling sessions. The procedural faults identified in the termination process did not outweigh the gravity of Dickinson's behaviour and attitude. The Commission concluded that the dismissal was not unfair and dismissed the application for an unfair dismissal remedy.

The Commission's reasoning and conclusion were based on the company's evidence of numerous policy breaches and Dickinson's contemptuous attitude during counselling sessions. The Commission determined that the procedural faults did not render the dismissal unfair, given the serious nature of Dickinson's misconduct. The Commission's decision was that the dismissal was not harsh, unjust, or unreasonable, and Dickinson's application for an unfair dismissal remedy was dismissed. This decision highlights the importance of adherence to company policies and the consequences of demonstrating a contemptuous attitude towards management.

Orders