Frederic Botte v Hear Data Pty Ltd T/A Audiometric & Acoustic Services

[2015] FWC 489

[2015] FWC 489 [Note: An appeal pursuant to s.604 (C2015/1625) was lodged against this decision - refer to Full Bench decision dated 20 April 2015 [[2015] FWCFB 2565] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Frederic Botte
v
Hear Data Pty Ltd T/A Audiometric & Acoustic Services
(U2014/6576)

COMMISSIONER BLAIR MELBOURNE, 19 JANUARY 2015

Application for relief from unfair dismissal.

[1] This decision arises out of an application made under s.394 of the Fair Work Act 2009 (the Act) by Mr Frederic Botte (the Applicant) against Hear Data Pty Ltd, trading as Audiometric and Acoustic Services (the Respondent), alleging that his termination was harsh, unjust and unreasonable.

[2] The Applicant represented himself and Mr Richard Unkles, owner of the business, represented the Respondent at the hearing.

[3] The matter was first dealt with by conciliators of the Fair Work Commission (the Commission) in conciliation on 21 July 2014; however, the matter was not resolved. The matter then proceeded to arbitration and was set down for hearing beginning on 22 October 2014. Despite the efforts of the Commission on the first day of hearing, the matter was unable to be resolved by conciliation. The matter then proceeding to arbitration and was dealt with on 22 and 23 October 2014 and finally on 2 December 2014.

[4] The Applicant advises that he commenced employment on 22 January 2013 and was dismissed on 31 March 2014.

[5] In the Applicant’s application, form F2, the following responses were given:

[6] 3.1 What were the reasons for dismissal, if any, given by the employer?
No explanation of the reason(s) for the dismissal.

[7] 3.2 Why was the dismissal unfair?

Three people were in the office to propose to me to resign:
The principal: Richard Unkles
A family relative: John Unkles (deputy chairman Anglicare Victoria)
A relative: Graham E Harding (Fellow of the Acoustical Society, retired)
The unfair dismissal lasted from 1015 to 1450 Tuesday 31 March 2014

[8] In the employer’s response, form F53, received on 29 June 2014, the following responses were given:

[9] 3.1 What were the reasons for the dismissal?

1) inability to meet a reasonable monthly budget (Note the respondent’s predecessor easily met budget when charging at a lower hourly rate. We lowered the budget by $3,000 per month for the respondent and he still struggled). In his last month he fell well short of invoicing his salary.
2) shouting and swearing at staff. Includes his consistent use of shouted four letter word terminology to female staff with no apology.
3) inability to get to work on time, at times more than an hour late, rarely with any explanation.
4) verbally abusing clients: including on female staff members of a firm of solicitors and also a staff member of our debt collector.
5) claiming “I am always right” on several occasions.
6) inability to take direction both in written form and verbal.
7) perusing and copying company material clearly marked “Private and Confidential”.
8) refusal to undertake work as specified by relevant Australian Standards.
9) refusing to reset computers that he changed to French format.
10) the firm could not continue financially carrying this person. He has not been replaced and the financial situation is now stable.

[10] It is accepted from the outset that the Respondent is a small business and falls under the definition of a small business in s.23 of the Act.

[11] In his submissions the Applicant provided as a background the following key aspects of his case for unfair dismissal and damages:

1) I was given no notice of termination
2) I was asked to resign and leave the office on the same day under very unpleasant circumstances
3) I was given no reason for my dismissal and I believe that I had performed by job to a high standard
4) I was bullied and threatened with withdrawal of my membership with the Australian Acoustic Society and I was threatened of intrusion in my person computer
5) I was no provided with any representative, even though I requested one
6) I was handed a cheque with no explanation of what it represented, and this “payout” is two weeks shy of what I should have received if due process was followed giving me a two weeks’ notice
7) My employer submitted form F3 twice with completely different answers, clearly having revised his reasons for dismissal after realising that he couldn’t fairly dismiss me, according to the law. Note: the Fair Work Commission didn’t see fit to question this discrepancy.

[12] By way of remedy, the Applicant is claiming 16 weeks’ salary as compensation for his unfair dismissal.

[13] The Respondent, in a further form F3 submitted on 4 July 2014, indicated that the dismissal was a case of genuine redundancy. It is now acknowledged by the Respondent that that was incorrect and the Respondent relies on the form F3 received in the Commission on 29 June 2014.

[14] In his submissions, the Respondent refers to the events that occurred during the period in which they were attempting to terminate the services of the Applicant. They say the period took so long due to the Applicant’s endless circles with his obfuscation.

[15] The Respondent does acknowledge that they suggested to the Applicant that he resign because the Respondent felt that it would be much better for the Applicant if he did so.

[16] The Respondent refutes that the Applicant performed work to a high standard. The Respondent also refers to feedback from Mr Andrew Giles of Regional Safety Solutions that indicated that the client could not understand the reports provided by the Applicant. This was also further supported by commentary from Ms Tracey Curran, who gave evidence under oath, that the Applicant was not capable of producing a car wash report that would address the needs of the client. This also led to a number of alleged “dud invoices” by the Applicant who was advised that Ms Curran only wished for a preliminary report and that the costing had to be sorted by the Applicant with the client. Unfortunately the Applicant went straight to a full report which the Respondent was never able to be paid as the client refused to pay. The Respondent stated that that was another $2757 “down the drain” due to not being able to claim those additional expenses back from the client.

[17] The Respondent gave examples about the Applicant’s inability to be able to perform work to satisfactory standards for Delta Building Design Consultants regarding aircraft noise and also provided several other examples which refer to the Applicant’s capability.

[18] The Respondent also refutes the Applicant’s claim that he was bullied. The Respondent asserts the opposite: that the Applicant was the bully, given his yelling and swearing at people in the office.

[19] The Respondent acknowledges that the Applicant was not handed his statement on his final payout at the time but they say that that was forwarded soon after and there were reasons why it was not provided to the Applicant at the time. The Respondent states that it was due to the turmoil created by the Applicant himself within the office and the Respondent had forgotten where he’d placed the document.

[20] The Respondent acknowledges that there was inexperience in the handling of the unfair dismissal forms which led to a discrepancy, which the Commission has referred to above.

[21] There was also the assertion from the Respondent that the Applicant was not a person to be safe around or near given his serious outbursts and totally erratic behaviour. The Respondent states that this was reinforced by the Applicant being prepared to use his fists in the office on 31 March 2014. They also assert that there was a serious risk to the Respondent’s reputation by the Applicant’s irrational outbursts, which they say they could not tolerate.

[22] The Respondent states that regardless of the Applicant’s inability to perform his work and is inability to be directed and his serious outbursts and potential cost to the firm’s reputation, he was given the opportunity to resign with dignity, which he did not take.

[23] The Respondent states that the Applicant had more than outlasted his usefulness to the firm and there was no point continuing to employ him, a fact, they state, he is very much aware of, demonstrated by his extreme sensitivity and avoidance practices every time they try to bring up his lack of performance each month. The Respondent also states that having a negative percentage income proves his uselessness to the firm, but the original target of $16,000 including GST was perfectly fair and was consistently achieved by his predecessor. They state that the fact that they lowered the target to $13,000 including GST was proof that the firm was more than tolerant of the Applicant and they state that they made it clear to him at the meeting on 31 March 2014 that this was an essential component of working for them.

[24] The Respondent states that it was clear that the Applicant was the architect of his own termination and his behaviour when asked to attend the meeting on 31 March 2014 reflects this, as does the fact that it took four and a half hours to effect the termination.

[25] Finally, the Respondent states that in all the circumstances there were decidedly valid reasons for the termination.

[26] A number of witness statements were provided on behalf of the Respondent; however the Commission rejected some of the statemenst because they were simply based on hearsay and didn’t add any value to the material that was before the Commission in determining whether or not the termination of the Applicant was harsh, unjust or unreasonable.

[27] The witness statement of Mr Harding and Mr John Unkles, the brother of the Respondent, basically go to the events that occurred at the meeting on 31 March 2014.

[28] Evidence was also provided by Ms Jackie Hossack, who is both secretary and office manager for the Respondent. Ms Hossack’s evidence went to the monthly return figures that were required of the Applicant as well as his alleged annoying behaviour. Her evidence also went to a number of incidents regarding clients that were annoyed at the conduct or the lack of progress on reports that were supposed to be prepared by the Applicant.

[29] Evidence was also provided for the Respondent by Mr Radoslav Vlajic, who is a senior industrial audiometrist for the Respondent. Mr Vlajic’s evidence goes to the conduct of the Applicant who, he asserts, consistently told Mr Richard Unkles and Ms Hossack that they were wrong and he would prove them wrong. His evidence also went to the Applicant refusing to use some Australian Standards in performing his work.

[30] Some of Mr Vlajic’s evidence went to an outburst by the Applicant that occurred on Thursday 27 February 2014 where Mr Vlajic states that he was very surprised at the severity of the outburst towards Ms Hossack. This outburst is allegedly tied to assertions by the Applicant that Ms Hossack was pushing him that was not helpful to him or the company and that she was all wrong and “fucking stupid”.

[31] Mr Vlajic’s evidence also went to the events that occurred on 30 March 2014; however, he was not involved in the process of advising the Applicant that his services were no longer required. Mr Vlajic stated that Mr Unkles wanted to check the Applicant’s computer for any company material as the Applicant used his personal computer for company work.

[32] More compelling evidence, though, came from Ms Tracey Curran, the principal of TMC Building and Design Group Pty Ltd. Her work is in the design (both architectural and structural/civil engineering) of car wash developments, among other commercial and residential building projects. She states that her firm is known industry wide and has over 10 years’ experience. She also states that her firm has had a working relationship with the Respondent for some years, in relation to producing acoustic reports for commercial car wash establishments which she specialises in designing.

[33] Ms Curran went into detail about one particular project which was in November 2013, where she was engaged as the town planner to produce the site layout plans, elevations and sections, town planning report and liaise with Council and other consultants as required) on a car wash development project in Diamond Creek. She states that the client had already engaged the services of the Respondent to perform the acoustic reporting works on the project prior to her commencement with the project. She states that, to her knowledge, works regarding the acoustic report had already commenced by this date but the report had not been reviewed or finished.

[34] Ms Curran then goes into extensive detail about the report: the delay in producing the report and the ramifications of the delay; the report not being reviewed by herself; the additional costs added to the report; the alleged wanting of further information by the Applicant, which she could not understand the requirement for the additional information either from other parties or herself.

[35] At the end of the project, Ms Curran states, the final report by the Applicant was sent to the client with a new invoice for an additional $3,033.03. She states that, in her knowledge, due to the Applicant not giving the client a new quotation for new works, this additional amount was not paid. She states that, as a result of the project and the lack of professionalism that was demonstrated by the Applicant in both the actual report and the way the invoicing was handled she has not used the Respondent for any new acoustic projects to date. She states that, due to this report, the Nillumbik Council Town Planning department took an additional 6-8 weeks to conduct their own independent review of the report because they were uncertain if the remedial measures would be affective for the development. She does say that eventually the project was approved.

[36] She states that upon completion of the project she was contacted by phone and email by the Applicant and told that he was not working at the Respondent and was working for his own company now. She states that he was letting her know so that he could possibly get work for acoustic projects in the future.

[37] Ms Curran finally states that she keeps receiving emails to complete a survey regarding the Applicant; however, due to his poor performance on that project she would never recommend him or want to work with him on future projects and has not filled out the survey.

[38] Ms Curran gave evidence that the Respondent has lost approximately $8,000 worth of work directly from her firm due to her belief at the time that the Applicant still worked for the Respondent.

[39] Final written submissions were provided by both the Applicant and the Respondent.

[40] Taking into account all the material before the Commission, including the final submissions and evidence provided in both oral and written form and considering the Small Business Fair Dismissal Code (the Code), the dismissal of the Applicant was not a dismissal under the Summary Dismissal provisions. It is dealt with under Other Dismissal provisions.

[41] The Code states as follows:

Small Business Fair Dismissal Code
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.

[42] In relation to Other Dismissal provisions of the Code, the Commission is satisfied, based on the material provided, that the Applicant was aware that his employment was in jeopardy. Although this wasn’t provided for in writing, most certainly the evidence before the Commission was that there was sufficient verbal communication with the Applicant on a number of occasions to indicate that this employment was in jeopardy, based on (a) his inability to take lawful and reasonable instruction and (b) serious issues regarding his capacity to do the job.

[43] The Commission is also satisfied that there would have been no purpose served in trying to provide additional training to the Applicant, given the evidence provided to the Commission that went to the attitude and conduct of the Applicant and also the attitude and conduct of the Applicant on display before the Commission during the proceedings

[44] The Commission is also satisfied that the Applicant knew very well what the Respondent’s expectations were in regards to his job performance.

[45] In relation to the procedural matters listed in the Code, the Applicant alleges that he sought to have a support person with him. The Respondent denies that such a request was made but if such a request had been made, it would not have been denied.

[46] The Commission cannot determine whether or not a request for a support person was made or that it was denied.

[47] In relation to providing evidence of compliance with the Code, the Respondent cannot provide any evidence that indicates that they have met the compliance requirements of the Code.

[48] In relation to dismissal, s.386 of the Act states as follows:

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.

[49] The Commission is satisfied that, in regards to s.386(1)(a) of the Act, that requirement has been met and that occurred on 31 March 2014 at the initiative of the employer, the Respondent.

[50] In relation to the criteria for considering harshness etc, s.387 of the Act states as follows:

387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.

[51] The following conclusions are all based on the balance of probabilities.

[52] In relation to s.387(a), the Commission is satisfied that there was a valid reason for the dismissal of the Applicant relating to their capacity or conduct. The capacity or conduct goes to the ability of the Applicant to be able to perform his duties to a level that is required to meet Australian Standards, which the Applicant consistently challenged, and also, in refusing reasonable and lawful instructions by the Respondent.

[53] Considering the number of concerns related by clients concerning the conduct and quality of work performed by the Applicant and in dealing with the safety and welfare of other employees, the Commission is satisfied that there was a valid reason due to the Applicant’s offensive language and conduct towards other employees working in the office, particularly Ms Hossack.

[54] In relation to s.387(b), the Commission is satisfied that there were sufficient discussions between the Applicant and the Respondent concerning his conduct and his work performances and his use of offensive language towards other employees working in the office.

[55] In relation to s.387(c), the Commission is satisfied that the Applicant was made aware on a number of occasions that there were issues relating to his capacity or conduct in the performance of his duties but those issues were ignored or rejected by the Applicant.

[56] In relation to s.387(d), as indicated earlier, the Commission is unable to form a view as to whether or not the Applicant requested a support person and whether or not a support person was allowed.

[57] In relation to s.387(e), as indicated earlier, the Commission is satisfied that the Applicant was aware that there were serious issues regarding his performance and that it needed to improve.

[58] In relation to s.387(f) and (g), the Commission is satisfied that it would not have had any impact upon the dismissal procedures that occurred on 31 March 2014 or leading up to 31 March 2014 if the Respondent had a dedicated human resource person nor if the Respondent did not meet the definition of a small business.

[59] In addressing s.387 of the Act, the Commission is satisfied that the termination was not harsh nor was it unjust, given the conduct of the Applicant leading up to 31 March 2014. That conduct went to the relationship between himself and his employer, himself and clients of his employer, himself and other employees of the employer, the damage to the reputation of the Respondent and the financial impact upon the Respondent based on his poor work performance and incurring additional costs on behalf of the Respondent in preparing unsatisfactory or unprofessional reports and, in particular, the evidence of Ms Curran in relation to her business, the loss of $8000 that would have been available to the Respondent if the Applicant had not continued to be employed with the Respondent.

[60] In terms of whether or not the termination was unreasonable, given that the Respondent did not follow the Small Business Fair Dismissal Code, the Commission is satisfied that to some degree the termination may have been unreasonable simply because the Respondent failed to follow the Small Business Fair Dismissal Code. However, the Commission is not prepared to issue an order for compensation. Any form of compensation would be a form of penalty against the Respondent for failing to follow the Small Business Fair Dismissal Code.

[61] Having considered all the material and the financial damage as well as the reputational damage done by the Applicant to the Respondent, the Commission is not prepared to impose a penalty upon the Respondent by way of compensation to the Applicant.

[62] Accordingly, having found that the termination was not harsh or unjust but may have been unreasonable, the Commission is not prepared to award any form of compensation. Therefore, the Applicant’s claim is dismissed.

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