Hai Phan v Somerville Retail Services Pty Ltd

[2014] FWC 3857

[2014] FWC 3857

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hai Phan
v
Somerville Retail Services Pty Ltd
(U2014/4374)

COMMISSIONER BISSETT MELBOURNE, 17 JUNE 2014

Application for relief from unfair dismissal.

[1] Mr Hai Van Phan (the Applicant) has made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant was employed by Somerville Retail Services Pty Ltd (the Respondent) as a forklift driver.

[2] On 23 January 2014 the Applicant, having arrived at work for his 2.00pm shift, left without commencing and without advising his supervisor directly of his reason for his non-attendance. A meeting was held with the Applicant on 24 January 2014 to discuss what had occurred the day before. Following this meeting the Applicant was advised that his employment was terminated. The Applicant was paid outstanding entitlements and received pay in lieu of notice.

[3] The Applicant was represented by Mr Nguyen of Counsel and the Respondent by Mr Follet of Counsel. Permission was granted for representation in accordance with s.596 of the Act on the grounds that it would enable the matter to be dealt with more efficiently if both parties were so represented.

[4] Evidence was given for the Applicant by Mr Phan (through an interpreter). Evidence was given for the Respondent by Mr Leigh Paynting, Mr Trevor Mooney, Mr Cauchi and Ms Chiara Soccio.

[5] I have found the Applicant was not unfairly dismissed. My reasons follow.

Evidence and submissions

The Applicant

[6] The evidence of the Applicant is that he arrived at work at about 1:20pm for the start of his rostered shift at 2.00pm. When he arrived there were no parking spots available, something, he says, ‘occurs frequently at this car park, and often results in waiting long periods of time before a vacant car park becomes available.’ 1

[7] The Applicant says in his written witness statement that the temperature that day was about 40°C and he became unwell, dizzy and nauseous. 2 In his oral evidence he says that it may not have been that hot but it was hot in his car and he felt unwell. His car does not have air conditioning. He says he felt unfit for work so decided to go home. He says he drove to the gatehouse of the warehouse and asked Trevor Mooney, a security guard, to pass a message on to Mr Leigh Paynting that he was unwell and going home. He says Trevor said he would take the message to Mr Paynting.

[8] At the time the Applicant left he says he was aware that it would only be 5-10 minutes before a parking spot became available.

[9] The Applicant agrees that the final warning letter he received in November 2013 has his signature in the date column but says he never asked Mr Paynting to write in the apology words next to his signature. He agrees that he has received several warnings from the Respondent. He says he never offered an apology in respect of any of the incidents leading to those warnings as all of them were accidents.

[10] The Applicant gives evidence that he did not need a medical certificate for one day’s absence and also that he was aware he was required to submit a medical certificate for one day’s absence but he thought his circumstances on this occasion were different. He also says that while he was aware that he should advise an absence to his supervisor, he did not know that it was not acceptable to give such advice through a third person.

[11] The Applicant says that his dismissal was harsh, unjust or unreasonable (and hence unfair) as he had taken personal leave on 23 January 2014. Further, he submits that the Commission should give substantial weight to the fact that Mr Paynting had made up his mind to dismiss the Applicant prior to meeting with the Applicant on 24 January 2014 and the termination letter did not fully detail the reasons for the termination. In this respect the Applicant says he was denied procedural fairness.

[12] The Applicant says he was denied a fair go all round because the Respondent did not ensure car parking was available, that it was a hot day on the day he went home, that no interpreter was available at the meeting with the Respondent on 24 January 2014, that the workplace was hostile and that the outcome of the meeting on 24 January 2014 had already been decided by Mr Paynting.

The Respondent

[13] Mr Leigh Paynting is the Logistics Coordinator for the Respondent. Mr Paynting gives evidence of written warnings being given to the Applicant on 10 December 2009, 6 December 2011 and 11 January 2013 with respect to incidents that occurred prior to Mr Paynting’s employment. On 10 October 2013 Mr Paynting says the Applicant was involved in an incident involving a collision with another forklift. The Applicant was issued with another written warning arising from this incident.

[14] On 8 November 2013 following a further incident at work which involved the Applicant speaking inappropriately to other staff, the Applicant was issued with a final written warning. 3 That warning, dated 11 November 2013, indicated that any further incident of unacceptable or offensive behaviour would be viewed as a serious breach of company policies and procedures. The Applicant refused to sign the final warning4 although he did put his signature next to an apology. The Applicant then went on annual leave on 24 November 2013 and returned to work on 5 January 2014. Mr Paynting says he viewed the November incident very seriously and he considered whether or not the Applicant should be dismissed as a result of that incident. Ultimately it was decided to issue him with a final warning.

[15] Mr Paynting says that in about mid January 2014 there were changes to rostering that resulted in all staff starting the afternoon shift and finishing the morning shift at 2:00pm. It was expected that this would result in car parking issues. There are two car parks that service the site - one, about five minutes walk away, holds about 80-90 vehicles whilst another, on site, holds about 40 vehicles.

[16] On 23 January 2014 Mr Paynting received a call from Mr Joseph Cauchi, a supervisor, who said that there were some issues with car parking. He indicated to Mr Cauchi not to worry and the employees should start when they got in. He says he went outside to have a look for himself and saw the Applicant driving away. He says he was then approached by Mr Mooney (the security guard) who told him that the Applicant had gone home as he could not find a car park. He says that Mr Mooney said nothing about the Applicant having said he was unwell. He asked Mr Mooney to make a note of the conversation he had with the Applicant.

[17] Mr Paynting’s evidence is that later that day he thought that the Applicant should be dismissed and sent an email to the Ms Chiara Soccio, the HR Manager, at about 5.00pm. 5 He says however that he had not made a definitive decision to terminate the Applicant’s employment until after the meeting on 24 January 2014.

[18] Mr Paynting says that he reviewed the Bureau of Meteorology data for 23 January 2014 and found that the maximum temperature was 30.4°C and at 3.00pm the temperature was only 25.3°C 6.

[19] On Friday 24 January 2014 Mr Paynting says he and Ms Soccio met with the Applicant. His evidence is that Ms Soccio asked the Applicant if he wanted a support person at the meeting but that he declined. Mr Paynting says that, when asked why he had not attended work the previous day, the Applicant had responded that he could not find a car park, it was hot so he decided to go home. He told Trevor (the security guard) to tell Leigh [Paynting] he was going home. When asked if he thought his actions were acceptable the Applicant said ‘I don’t know, I think it is, I waited too long so I went home.’ Mr Paynting and Ms Soccio then met privately to consider the Applicant’s response.

[20] Mr Paynting decided that, given the numerous warnings about past behaviour and the final warning issued in November 2013, the Applicant’s behaviour was unacceptable. He determined that the Applicant’s employment was to be terminated. The Applicant was advised of this decision prior to the end of the meeting. Mr Paynting says he then escorted the Applicant from the premises.

[21] Mr Joseph Cauchi is the Day and Afternoon Shift Supervisor for the Respondent. He says that on 23 January 2014 around 2.00pm Mr Barun, an employee, rang him and said he was having trouble getting a car park. Mr Cauchi says he told Mr Barun not to worry and get in when he could. He asked Mr Barun if there were other staff there and Mr Barun indicated that the Applicant (and others) were also looking for parking.

[22] Mr Cauchi says that Mr Barun eventually arrived at work. He was told by others that the Applicant had gone home. He says that he was not told by any other staff that the Applicant had gone home because he was ill.

[23] Mr Trevor Mooney is a security guard for the Respondent. He says that he remembers the Applicant coming to the gatehouse at about 2:00pm. The Applicant said to him words to the effect that the car park at Ravens Court was full and so was the street. Mr Mooney replied that the days shift is nearly finished and Ravens Court should clear out soon. The Applicant then said, ‘I’m going home. Tell Leigh. I’ll be back on Friday’ 7.

[24] Mr Mooney says that, not long after, he saw Mr Paynting in the car park and told him what the Applicant had said. Mr Paynting asked him to write down what had happened, which he did the following day. 8

[25] Mr Mooney’s evidence is that the Applicant did not tell him he was feeling unwell.

[26] Ms Chiara Soccio is the HR Manager for the Respondent. She says that she was involved in the meeting on 11 November 2013 with the Applicant when he was given a final warning. She says that it was made clear to the Applicant at that time, and he was asked if he understood, that he was being given a final warning. He responded that he would not do it again.

[27] Ms Soccio says that in the meeting on 24 January 2014 the Applicant was told the meeting was to discuss him not coming to work the day before. She says that the Applicant replied that he got sick of waiting for a car park so he decided to leave. She says he said nothing about his health. Ms Soccio says that if the Applicant had raised that he was ill he would have not have had his employment terminated.

[28] Ms Soccio says that the Applicant has taken single day absences for personal leave in the past and has provided a medical certificate for those.

[29] Ms Soccio says she received an email from Mr Paynting the evening before the meeting with the Applicant and noted the question as to how the Applicant’s employment could be terminated. She said in reply to Mr Paynting that she would need to review the evidence prior to making a decision. She says that Mr Paynting gave her the statement from Mr Mooney either on the evening of 23 or the morning of 24 January 2014.

[30] Ms Soccio says that one of the matters she considered was that the Applicant had failed to speak to Mr Paynting directly about his absence as was required by the Respondent’s policy. While this was not mentioned specifically in the termination letter she says she did raise it in the meeting with the Applicant. She says the Applicant being absent because he was unwell was not mentioned in the termination letter as the Applicant had not raised that in the meeting.

[31] Ms Soccio says she had not formed a view as to what disciplinary action should be taken against the Applicant prior to the meeting with him despite the email from Mr Paynting. She says the Applicant was dismissed because he failed to notify his supervisor of his absence, he took unauthorised leave and because of his chequered history.

[32] The Respondent says that it had a valid reason for dismissing the Applicant from his employment. The Applicant failed to attend work after being unable to find a car park. The Applicant had received numerous written warnings about his performance and conduct including a final warning in November 2013. It says that a single unauthorised absence from work can provide a valid reason for dismissal.

[33] The Respondent says that the evidence of Mr Paynting, Mr Mooney and Ms Soccio is consistent. They all say that the Applicant never said he was ill the day he went home.

[34] The Respondent submits that the Applicant was notified of the reason for his dismissal and given an opportunity to respond. He was invited to have a support person present at the meeting on 24 January 2014 but refused the opportunity.

[35] The Respondent says that there were no failings on the part of the Respondent in the procedure adopted by it.

[36] The Respondent says that the history of unsatisfactory conduct by the Applicant and his apparent disregard for his final warning are relevant matters for the Commission to take into account in determining if the dismissal was harsh, unjust or unreasonable.

Was the Applicant unfairly dismissed?

[37] I find that the Applicant is protected from unfair dismissal. He was dismissed, his dismissal was not a case of redundancy, and the Small Business Fair Dismissal Code does not apply.

[38] It is therefore necessary to determine if the dismissal was harsh, unjust or unreasonable.

[39] Section 387 of the Act states:

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.

(a) was there a valid reason

[40] The Applicant was dismissed for being on unauthorised absence on 23 January 2014 in conjunction with his poor employment history including disciplinary warnings of 10 December 2009, 11 January 2013, 15 October 2013 and final written warning of 11November 2013.

[41] I prefer the evidence of Mr Paynting, Mr Mooney and Ms Soccio to that of the Applicant as to whether the Applicant said he was ill to anyone. Mr Mooney made notes the day after the Applicant went home of his conversation with the Applicant. The notes were made with no objective in mind but to record the conversation. That they are supported by Mr Paynting’s and Ms Soocio’s evidence of what was said in the meeting on 24 January 2014 gives support to my conclusion that the Applicant did not say he was ill to Mr Mooney and was therefore absent without approval on 23 January 2014.

[42] On the basis of the evidence before me I find that the Applicant arrived at work before 2:00pm. Unable to find a parking spot he told Mr Mooney that he was going home and asked Mr Mooney to tell Mr Paynting. The Applicant then went home. I find that he did not tell Mr Mooney that he was ill nor ask Mr Mooney to pass this information on to Mr Paynting. I also find that the Applicant was aware he was required to advise Mr Paynting if he was going to be absent from work and that he failed to do so. I do not accept the Applicant’s evidence that he could not phone Mr Paynting because he had run out of credit on his mobile phone. This was not in his written statement and seems a convenient excuse to support his failure to advise Mr Paynting of his absence.

[43] I also find that the Applicant was aware that if he was on personal leave he was required to produce a medical certificate and that he did not do so. His evidence that he thought his circumstances were different defy any logic. He says he was unwell and that he was aware he was required to produce a medical certificate if he was unable to attend work due to illness.

[44] The Applicant was therefore on unauthorised absence on 23 January 2014.

[45] I am satisfied that the temperature was not 40°C on 23 January 2014 but that the maximum temperature that day was 30°C. I make no finding as to how hot or otherwise it was in the Applicant’s car.

[46] I am satisfied that the Respondent had a valid reason for the dismissal of the Applicant. The reason for dismissal was his unauthorised absence on 23 January 2014 and a failure to notify his supervisor of his absence in conjunction with the final warning issued to him on 11 November 2013.

(b) notified of the reason

[47] I am satisfied that the Applicant was notified of the reason for his dismissal. The Applicant attended a meeting on 24 January 2014 where he was advised of the issues with respect to his absences. He had previously been warned as to the effect of any further wrong-doing on his part given the existence of the final warning.

(c) opportunity to respond

[48] I am satisfied that he was given an opportunity to respond prior to the decision being taken to terminate his employment. This occurred at the meeting of 24 January 2014.

[49] To the extent that Mr Paynting did express frustration with the Applicant in the form of the email to Ms Soccio, and his admitted initial view that the non-attendance was the last straw, I accept that Mr Paynting had formed a strong view of the Applicant’s conduct on 23 January 2014. This must be weighed against his experience of misconduct by the Applicant and the final warning issued to him.

[50] Whilst Mr Paynting enquired of Ms Soccio on 23 January 2014 what was required to terminate the Applicant’s employment I am satisfied that, while that may be what he wanted to do on 23 January 2014, the final decision to terminate the Applicant’s employment was not taken until after the Applicant had attended a meeting on 24 January 2014.

(d) support person

[51] I am satisfied the Applicant was afforded the opportunity to have a support person present. He declined this offer.

[52] The Applicant did not ask for an interpreter at the meeting of 24 January 2014. There is no evidence that he had, or required, one in any of his previous disciplinary meetings or that he could not understand what was occurring in any of those meetings. He gave no evidence of the need of an interpreter in the meetings of 24 January 2014. or that the failure to provide one limited his ability to participate, or understand what was occurring, in the meeting of 24 January 2014.

(e) unsatisfactory performance

[53] The reason for dismissal does not relate to poor performance. This is not a relevant consideration.

(f) & (g) size of the employer’s undertaking

[54] No issue has been put to me in relation to this matter. I am however satisfied that the procedure adopted by the Respondent was fair and the Applicant was given an opportunity to put his version of the events of 23 January 2014. Further, the procedures followed in past counselling and warnings given to the Applicant indicate that the Applicant has been afforded a fair go in dealing with those matters.

[55] I do not consider the Respondent, in its process, denied the Applicant procedural fairness.

(h) any other matters

[56] I have had regard to the Applicant’s history of disciplinary warnings. These cannot be ignored and form part of the valid reason for termination. The Applicant received a warning in October 2013 followed soon after by the final warning in November 2013. These followed a number of earlier warnings. The Applicant could not think that he could continue to accumulate warnings with impunity. The Respondent has a system of warnings so that an employee might know that any further infraction could lead to dismissal. The Respondent in this matter is entitled to put weight on the existence of earlier warnings. I reject the Applicant’s submission that Ms Soccio put too high a weight on the previous warnings. The Applicant had a final warning. Ms Soccio was entitled to rely on the final warning having been given.

[57] I reject the evidence of the Applicant that it was 40°C on 23 January 2014. The Applicant knew that a car park would become available in 5-10 minutes. I do not consider the non-guaranteed parking for the Applicant as a factor that should be taken into account. Had the Applicant arrived at work late and been subject to disciplinary action or dismissal because of being late due to the problems with the car park the outcome of this application might have been different. But that is not the case that is put.

[58] There is no basis on which I can find that the workplace was otherwise hostile generally or in respect of the Applicant. Mr Paynting expressed his frustration with the Applicant’s absence in his email to Ms Soccio on 23 January 2014 but this is not evidence of any ‘hostility’. Rather, it seems to me to be an expression of frustration at further misconduct issues with the Applicant.

Harsh, unjust or unreasonable

[59] I have concluded that the dismissal of the Applicant was not harsh, unjust or unreasonable. I have reached this conclusion taking into account the history of warnings, that the Applicant had received a final warning in November 2013 with respect to his conduct and that the Applicant has not been forthright in his reason for going home on 23 January 2014.

[60] Whilst I appreciate that the Applicant was having difficulty finding a parking spot on that day to just turn around and leave without contact with his employer is not acceptable.

Conclusion

[61] For the reasons given the application for relief from unfair dismissal pursuant to s.394 of the Act is dismissed. An order to this effect will issue with this decision.

COMMISSIONER

Appearances:

Q. Nguyen of Counsel with K. Tran of Willocks Lawyers for the Applicant.

M. Follett of Counsel with J. O’Brien of Cornwall Stodart for the Respondent.

Hearing details:

2014.

Melbourne:

June 2.

 1   Exhibit A1, paragraph 6.

 2   Exhibit A1, paragraph 8.

 3   Exhibit R1, attachment LMP11.

 4   Exhibit R1, paragraph 37(h).

 5   Exhibit R1, attachment LMP15.

 6   Exhibit R1, attachment LMP16.

 7   Exhibit R2, paragraph 10.

 8   Exhibit R2, attachment TTM.

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