Harrison Robert McAuley v Servco Australia Caloundra Pty Ltd - [2023] FWC 2521

[2023] FWC 2521

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Harrison Robert McAuley
v

Servco Australia Caloundra Pty Ltd

(U2023/2434)

DEPUTY PRESIDENT LAKE

BRISBANE, 5 OCTOBER 2023

Application for an unfair dismissal remedy – recusal application rejected – apprentice falsified repair order– summarily dismissed – harshness found – reinstatement inappropriate – compensation awarded.

Mr Harrison Robert McAuley (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to his dismissal from Servco Australia Caloundra Pty Ltd (the Respondent).

The matter went through a staff conciliation on 5 May 2023. The matter was allocated to Deputy President Dobson. The matter was programmed for Member Assisted Conciliation with Deputy President Dean. The matter was unable to be resolved and the matter was listed for Hearing on 26 June 2023. As Deputy President Dobson was not available to hear the matter, the matter was allocated to me for Hearing on 28 June 2023.

The Applicant nor Respondent dispute the four specified matters before considering the merits of the matter nor have I identified any issues involving s396 of the Act. I have considered the evidence provided by the parties.

Permission to Appear

Mr Mike Loly sought permission to appear on behalf of the Applicant as a Paid Agent. Mr Murray Proctor sought permission to appear on behalf of the Respondent from Franklin Athanasellis Cullen Lawyers. Mr Loly wrote submissions regarding his objection to the Respondent seeking leave to be represented by a lawyer. He stated it was appropriate to put an objection as the Respondent should be capable of representing themselves as he is only a paid agent and only undertakes this role on a part-time basis.[1]

Mr Proctor stated in his submissions in response that the Respondent’s employees did not have experience in dealing with matters in the Commission, and the Commission would be assisted in ensuring the matter runs efficiently.[2]

I have granted permission for both parties to be represented under s.596 of the Act as it will assist the Commission in the matter being run efficiently and I do not identify unfairness considering the Applicant’s representative had written comprehensive submissions regarding the matter.

Recusal Application

Ms Raylene Symons is the Applicant’s mother. Mr Loly and Ms Symons provided submissions requesting my recusal from this matter.

Ms Symons submitted that she had two conversations with my Associate leading up to the hearing where he clarified that the Fair Work Commission decisions were on public record and that future employers could see any allegations made by the Respondent. The other allegation raised by the Applicant’s mother was the question of paid agents, when my Associate questioned if this information been made explicit to the Applicant. These matters were raised in the context for considering another Member Assisted Conciliation before hearing. Mr Loly stated that there was a prejudice against paid agents arising from this conversation.

Furthermore, Ms Symons raised issues with the matter first being listed for hearing by one member, then being listed for a Member Assisted Conciliation to another member before the matter being allocated to myself. She stated it made her feel that her son’s application was not being managed or treated appropriately.

Ms Symons also raised an issue with my connection with the Sunshine Coast stating that my role as the Executive Director of Human Resources of the Sunshine Coast University Hospital would cause bias. She states:

‘The Sunshine Coast, Deputy President, is essentially a small town. People know each other. There’s quite a few connections. I’ve been there a long time. I understand that a lot of decision-making and things that happen behind closed doors’ I’m just privy to that particular environment’.[3]

Consideration

Deputy President Wells in Roberts v VIEW Launceston Pty Ltd and ors [2015] FWC 1858 provided a summary regarding apprehended bias and the right of recusal.

As to the general principle of bias, the High Court relevantly remarked in Re JRL Ex parte CJL:

“...Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duties as set out and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

In addition, the High Court held in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

The recusal application is rejected as they did not establish any factors of apprehended bias which would affect my ability to decide the matter other than its legal and factual merits. They did not establish a logical connection between the matter which would result in a possible deviation of deciding the case on its merits. As a result, I am not satisfied that a lay observer would determine that my determination of this matter would be absent of impartial decision making.

My Associate identified the procedural aspects of the Commission’s arbitration process once a Decision is issued but did not mention any legal or factual merits of the matter. I note that the Fair Work Commission aims to resolve workplace matters within the objects of the Fair Work Act 2009. One of the objectives are providing accessible and effective procedures to resolve grievances and disputes.
“381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note:The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

The Applicant’s mother questioned why her son’s matter was referred to multiple conciliations and Members.

In addressing this query, Ms Symons had completed her son’s Form F2. It was raised in the Applicant’s submissions that Mr McAuley was seeking a remedy of three weeks and two days which was the time it took for the Applicant to secure work and continue his Apprenticeship. The conciliations were offered based on practicality considering the remedy sought. If the matter was not resolved, Mr Loly was prepared to fly from Perth to Brisbane to appear on behalf of the Applicant in this matter as a paid agent. This would result in a public decision that considers the evidence provided.

As a result of these factors, the Applicant and Respondent were provided multiple opportunities to engage in a conciliation in order to resolve the matter in a quick, flexible and informal process considering the notion of providing a ‘fair go all round’ as part of resolving the matter with the objects of the Act. It was not a result of a predetermined consideration of the merits of the matter.

In addressing my connection to the Sunshine Coast as an Executive Director at Sunshine Coast University Hospital, Ms Symons did not establish a factual basis for my recusal. I have no connection with the Applicant, his family or Servco Australia Caloundra Pty Ltd nor do I have any knowledge of the matter besides the material that was put forth to the Commission by the parties.

The mere fact that a Member has worked at a location as a ground of recusal is not a well sustained or logical reason. If accepting the Applicant mother’s argument, it would prohibit regional magistrates, judges and tribunal members from determining these matters based primarily on location alone.

The recusal request was rejected, and the substantive merits of the matter was heard. The Applicant was provided his ‘day in court’.

Other Procedural Matters

The Respondent’s representative had tendered in documents of the Applicant’s repair orders on 16 March 2023. These were not originally tendered in their submissions but at hearing. It was accepted on the basis that it addressed whether the Applicant was dishonest about his completion of the repair order forms. The Applicant and his representative had an opportunity to review these documents. This was accepted as the Applicant had mentioned on numerous occasions on his witness statement regarding the issue at hand.

Upon the conclusion of Mr McAuley’s cross examination, the Applicant’s representative sought to tender in a covert recording by Mr McAuley of the second meeting on 20 March 2023.[4] This fact was not known to the Commission or the Respondent.

The Applicant’s representative had numerous opportunities to provide this evidence or could have mentioned this in the material when Directions were issued. This material could not be independently verified and would cause additional delay to the proceedings.

Mr Loly submitted that that the identification of the precise words used at this final meeting could mean the difference between justice and justice falling short. However, it would be procedurally unfair to the Respondent if this evidence was material to the Applicant’s case without the Respondent being able to review the material. If the evidence was material, this should have been raised with the Commission prior to the hearing.

I determined that the recording of this meeting would have been prejudicial to the Respondent and there was enough material to establish the events of the dismissal. This material was not allowed into evidence.

Background

The Applicant and Respondent had agreed to the Statement of Facts below.

The Applicant commenced employment with the Respondent on 22 February 2021 as an Apprentice.

The Applicant received and digitally signed an acknowledgment of the Respondent’s Employment Policy Manual.

The Applicant’s employment was terminated on 20 March 2023 without notice. At the time of dismissal, the Applicant was paid as a third year Apprentice.

The Applicant was trained to inspect, remove, measure and install disc brake pads. The Applicant performed servicing work for the Respondent.

On 16 March 2023, the Applicant was required to perform a routine 30 month or 50,000km service. The Applicant had completed a Repair Order stating that the service had been completed. The Applicant had not checked the brake pads.

Sometime after the vehicle had been collected, the client raised a concern with the Respondent.

On 17 March 2023, Mr James Cremin, the Applicant’s supervisor advised the Applicant that a concern had been raised with the service by a Guest regarding the brake pad. The brake pad was lower than what was recorded in the repair order. The Applicant, Mr Cremin, Mr Kevin Leaman (Respondent’s Services Manager) and Mr Scott Young (Respondent’s Group Services Manager) had a discussion.

On 20 March 2023, Mr Young collected the Applicant from his work location and took him to a meeting with Mr Venning, Mr Young and Mr Leaman.

At the end of this meeting, Mr Venning verbally advised the Applicant that his employment had been terminated.

On 21 March 2023, the Applicant emailed Mr Young requesting a separation certificate and letter of dismissal specifying a reason for the dismissal. Mr Young responded by email that the reason for dismissal was ‘negligence and dishonesty to fulfil your role’.

Applicant’s Submissions

The Applicant’s representative provided the closing submissions below:

The Commission must determine whether the dismissal of the Applicant was harsh, unjust or unreasonable in the circumstances, pursuant to s.387 of the Act.

The Applicant, Harrison McAuley is a 20-year-old Apprentice who enjoyed learning his trade as an Automotive Technician and had just commenced his third year of employment with the Respondent.

He made a mistake, which once brought to his attention sought to understand what had occurred. His contract of employment requires him to ‘learn from his mistakes’ as does common sense.

He accepted the responsibility for his error and recognised that his own performance was deficient. Importantly, he identified how the mistake occurred and attempted to offer improvement suggestions.

This catalyst for his dismissal was that a customer had booked his vehicle for a service and upon its return he identified obvious errors on the paperwork which in turn highlighted a number of poor work practices in the workplace.

The Applicant had been trained in the required competency (front brakes) but this was not in dispute as he had failed to conduct this inspection for reasons detailed below.

The Respondents initial concern was that the organisations reputation had been tarnished. We agree, but do not accept that it was the fault of an apprentice working without adequate supervision, workplace experience and practicing a number of processes that he had been taught.

The Applicant had been a good employee and had worked in another department for ~10 months to the detriment of his training and on the job experience.

The only blemish on his record had been his timekeeping (arrival at work) but this had also been addressed.

Until this incident, he had been trusted to perform services alone, supervise and train more junior apprentices and had regularly work overtime.

The question for the Commission is “why would the Respondent decide to terminate his services as the first and only course of action?” with regards to s.387 of the Act.

The Respondent alleges that:

Mr McAuley made a decision to deliberately not check the brake pads on a vehicle he was responsible for servicing.
Mr McAuley then acted with dishonesty and knowingly wrote down false information on the Vehicle Repair Order document using a number he had ‘made up ’based on the mileage or kilometres of the vehicle.
A clear statement was given by Mr McAuley to the Respondent that he acted deliberately and dishonestly, on which they relied solely as the valid reason to support their decision to terminate his employment.
Mr McAuley completed the Customer Service manual checklist at the end of the service and in a way that struck through all items on the list including the brake pad check to indicate the service had been completed.
The Applicant was notified that trust was a reason for the dismissal.[5]
The Applicant was notified by Mr Young after his employment was terminated that the reason for dismissal was, “negligence and dishonesty to fulfil your role.” (SY Witness Statement 14 June, Para 30)
Mr McAuley made a secret recording of the second meeting in the absence of justification, during which he was advised of the Respondent’s decision to summarily dismiss him, and in so doing irreparably damaged the trust and confidence of the employment relationship giving rise to an alternate reason for the dismissal that was not what was provided by the employer originally.

The Applicant gave written and verbal evidence responds as follows:

a.     There was no decision, deliberate or otherwise, for failing to check the front brakes.
b.    He did not make up a number based on the mileage or kilometres of the vehicle and knowingly write down false information on the vehicle repair order document.
c.     He did not make any statement to his employer in either the first meeting or second meeting that he acted deliberately in not checking the brake pads or had ‘made up ’a number based on the mileage or kilometres of the vehicle.
d.    The Customer Service manual checklist was completed as he had been shown to complete the checklist during his training, in a way that he consistently completed the checklist, and in a manner that was an accepted practice in the workshop. When Repair Orders were handed up at the hearing the Respondent was unable to explain why all of the check lists had been competed in a manner that they described as ‘incorrect’.
e.     He was not provided an opportunity to respond to any allegations about his work performance because the main focus of the Respondent client's complaint and embarrassment to the company, and in the termination meeting he was notified of the Respondent's decision to terminate his employment.
f.   The Applicant made a legal recording during the termination meeting, in circumstances that make it reasonable to justify that he did so to protect his legal interests as an employee.

The Applicant admits he did not perform the check and recognised in hindsight a weakness in writing down measurements from memory. The evidence supports that the error made was glaringly obvious to anyone reviewing the paperwork.

a. The process requires that the paperwork be reviewed by at least two people, the WC when it is handed to them, and the Service Advisor prior to discussing the work done with the Client. Neither of these employees noted the obvious discrepancy that was immediately noticed by the customer himself.
b. While it was the Applicant's job to do the check on the brake pads, it was the WC and Service Advisors jobs to check the paperwork, as a Quality Management system this should remove the risk of an obvious error of this nature being made. Had either of the other employees checked the form as their jobs require them to do, they might have raised with Harry the question of how the brakes increased from 4mm to 9mm.

No valid reason for dismissal

The Applicant was summarily dismissed at the end of the workday on Monday 20 March 2023, 3 days after the incident that led to his dismissal.

The Applicant continued to work on vehicle services from the start of business on Friday 17^th, perform rostered overtime Saturday 18^th before being dismissed around 3.30pm on Monday 20 March.

The Applicants view of his dismissal as being unfair was confirmed within 2 days when he lodged his application for an unfair dismissal remedy on Wednesday 22 March 2023.

The Respondent provided the reason for his dismissal in writing on Tuesday 23 March citing ‘dishonestly ’and ‘negligence’.

The Commission in determining a decision must take into account whether a circumstance did or did not exist, considering and giving due weight to each circumstance as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.

a.Time pressure from a workshop incentivised to do things fast so a bonus could be earned.
b.Anxiety due to Mr Young’s reaction to the Applicants late arrival despite having prior approval to help with a school drop off;
c.The urgency of needing to complete the service by 4.30pm to meet the customer expectations;
d.The distraction of having a first-year apprentice to delegate task to and supervise.
e.The process change when performing services of not having to remove the front wheels which is necessary to use the measuring gauges; and

f.Despite being trained in the necessary competency, there was a significant ‘experience gap ’based on the expected training and experience foreshadowed in the Training Plan.

The Applicants absence from the apprentice program due to time spent in pre-delivery should be considered.

On the day of the hearing the Respondent produced numerous documents that had always been available, did not provide copies as required and when a copy was provided it was incomplete as some documents were double-sided. One of the documents discussed, of which no copy was provided to the Applicant was allegedly a document called the called the weekly workshop meeting agenda action items.

This document purportedly showed that Service coupons - filling out the service process was a topic of at least one workshop meeting in October 2022 to which qualified workshop technicians and apprentices attended. According to the Respondent’s evidence, this particular topic had been mentioned at several workshop meetings.

However, the inclusion of this as an item on the agenda for several Workshop Meetings supports the position put forward by Mr McAuley that the Company ‘culture ’of completing forms in the manner is more likely to be how he was shown by the trade-qualified technician as he submitted.

The fact that Mr McAuley continued to complete the checklist exactly as he had been shown when being trained on the job confirms the accepted workshop practice.

The Respondent did not produce any evidence that Mr McAuley had been put on notice that the way he was completing his forms between October 2022 and March 2023. The documents handed up at the hearing show that all Repair Orders submitted had been completed in the same manner.

The evidence continues that at the conclusion of each job, the Repair Order is handed back to a Workshop Controller for checking.

There were a number of inconsistencies from the Respondent about what the process should be, or in the case of the Hot Alert Complaint process, what the requirements are, yet many examples were given that could not be verified by action or evidence that these processes were followed.

The Commission should consider the number of processes the Applicant had to understand to perform a single service.

a.Verbal instruction from Workshop Controller
b.Pre-printed Repair Order from a Service Advisor, often with manual checklists,
c.A computerised Work Management System that logged, tasks, times and who performed the work, and
d.Checking processes without any documentation or ability to verify that they actually were performed.

It is not sufficient that the Respondent claims to have communicated expectation in a workshop meeting.

All of the information detailed above should have been considered in an investigation of the incident.

The Respondent provided no evidence that supports that they conducted any investigation or gave Mr McAuley any reasonable opportunity to respond to any allegations. In fact, the only investigation that was conducted was Mr Young ‘talking to people ’but this was not recorded in a manner that it could be reviewed or provided to the Applicant to respond to.

Both parties confirmed that the vehicle in question was returned to the workshop for checking;

a.The Applicant gave evidence that he went to the vehicle, spoke with the Service Advisor, looked at the paperwork and inspected the front brakes.

b.The Respondent gave evidence that a Senior Technician checked the vehicle and ‘re-did the service’.

The obvious question is ‘why was the Applicant (who was in the workshop) not taken through that exercise or as a minimum provided an opportunity to comment on any findings.

The answer is that it has already been determined that he was to be dismissed but Mr Venning had to return from leave to confirm that decision.

Mr McAuley, once made aware of a concern with his work recognised and admitted to the significance of the incident. He apologised for his mistake and also confirmed that he both recognised the significance of the error and apologised for it in his F2 application supporting statement submission.

The Respondent claims that Mr McAuley said words to the effect “I made a decision to not check the brakes and made up the measurement based on other cars with similar mileage”. The Applicant denies this claim.

Mr Young for the Respondent, in his oral evidence confirmed that no investigation of the reason or reasons for the act of missing the check and writing down an incorrect number was conducted beyond the first meeting and the Applicant was not made aware of the allegations of dishonesty and deliberate negligence of his employee duties, or allowed to respond to such allegations in that meeting.

The Respondent relies entirely on the testimony of its witnesses to establish that the valid reason for dismissal was the Applicant’s admission of dishonesty and negligence.

The evidence established that the Respondent witness, Mr Young made unsubstantiated allegations about the Applicant’s timekeeping and work ethic.

The witness for the respondent, Mr Cremin, Mr McAuley’s direct supervisor, submitted into evidence (PN937-939) that contrary to submissions made by Mr Young for the Respondent, which claimed Mr McAuley had a history of poor attendance and that he would “sometimes not attend work at all without having informed his supervisor”, Mr Cremin could not recall the last time Mr McAuley was late, and submitted that Mr McAuley had improved his timekeeping following the one verbal warning given in 2022, (this warning was noted honestly by Mr McAuley in his original F2 Application).

The Respondent provided no other evidence to support Mr Young’s allegations that Mr McAuley had an ongoing issue with poor attendance and poor work ethic.

It was also established from the evidence provided on both sides that Mr Young and the Applicant had clashed previously in relation to the Applicant raising concerns about the failure to provide training in line with his Apprentice training program.

Mr Cremin is Mr Young’s direct report manager, and Mr Venning was responsible for the decision to terminate Mr McAuley’s employment on the basis of Mr Young’s presentation of the information in relation to the events in a private meeting with Mr Venning at which the Applicant was not present.

The Respondent provided no other evidence to corroborate the claim that the Applicant made a statement to the effect that “he did not check the brakes because he assumed it would be fine and just made-up a measurement based on similar vehicles with a similar mileage” to avoid doing the work.

No written signed statement from the Applicant was produced, no diary notes, meeting notes, or any other documentation was submitted into evidence detailing the meeting where the Applicant is alleged to have said this, nor of any other investigation into any of the relevant matters as was reasonable in the circumstances and prior to the decision to terminate Mr McAuley’s employment such that they could meet their obligation to establish clear evidence of the reasonable grounds that they used to establish that the alleged serious misconduct occurred.

Mr Cremin, witness for the Respondent, supported Mr McAuley’s evidence that when asked about what had happened and how he measured the brake pad to have the wrong measurement before the first meeting, Mr McAuley had replied that he “didn’t know what happened”.

Mr McAuley strongly denies Mr Venning’s allegation that in the final meeting - which was recorded by the Applicant - he agreed that he had decided not to check the brakes and made up the measurement based on other cars with similar mileage.

Mr McAuley from his first statement submitted with his Form 2 Application, a few days after the event, to his oral evidence given at the hearing has been clear and consistent and maintained that he told Mr Young in the first meeting, and then Mr Venning in the second meeting that the act of accidently omitting the brake check and writing down an incorrect number from memory was not deliberate.

The Commission must consider the possibility of collusion or tainting when weighing the evidence. Signs of collusion and/or tainting commonly include:

a.The use of identical (or strikingly similar) words, phrases, or expressions by two or more witnesses:
b.Evidence that sounds rehearsed for example the specificity with which they recount certain details that stands in stark contrast with the vagueness of the remainder of their evidence.
c.Evidence that shifts during the course of the investigation, like a witness changing their evidence between their initial statement and a follow-up witness statement on a critical piece of evidence on which they are relying to carry their story, particularly when their new evidence happens to more strongly align with the story they’ve come up with - particularly where the witness has no obvious reason or explanation for the change.

Mr Young in his initial statement submitted with the F3 Employer Response form on 28 April in response to Mr McAuley’s application for unfair dismissal remedy stated that the Applicant when questioned said, I did not actually check the brakes. I assumed they were ok by previous inspections of other vehicles”. In Mr Young’s further statement provided 14 June, he states that Mr McAuley said words to the effect of, I didn’t check the brakes because I have serviced many of these vehicles before and I assumed they would be fine because all of the brakes on the cars with similar mileage have been okay.”.

Mr Cremin uses a strikingly similar phrase to Mr Young’s updated memory of the content of the conversation in his statement where he recalls specifically that Mr McAuley said in the first meeting on 17 March, that he did not check the brakes but made up a measurement based on his judgement of what the brake pad thickness should be having regard to the kilometres travelled.” (JC Witness Statement, 14 June, Para 17(b)), while simultaneously being unable to recall any other details or any other general gist of that conversation. (Transcript PN975-PN977)

Mr Venning's statement is based on what Mr Young told him Mr McAuley said, and his assertion that the Applicant agreed that the statements by Mr Young were correct.

During the hearing the Respondent produced additional documents and evidence not previously provided to the Applicant that they claimed showed a discrepancy in the measurement of the tyre tread on the vehicle, in addition to the brake pad number.

In his oral evidence, Mr Young, witness for the Respondent confirmed that in fact the discrepancy in the measurement of the tyre treat could have been attributed to it having been measured differently and that there could be discrepancies regarding the measuring points. (Transcript PN1111-1113)

Mr McAuley recorded the final meeting with Mr Young and Mr Venning in which he was advised that his employment was terminated.

The following circumstances, timing and context applied to the recording made by the Applicant:

a.Mr McAuley had been provided with no prior advice on the timing of the meeting and had been given no opportunity to have a support person present for the meeting;
b.He was fearful that Mr Young intended to be dishonest in what he told Mr Venning, a fear that arose due to Mr Young’s comments to him in the first meeting;
c.He had been denied the opportunity to speak to Mr Venning, the decision- maker, prior to the meeting, and he was fearful that a decision had already been made and that he would be denied an opportunity to explain what had happened in his own words; and
d.The Respondent’s previous actions in breaching Mr McAuley’s employment contract in relation to his apprentice training and payment of wages, the non-existent investigation, and lack of procedural fairness provided by the Respondent in handling the events leading up to this meeting had significantly damaged the trust and confidence in the employment relationship.

It is the Applicant’s position that the identification of the precise words used at this final meeting could mean the difference between justice and justice falling short.

The content of the audio recording of that meeting was recorded and dealt with legally within the laws of Queensland, was for the and the Applicant was probative to the matters before the Commission and that had it been accepted into evidence would have allowed the Commission to determine that the Respondent’s claim that Mr McAuley agreed that he had told the Respondent that he had simply decided not to check the brakes and made up the measurement based on other cars with similar mileage was not true.

Deputy President Colman in Roman v Mercy Hospital (Roman) described the recording of conversations in the workplace with various persons without their knowledge or agreement in the absence of justification as highly inappropriate irrespective of whether it constitutes an offence in the relevant jurisdiction. The Deputy President also found in the circumstances of that case that the applicant’s conduct of covertly recording a meeting established a further valid reason for dismissal. In Yu v Crown Resorts Limited (2022) FWC 2505 delivered 20 September 2022 per Masson DP comments that the comments and the findings of Deputy President Colman do not however stand for the proposition that the covert recording of conversations or meetings by an employee will establish a valid reason for dismissal in all circumstances. It of course remains necessary to consider the circumstances in which the conduct occurred.

Deputy President Gostencnik in Moran v KDR Victoria Pty Ltd T/A Yarra Trams (2018) FWC 6144 states that in relation to misconduct justifying dismissal which is afterwards discovered, dismissal is for a valid reason because the conduct, though unknown at the time of the dismissal, was misconduct. But dismissal will usually not be justified if the conduct is not misconduct or wrongful conduct, if it is permitted by law and not prohibited by the employer. If there is to be a relevant relationship impact at the time of the dismissal sufficient to find a valid reason it seems to me that the conduct (which is not unlawful or otherwise misconduct or wrongful) would need to have been known. It can hardly be said that the Applicant’s surreptitious recording had a particular effect on the employment relationship thus providing a valid reason in circumstances where the conduct which was not misconduct, wrongful or unlawful was not known and the damage to the relationship could not have occurred at the time of dismissal. It might very well impact upon the relationship or more properly its re-establishment now, but it could not have had the requisite deleterious effect at the time of dismissal. Thus, the act of surreptitious recording in and of itself, whatever else might be said about it, does not provide a valid reason for the dismissal in the circumstances of this case.”

It is lawful in Queensland for a person to covertly record a physical conversation to which the person is a party where the person is doing so to protect a lawful interest; see Invasion of Privacy Act 1971 (Qld).

The recording of the meeting on 20 March by the Applicant was done to protect his lawful interests against his employer's misconduct.

Mr McAuley shared this recording only with his representatives in conjunction with his application for unfair dismissal, and only to the extent reasonably necessary to protect his lawful interests, and he was permitted to legally use the recording in legal proceedings.

Was the Applicant notified of a valid reason?

The Applicant was summoned to two meetings, in the first meeting the evidence from both sides supports that he was asked “what happened in this service” without being provided with any background information or notification of any valid reason to dismiss him.

During the first meeting, the evidence suggests the Respondent was mainly concerned with the customer’s complaint and the embarrassment caused to the Company by the mistake made by one of their apprentices who was working unsupervised, while supervising a first-year apprentice, in a workshop supervised by another apprentice.

The second meeting lasted less than 10 minutes and the Applicant was advised that his employment was being terminated and he was to pack up his tools and leave the premises immediately.

A significant amount of this time was taken with the Respondent trying to procure a resignation.

Was the applicant given an opportunity to respond to any reason?

In Crozier v Palazzo Corporation Pty Ltd,[5] the Full Bench established the following:

[73] 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.

The Applicant was not notified of a valid reason for termination before the decision to terminate his employment was taken, and as such there can be no opportunity to respond to a reason identified.

The evidence submitted from all parties regarding the discussion in the first meeting shows that the meeting was restricted to questions regarding what had occurred in the Service and not a meeting in which the Applicant was provided an opportunity to consider and respond to an identified reason for dismissal.

Was there any unreasonable refusal by the employer to allow the person a support person?

The employer denied the employee any opportunity to arrange a support person by arranging both meetings with no prior notice to the Applicant. The Respondent is a medium sized employer with access to a centralised HR function. The Applicant is a young person with no prior knowledge of termination processes so it was incumbent upon the Respondent to ensure procedural fairness, including allowing time and the opportunity to have a support person present. More so in circumstances where Management has 3 or 4 attendees present.

Was the appellant's employment terminated for unsatisfactory performance and were there any warnings about the unsatisfactory performance?

At the time of his dismissal on 20 March 2023, Mr McAuley was 20 years old and had been employed by Sunshine Toyota as an Apprentice Mechanical Technician for 25 months. With the exception of a verbal warning for timekeeping given in 2022, Mr McAuley had an otherwise unblemished performance record in regard to his capacity, conduct and performance prior to the events that led to his dismissal.

Evidence was given that despite not having finished a number of 2^nd year competencies, he was trusted to work alone and train others.

The acts for which Mr McAuley was dismissed were more likely to be a matter of unsatisfactory performance, not serious misconduct.

Mr McAuley had no history of unsatisfactory performance related to his capacity to do the job. He had received no prior warnings regarding unsatisfactory performance.

Were there other Employer impacts on the procedures followed in affecting the dismissal?

The Respondent submitted that they employ over 80 people and that they have access to the human resource management specialists of the head office group Servco for dealing with HR issues.

Are there other matters that the Commission should considers as relevant?

The employee's work performance or history is a factor that can be taken into account.

With the exception of a verbal warning for timekeeping given in 2022, Mr McAuley had no history of unsatisfactory performance related to his capacity to do the job. He had received no prior warnings regarding unsatisfactory performance.

Mr Young provided oral evidence that he was quite confident in Mr McAuley’s ability to perform his job, and had no issue of trust or confidence in relation to his work prior to the events that led to his dismissal. (Transcript PN1261-1262)

A situation where an employee is summarily dismissed can be a relevant factor that may be taken into account.

In cases involving summary dismissal, the proportionality of the dismissal may be considered under s.387(h). The penalty imposed was a disproportionate response to the conduct complained of:

a.Mr McAuley recognised and admitted to the significance of the incident in both meetings held, he apologised for his mistake and also confirmed that he both recognised the significance of the error and apologised for it in his F2 application supporting statement submission.
b.The admitted act of missing the check on the brake pads and then writing a number believed to be correct but based on an incorrect memory of measuring the pads, and of completing the paperwork in a way in which he was shown, but which put him at higher risk of errors of this nature was an issue of performance, not of serious misconduct. Performance includes 'factors such as diligence, quality, care taken and so on'.
c.The act for which Mr McAuley was dismissed was a matter of unsatisfactory performance, not serious misconduct.
d.A more amicable resolution open to the Respondent in this case may have included a first or final warning.

Respondent’s Submissions

The Respondent’s representative provided the below closing submissions.

Mr McAuley is not entitled to an unfair dismissal remedy and this proceeding should be dismissed because:

a.On 16 March 2023, Mr McAuley engaged in conduct that was dishonest and negligent that caused a risk to a customer’s safety and which was a valid reason for dismissal;
b.Mr McAuley admitted to this conduct on 17 March 2023 and 20 March 2023;
c.Mr McAuley was afforded a procedurally fair process.

The key issues for determination

The two key issues for determination are as follows:

a.Did Sunshine Toyota have a valid reason to dismiss Mr McAuley? Mr McAuley says that his conduct did not warrant dismissal.
b.Was the dismissal otherwise harsh, unjust or unreasonable? Mr McAuley says that his dismissal was harsh because he admitted that he made a mistake and should have been assessed against an unsupervised, and undertrained second year apprentice, that Mr McAuley was not afforded an opportunity to respond or be accompanied by a support person before a decision was made to dismiss Mr McAuley, and that Mr McAuley had not been previously counselled on his work performance.

These issues are to be resolved against the following findings of fact the Commission ought to make.

The Facts

Servco Australia Caloundra Pty Ltd trading as Sunshine Toyota (Sunshine Toyota) is an automotive business that employs approximately 80 employees.[6] Sunshine Toyota operates a retail showroom, two retail service centres and a pre-delivery department.[7]

Sunshine Toyota is part of the Servco Group and relies on the Servco Group’s human resources team.[8]

Mr McAuley commenced employment with Sunshine Toyota on 22 February 2021 in the position of Apprentice.[9] At the time of dismissal, Mr McAuley had commenced the third year of his apprenticeship.[10]

As at 10 March 2023, Mr McAuley had second year apprenticeship subjects still requiring signing off[11] including drum brake diagnosis and repair.[12] The drum brake diagnosis and repair is a different competency to the competency of inspecting and measuring brake pads on a disc brake.[13] It is uncontroversial that measuring brake disc pads is a first-year apprenticeship competency.[14]

Mr McAuley had completed his training in servicing vehicles which included to inspect, remove, measure and install disc brake pads.[15] Mr McAuley was competent to, and routinely performed car services.[16]

Mr McAuley signed and acknowledged Sunshine Toyota’s Employment Policy Manual (Policy) which:[17]

a.sets out Sunshine Toyota’s core values, purpose and vision which include its aim to be a community leader, employer and dealer “with an innovative, transparent, high performance culture” and value that its employees act in a “professional manner showing respect, integrity and empathy”;[18]
b.requires that the employees adhere to the values in their work;[19]
c.provides that a breach of an employee’s obligations under Sunshine Toyota’s policies and procedures may result in disciplinary action, including immediate termination of employment;[20]
d.provides that Sunshine Toyota may terminate an employee’s employment without notice in the event that they are guilty of conduct which in the reasonable opinion of Sunshine Toyota amounts to serious misconduct;[21]
e.provides examples of serious misconduct including if the employee:[22]
(i) “commit[s] any act of dishonesty, including the fraudulent misuse of company funds, equipment or resources”;
(ii) “behave[s] in a way which in the reasonable opinion of the company brings the company into disrepute”;
(iii) “[is] responsible for any act or omission which is or is likely to cause serious harm or damage to the reputation or our, business, Servco or Toyota”;
(iv) “wilfully neglect[s] to perform [their] duties or perform [their] duties in such a way that in the reasonable opinion of the company, the business or reputation is likely to suffer as a result”.

Generally, the vehicle servicing process is as follows:

a.The vehicle is dropped off by a customer (who are referred to as “guests”);[23]
b.The service team books the vehicle to be serviced and raises a Repair Order (RO).
The RO includes details of the guest, details of the vehicle, the history of previous services Sunshine Toyota has conducted (including recommendations of previous services), and instructions for the current service;[24]
c.The vehicle goes to the workshop to be serviced and repaired as required. A technician or apprentice receives the RO which lists the tasks to be undertaken, has a service form they are to fill out and a tear-out service coupon from the customer’s car manual which has a checklist of tasks that the technician/apprentice must fill out.[25] If, based on the inspections in a service, repair work is required, the Workshop Controller will seek a quote and assign the repair work based on workload. In the workshop, there is a Workshop Controller who reports to the Workshop Foreman/Technical Advisor;[26]
d.The vehicle then undergoes a basic quality inspection including that all jobs on the RO are performed, checking whether there is any oil residue and that it is removed and that all service items have been checked off on the service coupon by the technician or apprentice.[27] The quality inspection does not require a technician to redo parts of the service to ensure it has been completed i.e. there is no requirement that brakes are remeasured if a number has been written down on the service documents;[28]
e.A double-check is conducted by a technician to ensure the sump plug where the oil is drained and plug refitted is torqued, to check the oil filters, and to ensure that the wheel nuts are secured by checking the torque;[29]
f.The vehicle is sent back to the service team who delivers the car back to the guest.

On 16 March 2023, Mr McAuley arrived late to work at 8:52am.[30] Mr McAuley performed work on five vehicles that day as follows:[31]

a.30,000km service on a black Toyota Hilux where Mr McAuley reported on the service document 8mm and 3mm for the front and rear drum brake pad measurements respectively (RO document number C No. 256648);[32]
b.Job 4 of the RO for a black Toyota Camry being DCM software work to be carried out per the campaign bulletin where Mr McAuley was not required to, and did not measure the brake pads (RO document number C256659);[33]
c.40,000km service on a grey Landcruiser Wagon where Mr McAuley reported 8mm and 7mm for the front and rear brake pad measurements respectively (RO document number C256653);[34]
d.50,000km service on a Grey 79 Series Landcruiser (the Vehicle) where Mr McAuley reported 9mm and 8mm for the front and rear brake pad measurements respectively and drew a line through the service coupon as marking off the inspection of brakes as being complete (RO document number C256670);[35] and
e.Replacement of the front brake pads on a white Toyota Hilux where another technician completed the relevant service and noted brake pad measurements of 3.5mm before replacement (RO document number C256658).[36]

Mr McAuley did not check the brake pads of the Vehicle despite writing down a measurement of 9mm for the front brake pad on the service document and marking off that he inspected the brake on the service coupon.[37]

The Commission should find that Mr McAuley did not check the brake pad thickness of the Vehicle and despite not doing so, wrote down a measurement of the brake pad thickness on the RO. The Commission should find that the number Mr McAuley wrote down was not the actual measurement of the brake pad thickness, but his assumption of the brake pad thickness having serviced vehicles with similar mileages before. The Commission should make these findings because that was the explanation provided by Mr McAuley to Sunshine Toyota on 17 March 2023 and 20 March 2023 (referred to later in these submissions), and the basis for Mr McAuley’s alternative explanation (which he now puts forward) is disproven by the evidence.

Mr McAuley’s alternative explanation is that at the time of servicing the Vehicle he thought he had checked the brake pads and wrote down a measurement of an earlier vehicle he had serviced that day which had a front brake pad measurement of 9mm.[38]Mr McAuley was clear on cross-examination that it was a vehicle he had serviced on that day. On Mr McAuley’s account, he completed five or six 50,000km vehicle services on 16 March 2023.[39] At hearing, Sunshine Toyota provided evidence of the service documents for all five vehicles Mr McAuley worked on that day as extracted from its work management system.[40] Those business records of the Respondent demonstrate that no other vehicle Mr McAuley worked on that day had 9mm noted as the front brake pad measurement. Mr McAuley raised at hearing that there were two other vehicles he worked on that day being Landcruiser Prado 150 series.[41] There is no evidence Mr McAuley serviced any other vehicles on 16 March 2023. Mr McAuley’s alternative explanation is contradicted by the business records of the Respondent.

On 17 March 2023, Mr Scott Young, Group Services Manager was informed by Mr Kevin Leaman, Services Manager at the time, that the owner of the Vehicle had made a complaint about the service.[42] Mr Leaman also told Mr James Cremin, Technical Advisor/Workshop Foreman about the customer’s concerns. The owner of the Vehicle had conducted his own check of the brake pad thickness because he was aware that at the last service, the front brake pads were getting low.[43] The brake pad thickness was much less than 9mm.[44]

Mr Cremin asked Mr McAuley about the service on the Vehicle and how there was such a discrepancy on the brake pad measurements.[45] Mr McAuley responded that he did not know what happened.[46]

On 17 March 2023, Mr Young, Mr Leaman, Mr Cremin and the Applicant had a discussion about the Vehicle first near Mr Leaman’s office in the service area and then in Mr Young’s office.[47]

The witnesses all recall that Mr Young asked Mr McAuley what had occurred with the service on the Vehicle and the brake pad measurements.[48] However the witnesses’ recollection of Mr McAuley’s response differ.

Mr Young’s evidence is that Mr McAuley’s response was to the effect that Mr McAuley did not check the brakes and assumed that the brakes would be fine based on other vehicles he had previously serviced.[49] Mr Young confirmed this during cross- examination.[50]

Mr Cremin’s evidence is that Mr McAuley’s response was that he did not check the brakes but had made up a measurement based on his judgement of what the brake pads should be having regard to the kilometres travelled.[51] At hearing, Mr Cremin confirmed that he was certain that Mr McAuley said he made up the measurement and that Mr McAuley did not say that he had made a mistake.[52] Mr Cremin recalls being dumbfounded by Mr McAuley’s explanation that he had made up a measurement.[53]

Mr McAuley’s evidence is that he “tried” to explain to Mr Young that it was an “honest mistake”[54] and that at the time of filling out the paperwork he thought he had checked the brakes and must have been thinking of an earlier vehicle’s brake pads when writing down the measurement.[55] At hearing, Mr McAuley’s evidence was that he said to Mr Young “it was clearly a mistake and that [he] had filled it out through memory.”[56]

In cross-examination, Mr McAuley first insisted that he said to Mr Young that he made a mistake.[57] When it was put to Mr McAuley that he did not say that it was a mistake, Mr McAuley said that he said words to the effect that it was a mistake in his “attempt” to explain.[58] Mr McAuley then admitted that he was “unable to” present the mistake story to Mr Young and Mr Cremin in the meeting.[59]

While Mr McAuley accepted that he had an opportunity to argue with Mr Young about his time in pre-delivery, he says he could not say to Mr Young there was a mistake. Mr McAuley said that Mr Young “would not have accepted that”.[60]

In circumstances where two witnesses have clear and consistent recollections of Mr McAuley’s explanation and where Mr McAuley’s evidence was inconsistent and that he only “tried” or “attempted” to give a different explanation, the Commission should find that:

a.Mr McAuley’s explanation on 17 March 2023 to Mr Young and Mr Cremin was to the effect that he did not check the brake because he assumed they would be okay and assumed the measurement based on other vehicles he had serviced with similar mileage;
b.Mr McAuley did not say to Mr Young that he made a “mistake” or that he was thinking of an earlier vehicle’s brake pads when he wrote down the measurement.

It is uncontested that during the meeting:

a.Mr Young raised that Mr McAuley’s conduct was a safety issue;[61]
b.Mr Young questioned how he could trust Mr McAuley;[62]
c.Mr McAuley raised that he had been working at pre-delivery and out of the workshop for some time, to which Mr Young responded that it does not relate to the current discussions.[63]

Mr McAuley contends that Mr Young made a decision to terminate his employment at the 17 March 2023 meeting.[64] The evidence however demonstrates that Mr Young did not make a decision about Mr McAuley’s employment but ended the meeting by saying words to the effect that he would gather all the information and have a discussion with Mr Darren Venning, Dealer Principal, on the following Monday, 20 March 2023 about
where Sunshine Toyota stood regarding Mr McAuley’s employment.[65] On Mr McAuley’s

evidence, it was made clear that his employment was not being terminated at that moment.[66] Mr Young’s evidence during cross-examination remained that he did not make a decision about Mr McAuley’s employment.[67] The Commission should find that Mr Young did not make a decision about Mr McAuley’s employment on 17 March 2023.

Mr McAuley returned to work after the 17 March 2023 meeting under the supervision of a qualified technician.[68]

Mr McAuley was so upset after the 17 March 2023 meeting that he felt like he was going to vomit.[69] A reasonable conclusion is that Mr McAuley was sick to his stomach after the
17 March 2023 meeting because he admitted to his dishonest conduct, Mr Young said that conduct was unacceptable,[70] that he could not trust Mr McAuley, and that Mr Venning would determine what would happen to Mr McAuley’s employment on the Monday (20 March 2023). Mr McAuley then took time over the weekend, after feeling sick to the point of vomiting, to create the “mistake” story, which he had not put to Mr Young on 17 March 2023.[71]

Mr Venning returned from leave on 20 March 2023.[72]

On 20 March 2023, Mr McAuley asked Mr Young whether he could be present while Mr Young spoke with Mr Venning about the incident.[73] Mr Young declined because he wanted to provide Mr Venning with the information and so Mr Venning could decide what to do next.[74]

During his weekly meeting with Mr Venning and Mr Young, Mr Young briefed Mr Venning on issues regarding the service of the Vehicle.[75] Mr Young showed Mr Venning the service paperwork,[76] and advised Mr Venning that the owner of the Vehicle was upset
about a service completed by Mr McAuley.[77] Mr Young advised Mr Venning that the
owner of vehicle had checked the thickness of the brake pads himself which was much lower than the 9mm recorded by Mr McAuley on the service paperwork.[78]

Mr Young explained to Mr Venning that he had asked Mr McAuley about the Vehicle and that Mr McAuley said he did not actually check the brakes and thought it would be “okay” based on similar vehicles he had serviced with a similar mileage and wrote down a measurement based on his experience of servicing those vehicles[79]. Mr Venning became concerned that Mr McAuley was blatantly dishonest in not doing his job and then writing down a figure not knowing whether it was accurate in relation to a safety issue.[80]

Contrary to Mr McAuley’s contention that Mr Venning merely “confirmed” Mr Young’s decision to terminate Mr McAuley’s employment without hearing from Mr McAuley,[81] Mr Venning decided that he needed to hear what happened directly from Mr McAuley before he made any decisions about Mr McAuley’s employment.[82] Mr Venning told Mr Young that they needed to have a discussion with Mr McAuley.[83]

Mr Venning then called Mr Andrew Gage from the Human Resources department of a group company of Sunshine Toyota.[84] During that call Mr Venning provided Mr Gage with the background Mr Young had relayed and asked whether, in the event Mr McAuley confirms that version of events, Mr Venning could terminate Mr McAuley’s employment. Mr Venning told Mr Gage that he was concerned about Mr McAuley’s dishonesty which placed a customer’s safety at risk. Mr Gage advised Mr Venning that he considered that to be a valid reason for terminating Mr McAuley’s employment.[85]

On 20 March 2023, Mr McAuley, Mr Venning, Mr Young and Mr Leaman had a meeting in Mr Venning’s office. All three witnesses recalled that:

a.At the start of the meeting Mr Young outlined the events to the effect that the owner of the Vehicle had returned after a service because the front brake pad thickness was written down as 9mm but when the owner had checked the brake pads himself, they were much lower.[86]
b.Mr Young said words to the effect that he had spoken to Mr McAuley and that Mr McAuley had said that he did not check the brakes but had written down 9mm on the paperwork because he assumed they would be “okay” based on other vehicles he had serviced.[87]
c.Mr Venning then asked Mr McAuley words to the effect of “is this true”.[88]

The witnesses’ accounts of Mr McAuley’s response to Mr Venning’s question differs.

Mr Venning and Mr Young both recall that Mr McAuley responded “Yes”.[89]

Mr McAuley’s evidence on his response to Mr Venning’s question is inconsistent as follows:

a.Mr McAuley’s evidence in his statement attached to his F2 Application is that he responded “No”.[90]
b.Mr McAuley’s evidence in his witness statement signed 28 May 2023 does not say that Mr Venning asked “is this true”, rather says that after Mr Young outlined the events and Mr McAuley “attempted to clarify to Darren that this was not what [he] had said to Scott…” and that he was “honest when Darren asked [him] if [he] checked the brakes, and [he] admitted that [he] must not have checked the brake pads on this vehicle…”[91]
c.During cross-examination, Mr McAuley first alleged that he did not say “yes” but instead confirmed that he had performed the job on the vehicle.[92]

d.When it was put to him, Mr McAuley agreed that he responded, “No” when asked “is it true”.[93]
e.Mr McAuley then said that he responded, “Yes [he] completed the job”.[94]
f.Later, Mr McAuley then said that his response was words to the effect that “yes” he had done the service that day and tried to explain further but was cut off.[95]
g.In response to further cross-examination about Mr McAuley’s earlier evidence that his response was “no”, Mr McAuley stated” You keep saying that that’s what I said” and asked “But where - are you getting that I said no from…”. suggesting that his evidence was not that he said “no”.[96]
h.When Mr McAuley was taken to his F2 Statement, where he stated his response was “No”, Mr McAuley said that was in reference to Mr McAuley having said that he had done other services and thought the brake pads would be fine.[97]

Mr McAuley’s evidence about what he said in his response to Mr Venning asking him “is this true”, was variable. The evidence of the two witnesses, who have the same recollection of Mr McAuley’s response, and whose evidence was clear and consistent, should be preferred. Mr McAuley himself said that he was “honest when Darren asked [him] if [he] checked the brakes, and [he] admitted that [he] must not have checked the brake pads on this vehicle…”[98]

The Commission should find that Mr McAuley admitted to the conduct by responding “Yes” to Mr Venning’s question.

Mr Venning then asked Mr McAuley words to the effect of, “So you decided not to check the brakes and made up a measurement based on other cars with a similar mileage?” because Mr Venning wanted to be clear that’s what Mr McAuley agreed to.[99] Mr McAuley acknowledged it was correct.[100] Mr McAuley says though he acknowledged that he had “done the vehicle” but not that he had made the measurement up.[101]

Mr McAuley’s evidence is that Mr Venning’s question was, “but you wrote down a measurement” and that Mr McAuley responded “Yes” but when he tried to explain what he thought had happened Mr Venning refused to allow him to say anything further.[102] Mr McAuley’s evidence is that he “attempted”[103] or “tried”[104] to explain but Mr Venning did not allow him to explain.[105]

The evidence demonstrates that Mr Venning asked Mr McAuley for a second time whether he decided to not check the brakes and make up a measurement and that Mr McAuley’s response was that it was correct. On Mr McAuley’s own evidence, Mr McAuley did not explain his “yes” response but only “attempted” or “tried” to do so. There is no evidence that Mr Venning prevented Mr McAuley from providing the explanation.

Mr Venning then told Mr McAuley that his conduct was a dishonesty and reputational issue and explained that the conduct put a customer’s safety at risk.[106] Mr Venning explained that he was not willing to take the risk of Mr McAuley completing a document with false information where if an accident occurred, the responsibility will be on the directors of Sunshine Toyota.[107]

Mr Venning then told Mr McAuley that he was proposing to terminate Mr McAuley’s employment. Mr McAuley asked whether there was another option to deal with the issue.[108] Mr Venning responded “no” and asked whether Mr McAuley would prefer to resign or to be terminated. Mr McAuley said he would prefer to be terminated and Mr Venning advised that Mr McAuley’s employment would be terminated.[109]

Mr McAuley packed up his tools and left the premises.[110]

The brake pad thickness was reported by Mr McAuley as being at 9mm.[111] When the guest remeasured it himself, he observed it at around 2-3mm.[112] It was Mr Young’s recollection that when the Vehicle was reserviced, the technician measured the brake pad thickness at 1.2mm.[113] Sunshine Toyota’s policy is to recommend brake pads be replaced when they are at 4mm.[114] Mr McAuley’s evidence is that the brake pads require replacing at 1mm or when worn unevenly and that when the Vehicle was returned to the service department, he observed the pad thickness at 2-3mm.[115]

A car’s stopping power is primarily determined by the actual brake pads that grip the brake disc rotor, slowing down the vehicle.[116] A low measurement on brake pads can therefore cause difficulty in stopping a vehicle and the potential for accidents. The front brake pad of the Vehicle was at a thickness where a replacement was required. The issue was that Mr McAuley knowingly wrote down a measurement for the thickness of the brake pads, without measuring the brake pads. This false information was relied upon and the replacement of the front brake pad was not recommended or performed. The safety of the owner of the Vehicle was at risk due to Mr McAuley’s conduct.

The owner of the Vehicle was about to commence a trip around Australia, towing a caravan, which would further impact the safety risk of a low brake pad.[117] It is immaterial that Mr McAuley did not know that the customer was going to be towing a caravan.[118] Mr McAuley’s duty was to measure the brake pad and write down the measurement. The issue was that Mr McAuley wrote down a measurement knowing that he did not check the brake pads, and that measurement was relied on by other team members, and the Vehicle was returned the customer without replacement brake pads. Had the customer not checked the brake pads, Sunshine Toyota would not have rectified the issue, and the customer’s safety was at risk.

Mr McAuley’s evidence is that the measurement of the brake pads of the Vehicle (that he did not take) was not a major safety issue. The reason for Mr McAuley’s conclusion was because the Vehicle has a sound gauge at one millimetre pad thickness, which alerts the driver of the vehicle when the brake thickness is to become a danger, and that the brake pads should be replaced. As this is said to act as a failsafe, Mr McAuley does not consider it a major safety issue.[119] On Mr McAuley’s evidence, there would be no need to measure brake pads because a vehicle has a failsafe mechanism that will alert owners.

Mr McAuley’s position is that the owner of the Vehicle was never in danger[120] because the brakes were adequate since the vehicle was brought to a stop when he did a test drive on 16 March 2023.[121] Mr McAuley was asked during cross-examination as to whether his evidence would be the same if he knew the customer was towing a caravan around Australia the next day.[122] Mr McAuley responded yes.[123] Any reasonable person even without the experience of a third-year apprentice, would conclude that the risk to safety is greater where there is a brake issue for a vehicle towing considerable weight.

Mr McAuley’s attitude to the gravity of the safety issues arising from the brake pad thickness measurement is consistent with the proposition that he did not measure the brake pad thickness but instead made an assumption about its thickness. Mr McAuley’s conduct placed a customer’s safety at risk.

Mr McAuley had a negative attitude towards his work. During the second year of Mr McAuley’s apprenticeship, Mr McAuley spent time in Sunshine Toyota’s pre-delivery department preparing vehicles for delivery which required Mr McAuley to do rust proofing, accessories fitting and pre-delivery inspections.[124] Mr McAuley was upset about spending time in pre-delivery and felt that he was being taken advantage of. When Mr McAuley returned from pre-delivery to the servicing department, he was upset that he was “dropping oil and spinning filters doing services all day every day, while not actually being taught any other trade skills…”

Mr McAuley’s approach to the service documentation process demonstrates his indifference and lack of insight he has into the importance of honestly performing his duties. Mr McAuley’s evidence was that it was his practice, which he says he was taught, to complete the service paperwork and service coupon at the end of the service by placing a vertical line through the all the checkboxes on the service coupon.[125]

During examination in-chief, Mr McAuley’s evidence was that he strikes a line through all checkboxes “but that’s not necessarily accurate of the things that [he has] done on the job”.[126] Mr McAuley gave an example in relation to the Vehicle where he did not “rotate wheels and balance front wheels” but that he struck through it on the checklist. Mr McAuley said it was struck through “as a formality”.[127]

Mr McAuley’s evidence was that the person who trained him told him, “even if you don’t do it, you tick the box”.[128] It was put to Mr McAuley that if he was to put a line through the checkboxes, it relies upon the assumption that Mr McAuley did the task and knowing he had done each item.[129] Mr McAuley disagreed.[130] Yet Mr McAuley agreed he was told to be truthful in relation to filling out the service document, and that it is part of company policy.[131]

Sunshine Toyota’s evidence is that putting a line through the checkboxes is not the process taught to technicians and apprentices.[132] Mr Cremin and the workshop controller instructed technicians and apprentices, including Mr McAuley, to tick the service coupon as they go so they know what task had been complete.[133] Mr Cremin recalled a meeting which occurred on 11 October 2022 where the workshop controller at the time, Jason Harvey, spoke about filling out service coupons and the service process.[134] In the meeting, Mr Harvey reminded the attendees to tick the box as they go through the service.[135] Mr McAuley’s name was noted as being in attendance at this meeting.[136]

Prior to 16 March 2023, Mr Young had “99 per cent” confidence in Mr McAuley to perform his given tasks. However, Mr Young considered that Mr McAuley had a below standard work ethic and was tardy with his lateness and communication.[137] Mr McAuley admits that he has had issues with arriving to work late and received a written warning in 2022 to address the concern.[138]

On 20 March 2023, a Sunshine Toyota technician performed a subsequent service on the Vehicle, another wheel alignment and replaced the brake pads free of charge.[139] The customer had no confidence that the work was done correctly so stood five to six metres away while the technician undertook the work.[140]

The technician remeasured the tyre treads as part of the process and rotated the wheels so that the best wheels (highest tread measurement) are on front. The technician noted the measurement of treads were, 9.2mm left front, 9mm right front, 9mm left rear, 10mm right rear and 12.5mm for the spare tyre.[141] This is compared to the measurement noted by Mr McAuley when he determined that a rotation was not required being 11.5mm left front, 9mm right front, 8.9 mm left rear, 8.8mm right rear and 12.5mm for the spare tyre.[142]

On Tuesday, 21 March 2023, the Applicant emailed Mr Young requesting a separation certificate and letter of dismissal specifying a reason for the dismissal. Mr Young responded by email that the reason for dismissal was “negligence and dishonesty to fulfill your role”. [143]

A separation certificate was provided by Sunshine Toyota, which provided the details for reason for separation as “negligence and dishonesty to fulfill role”.[144]

Mr McAuley commenced employment with another employer three weeks’ and two days after 20 March 2023, and is currently in employment.[145]

Section 387(a): Sunshine Toyota had a valid reason to dismiss Mr McAuley

The applicable principles that govern the question posed by section 387(a) are well established. Section 387(a) is not an invitation to conduct a merits review. In determining whether there was a valid reason, the Commission does not “stand in the shoes” of the employer to determine whether the Commission would have made the same decision. Rather, it is for the Commission to consider the employer’s reasoning, and to assess whether or not that reasoning is valid.[146]

The test is simple: the question is whether the employer had a “sound, defensible or well founded” reason, rather than “capricious, fanciful, spiteful or prejudiced” reason.[147] The assessment is done within the practical sphere of the relationship between employer and an employee, where each has rights and privileges, and duties and obligations, conferred and imposed on them.

A valid reason must relate to capacity or conduct. “Conduct” in section 387(b) requires a relationship between an employee’s act and the employer’s reasoning. The Commission makes a finding as to whether the conduct occurred on the evidence before it. A reason would be valid because the conduct occurred and justified termination.[148]

While Mr McAuley was dismissed without notice, for the purposes of section 387(a), it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal in order to demonstrate that there was a valid reason. This is a relevant matter for consideration under section 387(h). The issue is whether the dismissal was a proportionate response.[149]

An employer may have difficulty relying on misconduct as a reason for dismissal from employment if the employer condones the misconduct by not acting quickly to deal with the misconduct in accordance with the nature and severity of the misconduct after it becomes aware of it.[150]

Mr McAuley submits that he did not do anything that warranted dismissal of any type and that he accepts that he made an error but “his actions were not dishonest or negligent to the extent that a ‘reasonable person’ would consider significant”.[151] Mr McAuley submits that in this case, he admitted to a mistake and should be assessed against the standard expected of an unsupervised, undertrained second year apprentice.[152]

Sunshine Toyota’s decision to dismiss Mr McAuley was because of Mr McAuley’s decision in choosing not to perform an important part of his duties, Mr McAuley’s deliberate dishonesty about that, and the integrity issue this conduct created for Mr McAuley’s own ongoing employment, and Sunshine Toyota’s business. In cross- examination, Mr McAuley agreed that he did not present his “mistake” story to Sunshine Toyota at the time.[153]

An employee’s dishonesty may constitute misconduct and a valid reason for dismissal.[154]

On the evidence before it, the Commission ought to make a finding that Mr McAuley made the admissions to his employer that he was alleged to have made, and for which he was dismissed. The explanation Mr McAuley now puts forward that his conduct was an “honest mistake” in that he had mistakenly recalled a vehicle he serviced earlier that day when he wrote down 9mm on the service paperwork for the Vehicle is not supported by any evidence.[155] Absent any evidence as to the origin of the 9mm that Mr McAuley wrote down or any reasonable explanation, the Commission cannot accept that Mr McAuley made an “honest mistake”. Rather, the Commission should find this “honest mistake” is a “story”[156] that Mr McAuley made up post-event, which he never raised as an excuse at the time.[157] He now raises “mistake” as an excuse, but the business records of the Respondent squarely contradict him.

Mr McAuley did not perform the measurement of the brake pad. The reason he did not do so must be because he assumed it was “okay” based on other vehicles he had serviced with a similar mileage. This is not only because he contemporaneously, and repeatedly, told his colleagues this was his reason for not doing so, but because his post-event explanation of mistake is disproven. There are further sensible explanations for Mr McAuley taking this shortcut: he was upset that he had spent too much time in pre- delivery; he was upset that he was required to service vehicles day in day out; and he had scant regard for the importance of his work and the safety aspect of measuring brake pads.[158]

Whether Mr McAuley was unsupervised and undertrained is not material, because the reason Mr McAuley was dismissed was Mr McAuley’s dishonesty in choosing not to check the brake pad measurements, and then writing down a measurement as though he had measured the brake pads. Supervision and training is not required for Mr McAuley to honestly perform his duties. In any event, Mr McAuley was trained to measure a brake pad, which is a first year apprenticeship competency and limited supervision is required for a third (or second year) apprentice to conduct a routine 50,000km service.[159]

Mr McAuley’s contends that a reason he thinks he “made a mistake” was the practice of completing the service paperwork at the end of the service and striking a line through the service coupon and that the forms are completed by memory.

The evidence however demonstrates that it is not practice to strike a line through the service coupon, rather technicians and apprentices, including Mr McAuley were directed to tick off the items as they went.[160] Mr McAuley in any event formed his own practice of doing so, and would strike through the checkbox items when he knew he had not completed the service item, for example rotating wheels. Mr McAuley agreed during cross-examination that brakes are not checked at the beginning of the service, and that the “memory” required to fill out the forms correctly only spanned a maximum of 1.2 hours, being the time allocated for the service.[161]

Mr McAuley’s alternative explanation of an “honest mistake” cannot be accepted.

Mr McAuley contends that there is no valid reason to terminate his employment because there was no investigation via the Hot Alert Response in Sunshine Toyota’s Policy.

During cross-examination, Mr Young’s evidence was that a Hot Alert was not required for this instance because it is a different process for “a post-survey”.[162] The Policy provides as follows, “If the Guest requests to be contacted via the Toyota Australia survey, this is called a Hot Alert. A Hot Alert notification is emailed to the Dealer Principal and Service Manager for immediate action”.[163]

Mr Venning confirmed that a Hot Alert Response form is not filled out every time Sunshine Toyota receives a complaint because the purpose of it is to alert the relevant manager and it is not necessary if the manager is aware of the requirements to resolve the issue with the customer.[164] There was no obligation by the Policy for a Hot Alert Response form to be initiated.

The complaint from the owner of the Vehicle was treated in the ordinary way. Mr Young’s evidence is that he conducted an investigation by gathering information and asked individuals about the issue.[165] Mr Young’s investigation led to his discussion with Mr McAuley on 17 March 2023 where Mr McAuley provided the explanation that he did not check the brakes but assumed it would be okay based on previous vehicles he serviced with similar mileages.

Mr McAuley’s admissions on 17 March 2023 and 20 March 2023 that he failed to perform his duties and that he was dishonest by writing down information on service documents which he knew to be false formed the factual basis upon which he was dismissed. Contrary to his submission, Mr McAuley admits that he did not offer the “honest mistake” story on 17 March 2023 or 20 March 2023, only that he “attempted” or “tried” to do so.

The conduct justified dismissal because it placed a customer’s safety and Sunshine Toyota’s reputation at risk and Sunshine Toyota had lost trust and confidence that Mr McAuley would perform his role with diligence and honesty. Mr McAuley’s conduct was contrary to the company’s values contained in the employment policy which Mr McAuley signed and acknowledged.

In support of the argument that Mr McAuley’s conduct was not a valid reason for dismissal, Mr McAuley argues that he continued performing his usual duties for three days after the 16 March 2023 incident. The evidence shows that although Sunshine Toyota continued Mr McAuley in his employment (because Mr Venning, the decision maker, was on leave), it was for a very short time (remainder of 17 March 2023 after the meeting, four hours on 18 March 2023 and part-day on 20 March 2023). Sunshine Toyota took steps to provide Mr McAuley with additional supervision by a technician whilst it considered the matter.[166]

The Applicant did not perform his role with due care and diligence on 16 March 2023. The Applicant failed to check the brake pads and did not utilise the checklist properly. This was a significant error of judgment which would have raised concern from the Respondent. It indicated a loss of trust and confidence in his ability to perform his role honestly.

On 17 March 2023, the Applicant was informed by Mr James Cremin ‘if he had serviced a 79 series Landcruiser the day before and if he had measured the brakes on it’. The Applicant stated that he had did the service and replied honestly that he could not recall the brake pads of that vehicle specifically but assumed he had checked them’.[216]

On this day, the car in question was brought back to the workshop to be reinspected where the Applicant estimated that there was 2.5-3mm of brake pad left.[217] The Repair Order which Mr McAuley completed recorded the brake pad at 9mm. The Applicant stated he wrote down an incorrect number.[218]

On 20 March 2023, the Applicant had a conversation with Mr Venning and Mr Cremin. Mr McAuley stated the reason he had believed he had written that number was that he had mistakenly remembered a different vehicle’s measurements when he came to do his paperwork from memory at the end of the service, but states he was unable to finish his reasoning.[219]

The Applicant had the opportunity before 20 March 2023 to state he wrote a fictitious number but did not do so on any occasion. During the Hearing, the Applicant was provided all the Repair Orders he did that day. No Repair Order that the Applicant had completed that day had a recording of 9mm. [220]

The Applicant’s representative submits that the Commission should consider the multiple processes to complete a service job and the Respondent should have taken an investigation process. This argument would have some weight had the Applicant not put a number down. However, the Applicant put a measurement in the Repair Order without doing the inspection. The issue was surrounding his dishonesty in completing this form.

The consequence of the Applicant’s not filling out the Repair Order correctly resulted in a customer complaint. The customer had returned their car to the Respondent to get it reinspected which confirmed the Applicant’s error. The Respondent noted that brake pad was not measured and was not in line with the repair order.

The Respondent did follow up with the Applicant regarding the error. The Applicant provided an inconsistent account of why he did not check the brake pads by stating that he did not check them and mistakenly wrote a measurement from another vehicle on 17 March 2023, and continued with this story on 20 March 2023. I would have accepted the conduct as a genuine mistake had the Applicant been honest with not checking the brake pads, or if he had not recorded a number down and this was missed by a supervisor. However, this was not the case.

Based on the evidence provided, the Applicant had recorded a fictious number which did not reflect any vehicle on 16 March 2023. The Applicant had then raised other issues when pressed about how he incorrectly recorded the repair. It was the Applicant’s dishonesty about his error up until his date of his dismissal on 20 March 2023 that substantiated the valid reason for dismissal.

The Respondent had a valid reason to dismiss the Applicant on his continual dishonesty regarding the completion of the Repair Order to the Respondent until his date of dismissal.

(b) Notification of reason and (c) Opportunity to respond:

Although the employer is not required to take any ‘particular steps’ in carrying out the dismissal, it is commonly accepted practice that notice in explicit and plain and clear terms must be given regarding termination of an employee.[221] It is a statutory protection derived from the principle of procedural fairness that require employees to be treated fairly before a decision is made.[222]

The Applicant was provided a reason of his dismissal which was clearly made to him on 17 March 2023 and 20 March 2023 raising the issue of not checking the brake pads.

MR PROCTOR: I want to take you to Scott's version first, Mr Young. That's at page 104 of the court book and it's at paragraph 21, second sentence:
Once we were in my office, I repeated my concerns, saying words to the effect of, 'You didn't check the brakes and you just wrote down a number, which could be a very serious safety issue and put the customer's safety in jeopardy. The customer is very upset. This unacceptable and poor behaviour is not what we are about. How can we trust you? If you have let us down here, what else have you done?'

Did Scott say that to you, words to that effect?
MR MCAULEY: Yes[223]

The Applicant was then notified of the reason and given an opportunity to respond on 20 March 2023 which was confirmed during cross-examination.

MR PROCTOR: The next thing that Darren says is that he:

Told the applicant his conduct was a dishonesty issue that related to a safety item, an integrity issue and a reputational issue.

Did Darren say words to that effect?
MR MCAULEY: Yes.
MR PROCTOR: Even though you had said to him, 'No, that's not what I said to Scott'?
MR MCAULEY: He didn't really allow me to explain that to him as he went from his question, his line of inquiry, straight into the speech, I suppose you could call it, about the safety concerns and didn't provide me with any real opportunity to present my recollection of events.
MR PROCTOR: At the end of paragraph 10 he says: I then said I was going to terminate the applicant's employment.
And you said words to the effect: Is there anything I can say or another option to deal with this?
Did you say that?
MR MCAULEY: I did not say those words, no.
MR PROCTOR: Did you say words to that effect?
MR MCAULEY: Yes.
MR PROCTOR: So at that point Darren had not terminated your employment?
MR MCAULEY: No, he hadn't. [224]

The Applicant was eventually summarily dismissed on the same day on 20 March 2023. However, the Applicant had known his reasons for dismissal and did have an opportunity to respond to the allegation on 20 March 2023.

(d) Unreasonable refusal by the employer to allow the Applicant a support person:

There is no positive obligation on an employer to offer an employee the opportunity to have a support person and is only relevant when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses.[225]

The Applicant did not request a support person and therefore the employer did not unreasonably refuse the Applicant a support person.

(e) Warning of unsatisfactory performance before the dismissal:

The reason of the dismissal was not regarding poor performance.

I do not consider this to be a relevant factor in determining whether the dismissal was harsh, unjust or unreasonable.

(f) Size of employer’s enterprise, and (g) impact on procedures caused by absence of dedicated human resources:

The Applicant and Respondent did not raise these factors as an issue of contention in their submissions. I do not consider this to be a relevant factor in determining whether the dismissal was harsh, unjust or unreasonable.

(h) any other matters that the FWC considers relevant:

Harshness

(a) Summary Dismissal

The Applicant was summarily dismissed on 20 March 2023. The Respondent argues that the Applicant’s conduct justified summary dismissal based on serious misconduct. The Applicant argues that the summary dismissal was harsh.

The Fair Work Regulations 2009 (Cth) defines serious misconduct:
1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.

The Respondent made a correct analysis that the Applicant had broken trust and confidence that he would perform his duties diligently resulting from the incident. His lack of due care and skill caused a potential major safety risk. The Applicant’s continued dishonesty was inconsistent with the continuation of the contract of employment considering that the Applicant had a duty of loyalty and fidelity to the employer. However, I do not find that the Applicant reached the standard of serious misconduct which would warrant summary dismissal.

It is also acknowledged that the Applicant’s misconduct did cause reputational harm. The Applicant’s failure to undertake a basic check of the brakes and falsify the repair order would raise concerns. The customer was very unsatisfied with the Applicant’s inspection of the car which resulted in the Respondent having to provide a full service on the car. However, there was only one car in question. If there were more complaints regarding the Applicant’s lack of care, it would have been a more compelling argument that the Applicant had caused serious risk to the Respondent’s business.

I find that the Applicant engaged in misconduct, but not serious misconduct that would warrant him to be summarily dismissed.

I find that the Applicant’s summary dismissal weighs in favour of finding harshness.

(b) Procedural Fairness

Lack of procedural fairness can be considered a factor in determining whether the dismissal was harsh, unjust or unreasonable. The Unfair Dismissal Benchbook provides instances where procedural fairness issues may arise:

a)Whether an employer has followed their own procedures in dismissing an employee.[226]
b)Whether the employee had an opportunity to explain their side of whatever happened.[227]
c)Being able to seek advice or have a support person available at a meeting.

The Applicant did have an opportunity to explain his reasons about the failure to check the brake pads and the incorrect repair order when this was flagged by the customer through conversations with Mr Young and Mr Cremin on 17 March 2023. It was indicative that some form of process was taken in determining the issue caused by the Applicant.

The Respondent had identified the issue with Mr McAuley’s dishonesty. The Respondent provides a good summary of the consequences of the Applicant’s actions.

“A car’s stopping power is primarily determined by the actual brake pads that grip the brake disc rotor, slowing down the vehicle. A low measurement on brake pads can therefore cause difficulty in stopping a vehicle and the potential for accidents. The front brake pad of the Vehicle was at a thickness where a replacement was required. The issue was that Mr McAuley knowingly wrote down a measurement for the thickness of the brake pads, without measuring the brake pads. This false information was relied upon and the replacement of the front brake pad was not recommended or performed. The safety of the owner of the Vehicle was at risk due to Mr McAuley’s conduct.”[228]

It appears on the evidence that the Respondent was frustrated with the Applicant’s inability to fully acknowledge his mistake or that his error in judgment had potential risk when the Respondent tried to enquire with the Applicant on 17 March 2023, and 20 March 2023.

The Respondent identified a valid reason of dismissal for his employment. However, the Respondent could have provided better steps to prevent issues of procedural fairness. For instance, the Respondent could have provided some form of written notice before the meeting on 20 March 2023 regarding discussions of his potential dismissal. If the Respondent was frustrated with the Applicant’s response, a further timeframe could have been provided after the meeting before warranting his dismissal. An extra day could have sufficed. Even though there was breakdown of the employment relationship, it would not have been a burdensome process.

I find that the failure to provide the Applicant clearer notice regarding the events on 20 March 2023 weighs in favour of finding harshness.

Conclusion

The Applicant is 20 years old who is completing his apprenticeship. The purpose of an apprenticeship is the opportunity to learn trade skills. The Applicant acknowledged that he had made mistakes in the past such as coming late to work, and accidentally damaging a car. These are mistakes that the Respondent accepted and did not provide any formal warning.

The difference between the above mistakes and the conduct in question of this decision was his continual dishonesty from a mistake which was a consequence of his failure to take due care in completing the checklists. The dishonesty has been identified by not inspecting the brake pads, putting a made-up number in the repair order and marking it as complete and then not disclosing to the Respondent regarding the made-up number until the customer had discovered the brake measurement himself and made a complaint to management.

This created a safety risk. The customer in question was going to commence a long-distance trip towing which could have caused significant issues.

I find that the Respondent had a valid reason for dismissal. He did have an opportunity to respond and was notified of the reason.

However, I do find that the Applicant’s dismissal was harsh on the basis that he was summarily dismissed which was disproportionate to his misconduct.

In cases where there is an allegation of serious misconduct which did put a customer at immediate risk, the summary dismissal would have been substantiated. In the Respondent’s case, they were fortunate that customer had the skills to check the brake pad measurement himself after which he returned to the workshop and questioned the Applicant’s repair work. The customer was no longer at risk.

Considering this, the Applicant ideally should have received a written allegation and putting him on notice that disciplinary actions including termination were being considered and offering him to attend the meeting on the 20 March 2023 with a support person. The Respondent could have then proceeded to have the meeting on 20 March 2023. The Respondent was not bound by any strict requirement of formality, an email would have been sufficient.

If the Respondent was still unsatisfied with the Applicant’s response, the Applicant could have been stood down until a further response was received. If any of these steps were demonstrated, the dismissal would have been less harsh.

As a result, I find that the Applicant’s dismissal was harsh which allows the Commission to make an order for a remedy from unfair dismissal per s.390 of the Act. I consider the question of remedy below.

Remedy

Pursuant to section 390 of the Act, this Commission may order:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”

I am required to first consider reinstatement. I find this to be an inappropriate remedy given that the Applicant found new employment within 3 weeks, and a large breakdown of trust and confidence has resulted from the incident surrounding the Applicant’s dismissal.

Section 392 sets out the considerations for awarding compensation:

“Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.

Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled; (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

The established approach to assessing compensation in unfair dismissal cases was set out in Sprigg v Paul Licensed Festival Supermarket,[229] and has been applied and developed by Full Benches of the Commission.[230]

The assessment of compensation involves a four-step process, however, the note guidelines are not a substitute for the words in the Act:

“Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost). I also take into account the length of service with the employer[231] and the ability to find a new role as a relevant factor in calculating compensation per s392(2).
Step 2: Deduct monies earned since termination.[232]
Step 3: Discount the remaining amount for contingencies.[233]
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount they would have received if they had continued in their employment.”

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

The Applicant would have not been able to stay in the role considering the breakdown of the employment relationship before the date of dismissal. The Applicant would have remained in his employment for at least 3 weeks until he found a new place to continue his apprenticeship.

I find the estimated renumeration the Applicant would have received had the Applicant not been terminated to be $2,399.25 inclusive of superannuation and his tool allowance.

Step 2: Deduct monies earned since termination.

The Applicant was out of work for three weeks and two days. No deductions will be made under this step.

Step 3: Discount the remaining amount for contingencies.

I have found that the Applicant did engage in misconduct which contributed to the Respondent to dismiss the Applicant. I make a reduction of 30 percent to account for his misconduct.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.”

In Bowden v Ottrey Homes Cobram and District Retirement Villages,[234] the Full Bench noted that in relation to the fourth step, the usual practice is to settle a gross amount and leave taxation for determination. I will leave the issue of taxation for determination by the Respondent.

Viability

I find there to be no issue of viability.

Conclusion

The Respondent is ordered to pay the sum of $1,679.47 gross (excluding superannuation) to the Applicant’s nominated bank account within 21 days on issuing this Decision. I Order accordingly.

DEPUTY PRESIDENT

Appearances:

M. Loly appearing on behalf of the Applicant.
M. Proctor appearing on behalf of the Respondent from Franklin Athanasellis Cullen Lawyers.

Hearing details:

Brisbane
28 June 2023
Hearing in person.

Final written submissions:

13 July 2023

[1] Transcript PN12.

[2] PN17.

[3] PN 39.

[4] PN759 – PN 770.

[5] Transcript PN782.

[6] Witness Statement of Scott Young filed on 14 June 2023 (Young Statement) at [4] [Court Book (CB) 101].

[7] Ibid

[8] Young Statement [5] [CB101].

[9] Statement of Agreed Facts filed on 21 June 2023 (SOAF) [1] [CB201]; Young Statement [8] [CB102].

[10] Witness Statement of Harrison McAuley filed on 29 May 2023 (First McAuley Statement) [12] [CB40]; Applicant’s Submissions filed 29 May 2023 (Applicant’s Submissions) at [4] [CB34].

[11] Transcript at PN232, 242.

[12] First McAuley Statement, Annexure 5 [CB69].

[13] Young Statement [13] [CB103]

[14] Transcript PN280-281 (McAuley).

[15] SOAF [4] [CB201]; Young Statement [12] [CB103], Annexure SY-2 [CB117-119]

[16] Witness Statement of James Cremin filed on 14 June 2023 (Cremin Statement) [6], [8] [CB185-186]; Witness Statement of Darren Venning Statement filed on 14 June 2023 (Venning Statement) [13] [CB130]; Transcript PN1019-1020; Young Statement [12] [CB103].

[17] Venning Statement [19] [CB132], Annexure DV-3 [CB182].

[18] Venning Statement [15]-[18] [CB131-132], Annexure DV-1 [CB137].

[19] Venning Statement, Annexure DV-1 [CB148].

[20] Venning Statement, Annexure DV-1 [CB148].

[21] Venning Statement, Annexure DV-1 [CB154].

[22] Ibid.

[23] Young Statement [7] [CB102].

[24] Ibid.

[25] Young Statement [7] [CB102].

[26] Ibid.

[27] Transcript PN922, 1013.

[28] Transcript PN1014; Cremin Statement [6] [CB185-186].

[29] Cremin Statement [6] [CB185-186].

[30] Young Statement [16] [CB103], Annexure SY-3 [CB122].

[31] Transcript PN1052-1058, 1070.

[32] AB-02, Transcript PN1067-1068.

[33] AB-02, Transcript PN1066-1067.

[34] AB-02, Transcript PN466, 732-733, 1065.

[35] Young Statement, Annexure SY-4 [CB123-125].

[36] AB-02, Transcript PN1069.

[37] Transcript PN454, 483; First McAuley Statement [44], [71] [CB43, 46]; Statement attached to Form F2 Application filed 22 March 2023 (F2 Statement) [1.4] [CB11]; Young Statement, Annexure SY-4 [CB123-125].

[38] Transcript PN531-532; First McAuley Statement [46] [CB43].

[39] F2 Statement [1.3] [CB11].

[40] AB-02, Transcript PN1052-1058, 1070.

[41] Transcript PN471, 484.

[42] Young Statement [18] [CB104].

[43] Ibid.

[44] Ibid.

[45] Cremin Statement [15]-[16] [CB187].

[46] Cremin Statement [16] [CB187]; Witness Statement of Harrison McAuley filed 21 June 2023 (Second McAuley

Statement) [12] [CB192].

[47] First McAuley Statement [43]-[45] [CB43]; Young Statement [20]-[21] [CB104-105]; Cremin Statement [17] [CB187-188].

[48] First McAuley Statement [44] [CB43]; Young Statement [20] [CB104]; Cremin Statement [17(a)] [CB187].

[49] Young Statement [20] [CB104].

[50] Transcript PN1327.

[51] Cremin Statement [17(b)] [CB187].

[52] Transcript PN978, 981 PN1024.

[53] Cremin Statement [17(g)] [CB188]; Transcript PN990-991, 1002-1010.

[54] F2 Statement [3.3.5] [CB14-15].

[55] First McAuley Statement [46] [CB43].

[56] Transcript PN226.

[57] Transcript PN420-422.

[58] Transcript PN427-430.

[59] Transcript PN441-442.

[60] Transcript PN443-446.

[61] Transcript PN403-404; Young Statement [21]-[22] [CB104-105].

[62] Young Statement [21] [CB104-105]; Cremin Statement [17(f)] [CB187]; Transcript PN1016; First McAuley Statement [48] [CB43].

[63] Young Statement [22] [CB105]; Cremin Statement [17(e)] [CB187]; First McAuley Statement [51]-[53] [CB44].

[64] Applicant’s Reply Submissions filed on 21 June 2023 (Applicant’s reply submissions) [2(m)] [CB190]

[65] Young Statement [22]-[23] [CB105]; Cremin Statement [17(h)] [CB188]; First McAuley Statement [56] [CB44]; F2 Statement [3.3.7] [CB15].

[66] First McAuley Statement [56] [CB44].

[67] Transcript PN1357-1359.

[68] First McAuley Statement [57]-[58] [CB44]; Cremin Statement [17(h)], [18] [CB188].

[69] First McAuley Statement [58] [CB45].

[70] Young Statement [21] [CB105]; Transcript PN403-404.

[71] Transcript PN433-442.

[72] Venning Statement [4] [CB128].

[73] Young Statement [24] [CB105]; First McAuley Statement [60]-[61] [CB45].

[74] Young Statement [24] [CB105].

[75] Young Statement [25] [CB105].

[76] Young Statement [26], Annexure SY-4 [CB105; 123-125], Transcript PN1381-1382.

[77] Young Statement [26] [CB105]; Venning Statement [4]-[6] [CB128-129].

[78] Ibid.

[79] Young Statement [26] [CB105]; Venning Statement [6] [CB129]; Transcript PN1482.

[80] Venning Statement [6] [CB129].

[81] Applicant’s reply submissions [2(o)] [CB190].

[82] Venning Statement [6] [CB129].

[83] Young Statement [26] [CB105]; Venning Statement [7] [CB129].

[84] Young Statement [26] [CB105].

[85] Venning Statement [7] [CB129].

[86] Young Statement [27] [CB106]; Venning Statement [8] [CB129]; First McAuley Statement [67]-[68] [CB45-46]; Transcript PN368-373.

[87] First McAuley Statement [69] [CB46]; F2 Statement [3.3.11] [CB15]; Young Statement [27] [CB106]; Venning

Statement [8] [CB129]; Transcript PN368-373, 1500.

[88] Venning Statement [8] [CB129]; Young Statement [28] [CB106]; F2 Statement [3.3.12] [CB15]; Transcript

PN490.

[89] Young Statement [28] [CB106]; Venning Statement [8] [CB129]; Transcript PN1388, 1504-1505.

[90] F2 Statement [3.3.12] [CB15].

[91] First McAuley Statement [69]-[71] [CB46].

[92] Transcript PN491-492.

[93] Transcript PN493.

[94] Transcript PN503.

[95] Transcript PN540.

[96] Transcript PN535-537.

[97] Transcript PN551-554.

[98] First McAuley Statement [71] [CB46]

[99] Venning Statement [9] [CB129]; Transcript PN1506.

[100] Venning Statement [9] [CB129].

[101] Transcript PN556-557.

[102] First McAuley Statement [72] [CB46]

[103] F2 Statement [3.3.12] [CB15].

[104] First McAuley Statement [70], [72] [CB46].

[105] Transcript PN569.

[106] First McAuley Statement [74] [CB46]; Transcript PN567-568; Young Statement [28] [CB106]; Venning

Statement [10] [CB129-130].

[107] Venning Statement [10] [CB129-130].

[108] Venning Statement [11] [CB130]; Transcript PN1518.

[109] First McAuley Statement [76]-[79] [CB46-47]; Young Statement [28]-[29] [CB106]; Venning Statement [11]

[CB130].

[110] Venning Statement [11] [CB130]; Young Statement [29] [CB106].

[111] Young Statement, Annexure SY-4 [CB123-125].

[112] Venning Statement [5] [CB128].

[113] Transcript PN1292-1293.

[114] Young Statement [19] [CB104]; First McAuley Statement [116] [CB50].

[115] First McAuley Statement [117] [CB50].

[116] First McAuley Statement, Annexure 14 [CB93].

[117] Transcript PN1464.

[118] Transcript PN312.

[119] Transcript PN306.

[120] First McAuley Statement [121] [CB51].

[121] Transcript PN308-311.

[122] Transcript PN312-314.

[123] Ibid.

[124] Young Statement [14] [CB103], Transcript PN1265.

[125] First McAuley Statement [30]-[31] [CB41]; Transcript PN190; PN320-321.

[126] Transcript PN190.

[127] Transcript PN190, 319.

[128] Transcript PN323, 635.

[129] Transcript PN658-662.

[130] Ibid.

[131] Transcript PN654-655.

[132] Transcript PN895.

[133] Transcript PN888-894, PN1022-1023.

[134] Transcript PN831-832, Meeting note of 11 October 2022.

[135] Transcript PN843.

[136] Meeting note of 11 October 2022

[137] Transcript PN1262.

[138] First McAuley Statement [82(b)] [CB47].

[139] Transcript PN1082, 1450-1452; Young Statement [18] [CB104].

[140] Transcript PN1082.

[141] AB-01.

[142] Young Statement, Annexure SY-4 [CB123-125].

[143] SOAF [12] [CB202].

[144] Young Statement, Annexure SY-6 [CB127].

[145] Transcript PN274-275.

[146] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685 [Authorities Book (AB) 122].

[147] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373 [AB95].

[148] Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [26] [AB110-111].

[149] Ibid.

[150] Narwal v Aldi Foods Pty Ltd [2012] FWA 2056 at [44]-[47] [AB68-69].

[151] Applicant’s submissions [24]-[25] [CB35].

[152] Applicant’s submission [30] [CB36].

[153] See above at [22], [41].

[154] APS Group (Placements) Pty Ltd v O’Loughlin [2011] FWAFB 5230 at [56] [AB58].

[155] See above at [14].

[156] See above at [28].

[157] See above at [22], [41].

[158] See above at [46]-[51]; [52]-[57].

[159] See above at [7]-[8].

[160] See above at [53]-[56].

[161] Transcript PN451-455

[162] Transcript PN1355-1356.

[163] Venning Statement, Annexure DV-1 [CB142].

[164] Transcript PN1546-1551.

[165] Transcript PN1361, 1363

[166] Cremin Statement [18] [CB188]; First McAuley Statement [57], [59], [62] [CB44-45].

[167] Transcript PN765-770.

[168] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377-378 [Respondent’s Supplementary Authorities Bundle (SAB) 158, 162-163].

[169] Thomas v Serco Australia Pty Limited [2023] FWC 674 [40] [SAB242-243].

[170] Lever v ANSTO (2009) 189 IR 362, [103] [SAB73].

[171] Roman v Mercy Hospitals Victoria Ltd [2022] FWC 711 [34] [SAB108-109].

[172] Schwenke v Silcar [2013] FWC 4513, [65] [SAB128].

[173] Thompson v John Holland [2012] FWA 10363, [145] [SAB274].

[174] Transcript PN766.

[175] Thomas v Newland Food Company [2013] FWC 8220, [185] [SAB226].

[176] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14] [SAB116].

[177] Chubb v Thomas (AIRCFB, 2 February 2000, Print S2679), [37] [SAB21-22].

[178] Parlamat Food Products v Wililo (2011) 207 IR 243, [24] [SAB98].

[179] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, [73] [SAB42].

[180] F2 Statement [3.3.5] [CB14-15].

[181] RMIT v Asher (2010) 194 IR 1, [26] [AB88-89].

[182] See above at [19]-[24].

[183] Venning Statement [6], [8]-[11] [CB129-130].

[184] Venning Statement [6]-[7] [CB129].

[185] Applicant’s Submissions [16] [CB35]; First McAuley Statement [109] [CB50].

[186] Young Statement, Annexure SY-5 [CB126].

[187] Young Statement, Annexure SY-6 [CB127].

[188] Young Statement [4]-[5] [CB101].

[189] Young Statement, Annexure SY-1 [CB112]; Venning Statement [15]-[18], Annexure DV-1 [CB131-132; 154].

[190] Fair Work Regulations 2009 (Cth) r 1.07 [AB24-25].

[191] Schwenke v Silcar Pty Ltd T/A Silcar Energy Solutions [2013] FWCFB 9842 [33] [SAB142].

[192] Applicant’s Submissions [40] [CB37-38].

[193] Applicant’s Submissions [26] [CB36]; First McAuley Statement [113] [CB50]; Second McAuley Statement [19]

[CB193].

[194] Venning Statement [12]-[14] [CB130-131]

[195] Transcript PN561.

[196] Applicant’s submissions [42(a)] [CB38].

[197] First McAuley Statement [112] [CB50].

[198] First McAuley Statement [23] [CB41]

[199] Young Statement [6], [CB101].

[200] Transcript PN1184.

[201] Transcript PN1216-1234.

[202] Raj Bista v Group Pty Ltd t/a Glad Commercial Cleaning[2016] FWC 3009.

[203] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[204] Ibid.

[205] [2021] FWC 4 at 118.

[206] Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185, [46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413

[207] Witness Statement of Harrison McAuley [4].

[208] Wissell v Twentieth Super Pace Nominees Pty Ltd [2019] FWC 7539 at 144 (Anderson DP)

[209] Appeal by Telstra Corporation Limited [2008] AIRCFB 15 at [23].

[210] APS Group (Placements) Pty Ltd v O’Loughlin[2011] FWAFB 5230 (Lawler VP, O’Callaghan SDP, Roberts C, 8 August 2011) 56; Woodman v The Hoyts Corporation Pty Ltd (2001) 107 IR 172.

[211] Ibid.

[212] McDonald v Parnell Laboratories (Aust) [2007] FCA 1903 [61].

[213] Witness Statement of Harrison McAuley [81]- [85].

[214] Ibid 26 – 31.

[215] Transcript of Hearing PN 319-323

[216] Witness Statement of Harrison McAuley 36.

[217] Ibid 41.

[218] Ibid 42.

[219] Ibid 70.

[220] Transcript PN531-532; First McAuley Statement [46]

[221] Chubb Security Australia Pty Ltd v Thomas (2000) AIRCFB at [41] Print S2679 (McIntyre VP, Marsh SDP and Larkin C); Crozier v Palazzo Corporation Pty Ltd [2000] 98 IR 137 at 73 (Ross VP, Acton SDP and Cribb C); Previsic v Australian Quarantine Inspection Services, Print Q3730 (AIRC, Holmes C, 6 October 1998). The principles still apply to the provisions of s.389(b) and (c) of the Fair Work Act 2009 (Cth), see William Eskander v Visy Board Pty Ltd [2021] FWC 3122 (Harper-Greenwell C) upheld in [2021] FWCFB 6036.

[222] Crozier v Palazzo Corporation Pty Ltd [2000] 98 IR 137 at 73 (Ross VP, Acton SDP and Cribb C).

[223] Transcript of Hearing PN403.

[224] PN566.

[225] Explanatory Memorandum to Fair Work Bill 2008 at para. 1542

[226] Odgers v Central Queensland Services Pty Ltd[2019] FWC 7150 (Hunt C)

[227] Naoum v ISS Security Pty Ltd ABN: 14 001 375 186[2019] FWC 6421 (Cambridge C).

[228] Respondent’s Closing Submissions 47.

[229] (1998) 88 IR 21.

[230] Bank of Sydney Ltd T/A Bank of Sydney v Repici [2015] FWCFB 7939.

[231] Fair Work Act 2009 (Cth) s392(2)(b) -(c) and s392(2)(g).

[232] Ibid s392(2)(e)

[233] Ibid s392(2)(a), (d) and (f).

[234] [2013] FWCFB 431.

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