Jamie McDougall v MMG Drill and Blast Pty Ltd
[2011] FWA 5020
•29 JULY 2011
Note: An appeal pursuant to s.604 (C2011/5317) was lodged against this decision.
[2011] FWA 5020 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jamie McDougall
v
MMG Drill & Blast Pty Ltd
(U2011/5538)
DEPUTY PRESIDENT HARRISON | NEWCASTLE, 29 JULY 2011 |
Termination of Employment - Falsification of time sheets - claim for payment of hours not worked - Hearing not most effective and efficient means of resolution- Application dismissed.
[1] Jamie McDougall (the Applicant), filed an application for an unfair dismissal remedyunder s.394 of the Fair Work Act 2009 (“the Act”) on 28 February 2011.
[2] Mr McDougall was employed by MMG Drill & Blast Pty Ltd (the Respondent) as a Senior Driller from 20 September 2008 until his dismissal on 16 February 2011.
[3] The matter was unable to be settled by a Conciliator in the first instance. Directions were issued by the Unfair Dismissals Team on 8 April 2011 for filing and service of documentary evidence and advising that the matter was listed for Hearing from 10am on 21, 22 and 23 June 2011. Both parties complied with Directions.
[4] On 21 June 2011 Ms B Herringe-Lipari and Ms K Thomson, Solicitors, appeared on behalf of the Respondent with Mr P Gunter, Director of the Respondent, and a number of witnesses who had filed Witness Statements.
[5] There was no appearance by or on behalf of the Applicant.
[6] Attempts to contact Mr McDougall were unsuccessful, the Tribunal staff making telephone enquiries was advised that he was “at work” and could not be contacted.
[7] Ms Herringe-Lipari made an application that the matter be dismissed for want of prosecution. The application was conditionally accepted subject to Mr McDougall providing a satisfactory explanation for his non-attendance in writing within 14 days.
[8] Correspondence was prepared to be sent by Registered Mail advising Mr McDougall of his obligation to provide an explanation in writing.
[9] Prior to receiving this correspondence Mr McDougall attended the premises of the Tribunal on the following day, 22 June 2011, ready for proceedings.
[10] Mr McDougall was handed the correspondence advising him of the events of the previous day and his obligations. He advised that he had misread the Notice of Listing and believed proceedings were to commence on 22 June 2011.
[11] Mr McDougall engaged Mr Wormington of Counsel for the purpose of filing written submissions detailing the oversight and seeking excuse therefore.
[12] Ms Herringe-Lipari filed submissions in reply that the matter should be dismissed for want of prosecution and on the grounds of no reasonable prospect of success; and sought to be heard in respect to those submissions.
[13] The matter was listed for proceedings at 2 pm, 22 July 2011.
[14] Ms Herringe-Lipari appeared with Mr Gunter at the appointed time.
[15] There was no appearance from Mr Wormington or Mr McDougall. Tribunal staff contacted Mr Wormington who informed that he had not been advised of the listing by his client; he then sought out his client and both attended for proceedings which commenced at 3 pm.
[16] I note that Mr Wormington, whilst making submissions on limited instructions, had not filed a Form F53 Notice of Commencing to Act, was not the solicitor of record, and as such the Notice of Listing was directed to Mr McDougall at the email address provided by him in his application. On closer analysis it was revealed that a full stop had been added to the email address provided by Mr McDougall, which was jamiemcdougall@etc, so that the email address used was jamie.mcdougall@etc.
[17] I accept that Mr McDougall did not receive the Notice of Listing communicated by email; however, I find it curious that there was no delivery failure report generated or that neither Mr McDougall or Mr Wormington made any enquiries as to when the matter would be heard.
[18] Further attempts at resolution by direct negotiation between the parties were encouraged, however, proved unsuccessful. Ms Herringe-Lipari pressed for discharge of the proceedings for want of prosecution and no reasonable prospects of success; or in the alternative that the matter be determined without hearing in accordance with s 399 of the Act on the basis of admissions made by Mr McDougall.
[19] This course was opposed by Mr Wormington.
Factual Background
[20] The circumstances set out by Mr McDougall in his application and in his Statement of Evidence are that he was refused annual leave during the Christmas/New Year period, 2010-2011, and was required to work as rostered 12 hour shifts from 7 am to 7 pm each working day.
[21] The respondent alleges, on the basis of time sheets completed by Mr McDougall, that he left the site at 5 pm on each of three days, 27, 28 and 29 December 2010, however, claimed payment to 7 pm.
[22] Mr McDougall denies the allegation in respect to 27 and 28 December, but does not deny the allegation in respect to 29 December.
[23] In his application Mr McDougall put that he had compelling domestic reason to leave the site at 5 pm as his wife and young family were at Stockton Caravan Park and needed his support in the evening.
[24] Mr McDougall makes a number of complaints in respect to additional issues, work practices and the corporate culture adopted by the respondent, which he put led him to report what he believed were inappropriate and unsafe practices to the respondent’s client.
[25] Mr McDougall asserts that these reasons are behind the termination of his employment for a timekeeping breach.
[26] The events as noted above took place in late December 2010 and Mr McDougall’s employment was not terminated until February 2011. During this time Mr McDougall pursued compensation of underpayment, insisting that he be paid till 7 pm on each of the days, 27, 28 and 29 December; and other concerns in respect to bonus and a supervisor’s allowance to which he believed he was entitled.
[27] This pursuit led to the falsification of the time sheets being brought to the attention of the Managing Director who determined that Mr McDougall be dismissed.
[28] It was put on behalf of Mr McDougall that in the circumstances of his discontent at not receiving a bonus or the supervisor’s allowance, he effectively gave himself a two hour payment on 29 December 2011 as some form of recompense. It was further put on behalf of Mr McDougall that he was in fact the supervisor on 29 December and that the practice is for the supervisor to leave at 5 pm.
Consideration
[29] Section 399 of the Act states:
399 Hearings
(1) FWA must not hold a hearing in relation to a matter arising under this Part unless FWA considers it appropriate to do so, taking into account:
(a) the views of the parties to the matter; and
(b) whether a hearing would be the most effective and efficient way to resolve the matter.
(2) If FWA holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.
(3) FWA may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter.
[30] I do not dismiss the matter for want of prosecution, or for no reasonable prospect of success.
[31] The statutory scheme of the Act, particularly that directed by s399, is to avoid unnecessary expense and delay; emphasised by the positive language of s399 that the Tribunal must not hold a hearing unless it considers it appropriate to do so.
[32] Having considered the views of the parties and the circumstance of admissions made, I am unable to come to the view that a hearing would be the most effective and efficient way to resolve the matter.
[33] Reinstatement is not sought; Mr McDougall has mitigated and found alternative employment and seeks only compensation in this matter. It is put on his behalf that Mr McDougall’s purpose in the proceedings is to ensure that the respondent does not treat other employees in a similar way.
[34] In considering the criteria for considering harshness particularised in s387 of the Act I find that:
S387(a):
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
[35] There was a valid reason for the dismissal. Whilst I accept that Mr McDougall had compelling domestic circumstances to leave the site at 5 pm and that he was dissatisfied with the attitude of the respondent, there is no excuse or justification for fraudulently claiming payment by falsifying his time sheet.
S387(b):
(b) whether the person was notified of that reason
[36] Mr McDougall was notified of that reason.
S387(c):
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[37] Mr McDougall was given an opportunity to respond.
S387(d):
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[38] There was no unreasonable refusal by the respondent to allow a support person to be present to assist in any discussions.
S387(e):
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[39] The issue of warning does not arise in respect to a case of dishonesty of this type. Ms Herringe-Lipari relied upon the Judgment in Electricity Commission of New South Wales t/a Pacific Power v Nieass and Others 1 in which it was held2:
“No employee of ordinary understanding and certainly not employees of mature age, substantial classification and seniority, need to be told that if they deal dishonestly with their employer they may be dismissed, any more than they need to be told that they should be careful in crossing the street.”
S387(f):
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
[40] The respondent is a small business and whilst the Small Business Code is not relied upon here, the size of the enterprise is likely to impact procedures in effecting dismissal, in particular time from offence to termination.
S387(g):
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
[41] The respondent does not have a dedicated human resources officer or expertise, which I consider as another relevant factor in the delay from offence to termination.
[42] The Act offers a number of avenues for resolution of disputes and workplace issues which Mr McDougall did not pursue.
[43] I find that the termination of Mr McDougall’s employment was not unfair. The operational issues raised by Mr McDougall and any view he held in respect to work practices and his entitlement to certain payments do not give him warrant to falsify his timekeeping records to obtain payment for time not worked.
[44] The application for remedy is dismissed and proceedings in this matter so concluded.
DEPUTY PRESIDENT
Appearances:
Mr J Wormington Counsel for Applicant
Ms Herringe-Lipari Solicitor, Curtis Delaney Gray Solicitors, for Respondent
Hearing details:
Newcastle
22 July
2011
1 A Judgment of the Full Bench of the Industrial Relations Commission of New South Wales (Fisher P, Bauer J, Patterson CC) 14 September 1995 (1995) 81 IR 46
2 Ibid at 68
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