Jamie Spokes v Australian Dairy Super Stores T/A the Cow Shop

[2011] FWA 2747

[2011] FWA 2747

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jamie Spokes
v
Australian Dairy Super Stores T/A The Cow Shop
(U2010/14864)

COMMISSIONER GOOLEY MELBOURNE, 10 MAY 2011

Application for unfair dismissal remedy

[1] Mr Jamie Spokes (the Applicant) was employed by Australian Dairy Super Stores Pty Ltd trading as the Cow Shop (the Respondent) from 20 March 2008 until his employment was terminated on 24 November 2010.

[2] Mr Spokes lodged an application for relief pursuant to s394 of the Fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed. The application was referred to conciliation on 11 January 2011, and then listed for hearing on 16 and 17 March 2011.

[3] Ms McNaught, a legal practitioner, appeared with permission for Mr Spokes and Mr Bradley Doak, an owner and director of the Respondent, appeared for the Respondent.

[4] Mr Spokes, Mr Don Spokes and Ms Sophie Johnson gave evidence for the Applicant and Mr Doak, Mr Paul Smith, Mr Peter Bignell, Ms Nicole Rollings and Mr Timothy Rollings gave evidence for Respondent.

Jurisdiction of Fair Work Australia

[5] There is no dispute that Mr Spokes is a person who was protected from unfair dismissal. It was not disputed that the Respondent was a small business and that the Small Business Dismissal Code (the Code) applied.

Reasons for the dismissal

[6] In the employer response form 1 Mr Paul Smith, an owner of the business gave the following reasons for the termination of Mr Spokes’ employment:

• Continued lateness;



• Poor work performance;



• Lying about jobs being completed;



• Inability to be left unsupervised; and



• Suspicion of theft.

[7] The Separation certificate provided to Mr Spokes stated that the reason for the termination was “unsuitability for this type of work”. 2

The Evidence

[8] The Applicant was employed by the Respondent as a fitter from August 2010. At the time of his dismissal, the Applicant was paid $684 per week for a 38 hour week. Prior to working as a fitter for the Respondent the Applicant worked for the Respondent as a retail assistant.

[9] Mr Spokes was required to commence work at 8.30am. Mr Spokes gave evidence that he arrived at work each day at approximately 8.25am to 8.30am and that if he was late he would advise Mr Rollings, his direct supervisor, by sending him a text message. 3 The Applicant denied being late up to an hour and a half for the two week period prior to being dismissed.

[10] Mr Spokes was critical of the training provided to him. The Australian Milking Machine Trade Association (AMMTA) provides training for dairy technicians. In relation to the AMMTA training it was Mr Spokes’ evidence that he did not receive the booklets and/or training. 4 He said he was also not given welding training.5

[11] It was his evidence that he was sent on his own to repair jobs he was not qualified to repair on his own. In response to specific incidents raised by the Respondent Mr Spokes’ evidence was that his work should either have been checked by his supervisor or he was not qualified to perform the work. 6

[12] It was Mr Spokes’ evidence that he was told by Mr Rollings on 24 November 2010 that he was being dismissed. He was told the decision had been made because he did not have enough knowledge of the jobs. 7 Mr Spokes was not advised that he could have support person present and he was told that the termination of his employment took effect that day.8 He said he had no opportunity to discuss the termination with Mr Rollings prior to the decision to terminate his employment being made.9

[13] In his witness statement Mr Spokes gave evidence that he was unemployed and did not receive Centrelink benefits until February 2011. 10 He had applied for jobs but been unsuccessful.11 His parents lent him money to meet his expenses and that he had returned to live with his parents as he had no income.12 He further gave evidence that he worked part time at his father’s dairy but did not receive payment as he worked to pay for his rent and board.13 Mr Spokes subsequently obtained employment and he is receiving a higher income than he received from the Respondent. It was his evidence that he had commenced work two weeks before the hearing.14 It was also his evidence that he had applied for four jobs since the termination of his employment.15

[14] Mr Don Spokes gave evidence however, as he had no direct knowledge of the events that led to the termination of the Applicant’s employment, most of his evidence was not relevant to the matters to be determined. He gave evidence of his financial contributions to Mr Spokes in the period he was without income.

[15] Ms Sophie Johnson gave evidence however, as she had no direct knowledge of the events that led to the termination of Mr Spokes’ employment, most of her evidence was not relevant to the matters to be determined. In her witness statement filed in the proceedings Ms Johnson stated that Mr Spokes always left the house to go to work at 8:30 am. 16 At the commencement of her oral evidence she changed this evidence to say that Mr Spokes left the house before 8:30am.17 It was her evidence that on the occasions Mr Spokes was going to be late for work he rang Mr Smith or Mr Rollings to let them know.18

[16] Mr Rollings, the Respondent’s manager, gave evidence for the Respondent. It was his evidence that Mr Spokes commenced as a technician in June 2010 and he was provided with training. He gave evidence about an incident of 21 June 2010 where Mr Spokes was sent to check a plate cooler pump. On completion of the task Mr Spokes was required to check his work. Mr Rollings said he asked Mr Spokes if he had checked his work by turning the pump on and he replied “yes”. Mr Rollings said that when the customer turned on the plate cooler “water went everywhere - the bolts weren’t tightened.” 19 Mr Rollings was more concerned with Mr Spokes’ failure to check his work, than his failure to fix the plate cooler.

[17] Mr Spokes rejected the evidence of Mr Rollings that he did not check his work. In response to Mr Rollings’ complaints about work performed in June 2010 he said the repair job may have failed for a number of reasons and that he had not been shown how to fix a plate cooler properly before doing the job. 20

[18] Mr Rollings gave evidence that in July 2010 Mr Spokes took longer than was required to perform a particular task and the customer had to be given a credit for the overcharged labour. A similar event took place in October 2010. 21

[19] Mr Spokes did not accept Mr Rollings’ complaint saying that he did this job with Peter Bignell, and that some jobs take longer than expected. 22

[20] Also in October 2010 Mr Spokes advised Mr Rollings that a particular job had been finished. Mr Rollings was contacted by the customer and asked when the job would be completed. Mr Rollings spoke to Mr Spokes who advised him that he intended completing the job one night after work. No explanation was provided to Mr Rollings about why Mr Spokes had said the job was finished when it wasn’t. 23

[21] Mr Spokes did not accept Mr Rollings’ complaint. While he accepted that he said the job was completed this was the first job he had welded and he knew it wasn’t done properly. He said he told Mr Rollings to go out and check the job.  24

[22] Mr Rollings gave evidence that in November 2010, Mr Spokes forgot to service pulsators and blamed another staff member for not telling him about the job. 25 On the next day Mr Spokes attended a meeting with his workplace trainer which should have taken five minutes but Mr Spokes did not attend work for four hours.

[23] Mr Spokes was then sent out to service the pulsators. Mr Rollings gave evidence that Mr Spokes had had extensive training on servicing pulsators and had serviced pulsators in front of Mr Rollings. Mr Rollings wanted to inspect the paper work associated with the job but none was provided by Mr Spokes. Mr Spokes assured Mr Rollings that the job was completed. The next day Mr Rollings inspected the work and it had been done incorrectly. It was his evidence that the error cost the business $700 in lost product and lost chargeable hours. 26 Further, Mr Rollings gave evidence that the rubber ware that had been incorrectly fitted was taken by Mr Spokes and was not paid for by either Mr Spokes or his father. Mr Rollings gave evidence that he gave Mr Spokes a verbal warning that his job was at risk “if he couldn’t complete simple tasks.”27

[24] Mr Spokes did not accept Mr Rollings’ complaint. He said he has spent longer than usual with his workplace trainer as he had missed seeing him on other occasions. He blamed Mr Rollings for the mistakes on this job. Further he denied taking the rubber ware, 28 and that he received a verbal warning.29

[25] On 15 November 2010 Mr Spokes was late for work after sending a text saying he would be late. Mr Rollings said there were other occasions when Mr Spokes was late for work but this was not documented. 30

[26] Mr Spokes denied being late for work. It was his evidence that he arrived at work before Mr Rollings. 31

[27] On 17 November 2010 Mr Spokes was again late for work. Mr Rollings gave evidence that he rang Mr Spokes at 9.15am to ask if he was coming to work. Mr Spokes arrived at work at 9.30am. Mr Rollings said that Mr Spokes was not dressed appropriately and smelt of alcohol. No explanation was provided about why he was late. Mr Rollings said he verbally told Mr Spokes that his job was at risk if he “couldn’t get to work on time and present himself in a respectable manner.” 32

[28] Mr Spokes denied turning up to work smelling of alcohol saying that he didn’t drink very often. He said he dressed appropriately for the work he performed. 33

[29] On 18 November 2010 Mr Rollings was to travel with Mr Spokes to a farm near the town of Cobden to show him how to do the job. Mr Spokes needed to get fuel and Mr Rollings gave him permission to get fuel. Mr Rollings waited for Mr Spokes for 15 minutes and then rang him every 5 minutes for the next half an hour to find out where he was and he got no answer. Mr Rollings then left for the job and when he was about half way to the job Mr Spokes called him. Mr Spokes explained that he had not answered the phone because he was driving. Mr Rollings gave evidence that the vehicle was fitted with a hands free kit. He gave Mr Spokes another verbal warning “that his job was at risk if he couldn’t follow simple instructions and act as a team player.” 34

[30] Mr Spokes said that getting the gas took time and that the telephone service was patchy. Further he said that the hands free phone didn’t work and he did not answer the phone while he was driving. 35 He did not respond to the evidence that he was given a warning.

[31] On 19 November 2010 Mr Spokes was again late for work and did not advise that he was going to be late. Further when he arrived at work no explanation for his lateness was provided. Mr Rollings gave instructions for Mr Spokes to perform work in the workshop. When he returned to the workshop Mr Rollings found that Mr Spokes had left work early and not completed the tasks set.  36

[32] Mr Spokes said he did not perform the work because the chemicals he was directed to use are no longer legal. He denied going home early. 37

[33] On 22 November 2011 Mr Spokes arrived at work at 9:30am having left a text message at 9:10am saying he would be late. Mr Rollings decided to contact the owners Mr Paul Smith and Mr Brad Doak to discuss with them Mr Spokes’ poor work performance/attitude/lateness. Mr Rollings had decided that he wanted to dismiss Mr Spokes because he was not responding to the warnings given. 38

[34] Mr Spokes denied being late for work on 22 November 2011. 39

[35] On 24 November 2011 Mr Spokes arrived at work at 9am without advising that he would be late. Mr Spokes’ explanation was that he slept in. 40

[36] At the end of the day Mr Rollings told Mr Spokes that he had spoken to the owners and that, having regard to his poor work performance and the fact that he was not responding to warnings and that “his performance/attitude/lateness certainly wasn’t improving”, he was being dismissed and given two weeks pay in lieu of notice. 41

[37] Again Mr Spokes denied being late for work and stated that Mr Rollings was not at work when he arrived. 42

[38] In response to Mr Spokes evidence that he did not receive adequate training Mr Rollings said that he told Mr Spokes that he would take at least 12 months to achieve the AMMTA accreditation but it depended on his ability to learn the concepts involved. He further gave evidence that Mr Spokes was told he would be put through a welding course but that a certificate was not a prerequisite for the job and Mr Spokes could do some welding already. Mr Spokes was told that they would investigate the next electrical disconnect/connect course and he would be enrolled. 43 However Mr Rollings was advised that while the Applicant and another staff member could do the course they would not be issued with an electrical licence until they had some other recognised trade certificate or worked for an electrician. Mr Spokes was therefore not enrolled in this course. Mr Rollings further gave evidence that Mr Spokes was enrolled in the second AG safe course but he did not want to do it because it involved too much computer work.44 Mr Rollings gave evidence that Mr Spokes was provided with access to the AMMTA training but because Mr Spokes was not up to standard he was not given the test booklet. Mr Rollings gave evidence that Mr Spokes received on the job training throughout his employment.

[39] Ms Nicole Rollings, an employee of the Respondent, gave evidence that she observed Mr Spokes load a 200 litre drum of chemicals into his ute and that she checked his and his parents’ accounts and the item was not on their account. 45 She advised Mr Rollings of this. The rest of her evidence addressed incidents that occurred after Mr Spokes’ employment was terminated and was not relevant to the termination.

[40] Mr Spokes could not remember this incident but said he had delivered a 200 litre drum to a customer who lived near him. 46

[41] Mr Paul Smith, an owner of the business gave evidence that Mr Rollings had discussed Mr Spokes’ work performance with him but as he was leaving the business he left the decision about what to do about Mr Spokes’ employment to Mr Rollings and Mr Doak. 47 Mr Smith also gave evidence that Mr Spokes did not want to do the second AG Safe course because he did not want to do the computer work. It was Mr Smith’s evidence that he got Mr Spokes an extension of time to complete the course but he did not want to complete it.48

[42] Mr Peter Bignell, another technician employed by the Respondent, gave evidence that he commenced employment on 19 July 2010 and he was given the AMMTA booklets on commencement. He said he spent the first 3 months travelling with Tim Rollings and Mr Spokes repairing and servicing equipment in dairies. After that he would attend jobs on his own as Mr Rollings had determined he was competent.

[43] Mr Bignell gave evidence of going on a job with Mr Spokes who was asked to drop off a part in town and return to the job immediately. After an hour Mr Bignell called Mr Spokes to find out where he was. Upon his return Mr Spokes took the rest of the day to do a job which should have taken one hour. Mr Bignell gave evidence that he spoke to Mr Rollings and told him that Mr Spokes was not applying himself to the job. Mr Bignell refused to work with Mr Spokes after that. 49

[44] Mr Bignell gave evidence that after Mr Spokes left he found Mr Spokes’ AMMTA test booklet under the seat of the ute Mr Spokes used to drive. 50

[45] Mr Doak, an owner and director of the Respondent, gave evidence however he did not have direct knowledge of the incidents that led to Mr Spokes’ employment being terminated and his evidence was not relevant to the matter to be determined.

[46] Evidence was also given about “alleged” discrepancies in Mr Spokes’ account with the Respondent and alleged misconduct which came to light after Mr Spokes’ employment was terminated. Insufficient evidence was put before the Tribunal to support any of these allegations and I have not had regard to them in my decision.

The Code

[47] It was not disputed that the Respondent was a small business.

[48] The Code provides as follows:

“Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[49] This was not a summary dismissal as Mr Spokes was given notice of termination albeit he was paid in lieu of notice.

Findings

[50] I accept that repeated lateness for work and poor work performance can both be valid reasons for terminating an employee’s employment.

[51] In this case I accept the evidence of Mr Rollings that he decided to terminate Mr Spokes’ employment because of poor work performance, attitude and lateness and because Mr Spokes failed to respond to the warnings he had been given.

[52] I drew no negative inferences from the inconsistencies between the reasons given for the termination on the separation certificate and those given on the form F3 51 filed by the Respondent.

[53] Mr Rollings, Mr Spokes and Mr Bignell gave relevant evidence about the events that led to the termination of Mr Spokes’ employment. Where there was a conflict between Mr Rollings’ evidence and Mr Spokes’ evidence I preferred the evidence of Mr Rollings.

[54] Mr Rollings’ evidence about Mr Spokes’ lateness was supported by diary entries. 52 Mr Rollings’ diary recorded Mr Spokes as being late on 15, 17, 19, 22 and 24 November 2010.

[55] I do not accept Mr Spokes’ evidence that he was only late “twice maybe three times and he always sent a message.” 53 Mr Spokes lived 5 minutes from work and provided no reason for his lateness on the occasions that he accepted he was late for work. It was his evidence that he sent text messages when he was late. However he did not give evidence that those text messages did anything other than advise the Respondent that he would be late. His only oral explanation for his lateness on 24 November 2010 was that he slept in.

[56] I also accept the evidence of Mr Rollings that he warned Mr Spokes verbally in November 2010 that his employment was at risk because of his lateness. I find that Mr Spokes was given an opportunity to rectify this but despite those warnings Mr Spokes was late for work on four subsequent days.

[57] I also accept that Mr Spokes was not performing his work to the standard required by his employer. I accept Mr Rollings’ evidence that Mr Spokes, like Mr Bignell, received on the job training. I accept Mr Rollings’ evidence that some of his concerns about Mr Spokes’ performance related to Mr Spokes not checking his work and giving Mr Rollings’ incomplete or inaccurate reports about the state of the work. I also accept Mr Rollings’ evidence that he warned Mr Spokes on at least two separate occasions about his approach to his work and told him his job was at risk.

[58] Mr Spokes did not give evidence that he was competent at this work. His response at the hearing to the complaints about his work performance and attitude was that he had not received adequate training and that his work was not properly checked by his supervisor. His other explanations included receiving incorrect information from co-workers or customers.

[59] I accept that Mr Spokes was provided with training. He was provided with on the job training He undertook AMMTA training. Further I accept Mr Rollings and Mr Smith’s evidence that Mr Spokes was offered the second AG Safe course and he declined to complete the course. I further do not accept the Mr Spokes was not given adequate supervision.

[60] Had the sole reason for the termination of Mr Spokes’ employment been his failure to perform the functions of a fitter in a satisfactory manner I would have found that he had not been given an adequate opportunity to rectify his performance. It did not appear from the evidence that Mr Rollings provided sufficient feedback to Mr Spokes about how his performance could be improved and what steps he could take to rectify his errors.

[61] However, I note that Mr Rollings’ real concerns were not that Mr Spokes made mistakes at work but that he did not acknowledge and learn from those mistakes, in effect, that he attempted to cover up his errors, blamed others, did not follow instructions and wasted time. I find that Mr Spokes was provided with an opportunity to rectify this conduct.

[62] It appears that despite receiving multiple warnings Mr Spokes did not heed the advice of his employer that his employment was at risk.

[63] I accept Mr Rollings’ evidence that he discussed terminating Mr Spokes’ employment with the owners on 22 November 2010 but did not decide to terminate Mr Spokes’ employment immediately because he “didn’t want to sack him. I wanted things to change. I wanted it to work.” 54 I accept that he finally made the decision after Mr Spokes arrived late for work on 24 November 2010 and did not ring or send a text message advising that he would be late. Mr Rollings did not have a further discussion with Mr Spokes prior to advising him of his decision to terminate his employment, and while that may have been preferable, this does not mean that the termination of Mr Spokes’ employment was inconsistent with the Code.

[64] Mr Spokes did not have a representative present when he was verbally warned about his performance but he did not ask to have a representative present. He was not advised prior to the meeting of 24 November 2010 what the meeting was about, therefore he did not have an opportunity to request a representative attend. However, this does not mean that the termination of Mr Spokes’ employment was inconsistent with the Code.

Conclusion

[65] I am satisfied from evidence and submissions before me that:

1. the Respondent is a small business employer;

2. the Respondent gave the Applicant a reason why he was at risk of being dismissed;

3. the reason given was a valid reason based on the employee’s conduct or capacity to do the job;

4. the Applicant was warned verbally on more than one occasion, that he risked being dismissed if there was no improvement; and

5. the Respondent provided the Applicant with an opportunity to respond to the warning and gave the employee a reasonable chance to rectify the problem.

[66] I am therefore satisfied that the termination of employment was consistent with the Code. The Applicant therefore cannot have been unfairly dismissed and the application is dismissed.

COMMISSIONER

Appearances:

B McNaught for the Applicant.

B Doak for the Respondent.

Hearing details:

2011.

Warrnambool:

March 16, 17.

 1   Exhibit S4.

 2   Attachment JLS 1 to Exhibit S1.

 3 Exhibit S1 at [10].

 4 Ibid at [15].

 5 Ibid at [16].

 6 Ibid at [17].

 7 Ibid at [18].

 8 Ibid at [19].

 9 Ibid at [22].

 10 Ibid at [36].

 11 Ibid at [37].

 12   Ibid at [38]-[39].

 13 Ibid at [42].

 14   Transcript PN 134.

 15   Ibid PN 138.

 16 Exhibit S3 at [8].

 17   Transcript PN 627.

 18 Exhibit S 3 at [9].

 19 Exhibit R7 at [2].

 20   Transcript PN 51-53.

 21   Exhibit R7 above n 19.

 22   Transcript PN 54.

 23   Exhibit R7 above n 19.

 24   Transcript PN 56.

 25   Exhibit R7 above n 19.

 26   Ibid.

 27   Ibid.

 28   Transcript PN 57.

 29   Ibid PN 58.

 30   Exhibit R7 above n 19.

 31   Transcript PN 59.

 32   Exhibit R7 above n 19.

 33   Transcript PN 60.

 34   Exhibit R7 above n 19.

 35   Transcript PN 63.

 36   Exhibit R7 above n 19.

 37   Transcript PN 65.

 38   Exhibit R7 above n 19.

 39   Transcript PN 67.

 40   Ibid.

 41   Ibid.

 42   Transcript PN 71.

 43   Ibid.

 44   Ibid.

 45 Exhibit R 6 at [1].

 46   Transcript PN 111.

 47   Exhibit R4.

 48   Ibid.

 49   Exhibit R5.

 50   Ibid.

 51   Exhibit S4.

 52   Exhibit R8.

 53   Transcript PN 78.

 54   Transcript PN 1189.

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