Jason Roberts v Resource Australia Transport
[2014] FWC 4411
•31 JULY 2014
| [2014] FWC 4411 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason Roberts
v
Resource Australia Transport
(U2013/15752)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 31 JULY 2014 |
Application for relief from unfair dismissal.
[1] Mr Jason Roberts (the applicant) applied on 12 November 2013 for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Resource Australia Transport Pty Ltd (RAT, the respondent) on 29 October 2013. The respondent initially raised a jurisdictional objection that the applicant had left his employment voluntarily; however on 17 March 2014 it withdrew this objection. The matter was then referred to me for arbitration and hearings were conducted on 7 April and 16 June 2014. Further written submissions were made by the respondent on 7 July 2014. The applicant was represented by Mr C Bolger, barrister and the respondent by Mr D Marshall of the Australian Industry Group.
[2] As well as the applicant himself, evidence was given on his behalf by Ms M Formosa (allocator), Mr P Vella (truck driver) and Mr B Hewerdine (director of Elite Haulage). Evidence was given for the respondent by Mr K Durrington (investigator), Ms C Wintle (office manager) and Mr C Kosutar (director).
Background
[3] The applicant commenced employment with a business known as South Penrith Sand and Soil on 5 January 2001. On 15 November 2012 the respondent purchased the business. The applicant’s employment was transferred to the respondent.
[4] The respondent trades in landscaping and building supplies including sand, soil, aggregates, blue-metal, gravel, road-base and similar products. It is also engaged in the transport of these products. It sells the products to golf courses, builders, landscape gardeners and other similar businesses.
[5] The applicant worked as the office manager for South Penrith Sand and Soil from around 2007. In this position he was responsible for allocating duties to drivers, employing and managing staff, taking orders, dealing with deliveries and the loading of trucks, liaising with customers, money handling, stock control, and accounts. Following the sale, the applicant initially worked as the respondent’s operations manager.
[6] In August 2013 his role was changed to that of sales representative, which included maintaining relationships with existing customers and bringing new customers to the business. There was no change to his pay or conditions.
[7] The applicant did not receive a notice of termination at the time of his dismissal. However the respondent submitted that there were four reasons for the termination of the applicant’s employment:
1. The applicant engaged in a conflict of interest by being involved in establishing a competing business, known as ‘Elite Haulage’;
2. The applicant took sick leave while driving a truck for Elite Haulage;
3. The applicant misappropriated a cash payment of $3,303.50; and
4. The applicant misappropriated some of the respondent’s product.
[8] I now turn to the evidence in relation to each of these four issues, as well as the meeting that led to the termination of the applicant’s employment. Much of both the written and oral evidence presented during the hearings was in the form of hearsay and/or opinion. I have placed little or no weight on such evidence.
Conflict of Interest
[9] A central consideration in this case is the relationship between the applicant and Elite Haulage, the business owned by the applicant’s friend Brett Hewerdine. According to the applicant, in early 2013 he had a conversation with Mr Kosutar about a request by Boral for the respondent to do some ‘hot mix’ work. As the respondent did not have any trucks ‘set up’ to do the work he obtained Mr Kosutar’s agreement that the applicant organise ‘some contractors’ to do the work.
[10] During his examination-in-chief, the applicant agreed that he did organise ‘some contractors’ to do the Boral work. He was then asked
‘---Who were the contractors? ---Well, the contractor was - one of the contractors was Brett Hewerdine which was the company Elite Haulage.
---Were there any other contractors? --- No, not for that particular work; no.
---Had Elite always done work for the company previously? --- It had done, yes, a bit of work here and there, just different sort of work; not hot mix but different sort of work because we always contractors (sic)’ 1
[11] The applicant said that since November 2012, the respondent used up to about four or five subcontractors.
[12] The applicant gave evidence that he had never owned a truck. Nevertheless Mr Kosutar had a discussion with him in mid-July 2013 where he said to the applicant that he had heard that he was buying ‘another truck’. The applicant denied that he owned a truck but Mr Kosutar told him that what he was doing represented a ‘conflict of interest’. 2
[13] During his examination-in-chief, the applicant gave evidence that on 28 October 2013 he drove a truck owned by Mr Hewerdine. He said he was ‘just helping a mate out’ and was not paid for the work. Mr Hewerdine had rung and told him that he had a driver that had not come in. He asked the applicant to come and drive for him a few hours the next morning. The applicant said that he had never done this before. 3
[14] During his cross-examination, the applicant said that Elite Haulage was ‘just a contractor’. When asked if he had only ever helped out Elite Haulage once while he was employed with the respondent he replied ‘No’. When asked how many times he had helped them out he said ‘Them and other companies numerous times, not just Elite Haulage’. When asked specifically how many times he had helped out Elite Haulage he responded ‘I can’t remember’. 4 When he was pressed on how many times he had driven a truck for Elite Haulage he said ‘A couple of times; few times I’ve driven it. It was their truck that I borrowed when -- yes.5 He later confirmed that he had driven for Elite Haulage while employed by the respondent ‘a few times’ though he said he was never paid for the work.6
[15] During his cross-examination Mr Hewerdine was asked whether the applicant had driven his truck from January 2013 (the time he said he bought his truck) and October 2013 (when the applicant’s employment with the respondent was terminated). He replied ‘I think he did drive it on one occasion.’ 7
[16] The applicant was asked whether he had helped Elite Haulage in any other way. He replied ‘Like what?’Mr Marshall said:
‘I don’t know, setting up their business; organising their website; setting up accounts; organising insurance. Did you do any of those things?’
[17] The applicant replied:
‘I’ve helped them set up a couple of accounts here, as I’ve done with previous subcontractors.’ 8
[18] The applicant specifically denied helping Elite Haulage set up their website, organise their insurance, or set up their ABN. When asked what he did to help Elite Haulage, the applicant said:
‘He asked me to... put him in contact with - open up a couple of accounts.... so he could buy some materials from accounts like Boral, Hanson, and stuff like that where he can buy materials himself.... I just put him in contact with the reps; asked the reps “He wants to open up an account”; just organised the account for him and stuff like that.’ 9
[19] When asked whether he did anything else he replied -- ‘That’s pretty well much it, you know, and -- yes, that’s pretty much I can remember; yes.’ 10
[20] Mr Marshall tabled an email from Mr Hewerdine, dated 21 August 2013 and addressed to ‘[email protected]’ and a Rachelle Font with ‘re: Website’ in the subject heading. 11 The applicant at first agreed the email address was his (‘And that’s you, isn’t it? --- Yes’12) though he said he did not actually receive the email in question. However he subsequently denied that he had said the email address was his. When asked whether there was another Jason at Elite Haulage he replied ‘I don’t know’.
“ You don’t know? ---I didn’t have access to this email so that’s what I’m trying to say. You said to me, do I need it and I said “No, I don’t”. 13
[21] Mr Marshall also tabled an email exchange between the applicant and Mr Hewerdine in April 2013 where the applicant provided advice to the latter about the logo and letterhead for Elite Haulage. 14 The applicant denied this was doing anything more than ‘helping out a mate’ and said he ‘had done this previously too for someone else and I’ve never had a problem when I was working with the company with the previous owner.’15
[22] The applicant also conceded, when shown another document, that he was involved in the printing of stationary for Elite Haulage. 16
[23] The applicant was also shown an email accepting an appointment for 11 October 2013 with the subject ‘Boral Transport entry audit for Elite Haulage’. He denied he had anything to do with audits or that this was one of his tasks at the respondent’s business, but he agreed he was present at the meeting. 17
[24] The applicant was shown an email from the Customs Service Manager at Hanson which attached advice that a customer credit application had been set up and approved for Elite Haulage Pty Ltd. The email included the following:
‘Hi Jason,
Elite Haulage has an account now.
We need to discuss rates from which quarry? And products? Prepare contract?’ 18
[25] Despite this email, the applicant denied he had set up an account with Hanson for Elite Haulage. 19 When asked whether the email was a pack of lies he responded:
‘No, well, just because she sent me the email - I actually didn’t set up anything.’ 20
[26] The applicant denied he set up insurance on behalf of Elite Haulage. This was despite an email addressed to him, dated 18 April 2013, from Mr Matthew Chu, which included the following:
‘Hi Jason,
Motor Vehicle Insurance
We have obtain (sic) quotes for your motor vehicle insurance, Lumley Insurer was the most competitive.
The Lumley Total Annual Premium is $4365 inc all fees and charges based on the following...’
[27] The e-mail also provided a quote for liability insurance. It concluded with ‘We look forward to receiving your instructions’.
[28] The applicant said he did not even know who Matthew Chu was. 21
[29] When it was put to the applicant that Elite Haulage’s certificate of registration with Roads and Maritime Services had been found in his email inbox at RAT he responded:
‘For one, they needed it. They needed it. We needed it. For them to work for us they’ve got to have their - we’ve got to have their insurance and registration details to be a subcontractor so that’s what it may have been. Off the top of my head I don’t know.’ 22
[30] The applicant agreed that he sent an SMS text message the day after his dismissal that said:
‘Hi all, just letting you know that as of today I am no longer employed by penrith sand soil or RAT transport. I wish to continue to provide you with quality products and service in my new venture so if you could put this number in your phone as my new contact it would be much appreciated. If you have any questions please give me a call.’ 23
[31] I am satisfied that the applicant’s initial evidence about his relationship with Elite Haulage was dishonest. His involvement with Elite Haulage went well beyond a normal relationship with one of the respondent’s subcontractors, or simply ‘helping out a mate’. Despite the applicant’s denials, it is clear that he was closely involved with helping Mr Hewerdine set up and run Elite Haulage while he was still working for the respondent. This included such things as obtaining quotes for insurance, helping with the website and organising stationary. He even appears to have had his own Elite Haulage email address. He reluctantly conceded that he had driven a truck for Elite Haulage on a number of occasions. The unconvincing nature of his denials, and his prevarication in relation to a number of matters until he was presented with written evidence that contradicted his initial testimony, undermines the credibility of the applicant, and leads me to conclude that I should give little weight to any of his evidence.
[32] Mr Hewerdine’s evidence is that Elite Haulage did cartage work, including sand and asphalt
Abuse of Sick Leave
[33] The respondent engaged International Intelligence Agency Pty Ltd to investigate the applicant’s movements, particularly during his working hours, to establish whether he was working on ‘other projects, outside his employment during working hours.’ On Monday 28 October an investigator from the agency observed the applicant arriving at the gym owned by Mr Hewerdine and leaving in a truck just after 6:00am. The applicant returned to the gym at 8:38am and then left again in the truck. 24
[34] According to Mr Kosutar’s statement, the applicant sent him an SMS text message indicating he was sick. The message read something like:
‘Jason: Hi its Jason, I am sick will not be in.’
[35] Mr Kosutar said in his statement that when the applicant was later questioned about being seen that day operating a heavy vehicle not associated with the respondent he replied:
“I was at home all day”. 25
[36] According to the applicant’s own statement, when Mr Kosutar put to him at a meeting on 29 October 2013 that he had been seen driving a truck on a day he had taken sick leave, he replied:
‘I am not working for anyone else. The building around the corner is where I go to the gym there. My mate owns the gym and I am not working for anybody else.’ 26
[37] During the hearing the applicant agreed that he had called in sick on 28 October 2013. He also agreed that he was operating a heavy vehicle not associated with the company that day, for about five hours. 27
[38] When asked why he had called in sick the applicant said :
‘I just didn’t feel well and didn’t feel like going to work and - yes.’ 28
[39] The applicant said he had sent a text message ‘late in the morning.’ 29 He said he had started driving around 4:00am and finished around 10:30 or 11:00am.30 He did not attend work that day. He did not see a doctor and conceded that he had taken ‘a sickie’ - that is he was not actually sick.
I am satisfied that the applicant told his employer that he was not coming in to work because he was sick. This was dishonest. In reality he took the day off so that he could drive a truck for Elite Haulage. When this was put to him by the respondent he lied about it.
Misappropriation of Cash
[40] According to the applicant, he organised to supply some soil for Mr Mark Warwick, who was doing a ‘private job’. Two loads were delivered, on 29 August and 3 September 2013. The applicant’s evidence was that he provided his credit card details to Ms Formosa within a week after the delivery to pay for the material. Mr Warwick paid the applicant in cash for the material ‘a couple of weeks’ after he had given Ms Formosa his credit card details. He said that after he had received the cash payment he noticed that Ms Formosa had not processed his credit card payment and asked her to sort it out. 31
[41] In her examination-in-chief Ms Formosa said that she did not know the exact dates when the applicant provided the credit card details but it was around August-September, though she did say ‘it was after the job.’ When asked what the applicant had said she replied:
‘---It’s just that he gave me the credit card number over the phone and said it was for the payment of the job that we were doing to Evergreen Turf and had to be processed after the job was done.’ 32
[42] Ms Formosa said she assumed the credit card details were those of the customer. All she received was the number and the expiry date. When asked whether this was some time after the job was done she said ‘I can’t honestly remember if it was before the job actually got done or after the job got done, but I remember him ringing me and giving me the credit card details.’ She said she had tried ‘at one stage’ to process the payment but ‘It didn’t work. It gets put downstairs. I get the credit card slip and put it down on Colina’s desk because she does all the banking and the processing and everything because I’ve never done any of that.’ 33
[43] Ms Formosa said she could not remember when she provided the credit card details to Ms Wintle - though she did say ‘It was not long after the job was done.’ 34
[44] According to Ms Wintle, not realising that the applicant had already been paid $3,303.50 in cash for the two loads, the customer was sent an invoice. The customer then paid for one of the loads. The customer realised this double payment on 24 October 2013 and emailed the respondent’s accounts email address to ask for the double payment to be refunded. 35 The email indicated that the goods on the invoice had already been paid via cash directly to the applicant by Mr. Warwick.36 While Ms Formosa denied during her cross examination that she had seen the customer’s email37, the copy tendered during the hearing indicated that it was she who had brought the email to Ms Wintle’s attention on 24 October 2013.38 This was confirmed by Ms Wintle39.
[45] According to Ms Wintle, she called the customer that day and they told her to call Mr Warwick. He confirmed that he had given the applicant cash for the job. 40 The applicant’s evidence is that when this was put to him during the meeting on 29 October 2013 he said the bill had been paid two months previously and he had given the credit card details to Ms Formosa41. Ms Formosa was asked to come into the meeting. She said that Mr Roberts had given her the credit card details.
[46] According to Ms Wintle, she obtained the credit card details form Ms Formosa and attempted to process the payment. The credit card was declined. When she asked Ms Formosa about the credit card details she said that the applicant had rung her about 5pm the day before and given them to her. 42
[47] Given my previous findings about the applicant’s credibility, I give little weight to his evidence about this matter. Nor do I find Ms Formosa to be a credible witness. Her answers about when she received the credit card details were vague and contradictory. Her explanation about her failure to process the credit card details is also unpersuasive. I am satisfied that the applicant only provided his credit card details shortly before the meeting on 29 October 2013. I consider it reasonable to infer that the applicant received a cash payment for giving a client some of the respondent’s product, and only sought to reimburse the respondent after RAT had been alerted to the situation when the customer complained it had been double billed.
Misappropriation of Product
[48] According to his statement, on or about 7 October 2013, Mr Kosutar attended the work site and reviewed the CCTV footage of the previous Saturday. It showed the applicant driving a tip-truck which did not belong to the respondent into the yard. An employee of the respondent, Mr Mulvey told Mr Kosutar that the applicant had said that he had borrowed a load so he could practice his driving. Mr Kosutar told Mr Mulvey that the load needed to be returned. 43
[49] According to the applicant, he had asked one of the respondent’s employees (‘Johnny’) to take him for a test drive to help him get his truck drivers’ licence. The truck needs to be loaded. This was because the test for the licence was done with the truck three-quarters loaded. The applicant said that once he had completed the test drive he tipped the material off back in the yard. He did the same again a week later. He said that on both occasions he had told the person running the front office what he was doing. 44
[50] I am not satisfied that the applicant misappropriated the respondent’s product.
The Meeting on 29 October 2013
[51] Mr Kosutar contacted the applicant on the afternoon of 28 October 2013 and asked him to come to a meeting the following morning. 45 The applicant did not ask for a support person to be present.46 According to Mr Kosutar, the applicant denied the allegations put to him, was aggressive and ‘showed little respect for the process.’47 Mr Kosutar said in his statement:
‘Once we had discussed the Conflict of Interest, Blue Metal and then missing cash, Jason said:
Jason: “It’s clear you don’t want me working here, you may as well sack me”
I said: “based on your responses so far, yes”
Jason then left.’ 48
[52] According to Ms Wintle, the applicant was loud and aggressive during the disciplinary meeting. Mr Kosutar asked the applicant about operating a competing business. The applicant denied this. He also denied that he was driving a truck the previous day, and said he was at home the whole day. The meeting lasted for approximately 10 minutes. The applicant became very agitated and evasive and then said “You are clearly not happy with me, you should sack me.” Mr Kosutar said something like “ok then” or “whatever”. The applicant then left and said he would return the company car. 49
[53] Mr Kosutar raised the issue of the money the applicant had received for the Evergreen Turf job. The applicant said he had given the credit card details to Ms Formosa. She was asked to come into the meeting, and confirmed that the applicant had given her the credit card details.
[54] The applicant said in his statement that the following exchange occurred in the meeting:
‘Me: “You don’t want me here do you?”
Carl: “No”
Me: “So are you sacking me?”
Carl: “Yes”. 50
[55] The applicant said he then stood up and walked out. 51
Consideration
[56] I am satisfied, that the application was made within the period required in subsection 394(2) of the Act, the applicant was protected from unfair dismissal, the respondent was not a small business and the dismissal was not a case of genuine redundancy. The issue to be determined therefore is whether the dismissal was harsh, unjust or unreasonable. In accordance with section 387 of the Act, I am required, in considering this issue, to take into account:
‘a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.’
[57] I will consider each of these criteria in turn.
Valid reason
[58] I am satisfied that the respondent had a valid reason to dismiss the applicant, on the grounds of serious misconduct. Indeed I am satisfied, based on the evidence that there were three separate instances of misconduct.
[59] First, I am satisfied that on 28 October 2013 the applicant told his employer that he would not be coming into work that day because he was sick. In fact, he took the day off to do some work for Elite Haulage. Abuse of sick leave in this manner is grounds for termination of employment. In this case, the misconduct is aggravated because it was linked to the second instance of misconduct, namely that the applicant was closely involved in establishing and operating a business in competition with that of his employer. This was inconsistent with his duty of fidelity and good faith to the respondent. Mr Kosutar had brought his concerns to the attention of the applicant who simply denied them. The applicant was dishonest to his employer about his relationship with Elite Haulage.
[60] The third instance of misconduct was the applicant taking a cash payment for the respondent’s product from Mr Warwick. He only sought to repay the respondent after the respondent had been alerted to what had happened when the customer complained it had been double billed.
Notification of the reason
[61] I am satisfied that the applicant was notified of the reasons for his dismissal. The issue of the conflict of interest had been raised by Mr Kosutar in mid-July 2013, and again in the meeting of 29 October 2013. The issues of the abuse of sick leave and the acceptance of the cash payment from Mr Warwick were both raised in the 29 October meeting.
Opportunity to Respond
[62] The applicant had the opportunity to respond to the reasons for his termination at the meeting on 29 October 2013. While the meeting was very short that was because the applicant himself brought the meeting to an end by asking Mr Kosutar whether he was going to sack him and then walking out after receiving an affirmative response.
Unreasonable Refusal to have a Support Person Present
[63] There was no evidence that the respondent refused to allow the applicant to have a support person present at the meeting on 29 October 2013. I am satisfied that the applicant did not ask for a support person to be present.
Prior Warning
[64] This criterion is not relevant as the dismissal was related to misconduct, not unsatisfactory performance.
Impact of the Size of the Employer’s Enterprise on Procedures
[65] While not strictly a ‘small business’, as defined by the Act, the respondent is a relatively small employer. This was clearly reflected in the procedures used to dismiss the applicant. Nevertheless I am satisfied that the rudiments of procedural fairness were afforded to the applicant, consistent with what could be expected from an employer of this size.
Impact of the Absence of Dedicated Human Resource Management Specialists or Expertise
[66] The respondent did not have any dedicated human resource management specialists or expertise within its business. This was clearly reflected in the procedures used to dismiss the applicant. The process adopted by the respondent was reasonable, given its lack of HRM expertise.
Any Other Relevant Matters
[67] I do not consider that factors such as the applicant’s length of service, work history, position or hours of work make his dismissal unfair. The applicant’s misconduct was made more serious by the fact that he occupied a relatively senior position with the respondent’s business.
Conclusion
[68] I am satisfied that the termination of the applicant’s employment was neither harsh, unjust nor unreasonable. Hs application for an unfair dismissal remedy is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
C Bolger barrister for the Applicant
D Marshall of the Australian Industry Group for the Respondent
Hearing details:
2014
Sydney
7 April
16 June
Final written submissions:
7 July
1 PN60 -63
2 PN93
3 PN147
4 PN199
5 PN205
6 PN217-9
7 PN620
8 PN207
9 PN222-5
10 PN226
11 Exhibit RAT2
12 PN271
13 PN276
14 Exhibit RAT2
15 PN284
16 PN300
17 PN312
18 Exhibit RAT2
19 PN334
20 PN335
21 PN354
22 PN355
23 Exhibit RAT2
24 Exhibit RAT5
25 Exhibit RAT7, paragraphs 26-29
26 Exhibit JR1, paragraph 28
27 PN122-126
28 PN133
29 PN137
30 PN151-154
31 PN95-107
32 PN515
33 PN516-520
34 PN521
35 Exhibit RAT6, paragraphs 18-22
36 Exhibit RAT3
37 PN544
38 Exhibit RAT3
39 PN893
40 Exhibit RAT6, paragraph 22
41 Exhibit JR1, paragraph 25
42 Exhibit RAT6, paragraph 25, PN1127
43 Exhibit RAT7, paragraphs 41-43
44 PN113
45 Exhibit RAT7, paragraph 51
46 Exhibit RAT7, paragraph 52
47 Exhibit RAT7, paragraph 54
48 Exhibit RAT7, paragraphs 58-59
49 Exhibit RAT6, paragraphs 33-41
50 Exhibit JR1, paragraph 28
51 Exhibit JR1, paragraph 29
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