Jay Szkwarek v Omega Network Pty. Ltd
[2022] FWC 1966
•26 JULY 2022
| [2022] FWC 1966 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jay Szkwarek
v
Omega Network Pty. Ltd
(U2022/2840)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 26 JULY 2022 |
Application for an unfair dismissal remedy – dismissal not harsh, unjust or unreasonable – application dismissed.
Introduction
On 2 June 2022, Mr Jay Szkwarek made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Omega Network Pty Ltd (Omega/the Respondent). Mr Szkwarek seeks among other things, compensation and reinstatement.
The Respondent denies that Mr Szkwarek was unfairly dismissed.
Hearing and Witnesses
Mr Szkwarek’s application was the subject of a hearing before me on 21 June 2022.
Mr Szkwarek sought permission to be represented by Mr Nicholas Dircks of Just Relations. The Respondent sought permission to be represented by Mr Andrew Crocker of Counsel. I considered that representation of both parties would enable the matter to be deal with more efficiently, taking into account the complexity of the matter. Accordingly, I granted permission for Mr Dircks to represent the Applicant and Mr Crocker to represent the Respondent pursuant to section 596(2)(a) of the Act.
Mr Szkwarek gave evidence on his own behalf.
Mr Nick Iacovou, Managing Director and Mr Fox, Supervisor, gave evidence on behalf of the Respondent.
Mr Szkwarek filed his witness statement, outline of submissions and supporting material on 2 May 2022. The Respondent filed its outline of submissions, witness statement of Mr Fox and Mr Iacovou and supporting material on 18 May 2022.
On 6 June 2022 an email was sent from my chambers directing parties to file further material, including full records of texts and telephone calls and swipe card information. On 10 June 2022, as directed, the Respondent and Applicant provided further material. On 17 June 2022 the Respondent provided further materials of the nature directed on 6 June 2022.
On 19 June 2022 at 11.58 pm and 20 June 2022 at 12.09 am the Applicant provided additional submissions, a supplementary witness statement and further material. On 20 June 2022 at 9.09 pm the Respondent provided a supplementary witness statement of Mr Iacovou along with attachments. At 6.31 am 21 June 2022 the Applicant provided a further two annexures to Mr Szkwarek’s witness statement.
Initial matters
Turning first to the initial matters which must be decided before the merits of the application are considered, it is not in dispute and I find that:
·the application was made within the period required in subsection 394(2);
·Omega is not a small business employer, having 15 or more employees at the relevant time and the Small Business Fair Dismissal Code therefore does not apply;
·Mr Szkwarek was an employee who had completed a period of employment with Omega of at least the minimum employment period;
·at the time of dismissal Mr Szkwarek was a person protected from unfair dismissal; and
·the dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy.
Conclusion
I have concluded that Mr Szkwarek’s dismissal was not unfair. These are the reasons for that conclusion.
Background and findings of fact
Employment
Omega provides labour hire services in the power, oil and gas and paper mill industries. On 27 April 2021 Omega employed Mr Szkwarek in the role of Intermediate Rigger – Scaffolder to perform work at the paper mill of its client, Opal (Opal Paper Mill). Whilst performing work at the Opal Paper Mill Mr Szkwarek was subject to the management of Opal’s Site Supervisor, Mr Kevin Payne.
Omega has two rostering patterns. Roster A provides for employees to work 9.5 hours a day Monday to Thursday. Roster B provides for employees to work 9.5 hours a day Tuesday to Friday. Employees are provided with a half hour lunch break and are therefore on site for 10 hours per day.[1]
Mr Szkwarek was employed on Roster A, working Monday to Thursday. [2]
Mr Szkwarek was usually rostered to work 7.00 am to 5.00 pm, although on occasion he was rostered to start work at 5.00 am.[3]
Entry and exit to the Opal Paper Mill site is via swipe card access. At the commencement of work each day the Respondent holds a pre-start meeting. A daily pre-start meeting and a record of attendance sheet is created for each day. This includes a record of attendance for shifts recording the start and finish time and is signed by the employee.[4]
By letter dated 15 February 2022 (Termination Letter) Mr Szkwarek’s employment with Omega was terminated.
The Termination Letter provided that Mr Szkwarek’s employment was terminated “due to continued poor time keeping”.[5]
Getting to work
Mr Szkwarek lost his licence for speeding, so was unable to drive himself to work.[6]
Mr Szkwarek’s partner’s father usually drove Mr Szkwarek to work so that his partner did not have to get their 10 month old baby up to drive him.[7] When his partner’s father was not able to drive Mr Szkwarek to work, his partner would do so.[8] On 6 February 2022 Mr Szkwarek’s partner’s parents moved location and his partner’s father was no longer able to drive him to work.[9]
Szkwarek’s attendance – contested matters
Mr Iacovou’s evidence is that Mr Szkwarek showed “a lack of punctuality” on the following occasions:
(a) on 29 September 2021, Mr Szkwarek left work ten minutes prior to his finishing
time without notifying anyone at Omega or Opal Paper Mill;(b) on 11 November 2021, Mr Szkwarek left work ten minutes prior to his finishing time without notifying anyone at Omega or Opal Paper Mill;
(c) on 15 November 2021, Mr Szkwarek left work ten minutes prior to his finishing time
without notifying anyone at Omega or Opal Paper Mill;(d) on 13 December 2022, Mr Szkwarek was 50 minutes late to work without notifying
anyone at Omega or Opal Paper Mill; and(e) on 23 December 2021, Mr Szkwarek left work four hours early without notifying
anyone at Omega or Opal Paper Mill.[10]
Mr Iacovou’s evidence is also that on 24 January 2022 Mr Szkwarek left work early without notifying either himself or anyone else at Omega or Opal Paper Mill (collectively, the Contested matters)
Mr Szkwarek contests each of these matters and says, in summary, that his absence on each of the above occasions was authorised by his team leader, or was notified to and approved by Mr Payne, or was the subject of an approved leave application.
Other matters
In addition to the above, the purported extension of Mr Szkwarek’s probationary period following its conclusion, a smoking incident in the carpark (and when precisely it occurred), whether at his induction Mr Szkwarek was instructed to notify both the site supervisor and Mr Iacovou or just the site supervisor of any absence or lateness, whether Mr Szkwarek properly notified the Respondent of his lateness for work and/or absences from work on various occasions and whether prior to 2 February 2022 Mr Iacovou had spoken to Mr Szkwarek about leaving work early or arriving late for work, were the subject of considerable evidence and submissions at hearing (collectively, Other Matters).
For reasons addressed later in this decision I do not consider it necessary that I determine the Contested Matters or the Other Matters. Rather, I consider the salient matters to be Mr Szkwarek’s conduct following 25 January 2022 on 8 February 2022, 10 February 2022 and 11 February 2022. I concur with the closing submissions made by the Respondent that it is in these matters that “the rubber hits the road.”[11] Accordingly, it is not necessary that I consider the material filed by the Applicant in relation to Mr Andrews, and what weight, if any, ought be given to that material.
Szkwarek’s attendance – uncontested matters
It is not contested that on:
(a) 25 January 2022 Mr Szkwarek was rostered to work until 5.00pm and left work at 3.59pm (25 January Absence);
(b) 8 February 2022 Mr Szkwarek was rostered to start work at 7.00 am but did not arrive at work until approximately 9.00 am (8 February Absence);
(c) 10 February 2022 Mr Szkwarek was rostered to start work at 5.00 am but did not start work until 6.55 am (10 February Absence); and
(d) 11 February 2022 was to attend a disciplinary meeting with Mr Iacovou at 7.00 am but did not do so (Disciplinary Absence).
25 January Absence
Mr Szkwarek’s evidence was that 25 January 2022 was an extreme heat day, approximately 34 degrees.[12] He said that due to the heat, employees started leaving the site early.[13] He stayed back with three other employees while most other employees left the site but after one of those employees said he was also leaving, Mr Szkwarek left the site too.[14] Swipe card data confirms that Mr Szkwarek and a number of other employees left the site prior to their rostered finish time. Mr Szkwarek’s evidence on whether he notified his supervisor or sought approval to leave on 25 January 2022 was inconsistent. However, in response to questions from the bench he ultimately conceded that he did not notify Mr Payne that he was leaving the site and was not authorised to do so.[15] He conceded that he knew it was unacceptable to leave work early on 25 January 2022.[16]
Accordingly, I find that on 25 January 2022 Mr Szkwarek left work prior to his rostered finish time without approval and without notifying Mr Payne, the site supervisor.
On 2 February 2022 Mr Szkwarek attended a meeting with Mr Iacovou and Mr Fox regarding the 25 January Absence (2 February Meeting).[17] Mr Iacovou’s evidence in his witness statement was that at the 2 February Meeting he told Mr Szkwarek that his conduct in leaving early on 25 January 2022 without notifying his site supervisor and Mr Iacovou created a safety risk and amounted to misconduct. He told Mr Szkwarek that if he took time off work, was running late or needed to leave early he must inform Mr Iacovou and Mr Payne prior to doing so.[18] His written evidence was that Mr Szkwarek said that he would notify Mr Iacovou in future. Mr Iacovou’s further evidence was that he told Mr Szkwarek that he was considering terminating his employment and asked Mr Szkwarek what did he think he should do. Mr Iacovou evidence is that Mr Szkwarek asked for “one more chance” and said words to the effect of “I will not miss work again without ensuring you are appropriately notified.”[19] Mr Iacovou told Mr Szkwarek that he would be issued with a final warning.[20]
Having observed both Mr Iacovou and Mr Szkwarek giving evidence, I consider that the language used in Mr Iacovou’s witness statement unlikely to accurately reflect the language used by either he or Mr Szkwarek. Rather, I consider the language used in Mr Iacovou’s witness statement to be the product of drafting by his solicitors. I consider Mr Iacovou’s evidence under cross examination to be more reliable and accurate. Under cross examination Mr Iacovou’s evidence as to what was said in the 2 February Meeting was somewhat confused.[21] He agreed that the 2 February Meeting was to address the 25 January Absence. As to whether other matters were raised, he ultimately conceded that he did not recall whether any other issues were raised with Mr Szkwarek at that time[22] although he believed they would have been.[23] His evidence was however that Mr Szkwarek did ask for one more chance and say that he would not miss work again without ensuring that Mr Iacovou was properly notified. His evidence was that he clearly recalled this aspect of the 2 February Meeting. His evidence was that he recalled this because he said to Mr Szkwarek “Jay, what would you do in my position if you were me? You can be Nick and I’ll be Jay, what would you do Jay?”. Mr Szkwarek said “I would give me another chance.”[24]
In his witness statement Mr Szkwarek says that at the 2 February Meeting he explained that it was an extreme heat day, everyone else except one person had left and there was no work to do.[25] He says Mr Iacovou told him in the future he was to stay at work even if there was nothing to do.[26] He says he agreed to this and did not leave work early again.[27] At hearing, his evidence was that the meeting was “in regards to 25 January, taking- obviously leaving early”[28] and that he was told “it was unacceptable to leave – yes without notifying Nick I suppose”[29] or Mr Payne.[30] He said he did not recall anything else being said.[31] He also said that he did not recall the meeting well.[32] Under cross examination he denied that at the 2 February Meeting Mr Iacovou told him that leaving early was misconduct.[33] Despite initially denying that in the 2 February Meeting Mr Iacovou told him if he was going to be late for work or leave early he had to notify Mr Iacovou and Mr Payne [34] he ultimately conceded that Mr Iacovou did tell him he had to notify him.[35] He denied that Mr Iacovou told him he was considering terminating his employment,[36] although he said Mr Iacovou might have said his employment was at risk.[37] His subsequent evidence was however that he did not recall.[38]
.
Mr Fox attended the 2 February Meeting. His written evidence regarding the 2 February Meeting was generally consistent with Mr Iacovou’s written evidence.[39] Under cross examination Mr Fox said he did not recall exactly what was said in the meeting[40] however he said that Mr Szkwarek was told that repeated lateness would lead to dismissal[41] and Mr Szkwarek was trying to “justify being late”.[42] His evidence was that the meeting was about the “various times when he [Mr Szkwarek] was supposedly late and left early.”
By letter dated 3 February 2022 (but received on 8 February 2022) Mr Szkwarek was issued with a final written warning (Warning Letter) in relation to the 25 January Absence in the following terms: [43]
“Subject: Written Warning, Taking unauthorized leave not approved by Omega Network / Australian Paper on the 25th January 2022, this action was taken by you (Jay Szkwarek).
This letter serves as formal reprimand for your unprofessional conduct, as this is your Third warning and final warning. Taking unauthorized leave not approved on the 25th January 2022 by Omega Network or Opal Australian Paper.
Any further violation of OMEGA / Opal Australian Paper company policy / failure to change your behavior / perform in accordance with our standards and policies will result in immediate dismissal without further warning.
Your next meeting with myself will be on the 11th February 2022, to discuss you probationary period which is ending the 14th February 2022, at this time we will discuss your future further with Omega Network.
Yours sincerely,
Nick IacovouManaging Director”
All other employees who left site early on 25 January 2022 were also issued with written warnings.[44]
Whilst none of the witnesses had a comprehensive recollection of the 2 February Meeting, I prefer the evidence of Mr Iacovou as to the 2 February Meeting. Firstly, Mr Iacovou presented as a credible witness, seeking to assist the Commission to the best of his ability. He made concessions where warranted, conceded when he did not recollect the detail of a particular issue and presented his evidence in an unfiltered, candid manner. Secondly, his evidence is generally consistent with, and supported by, that of Mr Fox, who appeared to have a better overall recollection of the 2 February Meeting. Thirdly, Mr Szkwarek’s evidence under cross examination as to the 2 February Meeting was vague, evasive and, I consider, selective. I do not consider that his evidence on this matter was entirely candid. Further, I find it implausible that a meeting following which Mr Szkwarek received a final written warning which foreshadows dismissal, is a meeting of which he would have so little recollection. Further, it is to be contrasted to other matters, such as the date of the smoking incident, which occurred prior to the 2 February Meeting, in respect of which Mr Szkwarek had a very clear recollection.[45]
Accordingly, I find that at the 2 February Meeting Mr Szkwarek’s lateness for work on other occasions, as well as his leaving work early without approval on 25 January 2022 were raised with him by Mr Iacovou. I find that Mr Szkwarek was told that if he took time off work, was running late or needed to leave early he must notify Mr Iacovou and Mr Payne. I also find that Mr Szkwarek was told that Mr Iacovou was considering terminating his employment and that Mr Iacovou asked Mr Szkwarek what he thought Mr Iacovou should do. I find that Mr Szkwarek did ask for one last chance. Accordingly, I consider that from 2 February 2022 Mr Szkwarek was aware that his employment was at risk and that his attendance generally (leaving work early and arriving late) was considered unsatisfactory by Mr Iacovou. In making these findings I note that the Warning Letter deals principally with the 25 January Absence. I do not consider anything arises from this. The 25 January Absence was the catalyst for the 2 February Meeting and in those circumstances I find it entirely unsurprising that this is the focus of the Warning Letter. Further, I consider that the references in the Warning Letter to “Any further violation of OMEGA / Opal Australian Paper company policy / failure to change your behaviour / perform in accordance with our standards and policies” reflects the fact that other issues were raised with Mr Szkwarek at the 2 February Meeting and Mr Iacovou had concerns regarding Mr Szkwarek’s attendance and behaviours at work other than those related to the 25 January Absence.
8 February Absence
Mr Szkwarek’s evidence is that on 8 February 2022 he was rostered to start work at 7.00 am. He says that his partner’s car wouldn’t start[46] and following contacting his uncle for assistance arrived at work just before 9.00 am.[47] He say that he sent a text message to his Team Leader, Mr Brookes, before his rostered start time letting him know that he was having car troubles and would be late for his shift.[48] He says he sent a text to Mr Brookes at 6.53 am, and left a voicemail for Mr Payne at 7.52 am.[49] He says he also tried calling Mr Iacovou, first at 7.13 am,[50] but did not speak to him until around 8 am.[51] He says he spoke to him for one minute and 40 seconds at 8.02 am and that he called Mr Brookes and Mr Payne at 9.13 am.[52] His evidence was that he stayed back late to make up the time.[53] Under cross examination Mr Szkwarek agreed that he arrived at work at 9.12am on 8 February 2022. He agreed that he knew he was meant to call Mr Iacovou if he was going to be late[54] and that he did not call Mr Iacovou until after his shift had started.[55] He agreed that Mr Iacocou had called him at 7.33 am and 7.41 am[56] and that he had not answered either call, saying “I missed those calls.”[57] He also agreed that he left work at 5.08 pm that day, 8 minutes after his scheduled rostered finished time.[58] He did not concede that in those circumstances his evidence that he stayed back to make up time for his late start was incorrect.[59] In his witnesses statement Mr Szkwarek says that when he got to work he spoke to Mr Brookes and told him about his car troubles, that his partner’s parents had moved and he usually got a ride to work with his partner’s father and that it was hard to sort out emergencies with a 10 month old baby. He says he asked for some understanding while he sorted things out and Mr Brookes agreed. [60]
Mr Iacovou’s evidence is that on 8 February 2022 Mr Szkwarek was approximately two hours late for work. He says that Mr Szkwarek failed to contact him or Mr Payne to advise them that he would be late. His evidence is that Mr Payne tried to call Mr Szkwarek numerous times however Mr Szkwarek did not answer. He says Mr Szkwarek eventually retuned Mr Payne’s calls some time after his shift was meant to commence.[61] His further evidence was that he called Mr Szkwarek numerous times and he did not answer. He finally spoke to him “a couple of hours” after his initial call to Mr Szkwarek.[62] His evidence was that in that telephone conversation he asked why Mr Szkwarek had not picked up his calls or returned his calls to say he would be late. He says he told Mr Szkwarek that they had previously discussed issues around his attendance at work.[63] He says Mr Brookes’ informed him that Mr Szkwarek did not telephone him that morning[64] and relies upon a purported screenshot of Mr Brooke’s telephone.
I generally prefer the evidence of Mr Szkwarek as to the events of 8 February 2022. Firstly, Mr Iacovou’s evidence as to what Mr Payne and Mr Szkwarek told him is hearsay evidence and as such, in the present circumstances, ought, in my view, be given little weight. Secondly, the Respondent could have, but did not, call Mr Brookes or Mr Payne. Thirdly, I do not consider the screenshot relied upon by Mr Iacovou to be of any probative value. There is no evidence as to how it was produced or its veracity and it does not appear to be in the usual form of text message displays. Fourthly, telephone data and evidence filed by Mr Szkwarek are consistent with his evidence as to when telephone calls and texts were made by him. However, Mr Szkwarek gave no evidence as to the contents of his conversation with Mr Iacovou that morning and I therefore accept Mr Iacovou’s evidence as to that conversation. I find, though, that it occurred at 8.02 am rather than a “couple of hours” after Ms Iacovou’s initial call to Mr Szkwarek.
Accordingly, I find that Szkwarek was two hours and 12 minutes late for work on 8 February 2002. Whilst I find that he sent a text to Mr Brookes prior to the start of his shift, I find he did not contact Mr Iacovou or Mr Payne to advise them that he was going to be late for work. On the basis of his own evidence he knew that he was meant to contact Mr Iacovou; not Mr Brookes. Given all the circumstances, I also find it improbable that Mr Szkwarek missed the calls from Mr Iacovou at 7.33 am and 7.41 am. I consider it more likely that Mr Szkwarek chose not to answer those calls. I find that in the conversation with Mr Szkwarek at 8.02 am, Mr Iacovou, amongst other things said that issues around Mr Szkwarek’s attendance at work had previously been raised with him. I accept that Mr Szkwarek had a conversation with Mr Brookes upon his arrival to work. However, I also find that Mr Szkwarek knew that either Mr Iacavou or Mr Payne were the appropriate persons to discuss these matters with and not Mr Brookes. I also find that Mr Szkwarek left work at 5.08 pm that day and therefore only worked an additional 8 minutes. I therefore find that he did not work late to “make up” for his late arrival to work that morning.
8 February Email
As set out earlier, Mr Iacovou provided the Warning Letter to Mr Szkwarek by email on 8 February 2022.[65] The email sent with the Warning Letter asked Mr Szkwarek to come in on Friday, 11 February 2022 to meet with Mr Iacovou to discuss his probationary period (Disciplinary Meeting).[66] Mr Szkwarek replied on 9 February 2022 asking that the meeting be as early as possible in the day, saying “I’m not exactly sure what time would be too early, but does somewhere around 8.30-9.00 am work for you?”[67] Mr Iacovou responded saying he had a busy day that day and asking if they could meet at 7.00 am.[68] Mr Szkwarek responded saying “yeah absolutely, im not sure why, but i was hesitant to propose 7 haha..Thanks, ill see you then.” [69]
During the hearing much was made by the Applicant of Mr Iacovou’s purported intention to extend Mr Szkwarek’s probationary period, the validity of such an intention and whether he had previously represented to Mr Szkwarek that he would not do so. For completeness, I briefly address this issue. Firstly, I consider it incontestable on the evidence before the Commission that Mr Szkwarek’s contractual probationary period had already expired by 2022[70] and that Mr Iacovou could not lawfully unilaterally extend it. Secondly, any such extension would have no effect under the Act, noting that the Act deals with minimum employment periods (which Mr Szkwarek had met) rather than probationary periods in any event. Thirdly, the evidence establishes that in January 2022 Mr Iacovou had told Mr Szkwarek that he would not extend his probationary period[71] and the correspondence on 8 February 2022 is, prima facie, inconsistent with that. As such, it is unclear what aspect of Mr Szkwarek’s probationary period Mr Iacovou could have discussed with him on 11 February 2022. Notwithstanding, I consider nothing of relevance turns on these matters, other than that I consider Mr Iacovou’s stated desire to extend and discuss Mr Szkwarek’s probationary period indicates some level of dissatisfaction with one or more aspects of Mr Szkwarek’s performance and/or conduct.
10 February absence
On 10 February 20022 Mr Szkwarek was rostered to start work at 5.00 am. Mr Szkwarek says he had “a series of issues that morning”, which ended with his partner refusing to drive him to work.[72] He says his partner eventually agreed to drive him to work later in the morning[73] and that he arrived at work at 6.49 am and was working by 6.55 am.[74] His evidence was that he did not call or message anyone to advise that he would be late for work, saying he had “a bit of a meltdown”. He says that he spoke to his workgroup leader upon his late arrival and stayed back until 6.00 pm to make up for his late start.[75] Under cross examination Mr Szkwarek agreed that this was the second time in a week that he had been late to work, that he had already received a written warning and that he knew his employment might be terminated.[76]
Mr Iacovou’s evidence was that on 10 February 2022 he received an email from Mr Payne. In that email Mr Payne says: [77]
“Hi Nick,
I have spoken to Laurie regarding Jay Szkwarek’s starting time this morning.
He was asked to start at 5:00 AM – unfortunately he didn’t get here until 6:50AM. “I received no phone calls”
His time keeping over the past few months has been all over the place – can you please have a chat with him because I’m not sure what’s going on in his home life at the moment, but his time keeping and sick days are off the dial.
Cheers Kevin”
Accordingly, it is uncontested that on 10 February 2022 Mr Szkwarek was almost two hours late for work and did not contact anyone to advise that he would be late for work and I so find. I also find that by 10 February 2022 Mr Szkwarek was aware that his employment was at risk of being terminated. Whilst I accept that Mr Szkwarek worked beyond his rostered finish time on 10 February 2022, I find that he did not work a corresponding number of additional hours at the end of the day to compensate for his late arrival. I also find that Opal, being the Respondent’s client, through Mr Payne expressed dissatisfaction to Mr Iacovou about Mr Szkwarek’s attendance.
Disciplinary absence
It is uncontested that Mr Szkwarek did not attend the Disciplinary Meeting.[78] His evidence was that his partner was upset about him having to go in on a non-working day and not getting paid, and would not drive him.[79] At 8.07 am Mr Szkwarek sent Mr Iacovou a text saying “hey nick sorry I should have been there an hour ago, if your still available this morning I can pop down there in the next 10-15 minutes”.[80] At 9.02 am he telephoned Mr Iacovou.[81] At 11.49 am he sent a further text to Mr Iacovou saying “hi nick I know you said you had a busy day today but if you could please give me a time to come and have a chat with you that would be really good, ive just had some family dramas going on lately with the misses making everything difficult, I do apologise for letting you down and not turning up this morning but i don’t want that to jeopardize my job opportunity with you guys.” [82] He says he attended Mr Iacovou’s office but was told that Mr Iacovou was busy and would probably be busy all day.[83] He says the meeting was moved to 14 February 2022 (Termination Meeting) and that Mr Iacovou did not respond to him until 5.00 pm that night.[84] Under cross examination he agreed that the time of Disciplinary Meeting was agreed with him and that he was asked what time of day would suit him.[85] He also agreed that he knew at that time that his employment was at risk.[86] He agreed that he did not text Mr Iacovou until an hour after the scheduled time for the Disciplinary Meeting.[87]
Accordingly, I find that Mr Szkwarek failed to attend the Disciplinary Meeting on 11 February 2022. I find that the time for that meeting was agreed to by Mr Szkwarek and was in part set by him, notwithstanding that Mr Szkwarek does not work on a Friday. I also find that Mr Szkwarek did not contact Mr Iacovou about his non-attendance until more than an hour after the meeting was to occur. I find that Mr Szkwarek knew that his employment was at risk.
Termination Meeting
Mr Szkwarek attended a meeting on 14 February 2022 with Mr Iacovou and Mr Fox. Mr Szkwarek’s evidence is that after greeting each other Mr Iacovou started the meeting by saying “I’ve got to let you go, you’ve been sacked” or words to that effect. His evidence was that Mr Iacovou said the reason for his dismissal was “because you were supposed to be here at 5 am, last week and didn’t call.”[88] Mr Szkwarek says he started to explain his situation to Mr Iacovou but was cut off by Mr Iacovou saying that “we can’t have a full-timer who isn’t reliable.” He said that Mr Iacovou also raised Mr Szkwarek’s lateness on 8 February 2022. He says Mr Iacovou said he would think about offering Mr Szkwarek casual work in the future.[89] Under cross examination Mr Szkwarek said he did not recall Mr Iacovou saying that he was already on a final warning,[90] and he denied that Mr Iacovou said that Mr Szkwarek had been told that if he failed to notify him of being late that would result in dismissal.[91] He agreed that Mr Iacovou told him he was aware that Mr Szkwarek had been late to work on 8 and 10 February 2022 and that he told Mr Iacovou that he was having trouble with his wife and that was the reason for his lateness. However, he said this occurred after Mr Iacovou told him he was dismissed. Under cross examination Mr Szkwarek said:
“Yes, and he said that to me in that meeting after the fact of (indistinct) that I was getting sacked, so – because the whole time that was happening I was sitting there thinking to myself, well – like I didn’t even get – I haven’t even got a chance to talk to you about any of it yet anyway. But he said, ‘I understand that you’ve been having problems with your wife and (indistinct) at that.’ This is – this is after he’s already told me that I’m getting laid off.”
Mr Iacovou’s written evidence is that he started the Termination Meeting by referring to Mr Szkwarek’s final warning and then told Mr Szkwarek that he was aware that he had been late for work on 8 February 2022 and 10 February 2022. He says he then said that he had told Mr Szkwarek that if he engaged in this conduct and did not notify Mr Iacovou that his employment would be terminated. He then asked Mr Szkwarek if he had any response to those matters.[92] Once again, I consider that Mr Iacovou’s written evidence to be unlikely to reflect the language used by him and prefer this oral evidence under cross examination. Under cross examination Mr Iacovou said the first thing he spoke to Mr Szkwarek about at the Termination Meeting was not attending the Disciplinary Meeting. He said he then asked Mr Szkwarek why he was late for work on 8 and 10 February 2022 when he had said that it wouldn’t happen again. He says Mr Szkwarek said he had issues with his wife. He maintained that he spoke with Mr Szkwarek prior to advising him that his employment was terminated.[93] He said that Mr Szkwarek told him that he was not expecting to be terminated. He denied using the word ‘sacked’ saying “I would never use that word, you’re sacked”.[94] In re-examination he said that he also told Mr Szkwarek he might be able to undertake work as a casual employee in the future.[95]
Mr Fox’s written evidence was that in the Termination Meeting Mr Iacovou reiterated that Mr Szkwarek had been issued with a final warning and had then been late for work on two occasions without notifying Mr Iacovou. He says Mr Iacovou told Mr Szkwarek that he had been told previously that if he were late again without notifying Mr Iacovou this may result in the termination of his employment. He says when asked for an explanation Mr Szkwarek said words to the effect of “I’m having issues with my wife.” He says that he did not provide any further explanation nor provide any basis for why he had not attended the Disciplinary Meeting. He says that Mr Iacovou said words to the effect of “in light of your ongoing conduct, you have left me with no choice but to terminate your employment.”[96] Under cross examination Mr Fox said that his recollection of the meeting “is not that great”. He said there was a “good conversation” with Mr Szkwarek and that Mr Szkwarek could not explain why he had been late for work.[97]
On 15 February 2022 Mr Szkwarek was provided with the Termination Letter.
As to the content of the Termination Meeting, I prefer the evidence of Mr Iacovou. Firstly, in giving evidence Mr Iacovou was loquacious. As such, I consider it most unlikely that the conversation with Mr Szkwarek was as direct and to the point as Mr Szkwarek says or that it unfolded in the abrupt way in which Mr Szkwarek contends. Secondly, given the most recent relevant event was Mr Szkwarek’s failure to attend the Disciplinary Meeting I find it more likely than not that this would have been the matter Mr Iacovou first raised with Mr Szkwarek. Thirdly, Mr Iacovou’s evidence is generally consistent with that of Mr Fox. Fourthly, under cross examination Mr Szkwarek agreed that Mr Iacovou raised a number of other matters in the meeting in addition to those included in his evidence.
I therefore reject Mr Szkwarek’s evidence that Mr Iacovou started the Termination Meeting by informing Mr Szkwarek that his employment was terminated and that he was not asked or given an opportunity to explain his lateness on 8 or 10 February 2022 and his non-attendance at the Disciplinary Meeting. I find that Mr Szkwarek’s explanation for these matters was that he was having “issues” with his partner. Accordingly, I also find that Mr Szkwarek’s lateness on 8 or 10 February 2022, non-attendance at the Disciplinary Meeting and his failure to properly notify of those absences were the reasons Mr Iacovou gave Mr Szkwarek for his dismissal at the Termination Meeting.
Consideration
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[98]
I set out my consideration of each below.
Was there a valid reason for Szkwarek’s dismissal related to his capacity or conduct? – Section 387(a)
The principles that are relevant to the consideration of whether there was a valid reason for the dismissal related to the employee’s capacity or conduct are well established. A valid reason is one that is “sound, defensible or well founded”[99] and should not be “capricious, fanciful, spiteful or prejudiced.”[100]
The Commission does not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[101] The question the Commission must address is whether there is a valid reason, in the sense both that it was a good reason and a substantiated reason.
The Act requires consideration of whether there was “a” valid reason for dismissal. Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated. [102] It is also well established that a valid reason need not necessarily be the one relied upon by the employer.[103]
Applicant’s submissions
The Applicant submits that there is no valid reason for his dismissal.[104] He submits that the reason in the Termination Letter is wider than the reasons given in the Termination Meeting[105] and that there was no “contemporary performance issue that dismissal was a justifiable and defensible response to, especially when the Applicant’s circumstances and mitigating factors are considered.”[106] Further, the Applicant submits that if it is found that any of his actions were inappropriate, then the appropriate outcome was a warning or lessor disciplinary outcome.[107]
Respondent’s submissions
The Respondent submits that the Applicant was dismissed because he repeatedly arrived late to, and left early from, work[108] and failed to give the Respondent appropriate notice.[109] In its written submissions the Respondent said that since November 2021 the Applicant had engaged in this conduct on eight occasions[110] however at hearing the Respondent submitted that the salient matters were those following 25 January 2022.[111] The Respondent also submits that Mr Szkwarek’s conduct constituted a failure to comply with his obligations under the Respondent’s Policy Manual and a failure to comply with a reasonable and lawful direction.[112]
Consideration
The Termination Letter provides that the reason for Mr Szkwarek’s dismissal was “continued poor time keeping”. I reject the Applicant’s submission that the reason in the Termination Letter is wider than the reasons given to Mr Szkwarek in the Termination Meeting. I have previously found that in the Termination Meeting Mr Iacovou raised with Mr Szkwarek’s his lateness for work on 8 and 10 February 2022, his failure to attend the Disciplinary Meeting and his failure to notify Mr Iacovou and Mr Payne if he was going to be late. I accept that the use of the phrase “continued poor time keeping” lacks precision however in the present circumstances I consider it is tolerably clear that what is being referred to is, at least, Mr Szkwarek’s lateness for work. Further, Mr Iacovou evidence under cross examination was that ‘time keeping’ referred to Mr Szkwarek’s’ “coming to work late, not going the right time. All those issues.”[113]
It is uncontested that Mr Szkwarek was approximately two hours late for work on 8 February and 10 February 2022 and that he failed to attend the Disciplinary Meeting. Further, on his own evidence he knew he was to contact Mr Iacovou and Mr Payne if he was going to be late for work. Notwithstanding that, he contacted Mr Brookes on 8 February 2022, did not contact anyone on 10 February 2022 and contacted Mr Iacovou one hour and 7 minutes after the Disciplinary Meeting was to be held on 11 February 2022. These instances occurred following the 2 February Meeting, at which Mr Szkwarek’s lateness for work on other occasions was raised with him, he had been expressly instructed to notify Mr Iacovou and Mr Payne if he was going to be late for work and he had been told that Mr Iacovou was considering terminating his employment. Mr Szkwarek knew it was important that he attended work on time.[114] Further, on 3 February 2022 Mr Szkwarek had been issued with a final written warning, following leaving work early on 25 January 2022. Having regard to all of the circumstances, I consider that Mr Szkwarek’s lateness for work on 8 and 10 February 2022, failure to attend the Disciplinary Meeting on 11 February 2022 and failure to notify Mr Iacovou or Mr Payne that he would be late on each of those occasions constitutes a valid reason for his dismissal. For that reason, I do not consider it necessary that I determine the Contested Matters or the Other Matters.
I reject the Respondent’s submission that Mr Szkwarek also breached the Policy Manual and that that provides a further valid reason for his dismissal. Whilst I accept that in his email of 10 February 2022 Mr Payne expresses dissatisfaction with Mr Szkwarek’s time keeping and makes reference to his lateness and failure to notify, I do not consider that there is any evidence before the Commission that this “jeopardised the relationship” with Opal as submitted by the Respondent or that any specific provision of the Policy Manual has been breached.[115] Further, I note that the section of the Policy Manual relied upon by the Respondent is the summary section included at the commencement of Policy Manual, rather than any substantive provision of the Policy Manual.
In my view matters going to the Applicant’s circumstances and mitigating factors are matters for consideration under section 387(h). I also consider the question of whether a lesser disciplinary outcome was more appropriate is a matter to be considered under 387(h). Accordingly, I address these matters later in this decision.
I address whether the Applicant’s lateness, failure to notify and failure to attend the Disciplinary Meeting are matters of performance or conduct under section 387(e).
Was Szkwarek notified of the valid reason? – Section 387(b)
Section 387(b) requires the Commission to take into account whether an employee has been notified of the reasons for dismissal. Notification of a valid reason for termination must be given before the decision is made to terminate the employee’s employment,[116] and in explicit[117] and plain and clear terms.[118] In Crozier v Palazzo Corporation Pty Ltd(t/as Noble Park Storage and Transport)[119] a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:
“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. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”[120]
Applicant’s submissions
The Applicant submits that no reasons were provided to him prior to his dismissal.[121] Further, he submits that the Respondent has relied upon reasons which are not provided in plain, clear and explicit terms prior to the decision to dismiss.[122] Finally the Applicant submits that the wording of the Termination Letter supports a determination that “the Applicant would be dismissed occurred during the dismissal meeting.”[123]
Respondent’s submissions
The Respondent submits that the Applicant was notified of the reasons for his dismissal in the Termination Meeting and those reasons were confirmed in the Termination Letter.
Consideration
I have earlier found that the Termination Meeting was not conducted in the manner asserted by Mr Szkwarek and that his lateness on 8 and 10 February 2022, his failure to attend the Disciplinary Meeting and his failure to notify Mr Iacovou of his lateness were raised with him in that meeting. I have also found that this occurred prior to Mr Szkwarek being told that his employment was terminated. Accordingly, I reject the Applicant’s submissions on this point and find that Mr Szkwarek was notified of the reasons for his dismissal. Whilst I accept that the Termination Letter could have been more precisely expressed, as set out above, I consider it tolerably clear that the reference in the letter to “continued poor time keeping” adequately reflects the matters raised with Mr Szkwarek in the Termination Meeting. Accordingly, I consider that Mr Szkwarek was notified of the reasons for his dismissal.
As to the submission of the Applicant regarding the wording of the Termination Letter, I consider this submission to be misconceived. It is uncontested that Mr Szkwarek’s employment was terminated in the Termination Meeting. The Termination Letter is confirmation of that which occurred on 14 February 2022.
Was Szkwarek given an opportunity to respond to any valid reason related to his capacity or conduct? - Section 387(c)
Section 387(c) requires the Commission to take into account whether an employee was provided an opportunity to respond to any reason for their dismissal relating to their conduct or performance. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[124]
The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[125] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[126]
In Wadey v YMCA Canberra[127] Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:
“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”
Applicant’s submissions
The Applicant submits that the Respondent failed to provide him with a genuine opportunity to respond and present a case and to defend his job. [128]
Respondent’s submissions
The Respondent submits that Mr Szkwarek was put on notice on 2 February 2022 that further lateness without notification would result in dismissal.[129] It submits that the Final Warning stated that “any further violation of OMEGA/Opal Australian Paper company policy/failure to change your behaviour/perform in accordance with our standards and policies will result in immediate dismissal without further warning.” Finally, it submits that the Applicant was provided with an opportunity to respond in the Termination Meeting.
Consideration
I have found that the reasons for dismissal were raised with Mr Szkwarek in the Termination Meeting. His explanation was that he was having “issues” with his partner. Accordingly, Mr Szkwarek was given an opportunity to respond and did so.
I address the Respondent’s submissions regarding the 2 February Meeting and the Final Warning below.
Did Omega unreasonably refuse to allow Szkwarek to have a support person present to assist at discussions relating to the dismissal? - Section 387(d)
Section 387(d) requires the Commission to take into account whether there was an unreasonable refusal by the employer to allow an employee to have a support person present to assist in discussions relating to dismissal.
Mr Szkwarek does not contend that he was denied a support person. Accordingly, this consideration is not presently relevant.
Was Szkwarek warned about unsatisfactory performance before the dismissal - Section 387(e)
If a dismissal relates to unsatisfactory performance, section 387(e) requires the Commission to consider whether the employee has been warned about the unsatisfactory performance prior to dismissal.
Applicant’s submissions
Mr Szkwarek submits that his lateness is a matter of performance. He submits that he was required to be warned. The Applicant further submits that there were no pre-existing warnings for being late or for “timekeeping”.[130] Further, he submits that there was no repeat of the performance issues that the Applicant was provided warnings for.[131]
Respondent’s submissions
The Respondent submits that Mr Szkwarek’s lateness and failure to notify the Respondent are not matters of unsatisfactory performance; rather they are matters of conduct.[132] However, the Respondent submits that in any event Mr Szkwarek was warned, including on 2 February 2022.
Consideration
I consider that Mr Szkwarek’s lateness, failure to notify and failure to attend the Disciplinary Meeting are matters of conduct rather than performance. I do not consider they go to the level to which Mr Szkwarek renders performance,[133] such as to properly be considered matters of unsatisfactory performance. Rather, I consider they go to Mr Szkwarek’s behaviours and as such are matters of conduct. Accordingly, I do not consider whether Mr Szkwarek was warned to be a relevant matter. However, should I be wrong, I consider that Mr Szkwarek was, in fact, warned. I have previously found that at the 2 February Meeting Mr Szkwarek’s lateness for work, as well as his leaving work early without approval on 25 January 2022 were raised with him by Mr Iacovou and that he was told that Mr Iacovou was considering terminating his employment. I have found that Mr Szkwarek was told he was to contact Mr Iacovou if he was going to be late for work. In addition, I have also found that the references in the Warning Letter to “Any further violation of OMEGA / Opal Australian Paper company policy / failure to change your behaviour / perform in accordance with our standards and policies” reflect the fact that other issues were raised with Mr Szkwarek at the 2 February Meeting and Mr Iacovou had concerns regarding Mr Szkwarek’s attendance and behaviours at work, other than those related to the 25 January Absence. Accordingly, the relevant aspects of Mr Szkwarek’s conduct which were of concern were identified to him and it was made clear that his employment may be terminated.
Further, Mr Szkwarek conceded that he knew his employment was at risk[134] and that he knew it was important that he attend work on time.[135] That this is so is further evidenced in my view by Mr Szkwarek asking for one further chance[136] at the 2 February Meeting and by the content of Mr Szkwarek’s text to Mr Iacovou on 11 February 2022 after failing to attend the Disciplinary Meeting in which he said “ …i do apologise for letting you down and not turning up on time this morning and i don’t want that to jeopardize my job opportunity with you guys.”[137] I therefore reject the Applicant’s evidence[138] and submission[139] that if he had been warned that any further lateness would lead to his dismissal, he would have put in place measures to make sure that he was not late again.
To what degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resource management specialists or expertise in Omega’s enterprise would be likely to impact on the procedures followed in effecting the dismissal? - Section 387(f) and (g)
Section 387(f) and (g) requires the Commission to take into account the degree to which the size of the employer’s enterprise and the absence of dedicated human resources management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.
Applicant submissions
The Applicant submits that the significant procedural fairness issues with the dismissal process demonstrate that Mr Szkwarek was denied a fair go.[140]
Respondent submissions
The Respondent submits that it is a relatively small business with no dedicated human resources specialist and that this ought be taken into account.
Consideration
As is apparent from the above matters, I reject the Applicant’s submissions regarding procedural deficiencies. I accept that the Respondent is a relatively small business without dedicated human resources expertise. However, Mr Iacovou’s evidence was that he sought human resources assistance in effecting Mr Szkwarek’s dismissal.[141] Accordingly, I consider this to be a neutral consideration.
What other matters are relevant? - Section 387(h)
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it considers relevant.
It is well accepted that a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for the dismissal. In B v Australian Postal Corporation[142] the Full Bench stated that:
“That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be ‘relevant matters’ that do not bear upon whether there was a ‘valid reason’ for the dismissal but do bear upon whether the dismissal was ‘harsh, unjust or unreasonable.”[143]
The proportionality of the dismissal to the conduct that is the subject of the valid reason is a matter to be considered in connection with section 387(h). The Applicant submits that dismissal was a disproportionate response.[144] He submits that a lessor disciplinary outcome was appropriate.[145] I reject that submission. Mr Szkwarek had a final warning in place, had been instructed as to what was required of him in the 2 February Meeting and warned that his employment was at risk. Under cross examination Mr Szkwarek agreed that he knew in January 2022 that it was important he attended work on time,[146] he knew he was to notify Mr Iacovou if he was going to be late[147] and he knew that his employment was at risk.[148] Notwithstanding that, he was approximately two hours late for work on 8 and 10 February 2022, did not attend the Disciplinary Meeting, did not notify Mr Iacovou of his lateness on 8 or 10 February 2002 (indeed he did not notify anyone on 10 February 2022) and did not contact Mr Iacovou until 8.07 am on 11 February 2022. I those circumstances I consider dismissal was a proportional response.
The Applicant also submits that the dismissal has had a number of significant negative impacts on the Applicant’s personal and economic situation.[149] Mr Szkwarek says that he has used all of his savings and is having trouble paying bills. He says he is struggling to make ends meet and that this is especially difficult with a new baby.[150] I accept that submission and evidence. I have no doubt that Mr Szkwarek’s dismissal has had a significant negative effect on his economic and personal circumstances. However, I do not consider that Mr Szkwarek’s personal and economic situation weighs so heavily as to render the dismissal harsh, unjust or unreasonable.
At hearing, the Applicant appeared to submit that Mr Szkwarek’s lateness for work and failure to attend the Disciplinary Meeting was somehow inadvertent. Mr Szkwarek’s evidence was that his lateness for work on 8 February 2022 and 10 February 2022 “were out of [his] control” and not because he did not care about his job. [151] Mr Szkwarek’s evidence is that he and his partner “were both stressed out at the time” and sleep deprived.[152] He says this was made worse, especially on 10 February 2022, by the need for his partner to get their baby up to drive him to work. I accept that Mr Szkwarek was stressed and that having a baby creates additional stressor in a relationship. However, these are matters that all working parents have to navigate. I also accept that it is undesirable to have to get a small baby up at such an early hour. I also accept that Mr Szkwarek’s partner’s car not starting on 8 February 2022 may indeed have been something out of his control. However, Mr Szkwarek was employed to work at the times rostered. In my view, it was his responsibility to ensure that he had arrangements in place to attend work on time as rostered. Further, I note that Mr Szkwarek’s inability to drive himself to work was as a consequence of his own conduct. Finally, even if the above factors mitigate Mr Szkwarek’s conduct, which I do not consider they do, I am unable to see how they in any way precluded Mr Szkwarek from properly notifying Mr Iacovou that he would be late for work on 8 and 10 February 2022 or that he would be late attending the Disciplinary Meeting.
I have taken into account that Mr Szkwarek has been issued with the Warning Letter on 8 February 2022. Whilst the specific incident which gave rise to the Final Warning was Mr Szkwarek leaving work without approval before his rostered finish time on 25 January 2022, I have earlier addressed the scope of the warning and the matters addressed at the 2 February Meeting. Further, whilst Mr Szkwarek submitted that leaving early and arriving late for work “can’t be bundle into one”[153] in my view they both go to a failure to perform duties at the time rostered. I consider they are both matters of attendance or “time keeping”.
I have also taken into account that in arranging the Disciplinary Meeting Mr Iacovou’s email of 9 February 2022 said that the purpose of the meeting was to discuss Mr Szkwarek’s probationary period. As set out earlier in this decision at paragraph [42], the evidence before the Commission establishes that Mr Szkwarek’s contractual probationary period expired in December 2021 and that Mr Iacovou confirmed to Mr Szkwarek in writing on 21 January 2022 that he no longer intended to extend his probationary period (leaving aside whether such an extension is permissible). I consider that the evidence before the Commission establishes that Mr Iacovou has a somewhat confused understanding at to probationary employment and its consequences. I consider this unhelpful and, in the ordinary course, to potentially give rise to some degree of unfairness to Mr Szkwarek. However, as already set out, Mr Szkwarek’s evidence was that he knew his employment was at risk[154] and he knew it was important to attend for work on time.[155] He knew that he was to contact Mr Iacovou is he was going to be late. Further, I consider his text to Mr Iacovou on 11 February 2022 demonstrates that he was aware that the meeting was to discuss the continuation of his employment. In those circumstances, notwithstanding the asserted purpose of the meeting in the email of 9 February 2022 I do not consider any unfairness arises.
Conclusion
I have made findings in relation to each matter specified in section 387 as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[156]
Having considered each of the matters specified in section 387 of the Act, taking into account all of the evidence and based on my factual findings, I am satisfied that the dismissal of Mr Szkwarek was not harsh, unjust or unreasonable.
Disposition
Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Szkwarek was unfairly dismissed within the meaning of section 385 of the Act. The application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
N Dircks of Just Relations for the Applicant.
A Crocker of counsel for the Respondent
Hearing details:
2022
Melbourne
21 June 2022
Final written submissions:
Applicant: 21 June 2022
Respondent: 24 June 2022
[1] Exhibit R2 at [6]
[2] Transcript PN 149
[3] Exhibit A1 at [11]-[13]
[4] Exhibit R2 at [9], NI-14
[5] JS-5, NI-10
[6] Exhibit A at [15]
[7] Ibid at [16]
[8] Ibid at [17]
[9] Ibid
[10] Exhibit R1 at [22]
[11] Transcript PN 1220
[12] Exhibit A1 at [47]
[13] Ibid at [49]
[14] Ibid at [51]
[15] Transcript PN 450 - 453
[16] Ibid 288, PN 289
[17] Exhibit A1 at [54], Exhibit R1 at [31]
[18] Exhibit R1 at [31]
[19] Ibid at [32]; Transcript PN 989
[20] NI-7
[21] Transcript PN 971 -981
[22] Ibid 981
[23] Ibid 976
[24] Ibid t 989
[25] Exhibit A1 at [56]
[26] Ibid at [57]
[27] Ibid at [58]
[28] Transcript PN 415
[29] Ibid 426
[30] Ibid 427
[31] Ibid 428
[32] Ibid 412 – 415, 429
[33] Ibid 296
[34] Ibid 298
[35] Ibid 299-300
[36] Ibid 304
[37] Ibid 305
[38] Ibid 306
[39] Exhibit R3 at [5]
[40] Transcript PN 1186
[41] Ibid 1190
[42] Ibid 1194
[43] Exhibit R2, NI-7
[44] Exhibit A1 at [59], Transcript PN 449, Further materials filed by the Respondent 25 June 2022
[45] Transcript PN 468
[46] Exhibit A1 at [61]
[47] Ibid at [66]
[48] Ibid at [62]
[49] Exhibit A2 at [7]
[50] Exhibit A1 at [63]
[51] Ibid at [64]
[52] Exhibit A2 at [7]
[53] Exhibit A at [69]
[54] Transcript PN 324
[55] Ibid 325
[56] Ibid 329
[57] Ibid 330
[58] Ibid 336, 341
[59] Ibid 337-344
[60] Exhibit A1 at [67-68]
[61] Exhibit R1 at [37]
[62] Ibid at [38]
[63] Ibid
[64] Ibid
[65] NI-8
[66] Ibid
[67] Ibid
[68] Ibid
[69] Ibid
[70] See NI-2
[71] See JS-3
[72] Exhibit A1 at [74]
[73] Ibid at [75]
[74] Ibid at [76]
[75] Ibid at [77]
[76] Transcript PN 363
[77] Exhibit R2 at [18], NI-15
[78] Exhibit R1 at [41], Transcript PN 377
[79] Exhibit A1 at [79]
[80] Ibid at [80], Exhibit A2 at [8-9], NI-9
[81] Exhibit A2 at [8], JS-9
[82] Exhibit A2 at [8-9], JS-9, NI-9
[83] Exhibit A1 at [81], Transcript PN 384
[84] Transcript PN 384
[85] Ibid 376
[86] Ibid 378
[87] Ibid 380-382
[88] Exhibit A1 at [84]
[89] Ibid at [85]
[90] Transcript PN 387
[91] Ibid 389
[92] Exhibit R1 at [43]
[93] Transcript PN 1036
[94] Ibid 1051
[95] Ibid 1060
[96] Exhibit R3 at [8]
[97] Transcript PN 1200
[98] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69]
[99] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
[100] Ibid
[101] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685
[102] Hatwell and Another v Esso [2018] FWC 2398 at [76]
[103]Ibid
[104] Applicant’s Outline of Submissions at [9]
[105] Ibid at [11]
[106] Ibid at [25]
[107] Ibid at [29]
[108] Respondent’s Outline of Submissions at [1]
[109] Ibid at [25]
[110] Ibid at [2]
[111] Transcript PN 1220
[112] Respondent’s Outline of Submissions at [26]
[113] Transcript PN 907
[114] Ibid 282
[115] Ibid at [16]
[116] Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 151
[117] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)
[118] Ibid
[119] (2000) 98 IR 137
[120] Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 151
[121] Applicant’s Outline of Submissions at [34]
[122] Ibid at [36]
[123] Ibid at [35]
[124] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75]
[125] RMIT v Asher (2010) 194 IR 1, 14-15
[126] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7
[127] [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty Ltd[2010] FWA 8544
[128] Applicant’s Outline of Submissions at [41]
[129] Respondent’s Outline of Submissions at [29]
[130] Applicant’s Outline of Submissions at [46]
[131] Ibid at [47]
[132] Respondent’s Outline of Submissions at [33-35]
[133] See Annetta v Annset Australia Ltd (2000) 98 IR 233 at [16]
[134] Transcript PN 305
[135] Ibid 282
[136] Ibid 989
[137] NI-9
[138] Exhibit A3 at [24]
[139] Applicant’s Supplementary Submissions at [8]
[140] Applicant’s Outline of Submissions at [50]
[141] Transcript PN 1245
[142] (2013) 238 IR 1
[143] Ibid at [41]
[144] Applicant’s Outline of Submissions at [26-29]
[145] Ibid at [29]
[146] Transcript PN 282
[147] Ibid 299 - 300
[148] Ibid 305
[149] Applicant’s Outline of Submissions at [53]
[150] Exhibit A1 at [91]
[151] Exhibit A3 at [23]
[152] Ibid at [25]
[153] Transcript PN 916
[154] Ibid 305
[155] Ibid 282, 365
[156] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6–7]
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