John Cunningham v O.B George T/A Cakes and Ale

[2016] FWC 6373

[2016] FWC 6373

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Cunningham
v
O.B. George T/A Cakes and Ale
(U2016/5857)

VICE PRESIDENT WATSON MELBOURNE, 8 SEPTEMBER 2016

Application for relief from unfair dismissal - Whether termination of employment harsh, unjust or unreasonable – Whether valid reason for dismissal – Fair Work Act 2009, ss.387, 394.

[1] This decision is an amended version of a decision given on transcript on 30 August 2016 in relation to an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) by Mr John Cunningham arising from the termination of his employment with O.B. George trading as Cakes and Ale in March 2016.

[2] Section 394 of the Act sets out the approach to be taken in relation to unfair dismissal applications and, in particular, requires a question of whether a dismissal is harsh, unjust or unreasonable to be determined after taking into account a number of factors set out in s.387 of the Act. What I propose to do is consider the evidence in this matter and make findings of fact in relation to those criteria and ultimately make an assessment on the basis of that material and all relevant matters.

[3] The first question I am required to determine is whether there was a valid reason for the dismissal relating to Mr Cunningham's capacity or conduct.  The reason provided by the employer was non-attendance at work, in particular, on 18 March 2016.  This followed a history of absences on other days, including the previous day, and other attendance issues where Mr Cunningham was either late or did not attend as rostered.

[4] The evidence of Mr Guthrie and Mr Cunningham in relation to those events confirms, in my view, that Mr Cunningham did not attend and did not provide evidence of the reason for his non-attendance on the day in question.  It appears that in a telephone conversation on that day there was a heated exchange.  Mr Guthrie was insistent on the need to attend work, and Mr Cunningham felt that those representations were not called for and responded in, what Mr Guthrie describes as, an aggressive and abusive manner.

[5] Nevertheless the reason relied on by the employer was the attendance issues.  In a small business of this nature it is understandable that an employer would require reliability in relation to attendance matters and I consider that the reasons for the dismissal were valid reasons in the circumstances of this case.

[6] The next two factors are related, and that is whether Mr Cunningham was notified of the reason, and whether he was given an opportunity to respond to the reason relating to his capacity or conduct.  Being a relatively small business, not a small business as defined in the Act, but not significantly larger, the procedures for dealing with staff were necessarily informal.  Mr Guthrie gave evidence that attendance issues and lateness were the subject of counselling and warning through oral representations every time it occurred. Ultimately through the telephone conversation on Friday, 18 March, the seriousness of the unreliability issues was explained, and a requirement was given to provide evidence of the reason for non-attendance, or otherwise to accept that Mr Cunningham effectively did not wish to continue working with the employer.  I find, in the circumstances, although the means were informal, and were not in writing, that there was notification of the reason and also an opportunity to respond to the reason provided to Mr Cunningham.

[7] The next issue is whether there was any unreasonable refusal by the employer to allow the person to have a support person present to assist in any discussions relating to the dismissal.  There is no evidence of any request for a support person.  The discussions, as I have mentioned, were quite informal. Mr Cunningham relied on the presence of Ms Ellis to support him at various stages during the course of his employment. I do not find that there has been any unreasonable refusal to allow a support person to be present.

[8] The next factor is whether, insofar as the dismissal relates to unsatisfactory performance, Mr Cunningham has been warned about that unsatisfactory performance before the dismissal.  As I have already noted, the discussions and counselling about attendance matters were informal, but they nevertheless amounted to warnings about the need for reliability or advanced notice of an inability to attend, combined with production of proof of the reasons for non-attendance.  I consider that Mr Cunningham was warned about these matters, yet problems with his attendance and reliability continued.

[9] The next two factors are again related, and they are whether 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 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.  These matters are relevant and explain the informal processes undertaken by the employer.  The period of employment was not lengthy and was not a full-time position.  The number of hours worked varied from week to week, and were subject to a roster.  In one of the weeks in the lead up to the dismissal only approximately 11 hours were worked, and the week previous to that was approximately 27 hours.  The nature of the employment and the nature of the employer's enterprise are relevant to the consideration of these matters and I take those factors into account.

[10] In terms of any other relevant matters I note, in particular, the difficulties Mr Cunningham has.  He suffers from mental health issues.  He was open about those issues in commencing his employment, and open about the need for some flexibility in attending medical commitments arising from that medical condition.  And I also consider that it is relevant to consider the impact of the dismissal on Mr Cunningham.  It appears to me that the dismissal has had a somewhat traumatic effect on him, that he is experiencing considerable difficulties in managing his life and needs assistance, and the loss of his employment clearly has had a negative impact on his ability to manage those matters.  I take into account those factors in determining the outcome of this matter. In this context I consider whether dismissal was a proportionate response to the absence and attendance issues that arose.

[11] Taking into account all of those relevant circumstances, in my view, Mr Cunningham has not established that the dismissal was harsh, unjust or unreasonable. The employer was entitled to expect reliability and appeared quite sympathetic to Mr Cunningham’s problems until the impact on its business became too great. I find therefore that the essential basis for establishing a successful case has not been made out.  I find that the dismissal cannot be described as any of those descriptions. It follows that I dismiss the application.

VICE PRESIDENT

Appearances:

Mr Cunningham, J on his own behalf, with Ms Ellis, L.

Mr Guthrie, M on behalf of O.B George T/A Cakes and Ale.

Hearing details:

2016.

Melbourne.

30 August.

Final written submissions:

Mr Cunningham on 14 June 2016.

O.B. George T/A Cakes and Ale on 19 April 2016.

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