Joshua Anton James Karel Tonk v Doolan's Heavy Haulage Pty Ltd
[2025] FWC 105
•20 FEBRUARY 2025
| [2025] FWC 105 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joshua Anton James Karel Tonk
v
Doolan’s Heavy Haulage Pty Ltd
(U2024/4026)
| COMMISSIONER SCHNEIDER | PERTH, 20 FEBRUARY 2025 |
Application for an unfair dismissal remedy
On 8 April 2024, Mr Joshua Anton James Karel Tonk (the Applicant or Mr Tonk) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Doolan’s Heavy Haulage Pty Ltd (the Respondent or Doolan’s). Mr Tonk seeks compensation.
The Respondent initially objected to the application on the basis that it was filed out of time and that the Applicant’s dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC). For the reasons set out in my earlier decision,[1] I determined that Mr Tonk filed within the 21-day time period. Following the determination that the application was filed within time, Doolan’s confirmed that the SBFDC did not apply as initially thought.
As the matter was not resolved by conciliation, a Hearing was held on 13 September 2024 to determine the matter. Both Mr Tonk and Doolan’s were self-represented at the Hearing. Mr Tonk gave evidence on his own behalf, whilst Mr Mike Dunbar, State Manager (Mr Dunbar), Mr Jesse Cooper, Operations Manager WA (Mr Cooper), and Ms Sue Ellis, Administration Manager (Ms Ellis), gave evidence on behalf of the Respondent.
There is no dispute that Mr Tonk has been dismissed by the Respondent. Having reviewed the material, I have determined that the Mr Tonk was a person protected from unfair dismissal, and that the dismissal was not a case of genuine redundancy.
Background - Submissions and Evidence
Applicant
Mr Tonk provided a witness statement which summarizes the events leading up to his termination.
The Applicant notes that there had been issues with the truck he was assigned in early 2024 which required repair work. During this period, Mr Tonk had been in contact with both Mr Dunbar and Mr Cooper. Mr Tonk swapped trucks so that the repair work could be completed on his previously assigned truck.
In late February of 2024, Mr Tonk received a phone call from Mr Cooper in which the Applicant alleges Mr Cooper stated, “your truck is a fucking pigsty”. The Applicant states he explained to Mr Cooper that he had just returned from a trip up north and, as soon as he got back, the truck went into the workshop. The Applicant asserts that he had no time to clean the truck.
The Applicant submits that, on 5 March 2024, he and Mr Cooper had a disagreement regarding his timesheets and payroll.
The Applicant states that he had a phone call with Mr Cooper on 15 March 2024 at 2:30pm. The Applicant called Mr Cooper to see if he would be returning to his previous assigned truck as it was back in the yard.
The Applicant states Mr Cooper advised him that he would not be returning to his previous truck. The Applicant says he then told Mr Cooper about the issues with the current truck that needed to be fixed before the truck could go on another long run, citing safety concerns and regulation compliance.
The Applicant submits that, approximately 10 minutes after the above conversation, Mr Cooper called back to request the part numbers for the driver’s seat. The Applicant explained that he was driving and requested Mr Cooper get the pictures from the other truck that was in the workshop.
The Applicant later contacted Mr Dunbar and questioned why Mr Cooper was not communicating with him. The Applicant states that Mr Dunbar responded saying he was being unreasonable with his requests.
The Applicant states that, during the telephone conversation, he felt Mr Dunbar was getting angry. The Applicant advised Mr Dunbar that he would discuss the matter further, when he had returned to the yard as he was driving at the time.
The Applicant states that, when he returned to the yard, he went to Mr Dunbar’s office to discuss the problem. The Applicant states that Mr Dunbar proceeded to accuse the Applicant of being unreasonable and demanding in the way he requested repairs.
The Applicant submits that it is required by an employer to provide an employee with a safe working environment and equipment.
The Applicant states that Mr Dunbar accused him of being disrespectful towards Mr Cooper. The Applicant states that Mr Dunbar told him to “pack his shit up and fuck off”. The Applicant states that Mr Dunbar then stood up from his desk and raised his voice in a very aggressive and intimidating manner.
The Applicant states that Mr Cooper then approached him, and they had a private discussion. The Applicant states that he and Mr Cooper discussed the recent issues between them. The Applicant states that later, after meeting in private, Mr Cooper approached him in the yard and said words to the effect of him not feeling comfortable working with the Applicant anymore.
The Applicant submits that, on Monday 18 March 2024, he received formal notification that his employment had been terminated.
Mr Tonk submits the following in relation to his termination:
· He was not provided with the opportunity to respond to the reason for dismissal.
· He was not provided with a support person at any discussion relating to his dismissal.
· He was never provided with a warning about his conduct.
· His dismissal is unfair because he does not believe he had done anything that warrants the termination of his employment.
Respondent
Evidence – Jesse Cooper
Mr Cooper is employed as the Operations Manager for the Respondent. Mr Cooper states that he had daily interactions with the Applicant in performing his duties as Operations Manager.
Mr Cooper provided evidence regarding the history of issues with the Applicant. This includes an incident in January 2024, when the Respondent received feedback from two other drivers about the conduct of the Applicant. The allegations from the other drivers were that the Applicant had been abusive and directed another road user to undertake an unsafe overtaking maneuver.
Mr Cooper gave evidence that the Applicant’s conduct observed by the other drives had the ability to damage the reputation of the Respondent’s business.
Mr Cooper gave evidence that he and Mr Dunbar met with the Applicant, on 31 January 2024, following the feedback received from the Respondent’s drivers. Mr Cooper gave evidence that Mr Dunbar addressed the following concerns with the Applicant’s performance and conduct in general:
· Unacceptable conduct reported to the Respondent from the Applicant’s peers.
· The Applicant’s behavioral issues which had been observed by Mr Dunbar and Mr Cooper, including the Applicant failing to wear PPE in the yard as required, claiming hours that had not been worked, and the Applicant’s attitude towards management and his peers.
· That his conduct towards other staff was bordering on bullying and the Applicant needed to modify his behavior.
· The Applicant was told there needed to be a change and improvement in his behaviour.
Mr Cooper gave evidence that later, on 10 February 2024, he was advised by an employee of the Respondent that the Applicant was working in the yard when not rostered to work. Mr Cooper explains that there had been issues of the Applicant working overtime without prior approval or without the need to do so and then claiming payment for these hours.
Mr Cooper confirms that, on 27 February 2024, he had an interaction with the Applicant regarding the state in which his truck had been left when dropped off for repairs. Mr Cooper denies that he swore at the Applicant. Mr Cooper confirms that the Respondent paid for a professional detailer to clean the cab of the truck to the cost of $661.82.
Mr Cooper confirms that, on 4 March 2024, he had an interaction with Ms Ellis, the Respondent’s Administration Manager, concerning the Applicant’s timesheets claiming 15 hours of work without explanation.
Mr Cooper confirms that, on 5 March 2024, after reviewing security footage to determine when the Applicant was entering and exiting the yard, he spoke to the Applicant about the 15 hours claimed. Mr Cooper’s evidence is that the Applicant was aggressive in this interaction. Mr Cooper gave evidence that the Applicant could not provide a justification for the hours he had claimed and stated he had lost his dairy. Mr Cooper later emailed the Applicant and confirmed the hours that would be paid, stating that he should consider the email a written warning. Mr Cooper confirms that there was another interaction over the phone with the Applicant regarding the hours in which the Applicant was agitated and aggressive. Mr Cooper states that he subsequently received reports from other drivers who alleged the Applicant had been calling Mr Cooper a cunt behind his back following the interaction.
Mr Cooper confirms that, on 11 March 2024, the Applicant reported an issue with his truck whilst in Newman completing a job. Mr Cooper states he then arranged for the Applicant to take his truck to a contractor, on 12 March 2024, for repairs to be completed.
Mr Cooper did not receive any feedback from the Applicant in relation to the repair work completed on 12 March 2024 until 15 March 2024, when the Applicant called him to confirm that there were still issues with the truck. Mr Cooper gave evidence that the Applicant yelled at him during this phone call and so he terminated the call. Mr Cooper confirms he then spoke to Mr Dunbar who advised him that the Applicant had called to complain about him.
It was the evidence of Mr Cooper that he had discussions with other employees concerning the Applicant’s ongoing employment. Mr Cooper then formed the view that the Applicant could not or would not change his behavior in the workplace. Mr Cooper confirms that fellow employees (two operations staff) agreed the Applicant was having a negative impact on the workplace and that it was unfair to others for the Applicant’s conduct to continue.
Mr Cooper confirms that, following these discussions, he advised the Applicant he was terminated and needed to remove his personal belongings from the truck.
Mr Cooper confirms that, from the commencement of his employment with the Respondent, the Applicant always challenged him on almost every issue which arose in the workplace. Mr Cooper also gave evidence that the Applicant was constantly confronting in the way he approached issues that arose in the workplace.
Evidence – Mike Dunbar
Mr Dunbar provided evidence pertaining to his version of the events leading up to the Applicant’s dismissal, disagreeing with several assertions of the Applicant.
Mr Dunbar denies ever stating that the Applicant should “pack his shit up and fuck off”.
Mr Dunbar denies that the dismissal occurred during his conversation with the Applicant. Mr Dunbar echoes the evidence provided by Mr Cooper, stating that it was Mr Cooper who dismissed the Applicant.
After his conversation with the Applicant, Mr Dunbar states that he approached Mr Cooper and suggested he speak with Mr Tonk. Mr Dunbar then walked to another area of the workplace, remaining on site. Mr Dunbar saw the Applicant walk past sometime later, seemingly after the conversation with Mr Cooper.
Shortly thereafter, Mr Cooper informed Mr Dunbar that he had terminated the Applicant who was now collecting his belongings.
There is some disagreement regarding Mr Cooper’s authority to terminate the Applicant, which Mr Dunbar asserts is unfounded and that Mr Cooper does hold the relevant authority. Mr Dunbar strongly believes that the Applicant understood he was dismissed following the discussion with Mr Cooper.
Mr Dunbar questions the Applicant’s reliability and honesty in general and provides examples of such behavior during the proceedings before the Commission.
Evidence – Sue Ellis
Ms Ellis is the Administration Manager of the Respondent. Ms Ellis confirms that the pay period finishes on a Sunday and that she then reconciles timesheets on Monday mornings to ensure payroll is processed on Tuesdays.
Ms Ellis states that, on 16 October 2023, she noticed some discrepancies in the hours claimed on the Applicant’s timesheet. Ms Ellis states that, when she called the Applicant to speak to him about his timesheet, the Applicant was aggressive and, as a result, she was uncomfortable speaking to him.
Ms Ellis confirms that she received a text message from the Applicant stating, “just wanted to say sorry, wasn’t having a go at you”.
Ms Ellis notes that she had to closely monitor the Applicant’s timesheets as there was an ongoing issue with him attempting to claim hours for work not performed or unauthorized work being conducted, such as cleaning a trailer on a Sunday afternoon.
Ms Ellis states that she felt uncomfortable interacting with the Applicant.
Legislation
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.[2]
I set out my consideration of each below.
Consideration of criteria
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[3] and should not be “capricious, fanciful, spiteful or prejudiced.”[4] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[5]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[6] The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct.[7] The Commission must make a finding as to whether the conduct occurred based on the evidence before it.[8]
A single foolish, dishonest act may not always, in the circumstances of a particular case, justify summary dismissal.[9] In the circumstances where the conduct involves serious misconduct, the principle established in Briginshaw[10] holds relevance. Following the Briginshaw standard of proof,[11] the Commission must be satisfied on the balance of probabilities that the misconduct occurred. Serious misconduct is defined in the Fair Work Regulations 2009 (Cth) as follows:[12]
“1.07 Meaning of serious misconduct
(1) For the purposes of the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
Examples of serious misconduct—employees
(2) For the purposes of subregulation (1), conduct that is serious misconduct includes the following conduct of an employee:
(a) wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business;
(c) engaging in theft, fraud, assault or sexual harassment in the course of the employee’s employment;
(d) being intoxicated at work;
(e) refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(3) Paragraphs (2)(c) to (e) do not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.”
The Respondent submits that the Applicant was dismissed for serious misconduct. The termination letter provided to the Applicant states, in part, the following:
“As discussed during that meeting, it was considered that your conduct in your interaction with Jesse:
· Was wilful or deliberate disrespectful behaviour by you, that is inconsistent with the continuation of your contract of employment.
We consider that your actions constitute serious misconduct warranting summary dismissal.”
Mr Tonk denies any allegations of unsatisfactory behavior or misconduct and submits that he was never provided with a warning concerning such issues.
The Respondent highlights a myriad of alleged conduct issues from the Applicant that arose during his employment. A summary of the alleged issues which culminated in the end of the employment follows.
Personal protection equipment (PPE) failures
The Respondent submits that the Applicant was warned on more than one occasion about not wearing the correct PPE when required.
Mr Dunbar and Mr Cooper both provided evidence to the Commission regarding the Applicant’s failure in this regard.
The Applicant does agree that he was counselled regarding him wearing a singlet and open toed shoes in the workshop by the Respondent.
Forklift ticket validity
Mr Dunbar noted that, upon commencing his role at the Respondent, he became aware of issues in the validity of forklift qualifications in the workplace.
The Applicant did not have a valid forklift ticket in Australia, stating that he held the relevant qualification in New Zealand, had over two decades of experience operating forklifts, and was initially unaware that his qualification did not carry over to Australia.
Mr Dunbar doubts the Applicant’s assertion regarding his unawareness of the validity of the qualification, but did concede that the issue was not brought to attention until after Mr Dunbar’s employment commenced. Mr Dunbar agreed with the Applicant that if he was alone in the workshop and unable to use the forklift, he could not have done his job to completion. Mr Dunbar also agreed with the Applicant that he was never directed to not use the forklift, although noted that the Applicant was on leave around the time the issue was first raised and was terminated shortly after so this was not a practicality.
Timesheet discrepancies
Mr Cooper and Ms Ellis both provided substantial evidence regarding this issue. The Respondent submits that the Applicant would regularly claim time worked without prior authorization, time worked out of hours with no apparent need for such, and time worked when it appeared the Applicant had not completed such hours.
Mr Cooper and another employee undertook a review of the workplace’s surveillance on one occasion, confirming that the Applicant had not worked the hours claimed. The Applicant asserts that he had lost his diary and temporarily had issues with timekeeping on the occasion in question.
Mr Cooper also provided evidence about one of the times the Applicant attended work on the weekend without prior approval. Mr Cooper received communication from other employees present in the workplace stating that the Applicant was seemingly there with no purpose, getting in the way, or trying to pick up tasks from others. Mr Cooper communicated with the Applicant regarding this, and the Applicant asserts that he was present to undertake cleaning on a vehicle and rejects the claims of his colleagues.
Cleanliness of truck
The Respondent cites an incident where the Applicant handed his truck over to the workshop for repairs in an apparently very poor condition. It is seemingly not disputed by the Applicant that his truck was in poor condition during this incident.
The truck was described as extremely unclean, with a foul smell and rotten onions rolling around in the cabin. Mr Dunbar stated that it was one of the worst he had seen in his experience.
The Applicant asserts that the reason this occurred was due to a mechanical fault in part or because he was under the belief that the truck would be returned to him before the perishables had gone bad.
The Respondent, upon reviewing the state of cabin, booked for the truck to be professionally detailed which incurred a cost of $681.82. The Applicant also notes that he cleaned out the truck, after the workshop employees had done their repairs and before the detailers had arrived.
Mr Cooper did not review the truck after the Applicant’s clean and before the detailers had worked on it. Mr Cooper insisted that, regardless, it was not appropriate for the Applicant to be cleaning at such time and that it should have never been handed over to the workshop in that state. The Applicant disagrees, asserting that he had a short time frame to hand over the truck after returning from a large job. Mr Cooper maintains that regardless of time constraints, some short amount of time should have been spent to clean out loose items and perishables.
There is some dispute over whether Mr Cooper called the Applicant and stated, “your truck is a fucking pigsty”, but Mr Cooper does agree he called him saying that the truck was a pigsty.
Communication and behavioral issues
In this matter, the Applicant’s alleged communication and behavioral issues appear to be the primary problem at issue and overlap with the other issues noted above.
In response to being approached about the above issues, and on other occasions, the Respondent submits that the Applicant was often belligerent, abusive, aggressive, or otherwise exhibited unacceptable behavior for the workplace.
One at least one occasion, when approached regarding his lack of PPE, the Respondent states that Mr Tonk was “less than courteous in his response”. The Applicant is of the opinion that he had the necessary PPE in his truck and would have equipped himself when necessary. The Respondent submits that the Applicant was already in the workshop and therefore should have been dressed appropriately.
Ms Ellis provided evidence of her interaction with the Applicant in relation to his timesheet issues. It was highlighted by the Respondent that Ms Ellis had significant experience with truckers and Ms Ellis confirmed that the Applicant’s behavior in their telephone call was beyond that which would be expected or acceptable in the industry. Ms Ellis gave evidence that she was extremely uncomfortable after the phone call and thereafter avoided interaction with the Applicant as much as possible. The Applicant suggests that he simply comes across blunt, but Ms Ellis maintains that the interaction unsettled her and that he was unreasonable towards her simply trying to do her job. The Applicant sent a text to Ms Ellis following the interaction, which the Respondent submits is an apology for his behavior and therefore an admission of the conduct alleged. The Applicant asserts that the text was an apology for how he may have come across, not for unacceptable behavior.
In a similar incident, Mr Cooper called the Applicant regarding hour discrepancies in his timesheet and claims that he became extremely aggressive almost immediately. Mr Cooper states that he had the call on speaker phone and everyone in the office had turned to look due to the sound coming from the call. Mr Tonk denies that he shouted at Mr Cooper. Mr Cooper followed this interaction up by sending an email with a warning. Mr Tonk then called Mr Cooper again, querying the email. Mr Cooper again states that the Applicant was yelling, highly agitated, and aggressive. It appears that shortly after this, the Respondent received information from the Applicant’s coworkers that Mr Tonk was “parading the email around the Fremantle Port”, calling Mr Cooper a cunt. The Applicant does not recall calling Mr Cooper a cunt but submits that such language is not necessarily unacceptable when used privately between friends.
There are some other more casual interactions alleged by the Respondent as evidence of the Applicant’s poor behavior. On one occasion it is alleged that the Applicant told a coworker to “do as you’re told”, the Applicant asserts this never happened.
One particularly notable incident of alleged poor conduct concerns an interaction, on or around 23 January 2024, between the Applicant and a truck driver from another business over two-way radio. Evidence was provided explaining that the Respondent’s trucks often carry very heavy loads, and it is common courtesy in the industry to allow other trucks to overtake in such circumstances. It was in this context that the behavior in question occurred. It is alleged that Mr Tonk advised the lighter load non-Doolan’s driver to overtake him. The other driver was not comfortable with such maneuver and there may have been concerns over a blind turn. It is then alleged that the Applicant became rude and demanding, shouting at the other driver to get around him over the radio. The conduct of the Applicant on this occasion was framed as a “tirade” and it is alleged he used “very bad language” with his response being “foul-mouthed”. The incident was reported to the Respondent by two of the Applicant’s coworkers, who the Respondent submits are experienced truck drivers and were particularly disturbed overhearing the interaction. The concern was both for the manner in which the Applicant conducted himself over the radio and the fact that it appeared to be an unsafe maneuver he was encouraging. Further, evidence was provided about Doolan’s reputation in the industry as safe, professional, and courteous in the practice of allowing trucks with lighter loads to pass.
Following this incident, a meeting was held, there is some dispute regarding who called the meeting, with Mr Dunbar asserting he was the one to convene it and the Applicant believing it was himself who requested it. Regardless, a meeting was held in the Doolan’s office with Mr Tonk, Mr Dunbar, and Mr Cooper in attendance. The Respondent submits that the meeting progressed in a cordial manner, focusing on the Applicant’s abusive and poor behavior towards others. Mr Cooper stated that the meeting was civil and felt more like a life coaching session. It was noted by all that the focus of the discussion was summarized by Mr Dunbar when he stated words to the effect of “it’s not what we say, it’s how we say it”. The meeting concluded with the message that the Applicant needed to adjust his behavior.
In the end, it appears the straw that broke the camel’s back and directly precipitated the termination was the Applicant’s phone call with Mr Cooper on 15 March 2024 regarding further repairs to his work vehicle. The events leading up to this conversation are, roughly, as follows: The Applicant was assigned a temporary truck while his previously assigned truck was undergoing works. The temporary truck had some faults which required repairs. Mr Cooper arranged for the faults to be remedied while the Applicant was working in rural Western Australia, on 12 March 2024. The faults were briefly remedied but arose again shortly thereafter. Mr Cooper states that he did not receive any feedback regarding the repairs and therefore assumed the faults were remedied. The Applicant states that he was under the assumption he would be returning to his previously assigned truck when his trip was completed, consistent with the Respondent’s schedule. Mr Cooper states that the Applicant’s previous truck was being handed over to another driver for a job and that the Applicant would be remaining in the temporary truck after the current job’s completion. The Applicant was informed of this when he was returning from said job, which is when he alerted Mr Cooper to the outstanding faults requiring works. Mr Cooper was frustrated that the Applicant had waited to inform him, but the Applicant maintains that he had no reason to believe it was required to report the faults earlier, on the understanding that he was returning to his previous truck. There is dispute over the severity of the faults requiring repair, with the Respondent submitting that some were of a superficial nature or related to comfort. The Applicant alerted Mr Cooper to the faults on 15 March 2024 by telephone. During the call, Mr Cooper states the Applicant was yelling at him which led to Mr Cooper terminating the call. After this, the Applicant telephoned Mr Dunbar, allegedly stating that Mr Cooper had been giving him attitude or asking why he was ignoring him. Mr Dunbar then requested a meeting with the Applicant at the office. The Applicant states that Mr Dunbar accused him of being unreasonable and demanding, standing over him while yelling. It is at this time the Applicant states Mr Dunbar told him to “pack his shit up and fuck off”. Mr Dunbar then directed the Applicant to have a discussion with Mr Cooper, with Mr Dunbar informing Mr Cooper it was his decision what would happen to the Applicant. Mr Cooper then had a discussion with Mr Tonk, during which he discussed the constant behavioral problems and noted concern over the Applicant’s ability to modify his behavior due to all the past chances. Mr Tonk recalls the conversation and that they discussed the interpersonal issues they had over the duration of his employment. Mr Cooper then told Mr Tonk he needed to think about the issue and have a discussion with others. This is when Mr Cooper discussed the issue with other operations staff, who agreed the Applicant was an issue and needed to be terminated. Mr Cooper then approached the Applicant who was in the work yard, telling him something along the lines of “we are done” the Applicant recalls Mr Cooper approaching him and saying something to the effect of him not feeling comfortable working with him anymore.
Conclusion on valid reason
To determine a valid reason relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred. In the circumstances of the matter before me, and on assessment of the evidence, I am satisfied that there was valid reason for the Applicant’s employment being terminated. I am satisfied on the evidence that the Applicant had a history of poor behavior, with his aggressive interpersonal interactions being the primary issue and reason giving rise to a right to terminate. I am satisfied on the evidence that the conduct in question actually occurred.
There are some issues noted by the Respondent as contributing to the reason for termination that may be concerning issues in isolation but do not contribute greatly to the valid reason. I am not of the view the forklift ticket issue factors into the valid reason, noting that this appears to be a problem which was, until the hiring of Mr Dunbar, ignored or accepted by the Respondent. Further, I am not of the view that the PPE issues in and of themselves are particularly egregious, but the Applicant’s reactions to being called out for such issues do contribute as reflecting a history of poor behavior. The Applicant’s reference to Mr Cooper as a “cunt”, although rude, is not remarkably disturbing in the context.
Mr Tonk has provided much evidence about the circumstances that gave rise to the negative interpersonal interactions. I do not doubt that such circumstances may have been frustrating and would understandably foster an annoyed or less than happy demeanour during discussions. However, on the materials before me, I cannot find reason to doubt the evidence provided by the Respondent that reflects a consistent tendency for the Applicant to go well beyond what would be acceptable in the workplace. Many of the Respondent’s witnesses rejected the Applicant’s assertion that he was simply a blunt individual and noted that his behaviour made them particularly uncomfortable.
The Applicant has provided evidence that Mr Dunbar and Mr Cooper were similarly unprofessional during discussions. It seems probable that the conversations in question may have been, to a degree, passionate on both sides. However, on the evidence before me, I am satisfied it has been demonstrated that the Applicant displayed poor behaviour in response to relatively minor stimuli and escalated conversations above what would be expected to an unprofessional degree. Regardless of whether Mr Cooper told him that his truck was “a fucking pigsty”, arguably a truthful description from the evidence provided, the Applicant’s conduct of hostility in conversations was still unacceptable for the workplace.
Was the Applicant notified of the valid reason?
Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[13]
It is clear that the Applicant had extensive discussions in the past, and immediately preceding the termination, regarding his conduct. Mr Cooper discussed the behavioral issues with the Applicant following the heated telephone conversation and prior to making the decision to terminate him. Although Mr Cooper may not have formally issued written notification to the Applicant detailing the incident in question and warning termination could follow, it is undeniable that the Applicant was aware of and notified about the valid reason, being his behavior.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
An employee must be notified of the reason for termination and must also be given an opportunity to respond to that reason before the decision to terminate is made.[14] This process does not require any formality and is to be applied in a common-sense way to ensure the employee has been treated fairly.[15] “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 of this section.”[16]
The Applicant was approached by Mr Cooper, to discuss the issue of his behaviour following their telephone call and in general. It is clear that this conversation had some back and forth regarding the issues, before Mr Cooper went to discuss options with other staff and thereafter decided to terminate the Applicant.
Previous decisions of the Commission have noted that it is not explicitly required for an employee to be notified that the valid reason will result in termination for the notification and opportunity to respond to be met.[17] I am satisfied that, although lacking in careful procedural attention, the Applicant was aware of the precise nature of the concern over his conduct (the valid reason) and had opportunity to provide response in his discussion with Mr Cooper prior to Mr Cooper making the decision to terminate.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
In the circumstances of this matter and the events giving rise to the termination, the discussion relating to the dismissal of the Applicant was not one which the attendance of a support person was a practicable option and accordingly there does not appear to be any unreasonable refusal of such.
Was the Applicant warned about unsatisfactory performance before the dismissal?
There is much discussion in this present matter regarding the existence, or supposed lack thereof, of formal or written warnings. However, I am satisfied that the dismissal largely relates to the Applicant’s conduct and not unsatisfactory performance.
I note the comments of the Full Bench of the Commission in Annetta v Ansett Australia Ltd regarding the construction of “unsatisfactory performance” and associated warnings as it relates to the consideration of an whether a dismissal was unfair:
“In approaching the construction of the term "unsatisfactory performance" it may be significant that in describing a valid reason s.170CG(3)(a) distinguishes between capacity and conduct. Although neither term appears in s.170CG(3)(d) we think that performance is more likely to relate to capacity than to conduct. The preliminary question posed by paragraph (d) itself is whether the appellant's employment was terminated for unsatisfactory performance. While in a limited sense it was, because the misconduct was constituted by a refusal to perform work, we do not think that the conduct is unsatisfactory performance within the meaning of the paragraph. The paragraph is intended to refer to the level at which the employee renders performance including factors such as diligence, quality, care taken and so on. While there might be some overlap between the concept of unsatisfactory performance and the concept of misconduct, for example in relation to neglect of duty or poor timekeeping, misconduct of the kind which occurred in this case is in a different category.”[18]
Accordingly, I am satisfied this factor is not relevant to the present circumstances. However, the topic of previous warnings in this matter is undeniably relevant to the Commission’s consideration and will be discussed further in this decision.
To what degree would the size of the Respondent’s enterprise & the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
In all the circumstances, I find that the size of the Respondent’s enterprise and absence of dedicated human resource management specialists in the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal in that it lacked the required tools to affect a procedurally faultless dismissal and did not have a formal procedure for termination in such circumstances.
What other matters are relevant?
Section 387(h) of the Act requires the Commission to take into account any other matters that the Commission considers relevant. In cases involving summary dismissal, the proportionality of the dismissal may be considered under this criterion.[19]
I note that the Applicant’s conduct was extremely poor and inconsistent with the continuation of employment. I note that the Applicant had a history of equally poor behaviour and, although informally counselled by the Respondent, was allowed to continue working after each occasion (for example, the phone call with Ms Ellis, the previous phone calls with Mr Cooper, and the two-way radio incident).
It is clear that the Respondent was trying very hard to counsel the Applicant in the hopes of him changing and improving, and I do not criticize the Respondent for their genuine efforts in initially trying to resolve the behavioural issues in a manner less intimidating than formal warnings and disciplinary action. However, the nature of the previous discussions surrounding the Applicant’s conduct appear to have simply been informal discussions, setting expectations, calling out wrongdoing, and encouraging better behaviour.
Despite the Respondent’s best efforts, the Applicant’s problematic behaviour continued and, on the final occasion, led to him being summarily dismissed.
The Applicant submits that the lack of formal written warnings regarding his behaviour lends to the dismissal being unfair. I do not openly accept this submission. There is no strict requirement that previous formal written warnings be issued regarding misconduct for a dismissal due to subsequent misconduct to then be rendered not unfair.
It would have been clear to the Applicant that continuing to engage in such behaviour was contrary to his employer’s instructions, general decency, and could result in termination. However, I conclude that due to the relatively informal nature in which previous offences were handled, but not specifically due to the absence of formal written warnings, the subsequent summary dismissal is inconsistent in the context of similarly offensive behaviour having previously been moved past after simple informal counselling. This concern is heightened, in my opinion, by the considerably more informal procedure followed regarding the notification and opportunity to respond to the valid reason.
Accordingly, in the circumstances of this matter, I believe summary dismissal was not proportional and gives rise to concerns over procedural fairness.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
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.[20]
Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of the Applicant was harsh, as the outcome exceeded the conduct in the circumstances, but not unjust or unreasonable.
Conclusion
I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act.
Remedy
Being satisfied that the Applicant:
· made an application for an order granting a remedy under section 394;
· was a person protected from unfair dismissal; and
· was unfairly dismissed within the meaning of section 385 of the Act,
I may, subject to the Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
Under section 390(3) of the Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
It is transparent on the facts of this matter that reinstatement would be highly inappropriate.
Discretion
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”,[21] remedy is not a given.
In the circumstances of this matter, I am not satisfied that discretion should be exercised to grant a remedy.
I note the decision of Cini V Plenty Valley Services Association Inc,[22] in which Commissioner Ryan did not exercise discretion to grant a remedy. The Commissioner, in that matter, concluded as follows:
“Whilst I accept the evidence of Mr Cini that he was always acting in good faith and for the residents and that he only did what I felt was right for the community, it is very clear that the use of a cash account in a form which was not properly recorded or accounted for means that in some respects, if not all respects, Mr Cini was the master of his own destiny. Even if procedural fairness had been properly followed - ie, if the Committee of Management had embarked upon the investigation as a whole or had appointed a Committee that did not comprise Mr Moore and Ms Mathewson - it may very well have been that at the end of the exercise notice would have been given to Mr Cini and he might have finished up in any event.”[23]
Similarly, in the matter currently before the Commission, it is clear that the Applicant was the “master of his own destiny” through continued poor conduct which made his termination inevitable.
The modest procedural and proportionality issues do not, ultimately, change the practical outcome of what was coming. Had the Respondent taken an extra day to ensure a more formal procedure was followed, been heavier handed in its previous discipline, or properly formalized the process in a manner that might be expected of a larger employer it is clear that the Applicant’s termination would have still occurred, imminently, and due to his own conduct.
Despite several informal counselling sessions and the Respondent’s best efforts to encourage him along, the Applicant continued to behave in such a way that was inconsistent with the continuation of his employment and made others uncomfortable in the workplace.
The Applicant, regardless of his disagreements with the context in which the incidents arose, should have been aware that continuing to behave in the way he did was an issue for his ongoing employment. From the material before me, it appears that the Applicant was already on borrowed time, having had his conduct called out on several occasions prior and ruining interpersonal relationships with what appears to be several other staff.
Further, even had I exercised discretion, it is unlikely that any meaningful remedy would have resulted. Regarding compensation, the Applicant secured new employment very shortly after his termination from the Respondent and at a higher hourly rate. The Applicant’s employment with the Respondent would not have lasted any notable length of time past his termination had a more formal termination process been enacted. Any compensation possibly remaining would have been appropriately reduced due to the misconduct of the Applicant. It follows that had compensation been considered, the resulting amount would be negligible to nil. Regardless, I have determined that remedy will not be granted in this matter.
Conclusion
In all the circumstances, I do not consider that payment of compensation is appropriate for the above stated reasons. I therefore decline to order any remedy, notwithstanding that I found the Applicant was a person protected from unfair dismissal and had been unfairly dismissed.
COMMISSIONER
Appearances:
J Tonk, Applicant.
M Dunbar on behalf of the Respondent.
Hearing details:
2024.
Perth:
September 13.
[1] [PR777098].
[2] [2011] FWAFB 7498, at [14]; PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), at [69].
[3] (1995) 62 IR 371, at 373.
[4] Ibid.
[5] (1996) 142 ALR 681, at 685.
[6] [1999] FCA 1836, at [7].
[7] Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), at [24].
[8] Ibid.
[9] [2007] FCA 1903 (7 December 2007), at [61]; [(2007) 168 IR 375].
[10] (1938) 60 CLR 336.
[11] Ibid.
[12] Fair Work Regulations 2009 (Cth), reg 1.07.
[13] [2020] FWCFB 6429, at [19]; [2020] FWCFB 533, at [55].
[14] Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), at 75, [(2000) 98 IR 137].
[15] [2010] FWAFB 1200 (Watson VP, Acton SDP, Williams C, 3 March 2010), at 26, [(2010) 194 IR 1]; citing [1995] IRCA 222 (5 May 1995), [(1995) 60 IR 1, at 7].
[16] ibid., at 14‒15.
[17] [2011] FWA 141; Permission to appeal refused by Full Bench in PR508383 and by the Full Court of the Federal Court in [2011] FCAFC 155.
[18] Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000), at [16] [(2000) 98 IR 233].
[19] PR948009 (Ross VP, Williams SDP, Foggo C, 15 June 2004), at 55, [(2004) 133 IR 458].
[20] (2002) 117 IR 357, at [51]; See also PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), at [92]; [1999] FCA 1836, at [6]–[7].
[21] [2014] FWCFB 7198, at [9].
[22] [2012] FWA 6918.
[23] Ibid, at [42].
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