Joshua Hayes v Mechanical Vegetation Solutions Pty Ltd

[2016] FWC 6231

[2016] FWC 6231

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Hayes
v
Mechanical Vegetation Solutions Pty Ltd
(U2016/8039)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 2 SEPTEMBER 2016

Application for relief from unfair dismissal – performance concerns – valid reason – procedural deficiencies - compensation.

[1] On 29 June 2016 Mr Hayes lodged an unfair dismissal application pursuant to s.394 the Fair Work Act 2009 (the FW Act), with respect to the termination of his employment with Mechanical Vegetation Solutions Pty Ltd (MVS). Mr Hayes’ application was the subject of a determinative conference, in Adelaide on 31 August 2016.

[2] At this conference Mr Hayes represented himself and MVS was represented by its Director, Mr Nitschke.

[3] MVS supply contract services for arboriculture, large scale weed management, fire break maintenance and fuel reduction services, environmental maintenance, waterway and wetland dredging, dewatering and maintenance and commercial on site grinding services. Mr Hayes initially commenced employment with MVS in March 2012. He left MVS on 30 March 2014 but returned to work with MVS on 2 December 2014. He was employed as a groundsman, initially on a casual basis, but was engaged on a weekly hire full-time basis late in 2015.

[4] There is no dispute that Mr Hayes was a person protected from unfair dismissal, that his application was lodged within the statutory time limit, that MVS did not meet the definition of a small business and that the termination of Mr Hayes’ employment was not related to a redundancy circumstance.

[5] In his application, Mr Hayes asserts that he was notified of the termination of his employment on 20 June 2016 and that this termination took effect from that date. Also in that application, Mr Hayes referred to a “Written Warning” dated 27 May 2016. In this warning MVS confirmed concerns it had about his behaviour and advised that it was giving him an opportunity to go back to casual employment but that if this did not suit him, MVS would terminate his employment. Later in this decision I have considered this correspondence further.

[6] Mr Hayes asserts that the termination of his employment was unfair because he was advised of it in a text message on 20 June 2016. Further, Mr Hayes asserts there was no valid reason for the termination of his employment and he was not notified of the reason for his dismissal which occurred whilst he was on approved annual leave. To the extent that Mr Hayes recognises that a text message he received from MVS on 20 June 2016 confirmed the termination of his employment, he asserts that he was not given an opportunity to respond to this reason for his dismissal because there was no meeting to discuss that proposed termination. Mr Hayes asserts that he was not adequately warned with respect to performance or behavioural issues and was not given an opportunity to improve before his employment was terminated. Mr Hayes asserts that the summary nature of the termination of his employment contributed to its unfairness.

[7] The MVS submission was that Mr Hayes had been given a final written warning when he failed to pass a drug and alcohol test. Further, that he had received a final written warning on 5 March 2015 in relation to unexplained absences from work. MVS asserts that the termination of Mr Hayes’ employment followed a series of poor behaviours and demonstrated failure to follow basic instructions. As a consequence of these continuing behaviours, and particularly his unauthorised absences from work on 16 and 26 May 2016, MVS advised that it had given Mr Hayes the opportunity to go back to casual work as an alternative to termination of his employment but that Mr Hayes had not taken up that opportunity. MVS asserts that Mr Hayes’ failure to lodge an amended annual leave request form, in accordance with instructions to this effect, meant that it expected him to return to work from annual leave on 20 June 2016. When Mr Hayes did not return to work on that day MVS effected the termination of his employment.

The evidence

[8] The parties have provided a range of material in support of their respective positions. I have taken all of this material into account in reaching a conclusion. I note that MVS did not call the final decision maker, it’s Director, Mr Nitschke in this matter. In terms of the witness evidence, I have summarised this in the following terms.

[9] Mr Hayes’ evidence went to his employment history. He acknowledged that he received written warnings in March 2016 in relation to attendance and in April 2016, after he was found to be at work with an unacceptable alcohol test reading. Mr Hayes acknowledges that he left work early on 16 May 2016 but asserts that this reflected a common practice. Mr Hayes asserts that on 26 May 2016 he left the work site to attend at a medical appointment but that he had the MVS Operations Manager, Mr Palmer’s approval to do so. Mr Hayes’ evidence was that the “warning” of 27 May 2016 which advised that he would be made a casual employee, or that he would be dismissed, was left in his pigeonhole at work but was not properly discussed with him until he had a telephone discussion with Mr Duffy about it on 6 June 2016. In that discussion, Mr Hayes said he disagreed with Mr Duffy about the letter but that the discussion concluded that the letter would be discussed when he returned to work after he returned from annual leave.

[10] Mr Hayes advised that in late April 2016 he requested annual leave from 2 to 27 June 2016 and that this leave was approved. Mr Hayes agreed that he subsequently requested to change his leave dates and he acknowledged that he was asked to do so in writing. He advised that he did not do this because he discussed those amended dates with Mr Palmer. Mr Hayes asserted that MVS should have been aware that he would be returning to work one day later than was originally arranged. Mr Hayes’ evidence was that, on 17 June 2016, he received a phone call from Mr Duffy advising him that he needed to return to work on 20 June 2016 or that he would be dismissed. Mr Hayes confirmed that, on 20 June 2016 he received a text message from Mr Duffy which confirmed that he was dismissed with immediate effect. On 24 June 2016 Mr Hayes sent Mr Duffy a further text message seeking payment of his notice.

[11] Mr Duffy is the MVS Manager. His evidence went to a final written warning given to Mr Hayes on 5 March 2015 in relation to his failure to attend for work. He advised that Mr Hayes was given a further final written warning relative to the failed drug and alcohol test on 9 April 2016. Mr Duffy’s evidence was that, on 10 May 2016 Mr Hayes requested to take annual leave from 3 to 27 June and that he approved that annual leave request. Mr Duffy’s evidence was that Mr Hayes left work early without permission on 16 May 2016 and that, as a consequence, he sent him a text message in the following terms:

“Mon, 16 May, 12:17 PM

Tom told you to head to yard and confirm with the office what was next. You have just decided you know best and fucked of home and now we are in a pickle. Do you want to work for us or not?” 1

[12] Mr Duffy’s evidence was that on 17 May 2016 he had a discussion with Mr Hayes who acknowledged that he should not have left the work site without permission.

[13] Mr Duffy’s evidence was that, on 25 May 2016, Mr Hayes indicated that he wanted to discuss his leave dates and that, whilst that discussion did not occur, Mr Hayes sent a text saying “Monday now. But it means I get back a week earlier”. 2 Mr Duffy responded by advising that he would have to check this but it should be okay so long as he got back a week earlier. Mr Duffy’s evidence was that, on 26 May 2016 he advised Mr Hayes that his leave could change and wrote on Mr Hayes’ leave request form that he required the proper dates. On the same day he had another heated exchange with Mr Hayes whom he considered had left the work site without permission.

[14] Mr Duffy’s evidence was that, following this exchange with Mr Hayes, he had a discussion with the MVS Director, Mr Nitschke, who then wrote the letter of 27 May 2016. That letter was left for Mr Hayes in a sealed envelope. Mr Duffy advised that, on 30 May 2016, Mr Palmer informed him that Mr Hayes had said he was available to work on that, and the following day if he was needed. He later became aware that Mr Hayes worked up to and including 1 June 2016. Mr Duffy’s evidence was that this was inconsistent with the formal annual leave approval.

[15] Mr Duffy’s evidence was that he and Mr Hayes had a discussion on 31 May 2016 with respect to the 27 May 2016 “warning”. Mr Duffy’s evidence was that he confirmed that Mr Hayes would be converted to a casual employee.

[16] Mr Duffy’s evidence went to the extent to which, on 16 June 2016 he became concerned that Mr Hayes might not return to work until 27 June 2016 and then had a telephone discussion with Mr Palmer on 17 June 2016. His evidence went to his concerns about Mr Hayes’ annual leave arrangements. Mr Duffy advised Mr Palmer that unless Mr Hayes was at work on Monday, 20 June 2016, he would not be employed. When Mr Hayes did not attend for work on that day Mr Duffy spoke with Mr Nitschke and agreed that Mr Hayes should be dismissed. Mr Duffy then sent Mr Hayes a text message to this effect. 3

[17] Mr Palmer is the MVS Operations Manager. His evidence went to instances on 16 and 26 May 2016 when Mr Hayes left work without approval. Mr Palmer put the 27 May 2016 “warning” in Mr Hayes’ pigeonhole and advised that, on 30 May 2016, Mr Hayes indicated that he wanted to discuss that letter with either Mr Duffy or the MVS Director, Mr Nitschke.

[18] Mr Palmer’s evidence went to text messages and telephone calls made to Mr Hayes on 2 and 6 June 2016 which, amongst other things, addressed the issue of when Mr Hayes was returning to work from his leave. Mr Palmer confirmed that he understood that Mr Hayes would return to work on 20 June 2016 but clarified this with Mr Hayes through a text on 16 June 2016. When Mr Hayes advised that he was not returning until 27 June 2016, he referred the matter to Mr Duffy.

[19] Because of its significance to this matter, I have set out the text of the 27 May 2016 “Warning”.

“Josh,

MVS are extremely disappointed with your recent behaviours.

You received a written warning for having alcohol in your system on T2T, left work after being told to check with Iain prior to knocking off (Iain gave you a verbal warning about this) and yesterday left site without receiving permission.

There are obviously issues in your life which need sorting out. As a result MVS are giving you an opportunity to go back to casual employment to give you time to get your life in order and come back to work concentrating on your efforts.

If this does not suite you, we will have to terminate your employment as you cannot be relied upon.” 4

Findings

[20] Before addressing the provisions of s.397 of the FW Act I have set out my conclusions about the contested facts in this matter.

[21] The written warning given to Mr Hayes on 5 March 2015 5 related to unexplained absences from work. It was clearly specified as a final written warning and it said that no further warnings will be given, presumably with respect to unexplained absences from work. Mr Hayes confirmed his receipt and acknowledgement of this final warning.

[22] The 11 April 2016 warning following Mr Hayes’ positive alcohol test and made it clear that should Mr Hayes not be on time, dressed appropriately and in a fit state for work, his employment would be terminated. Mr Hayes confirmed his agreement to this final warning.

[23] Notwithstanding these warnings, I have concluded that Mr Hayes was absent from work without approval on two further occasions, on 16 and 26 May 2016. I have accepted, and prefer the evidence of Mr Palmer and Mr Duffy in this respect.

[24] The 27 May 2016 “Warning” effectively foreshadowed the termination of Mr Hayes’ employment as a weekly hire employee. It did not, however, specify a date upon which that weekly hire employment would come to an end. Further, the subsequent discussion which Mr Hayes and Mr Duffy had on 31 May 2016, and the extent to which Mr Hayes was still able to proceed on paid annual leave, make it clear that the proposed termination of Mr Hayes weekly hire employment did not come into effect before he proceeded on that leave. Furthermore, I have concluded that the discussions which Mr Hayes had with Mr Duffy, on 31 May 2016 and, possibly, on 6 June 2016 by telephone, indicated that the matter of Mr Hayes proposed conversion to a casual employee was to be discussed further on his return to work. I have construed the 27 May 2016 correspondence as indicating that the termination of Mr Hayes’ employment as a weekly hire employee was imminent, but that no specific date for this purpose had been determined.

[25] The commencement and completion dates of the leave taken by Mr Hayes in June 2016 were subject to the discussions between Mr Hayes, Mr Palmer and Mr Duffy. I have concluded that Mr Hayes was aware, from those discussions and from his past annual leave requests, that he was required to specify the start and finish date for his annual leave in that form. Furthermore, to the extent that he was changing those leave dates, and that he had been requested to provide that written advice to MVS, I have concluded that MVS management were aware, on 16 June 2016, that Mr Hayes did not propose to return to work on 20 June 2016. I have concluded that this was the event that ultimately caused MVS to determine that the termination of Mr Hayes’ employment was appropriate. That employment termination was communicated to Mr Hayes by text message.

[26] Finally, the evidence before me indicates that Mr Hayes was paid up to 20 June 2016 such that I should regard the termination of his employment as a summary dismissal effective from that date.

[27] Section 387 of the FW Act states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.”

[28] I have considered each of these factors in the context of the evidence before me.

Valid reason

[29] Notwithstanding subsequent legislative changes, I have adopted the principles inherent in Selvachandran v Peteron Plastics Pty Ltd 6, such that, to be valid, the termination of Mr Hayes must be for reasons which are sound, defensible and well-founded.

[30] I have concluded that Mr Hayes created the potential for confusion associated with the start and finish dates for annual leave by not complying with the request that he provide specific dates upon his annual leave approval form. Mr Duffy’s text message to Mr Palmer about those arrangements stated:

“That’s how the texts went. That week earlier meant the 20th. I remember changing the red writing that said josh back on 27 and changed to josh back in 20. What did I say to you at lunch today?” 7

[31] I am not satisfied that, by itself, Mr Hayes’ failure to submit an accurate revised annual leave request form can be regarded as a valid reason. However, I have also considered this factor in concert with Mr Hayes on-going employment record. I have noted Mr Duffy’s evidence makes it clear that he advised Mr Hayes that he should attend for work on 20 June 2016. I have concluded that Mr Hayes’ failure to properly respond to this advice is best explained by the uncertainty created by the 27 May 2016 letter and Mr Hayes’ seemingly characteristic disregard for instructions.

[32] The 27 May 2016 letter was prompted by the incidents on 16 and 26 May 2016 where Mr Hayes did not comply with standing instructions regarding absences from work. Whilst I acknowledge that the approach adopted to time recording and management issues within MVS is perhaps best described as substantially informal, Mr Hayes was working under a clear final warning relating to his attendances at work. His actions on those days in May appear to me to be quite inconsistent with that final warning. Consequently, I have concluded that Mr Hayes unauthorised absences, and failure to follow instructions with respect to absence from work, when combined with his failure to follow instructions relative to his annual leave request form, meant that MVS had a valid reason to terminate his employment. In straightforward terms, Mr Hayes had demonstrated behaviour which consistently failed to comply with the reasonable instructions given to him regarding attendance and leave arrangements.

[33] The termination of Mr Hayes’ employment occurred on a summary basis. Having addressed the various factors in s.387 of the FW Act, I have then considered the extent to which Mr Hayes’ behaviour could reasonably be taken as some form of repudiation of his employment contract and the extent to which, because the termination of his employment occurred on a summary basis, that penalty was inappropriate.

Notification of the reason

[34] Mr Hayes was notified of the termination of his employment in a text message sent to him on 20 June 2016. That text advice provided by Mr Duffy to Mr Hayes, was in the following terms:

“Monday, 20 June 2016

Paul has asked me to pass on that because you haven’t come to work today he doesn’t want you back. The way you approached this situation was silly josh. You did everything last minute and had no regard for the company with your actions. Even when we followed up and asked you to sort your paperwork you still didn’t. Your entire attention was somewhere else the week or two before you went on leave. We can’t run a business with staff that can’t respect and follow the systems and procedures. Sorry man I tried to facilitate all this for you but you stuffed it up.” 8

[35] I am not satisfied that more fulsome information was ever provided to Mr Hayes. Consequently, to the extent that the termination of Mr Hayes’ employment occurred for reasons relating to his attendance at work more generally and his failure to follow instructions regarding notification of absences, I am not satisfied that Mr Hayes was notified of those reasons for the termination of his employment.

Opportunity to respond

[36] Mr Hayes was advised of the termination of his employment by text message. He was not given an opportunity to respond to that termination advice. To the extent that the 27 May 2016 “Warning” foreshadowed the termination of Mr Hayes’ employment as a weekly hire employee, I have acknowledged that there were discussions between Mr Hayes and Mr Duffy about this advice. I am not satisfied that that these discussions were definitive in terms of addressing the proposed termination of his employment as a weekly hire employee. The evidence of Mr Duffy was that:

“18. On Tuesday the 31st in conversation with Josh he stated that he didn’t think the letter regarding the change to his terms of employment were fair. I disagreed and recounted the 2 days recently he had left site early and his previous final written warnings. I told him if he wanted anything changed he would have to talk with Paul as I was not prepared to change our decision. 9”

(In this respect I note that the reference to “Paul” is a reference to Mr Nitschke.)

Unreasonable refusal to allow a support person

[37] Because of the manner in which the termination of Mr Hayes’ employment was effected, Mr Hayes had no opportunity to request a support person. This is a factor indicative of unfairness.

Warnings relating to unsatisfactory performance

[38] Mr Hayes was warned in terms of his work performance. He was given clear written advice that a failure to attend, and be ready and able to work, would result in the termination of his employment. He subsequently ignored that advice on 16 and 26 May 2016.

Size of the MVS business – impact on procedures and access to dedicated human resource management expertise

[39] In its Employer’s Response to the application (Form F3), MVS advised that, at the time of the termination of Mr Hayes’ employment, it employed 26 employees. I consider this to be an indication that it is a relatively small business and have concluded that MVS had neither sophisticated policies and procedures, nor access to dedicated human resource management expertise.

Other matters considered relevant

[40] The 27 May 2016 “Warning” foreshadowed the termination of Mr Hayes’ employment as a weekly hire employee. As I have indicated, I am unable to take this advice as formal notice of termination of employment. As at 20 June 2016 Mr Hayes remained a weekly hire employee. Accordingly, he was dismissed on a summary basis without notice. That summary dismissal, in these circumstances, is a strong factor in favour of a finding of harshness. Had it been the case that MVS gave Mr Hayes notice of that termination of his employment, or that it provided payment in lieu of notice, the MVS position may have been substantially more sustainable.

Conclusion – harsh, unjust or unreasonable

[41] I have concluded that the termination of Mr Hayes’ employment should be regarded as harsh because the gravity of his misconduct was disproportionate to a summary dismissal. Had Mr Hayes been dismissed with notice, or a payment in lieu of notice, I would have arrived at a very different conclusion. 10

[42] I have concluded that the termination of Mr Hayes employment was not unjust in that his behaviour relative to absences from work and his failure to properly complete his annual leave request in accordance with the instructions given to him represented misconduct. Whilst there were procedural deficiencies in the termination of employment process and Mr Hayes should have been given the opportunity to further discuss concerns about his attendance, I do not consider that these discussions would have changed the ultimate termination decision.

[43] I do not consider that the termination of Mr Hayes’ employment was unreasonable because it is clear that he was given specific instructions relative to absences from work and the completion of his annual leave request. Mr Hayes’ non-compliance with those instructions represented misconduct.

[44] In overall terms, I have concluded that the termination of Mr Hayes’ employment was unfair simply because his dismissal occurred on a summary basis.

Remedy

[45] The primary remedy established by s.390 of the FW Act is that of reinstatement. Notwithstanding his initial request for reinstatement, Mr Hayes now seeks an amount of compensation. I do not consider reinstatement to be appropriate in any event. It seems to me that the relationship between Mr Hayes and MVS is incapable of being resurrected and is entirely inappropriate in these circumstances. Accordingly, I have considered the extent to which an amount of compensation is appropriate in these circumstances.

[46] Section 392 of the FW Act sets out the factors to which I am required to take into account in considering an amount of compensation. I have applied these factors in the context of the approach adopted in Sprigg v Paul’s Licensed Festival Supermarkets.¹¹

[47] There is nothing to indicate to me that the amount being contemplated would affect the viability of the MVS business. Mr Hayes did not have any significant period of service with MVS which might contribute to the amount of compensation. Had Mr Hayes not been dismissed without notice on 20 June 2016, I have concluded that it is most likely that he would have then been dismissed with two week’s notice. At the outside, I have concluded that if he returned to work on the following day, discussions involving Mr Nitschke over the 27 May 2016 letter would then have occurred. I do not consider it likely that those discussions would have resulted in the continuation of Mr Hayes’ employment but it may have been the case that they would have taken at least a further week. Consequently, at most I could only foresee that if Mr Hayes had not been dismissed on 20 June 2016, his employment may have continued for a further three weeks.

[48] I have accepted Mr Hayes’ evidence that, some 7½ weeks after his dismissal he gained alternative employment following numerous attempts to do so. I have also accepted his advice that his hourly rate of pay in his new employment substantially exceeds the hourly rate applicable at MVS. As a result of the efforts Mr Hayes has made to mitigate his losses in this respect, I do not consider it appropriate to either increase or decrease the amount being contemplated. Further, ss.392(2)(e) and (f), do not alter the conclusion I have reached in these circumstances.

[49] I do not consider that any other matter is relevant in accordance with s.392(2)(g).

[50] Section 392(3) requires that, if I am satisfied that Mr Hayes’ misconduct contributed to the MVS decision to terminate his employment, I am required to reduce the amount that would otherwise have been ordered. I consider that Mr Hayes’ misconduct did contribute to the decision to terminate his employment. Accordingly, I have reduced the amount being considered by one third.

[51] In Sprigg, the Commission provided for a further reduction on account of contingencies. I do not consider that to be necessary in these circumstances.

[52] As a consequence, I have concluded that the amount of compensation payable to Mr Hayes is two week’s pay, less tax. The parties have not provided me with information which enables the determination of this amount in precise monetary terms. In the event that the amount is not agreed, leave is reserved for this issue to be referred back to me for determination. An Order (PR584909), consistent with this decision will be issued.

Appearances:

J Hayes on his own behalf.

P Nitschke for the Respondent.

Hearing details:

2016.

Adelaide:

August 31.

 1   Exhibit R2, Attachment 4

 2   Exhibit R2, Attachment 5

 3   Exhibit R2, Attachment 5

 4   Exhibit R2, Attachment 6

 5   Exhibit R2, Attachment 1

 6 (1995) 62 IR 371 at 373

 7   Exhibit R2, Attachment 13

 8   Exhibit A2, Attachment JH5

 9   Exhibit R2, para 18

 10   see Annetta v Ansett Australia (2000) 98 IR 233 at pn 10

11 AIRC, Print R0235, (24 December 1998)

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<Price code C, PR584908>