Kevin Clark v Reliable Signs and Refinishing
[2023] FWC 276
•8 FEBRUARY 2023
| [2023] FWC 276 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kevin Clark
v
Reliable Signs and Refinishing
(U2022/9502)
| COMMISSIONER BISSETT | MELBOURNE, 8 FEBRUARY 2023 |
Application for an unfair dismissal remedy
Mr Kevin Clark (Applicant) has made an application in which he seeks a remedy for unfair dismissal. The Applicant was employed by Reliable Signs and Refinishing (Respondent) having commenced employment in February 2010. The Applicant’s employment ended in September 2022. The means by which his employment concluded is a matter to be determined.
The file was first allocated to another Member of the Commission to deal with. The file was re-allocated to me to hear and determine. The application was ultimately listed for hearing before me on 17 January 2022. At the commencement of that hearing the parties agreed that the matter should be heard by determinative conference.
The Applicant gave evidence on his own behalf. Evidence was also given by Mr Christopher Prince for the Applicant. A further witness statement by Mr Liam Malcolm for the Applicant was determined by me not to be relevant to the matters I needed to determine. Mr Malcolm was therefore not called to give evidence.
Mr Tomislav (Tom) Hamer, the Director of the Respondent and Mr Kayne Hamer, a Manager with the Respondent (and son of Mr Tom Hamer), gave evidence for the Respondent.
The materials filed by the Applicant and Respondent were placed in a Court Book. Save for the witness statement of Mr Malcolm, the Court Book was admitted into evidence. Three further documents were provided by the parties – the Applicant provided two documents that were missing from the Court Book and Mr Kayne Hamer provided a copy of text messages he sent to the Applicant on 2 and 3 September 2022 on my direction that he do so.
PRELIMINARY MATTERS
Section 396 of the Fair Work Act 2009 (FW Act) sets out those matters that must be determined prior to the merits of the application. I am satisfied that:
· The application was made within the specified time in s.394 of the FW Act
· The Applicant has completed the minimum employment period and his employment is covered by an Award or agreement or he earns less than the high income threshold. He is therefore protected from unfair dismissal
· The Small Business Fair Dismissal Code does not apply. While the Respondent indicated on the F3 – Response to the application for unfair dismissal that the Respondent had 14 employees, Mr Tom Hamer gave evidence that the Respondent had between 15 and 18 employees and that he had 8 further employees in a related company. On this basis I am satisfied that the Respondent is not a small business
· The dismissal was not a matter involving redundancy.
Section 385 of the FW Act states as follows:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c)the dismissal was not consistent with the small business fair dismissal code; and
(d) the dismissal was not a case of genuine redundancy.
In order to determine if the Applicant was unfairly dismissed it is necessary to determine if he was dismissed. This is a matter in dispute.
DID THE APPLICANT RESIGN OR WAS HE DISMISSED?
The Applicant says his employment was terminated by the Respondent. The Respondent claims it did not dismiss the Applicant but that the Applicant resigned his employment by not attending to work or contacting the workplace on 5 or 6 September 2022.[1]
The meaning of “dismissed” is found at s.386(1) of the FW Act:
386 Meaning of dismissed
(1) A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
In order to determine if the Applicant resigned or was dismissed it is necessary to consider the events that occurred over the period Friday 2 September 2022 to Wednesday 7 September 2022.
Friday 2 September 2022
On 2 September 2022 the Applicant was given a number of tasks that were to be completed in the workshop that day. The most pressing of these was the need to drop a banner (“curtain”) and have it ready for collection by the client first thing on Monday morning.
The Applicant’s evidence is that he asked the labourers to drop the curtain which, he says, they partly did. The Applicant conceded that, before leaving for the day, he did not check to see that the curtain had been dropped but rather assumed that it had been done.
The Applicant agreed that he received a text message from Mr Kayne Hamer later on Friday asking if the curtain had been dropped. He replied with an emoji “thumbs up” indicating the job had been done. The Applicant agrees, however, that he had not completed the task as requested.
Mr Tom Hamer gave evidence that he asked the Applicant to complete a number of tasks on 2 September 2022 including dropping the curtain so that it could be collected by the client on the following Monday morning. Mr Hamer, having given the instruction, then left the workshop. Friday is an early knock-off day and Mr Hamer did not see the Applicant again that day. Mr Hamer gave evidence however that he rang the Applicant and asked if the curtain had been dropped and was advised by the Applicant that this had occurred.
Mr Kayne Hamer produced, on request from the Bench, text messages he sent to the Applicant on 2 September 2022 and 3 September 2022.[2] The text of 2 September 2022 asked the Applicant if all banners were down to which the Applicant responded with the “thumbs up” emoji.
Saturday 3 September 2022
At 9:47am on 3 September 2022 Mr Kayne Hamer sent a further text message to the Applicant.[3] It was a picture of a banner that (clearly) was still hanging. Mr Hamer said this was the banner that the Applicant had indicated had been dropped the day before. Mr Hamer agreed that there was no written message with the text. He said that, following his discovery that the banner had not been dropped and sending the text message to the Applicant, he did not further contact the Applicant. He did, however, advise Mr Tom Hamer that the banner was still up.[4]
The Applicant’s evidence[5] is that:
· At 10:06am, having missed a call from Mr Tom Hamer, he received a text message from him that read “Can you call me as Vivad banners are not down Why are you lying to me As my customer is picking up Monday morning”[6] (sic)
· At 10:07am he received a phone call from Mr Hamer asking why the banner had not been dropped and prepared for collection by the client on Monday morning. The Applicant replied that he thought the labourers had taken it down and put up clean banners ready for Monday. Mr Hamer then became abusive, accused the Applicant of lying to him and demanded the Applicant return the work car allocated to him and told the Applicant to “get the fuck out of my life”. The Applicant said he attempted to respond but Mr Hamer said he did not want to hear
· At 12:12pm Mr Hamer rang again and aggressively asked “where is the car?”. The Applicant replied that he was cleaning things out of the car and would return it on Monday morning. The Applicant said that Mr Hamer replied “I don’t give a fuck I want it back now” to which the Applicant replied “don’t speak to me like that”. The Applicant said Mr Hamer continued to abuse him, so he ended the call
· At 12:14pm Mr Hamer called again. The Applicant asked “are we going to try this again”. He said that Mr Hamer became abusive, so he ended the call
· At 12:14pm Mr Hamer called again but the Applicant did not answer the call
· At 12:17pm Mr Hamer sent a further text message to the Applicant “if the car is not returned to reliable by today I will go to the police and tell them it is stolen And all other things that were done”[7] (sic)
The Applicant retuned the car to the Respondent’s workplace at 3:25pm on Saturday 3 September 2022 and took a photograph of it.[8] The Applicant also returned the keys, fuel card and his keys to the factory and office of the Respondent. He then cleared out his personal effects from the workplace.
Mr Christopher Prince provided a written witness statement[9] and gave evidence. He said the Applicant called him on Saturday 3 September 2022 and asked if he could pick up the Applicant from his workplace. When he arrived to pick him up, the Applicant had a box of his belongings and had returned the work car. He says that the Applicant told him he had returned the car because his employment was over.
Mr Tom Hamer gave evidence that he contacted the Applicant in relation to the return of the motor vehicle on the morning of 3 September 2022. Mr Hamer said the return of the car was a disciplinary measure “due to misuse and lying about completing a job” which the Applicant had confirmed was completed but was not.
In his oral evidence Mr Tom Hamer said that, when he rang the Applicant and asked why the banner had not been taken down, the Applicant “ranted and raved.” Mr Hamer did not remember what the Applicant actually said but said the Applicant hung up on him.[10] Mr Hamer said that, because the Applicant had misused the vehicle, was ranting and raving and had lied about the job being completed the Applicant had to return the car to work. While the Applicant said he would return the car on the Monday, Mr Hamer’s evidence is that he said the car was to be returned that day. However, Mr Hamer insisted the car was returned on the Sunday because he was “around on the Saturday” and did not see the car returned.[11]
Mr Tom Hamer said that the Applicant had also been abusing the car, driving it up and down the freeway at 11:00 o’clock at night. Mr Hamer said he did not know who else had been driving the car at 11:00 o’clock at night but the Applicant had said it was not him driving the car so it must have been other people.[12]
Mr Tom Hamer said he did not consider the text message to the Applicant in which he said he would report the car as stolen to the police if it was not returned on 2 September 2022[13] to be a threat. He said he put what he had in the text to the Applicant because the Applicant did not want to bring the car back that day.
When asked why the car had to be returned on the Saturday Mr Tom Hamer said it was because of the ranting and raving and because the Applicant kept lying. When questioned as to when the Applicant had been lying Mr Hamer said the Applicant had lied about a matter 2 or 3 years ago that had almost resulted in a fatal accident.
Mr Tom Hamer agreed that he was angry when he called the Applicant but denied he swore at the Applicant.[14]
Monday 5 September 2022
The Applicant did not attend to work on Monday 5 September 2022 believing his employment had been terminated.[15]
Mr Tom Hamer gave evidence that he did not attempt to contact the Applicant on the Monday when he did not attend work.
Mr Tom Hamer said that he heard that the Applicant was telling the Respondent’s workers that he had been sacked by Mr Hamer. Mr Hamer said he heard this from Scott (one of the workers). Mr Hamer’s evidence is that after he heard this he got the workers together and explained that he had not sacked the Applicant but had asked the Applicant to return the vehicle and that the Applicant did not come back to work following that. Mr Hamer agreed that, while he told the Respondent’s workers the Applicant had not been sacked, he did not tell the Applicant that.
When asked why he had not called the Applicant on 5 September 2022 to find out where he was Mr Tom Hamer’s response was “well, why didn’t he ring me.”[16] Mr Hamer also said he does not ring his people when they fail to turn up for work although did agree that the Applicant has been called at times when he was running late for work.
Mr Tom Hamer said that, under his contract, the Applicant was responsible for calling the Respondent if he was unable to attend for work.[17]
Mr Kayne Hamer said he assumed that the Applicant had “just left” as the car had been returned and all of the Applicant’s tools had been taken.[18] Mr Hamer agreed that he did not call the Applicant on the Monday to find out where he was. When asked why he did not contact the Applicant he asked “It wasn’t up to me to contact him. Why didn’t he contact me?”[19] Mr Hamer did not know if he had ever called the Applicant when he failed to attend work.
Tuesday 6 September 2022
There was no interaction between the parties. The Applicant did not call the Respondent and the Respondent did not call the Applicant.
Mr Tom Hamer said he was not involved any more in the matter from this time.
Wednesday 7 September 2022
The Applicant gave evidence that on 7 September 2022 he received three pay slips from the Respondent. The first was a pay slip for the period 31 August 2022 to 6 September 2022 and was for hours worked.[20] The second payslip detailed outstanding annual leave payments[21] and the third payslip was in relation to outstanding long service leave.[22]
At least one of these payslips was received at 11:36:45am on 7 September 2022 (although the Respondent agreed that all three would have been received within half an hour of each other). In reply to this at 1:15:04pm that day the Applicant requested a separation certificate.[23]
Mr Tom Hamer gave evidence that the Applicant was paid his annual leave because he asked for his separation certificate and the Respondent wanted to ensure it met its obligations. Once he requested the separation certificate Mr Hamer said the Respondent “did the right thing” and paid out all of his entitlements.[24]
Assessment of the evidence
The Applicant gave his evidence in a calm and considered manner. He conceded matters where such concession was not to his advantage. For example, he agreed that he had been wrong on 2 September 2022 when he advised the Respondent (either Mr Tom Hamer or Mr Kayne Hamer – both of whom claimed they sought confirmation that the banner had been dropped) that the work required had been completed. He agreed that he had not checked the work but assumed the banner had been dropped and a fresh one hung ready for Monday’s work. He also agreed that he did hang up a couple of times in the telephone calls with Mr Tom Hamer.
Mr Tom Hamer was unconvincing in his evidence. He exaggerated, made statements based on generalisations and what he thought, as opposed to what he knew and was belligerent in giving evidence. Detail was not apparent in his evidence. Further, I consider Mr Hamer dramatised his evidence in claiming that the Applicant was “ranting and raving” in circumstances where this was not in his written witness statement. Mr Hamer’s evidence as to warnings given to the Applicant were unconvincing. While agreeing that there was no written record of warnings given to the Applicant it beggars belief that a person could have had as many warnings as put by Mr Hamer with no written record of the warnings or of the consequences of future misconduct. This includes the incident that occurred “two to three years ago” that almost resulted in a fatality.[25]
I found the evidence of Mr Kayne Hamer of little probative value. Beyond recalling that he did have a conversation with the Applicant on 1 November 2019 in relation to the Applicant being allocated a work vehicle that he could also drive to and from work, he had little or no recollection of much else, including what happened on 3-7 September 2022. Even though he was the Applicant’s direct supervisor he could not recall if he had ever rung the Applicant when he was late for work. Beyond some conversations he may have had with the Applicant about mistakes on the job, Mr Hamer had little recollection of interactions with the Applicant or matters involving the departure of the Applicant.[26]
Mr Kayne Hamer’s evidence, as it was, was not consistent. His reason for putting all-terrain tyres on the car driven by the Applicant (so either he or Tom Hamer could use it to go camping on a weekend) was not credible given neither he nor Mr Tom Hamer ever used the vehicle for this purpose. On further questioning, the reason for the all-terrain tyres became a desire to see how those tyres wore as he was considering putting some on his own car. For these reasons I do not consider Mr Kayne Hamer’s evidence reliable.
Given my assessment of the Applicant, Mr Tom Hamer and Mr Kayne Hamer, where there is a conflict in the evidence of the Applicant and either of the Mr Hamers I prefer the evidence of the Applicant.
Mr Tom Hamer agreed that he was angry on the Saturday. This supports a finding that he was the one using aggressive language in the exchange with the Applicant. Further, that the Applicant could have been subject to as many warnings from the Respondent as claimed with no consequence, yet the error about a banner being dropped could require the immediate return of a vehicle on a Saturday or the police would be told the vehicle had been stolen supports a conclusion that Mr Hamer was the one using intemperate language in the phone calls on the Saturday. In these circumstances I am also satisfied and find that Mr Tom Hamer did tell the Applicant to “get the fuck out of my life”.
I am also satisfied that the Applicant did return the car on Saturday 3 September 2022 and that he requested his separation certificate after he received his three payslips and payments.
Consideration
The Applicant says that he was dismissed. His evidence is that, by virtue of the conversation he had with Mr Tom Hamer on 3 September 2022 where Mr Hamer told him to “get the fuck out of my life” he considered his employment had been terminated. The Applicant says that his view that he had been dismissed was confirmed by receipt of the payment of all of his outstanding entitlements on 7 September 2022. It was only after receipt of his entitlements that he requested, and received, a separation certificate.
The Applicant also said that the reason he took his tools and personal effects and left the key to the car, office and factory on 3 September 2022 was because he believed he had been dismissed. He submitted that, after being told by Mr Tom Hamer to “fuck off,” he was not told he was still employed.
The Respondent submits that it did not dismiss the Applicant. Rather it says that the Applicant “voluntarily ceased employment and made no attempt to advise that he would not be attending work and no reasonable excuse [was] provided.”[27] Further, the Respondent submits that it specified in the separation certificate that employment had ended voluntarily and the Applicant raised no objection to this.[28]
As to why the Applicant might have resigned, the Respondent submitted that the Applicant had a disagreement with the Respondent in relation to the disciplinary measure of requiring the return of the motor vehicle on 3 September 2022. The Applicant returned the vehicle as required but did not provide management with the opportunity to discuss the matter with him further as he did not return to work after 3 September 2022.[29]
I have found that Mr Tom Hamer told the Applicant to “get the fuck out of my life.” Mr Hamer is the Director of the Respondent. He is the person who runs the business and who, on his own evidence, is there every day. He is, clearly, the key decision maker. This is supported by the evidence of Mr Kayne Hamer. Even though Mr Kayne Hamer is responsible for the day to day supervision of the Applicant and the person who gave direction to the Applicant on tasks to be completed, it was Mr Tom Hamer who rang the Applicant on 3 September 2022 with respect to the uncompleted job.
I am satisfied that, in being told to return the motor vehicle that day (for reasons that were not explained to the Applicant that day – either on the Applicant’s or Mr Tom Hamer’s evidence) or it would be reported to the police as stolen and being told to “get the fuck out of [the Director’s] life,” the Applicant had reasonable grounds to conclude that his employment had been terminated. That the Applicant reached this belief on 3 September 2022 is supported by his actions in leaving the office and factory keys along with the car keys and fuel card and in packing up and removing his personal belongings from the workplace.
In Marianne Reid v itac2 Pty Ltd t/as itac2[30] Deputy President Sams found that:
[92] …On any objective analysis, where an employer tells an employee to ‘Fuck off’ and then does not take any action to explain or withdraw the expression, it constitutes a direction to the employee to leave the workplace. As such, it constituted a constructive dismissal of the applicant.
Whilst the Deputy President determined the language used by the employer constituted a “constructive dismissal” I am satisfied that, in the matter before me, the direction of Mr Tom Hamer to the Applicant was a dismissal of the Applicant at the employer’s initiative.
Mr Tom Hamer could have made the Applicant aware he was expected at work on the Monday. He could have said words to the effect that he would discuss the matter further with the Applicant on Monday or he expected to see the Applicant at work on time on Monday but nothing was said that might have made clear that Mr Hamer’s instruction to the Applicant to “fuck off” was not definitive. I find it inexplicable that Mr Hamer, aware that the Applicant thought he had been dismissed (having been told by one of his workers on the Monday), did nothing to disabuse the Applicant of this erroneous view. All it would take is one phone call from Mr Tom Hamer, Mr Kayne Hamer or someone in the administration side of the business.
That the Applicant did not object to the separation certificate indicating that he left “voluntarily” does not alter my findings.
As to whether the Applicant had resigned his employment because of the operation of clause 7 of his contract of employment, clause 7 does not provide for any presumption of resignation or abandonment of employment. Clause 7 of the contract of employment (with emphasis added) states:
7. Hours of Work
Your normal hours of work will be Monday to Thursday from 7:00am to 3:30pm & Friday 7:00am to 1:30pm, unless agreed otherwise by your manager. In order to fulfil the requirements of your job, you may be required to work reasonable additional hours. Overtime will be paid as per the award. Employees are not permitted to complete Overtime work if the ordinary hours have not been met unless otherwise agreed by your manager. The Company reserves the right to vary the standard working hours.
If you are unable to attend work, you must notify your and provide details of the circumstances and expected length of absence. You must ensure that you contact the prior to commencing your normal shift.
If you are unable to contact the Company yourself, please have somebody do it on your behalf. An unjustified absence and lack of punctuality may lead to instant dismissal.
If no notice of your absence has been provided and 24Hrs lapses past your required start time, this may lead to instant dismissal.
The clause does not more than make clear that a failure to attend or provide notice of absence may lead to dismissal. The clause does not suggest that such an absence is indicative or equates to a resignation or the automatic termination of employment (even if that was possible).
For these reasons I am satisfied that the Applicant was dismissed. Further, as I found above, I am satisfied that the dismissal occurred on 3 September 2022.
WAS THE APPLICANT UNFAIRLY DISMISSED?
Section 385 of the FW Act is set out above at paragraph [9].
I have found (at paragraph [59]) that the Applicant was dismissed from his employment. I have also found (at paragraph [8]) that the Respondent is not a small business such that the Small Business Fair Dismissal code does not apply and that his dismissal was not a case of genuine redundancy.
Given the terms of s.385 it therefore remains for me to determine if the dismissal was harsh, unjust or unreasonable.
Section 387 of the FW Act sets out those matters that the Commission must consider in deciding if a dismissal was harsh, unjust or unreasonable. Section 387 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.
I consider each of these matters below.
Section 387(a) whether there was a valid reason for dismissal related to capacity or conduct?
A valid reason for dismissal is a reason which is “sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason”.[31]
It is necessary for the reason for dismissal to be identified. Whether that reason (or reasons) is valid can then be determined.
The context within which the Applicant was dismissed on 3 September 2022 when he was told to “get the fuck out of [the Director’s] life” was that he had lied about having finished the task of dropping the banner on 2 September 2022. It must therefore be considered if this provided a valid reason for dismissal. In reviewing the evidence it is also apparent that the Respondent had concerns in relation to the Applicant’s alleged misuse of the motor vehicle and in relation to his tardiness in attending for work and taking long lunch breaks. In these circumstances I have considered whether these matters, alone or in some combination provide a valid reason for the Applicant’s dismissal.
(a)The Applicant lied about completing the job on Friday 2 September 2022
In relation to the completion of the work on Friday 2 September 2022 the Applicant has agreed that he was wrong when he told Mr Kayne Hamer that the job was completed.
The Applicant said that he had asked three of the labourers to drop the banner and spoke to them three times about this while he was doing other work. The Applicant said the labourers indicated they would do the task of dropping the banner. The Applicant said that late in the day it looked like it had been dropped and that a new curtain had been hung in readiness for Monday’s work. He said that he then “went to the toilet” and when he came back everyone had disappeared. He then locked up the factory and went home without checking that the banner in question had, in fact, been dropped.[32]
Contrary to the evidence of Mr Tom Hamer, the Applicant said Mr Hamer did not call the Applicant about whether the banner had been dropped on Friday 2 September 2022 although the Applicant agreed that he received a text message from Mr Kayne Hamer about the banner being dropped to which he replied yes[33] (the thumbs up emoji). The Applicant said that when Mr Tom Hamer called him on 3 September 2022, had he been given the opportunity to speak, he could have come in to drop the banner and have it ready for Monday.
Mr Tom Hamer agrees that he did not ask the Applicant to come in on the Saturday to drop the banner.
Mr Kayne Hamer gave evidence that he sent the photo of the banner and a text message saying “They are still up” to the Applicant on Saturday 3 September 2022[34] but apparently did not call the Applicant or ask him to come in and drop the banner. Mr Hamer’s later evidence is that he only sent a photograph and no words in the text message to the Applicant and “assumed” the Applicant would call him.[35]
I am satisfied that the Applicant did not drop the banner despite his indication to Mr Kayne Hamer on Friday 2 September 2022 that he had done so. While the Applicant was wrong when he indicated to Mr Kayne Hamer on 2 September 2022 that the job had been completed that was the Applicant’s belief at that time. The Applicant was careless and wrong and did not complete the task properly, but this is to be distinguished from the Applicant taking any action that was designed to deliberately mislead Mr Hamer.
(b)The Applicant misused the work vehicle allocated to him and lied about its use
The Applicant gave evidence that he was advised on 1 November 2019 that he was to be issued with a work vehicle. The basis on which he was provided with the vehicle – in particular the extent to which it could be used for non-work purposes – is not abundantly clear from the evidence before the Commission.
The Applicant gave evidence in relation to being provided with a company car:
MR CLARK: …I was going to get a company car to use for personal use as well as company use, that I could go kayaking and fishing in it and camping, all that type of stuff, which is why they bought the four-wheel drive and why they put all terrain tyres on it when we got new tyres. So, yes, and they've always known that I've taken - I've taken it out to places and spoken about it to them and nothing's ever been told that I couldn't, or anything like that. I was doing that trip up to Epping on a Tuesday night playing bingo and we were driving home. Tom assumes that I was not the driver when I was actually the driver. And it had been over two - I think probably just under two years that I've been doing that trip and this was the first time - the first time I was spoken to about it by Kayne. He didn't ask why I was using it, he just - he didn't ask me to give him a reason, he just asked me to stop using it or they could work out something to use my overtime to pay for tolls if I wanted to keep doing that. And as soon as he spoke to me about it I stopped using the tolls straight away. So - yes.[36]
It was put to the Applicant that Mr Kayne Hamer had asked him why the company car was being used late at night. The Applicant replied that “…he never asked me - he told me, 'I don't care why you're driving down the road at that time of night', he just asked me to stop using the tolls so much.”[37]
Mr Kayne Hamer gave evidence that he recalled advising the Applicant on 1 November 2019 that he was to be given a work vehicle. He also gave evidence that he was aware that the Applicant was using the car for personal use. He was aware that the Applicant had used the car to travel to his mother’s place “sometimes” [38] and the Applicant had spoken to him about this.[39]
Mr Kayne Hamer gave evidence that he first became aware of issues with the road tolls being incurred outside work hours attributed to the Applicant was in August 2022 when it was brought to his attention. Until this time his evidence is that he was not aware of the Applicant incurring any toll costs outside of work use for the vehicle.[40]
Mr Tom Hamer had the following exchange with the Bench:
MR HAMER: … He'd already been told about the vehicle, it was misused by other people up and down the freeway with tolls and everything at 11 o'clock at night. The car was never for that purpose, it was for company purposes only.
THE COMMISSIONER: Who were the other people who were abusing the car up and down the freeway at 11 o'clock at night?
MR HAMER: Well, that's - we don't know.
THE COMMISSIONER: You just told me there were other people, so - - -
MR HAMER: Well, Kevin's telling us it wasn't him at 11 o'clock at night, and it was going up and down the freeway at 11 o'clock. So, you know, we've got no proof that - we know the car was on the freeway through our tolls, Commissioner, but we don't know - the toll people won't give us any evidence. We've asked them.[41]
In his evidence the Applicant said that the Respondent never asked him who was driving the car at night but rather they assumed it was not the Applicant. When asked if he ever said that he hadn't driven the car and incurred tolls when he had, the Applicant’s evidence was:
No, I've never told them that. They've never asked me who was driving the car or anything, they just assumed. I wouldn't - I wouldn't let anyone else drive the car.[42]
The documentary evidence provided by the Applicant[43] and not disputed by the Respondent is that, beyond 2 August 2022 when the Applicant did incur road tolls late at night (when he would clearly have been using the car for personal reasons), the Applicant only incurred tolls during the day when he would be using the vehicle for work or travelling to and from work. Beyond the tolls incurred late at night there was no complaint put by the Respondent as to the tolls otherwise incurred by the Applicant.
I accept that, when advised he should not be incurring tolls for personal trips in the company vehicle, the Applicant ceased doing so. Mr Kayne Hamer said he raised the issue with the Applicant when it was brought to his attention. The Applicant said the matter was raised with him in August 2022[44] and it is apparent that, from this time, no more tolls were incurred by the Applicant outside of work hours.
(c)the Applicant was consistently late for work and took extended lunch breaks
The Respondent submitted documentation in relation to its claim that the Applicant was “consistently late” for work[45] and at times had “lunch breaks that were drawn out”.[46]
The Respondent stated that the ordinary hours of work are 7.00am start time, 3.30pm knock off time with a 30 minute lunch break, 15 minute tea break and smoko (with an earlier knock off on Fridays). This suggests a standard 8 hour day except Fridays which appears to be a 6 hour day, making a 38 hour week.
A review of the time records for the Applicant certainly do indicate that, on many occasions from September 2021 onwards (when the current time keeping system was apparently introduced) the Applicant arrived at work after 7.00am. Many of these “late” starts were, however, within 5 minutes of the required start time. There is, further, no indication if any of the “late” starts were with approval of the Respondent, occurred with notification or followed some leave. Nothing was put by the Respondent except for a generalised complaint.
A review of the records also indicates that, on many days, the Applicant knocked off after the knock off time of 3.30pm (of which the Respondent makes no complaints).
As to the allegation of the Respondent that the Applicant also took extended lunch breaks there is no evidence of this except unsubstantiated claims of Mr Tom Hamer and Mr Kayne Hamer. There is no basis on which any assessment of the truth or otherwise of the claim can be made.
Conclusion as to valid reason
I have carefully considered each of the matters detailed above.
The Applicant’s omission in not completing the work relation to the banner (as the banner was to be collected early Monday morning) was serious and warranted some disciplinary response. His advice to Mr Kayne Hamer that the job had been completed was wrong. The error on the part of the Applicant, however, could easily have been rectified by either Mr Kayne Hamer or Mr Tom Hamer requesting the Applicant return to work on Saturday 3 September 2022 to finish off the incomplete job.
While I acknowledge that this was a serious error on the part of the Applicant it was discovered well in advance of the client arriving to collect the work, did not involve any re-work of work already done and was not so serious that it warranted dismissal. I do not consider it provides a valid reason for dismissal.
The lack of evidence of the extent to which the Applicant used the vehicle for personal reasons in excess of what was expected or acceptable or that he “misused” the vehicle leads me to conclude that misuse of the company vehicle does not provide a valid reason for dismissal.
I am not convinced, on the basis of the evidence before me, that the Applicant lied about his use of the company car or who was driving it. His denials on this matter are clear and the evidence of the Respondent’s witnesses is pure speculation or non-existent on this question.
While it may be that persistent lateness for work may form a valid reason for dismissal, the evidence before me does not allow me to conclude that, in this case, relying on lateness as shown in the clock-on times is a valid reason for the dismissal of the Applicant.
I am not satisfied, on the basis of the evidence and submissions before me that there is a valid reason for the dismissal of the Applicant. Of the three apparent concerns none, alone, or in any combination provide a “sound, defensible or well founded reason” for the dismissal of the Applicant.
Sections 387(b) & (c) Whether the Applicant was advised of that reason and given an opportunity to respond
The Applicant was not advised of any reason for dismissal (although he agrees Mr Tom Hamer called him a liar in the conversation on Saturday 3 September 2022). Not having been advised of any reason for dismissal the Applicant was not given an opportunity to respond to such a reason prior to the dismissal occurring.
To the extent that it may be considered relevant I am not satisfied that the Applicant was told at any time that his continued conduct and performance matters, as identified above as reasons for dismissal, if not rectified, could lead to his dismissal. Certainly there is no documented information as to warnings that may have been given – either orally or in writing – to the Applicant.
Section 387(d) Whether the Applicant was denied access to a support person
As no meetings were held with the Applicant in relation to his dismissal this is not a relevant consideration.
Section 387(e) whether the Applicant was given a warning in relation to his performance
The Applicant was not dismissed for reasons related to the performance of his job. In confirmation of this Mr Tom Hamer said that he was not angry with the Applicant for not having dropped the banner but rather for having lied that he had done that work. I therefore do not consider this to be relevant. Even if it was relevant there is no evidence that the Applicant was ever warned in relation to the performance of his duties.
Sections 387(f)&(g) the size of the business and access to human resources expertise
The Respondent’s business, while not a small business as defined in the FW Act, is still small with around 25 employees when a related entity is included. While Ms Kaitlyn Hamer provides human resource skills to the Respondent and has attempted to improve its human resource function, I accept that the Respondent has access to limited human resource or legal expertise. It is inevitable that this impacted on the procedures followed by the Respondent in effecting the dismissal. I would observe however that the lack of access to human resource expertise is no excuse for the conduct of Mr Tom Hamer towards the Applicant on 3 September 2022.
I have taken this into account in reaching my conclusion.
Section 387(h) other matters
I note that the Respondent says that it paid out the Applicant’s entitlements on 7 September 2022 because it was understood (erroneously) that the Applicant had resigned. The Respondent wanted to ensure that it complied with its obligations in this respect. I make no criticisms or adverse finding of the Respondent for having done so.
CONCLUSION
This is an unfortunate case of an employer who lost his temper because of an incomplete job and would not listen to any explanation as to why it was not complete. This is also a case where a single, easy request to the Applicant to return to work to complete the task in readiness for its early Monday morning collection by the client may well have averted the Commission processes.
There was no valid reason for the dismissal of the Applicant. Taking into account all other matters, including the size of the business, I am satisfied that the dismissal of the Applicant was harsh, unjust and unreasonable. I therefore find that the Applicant was unfairly dismissed.
REMEDY
Section 390 of the FW Act allows the Commission to make an order for reinstatement or the payment of compensation if the Commission is satisfied that the person is protected from unfair dismissal and the person has been unfairly dismissed. An order for compensation must not be made unless the Commission is satisfied that reinstatement is not appropriate and that compensation is appropriate in all the circumstances.
I have found above that the Applicant is protected from unfair dismissal (in determining the preliminary matters, see paragraph [6] above) and I have found that the Applicant was unfairly dismissed.
The Applicant does not seek reinstatement and I am satisfied that reinstatement, in such a circumstance, is inappropriate.
It therefore falls for me to determine what compensation may be payable to the Applicant.
Section 392 of the FW Act sets out those matters in relation to compensation. In particular s.392(2) specifies those matters that must be considered for the purpose of determining the amount of compensation.
Section 392 provides as follows:
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c)the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d)the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e)the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f)the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b)half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b)if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
While I have received some submissions from the parties in relation to compensation I am not satisfied that the material provides a foundation on which a determination of compensation can be made.
I will therefore issue detailed directions to the parties in relation to further submissions and evidence to enable the Commission to determine compensation. These directions will be issued separately.
COMMISSIONER
Appearances
T James for the Applicant
K Hamer for the Respondent
Hearing
Melbourne, by video
17 January 2023
[1] Respondent submission on merits, Court Book (CB) page 67
[2] Text messages from Mr Kayne Hamer to Applicant provided by Respondent to the Commission on 17 January 2022
[3] Text message from Mr Kayne Hamer to Applicant, on 3 September 2022
[4] Transcript PN628
[5] Witness statement of Kevin Clark, CB pages 216-217
[6] CB page 232. See also page 114 for Respondent’s copy of same text message
[7] CB page 232. See also page 114 for Respondent’s copy of same text message
[8] CB page 233. The time of the photograph is available in the meta data associated with it
[9] CB page 220
[10] Transcript PN82
[11] Transcript PN100. The Respondent’s representative acknowledged in its closing submissions that the Applicant returned the car at 3:25pm on Saturday 3 September 2022
[12] Transcript PN88-92
[13] See CB page 114
[14] Transcript PN266-268
[15] Transcript PN177
[16] Transcript PN316
[17] Contract of employment, clause 7, CB page 80
[18] Transcript PN602
[19] Transcript PN598
[20] CB page 229
[21] CB page 228
[22] CB page 230
[23] CB page 231
[24] Transcript PN148
[25] Transcript PN108
[26] See, for example, transcript PN572, PN575, PN589, PN605, PN608,
[27] See Form F3 – Employer response to unfair dismissal application, CB page 25
[28] Respondent written submissions on objection, CB page 67
[29] ibid
[30] [2014] FWC 5794
[31] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
[32] Transcript PN156
[33] Transcript PN158
[34] Transcript PN547
[35] Transcript PN626
[36] Transcript PN343
[37] Transcript PN361-362
[38] Transcript PN553
[39] Transcript PN551
[40] Transcript PN559
[41] Transcript PN88-92
[42] Transcript PN350-351
[43] CB page 234
[44] Transcript PN362
[45] CB p118. See also transcript PN532
[46] Transcript PN532
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