Lyle Edwards v Jeld-Wen Glass Australia

[2016] FWC 5850

[2016] FWC 5850

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lyle Edwards
v
Jeld-Wen Glass Australia
(U2016/5989)

DEPUTY PRESIDENT KOVACIC SYDNEY, 18 AUGUST 2016

Application for relief from unfair dismissal – dismissal found to be unreasonable – compensation in lieu of reinstatement ordered.

[1] Mr Lyle Edwards (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) on 7 April 2016 alleging that the termination of his employment by Jeld-Wen Glass Australia Pty Ltd T/A Jeld-Wen Glass Australia (Jeld-Wen – the Respondent) on 4 April 2016 was unfair.

[2] The application was heard on 12 August 2016. At the hearing, Mr Edwards appeared and gave evidence on his own behalf. Ms Julie Chesterfield, Jeld-Wen’s WHSE and HR Advisor, appeared for Jeld-Wen, with Mr Alan Bruce, Jeld-Wen’s General Manager, giving evidence for the Respondent.

[3] For the reasons outlined below, I have found that Mr Edwards’ dismissal was unreasonable. As to remedy, I do not consider reinstatement appropriate and determine that compensation in lieu of reinstatement of $11,250 less applicable tax is to be paid to Mr Edwards within 28 days of this decision.

Background

[4] Mr Edwards commenced employment with Jeld-Wen on 17 February 2014. At the time of his dismissal Mr Edwards was working on the glass cutting line.

[5] On 3 March 2016 an incident occurred between Mr Edwards and Mr David Pakeman, Jeld-Wen’s Production Manager, in which it was alleged that Mr Edwards was aggressive towards Mr Pakeman. Mr Bruce discussed the matter with Mr Edwards who was subsequently stood down on full pay pending an investigation into the incident. Mr Bruce and Mr Edwards spoke again about the incident over coffee several days later. In that conversation Mr Edwards showed remorse and as a result was allowed to return to work. Mr Edwards did not receive a formal warning over the incident.

[6] Mr Edwards was involved in another incident on 4 April 2016, this time involving Mr Pio Toelau, who also worked on the glass cutting line. While precisely what was said by Mr Toelau is disputed, it is not disputed that Mr Edwards left the workplace after the incident. Mr Bruce subsequently discussed the incident with Mr Toelau and contacted Mr Edwards by telephone to discuss the incident. The conversation concluded when Mr Edwards hung up on Mr Bruce.

[7] Ms Chesterfield contacted Mr Edwards by telephone shortly after his discussion with Mr Bruce. It was in the course of that telephone call that Mr Edwards was dismissed.

The Applicant’s case

[8] Mr Edwards submitted that on 4 April 2016 when he arrived for work Mr Toelau had not done any of the daily production work needed to start work and had left it for him to do, adding that this had occurred previously and that he had raised his concerns with management. When he saw Mr Toelau he asked him why he had left this work for him, with Mr Toelau telling him to shut up and go home. Mr Edwards submitted that when Mr Toelau returned later and saw him that he said “I told you to go home c..t so f...k off home” leading Mr Edwards to pack up his gear. Mr Edwards further submitted that he looked for a manager to advise but in their absence informed the next most appropriate person and then left the site.

[9] Beyond this, Mr Edwards submitted that:

• during his employment with Jeld-Wen he had never received any written or verbal warnings about his conduct, safety or attendance;



• his termination certificate stated “unsatisfactory work”;



• he was dismissed over the telephone by Ms Chesterfield; and



• he had informed both Mr Bruce and Ms Chesterfield that he had left the workplace after being verbally abused and directed to do so by his supervisor, adding that neither seemed to care or listen to what he had said.

[10] At the hearing, Mr Edwards submitted, inter alia, that the events of 3 March and 4 April 2016 all stemmed from him being replaced by Mr Toelau as the person to undertake the start-up on the cutting line and then being asked to perform his former role, adding that Jeld-Wen had not provided him with an answer as to why he was no longer required to perform the start-up role. Mr Edwards also contended that whoever performed the start-up was the cutting line supervisor and he did not consider Mr Toelau up to the job. Mr Edwards further submitted that he:

• left on 4 April 2016 because he had been directed to do so by his supervisor, Mr Toelau;



• believed that there were some personal issues between some managers at the facility and himself;



• was not listened to in “any way, shape or form” in his telephone conversations with Mr Bruce and Ms Chesterfield on 4 April 2016, adding that he felt berated by Mr Bruce for letting the business down; and



• never received any written warnings during his two periods of employment with Jeld-Wen.

[11] Finally, Mr Edwards contended that his dismissal was harsh.

[12] Mr Edwards did not lead any evidence in support of his submissions.

The Respondent’s case

[13] Jeld-Wen in its submissions provided its version of the incidents of 3 March and 4 April 2016. With regard to the latter incident, Jeld-Wen submitted that:

• Mr Toelau commenced work at around 3.00am that morning and took a break at around 6.00am;



• when Mr Toelau returned to the work area Mr Edwards started complaining about having to download the batches for that day’s work, with Mr Edwards saying “this is not my f…..g job”;



• Mr Toelau responded “every f…..g day, every f…..g day … If you don’t want to be here then f…k off”;



• Mr Edwards then left the area, proceeded to the main office and shortly thereafter walked to the car park;



• Ms Chesterfield contacted Mr Edwards later that day to discuss what had occurred;



• during that telephone call Mr Edwards advised Ms Chesterfield that if he had not left the site it was likely that he would have hit Mr Toelau; and



• Ms Chesterfield dismissed Mr Edwards in the course of that telephone conversation.

[14] In its oral submissions, Jeld-Wen reiterated much of Mr Bruce’s evidence (see below), highlighting that it required a cohesive team on the cutting line and that a number of employees felt uncomfortable with Mr Edwards in the workplace.

[15] Mr Bruce deposed in his witness statement 1 that on 4 April 2016 he spoke in the first instance with Mr Toelau to get his version of events and that he subsequently contacted Mr Edwards to do likewise. Mr Bruce further deposed that in his conversation with Mr Edwards he offered him an alternative role in another part of the facility and said words to the effect “… I can’t have a well-paid senior employee bailing out during the course of the day”, with Mr Edwards taking offence at that remark and hanging up after indicating that he would need to consider his options. Mr Bruce also deposed that he immediately contacted Ms Chesterfield and instructed her to contact Mr Edwards and terminate his employment.

[16] In his oral evidence, Mr Bruce reiterated parts of his witness statement. Beyond that, key aspects his oral evidence were that:

• in the chat he had with Mr Edwards over coffee shortly after the 3 March 2016 incident he had indicated to him that his job was at risk unless he “pulled his head in”, though Mr Edwards did not receive a formal warning as a result of the incident;



• Mr Toelau advised him on 4 April 2016 that he had said to Mr Edwards words to the effect “if you don’t want to be here then f…k off”;



• Mr Toelau was not Mr Edwards’ supervisor and had not been promoted at any stage;



• Mr Edwards had not been demoted at any stage;



• before leaving on 4 April 2016 Mr Edwards had informed the most senior person on the site at the time, Mr Ash Henderson, that he was leaving and that he had had an argument with Mr Toelau;



• the cutting line required a cohesive team; and



• he assumed that Mr Edwards did not wish to continue working for Jeld-Wen as he was not interested in the alternate position offered to him on 4 April 2016.

The statutory framework

[17] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Mr Edwards is a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which provide as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

387 Criteria for considering harshness etc.

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

[18] There is no dispute that Mr Edwards was dismissed, so s.385(a) of the Act is satisfied. Mr Edwards contends that his termination was harsh, unjust or unreasonable, so s.385(b) of the Act is relevant. Jeld-Wen is not a small business employer, therefore s.385(c) of the Act is not relevant. The termination was not a case of redundancy, so s.385(d) of the Act does not apply. Therefore, in determining whether Mr Edwards was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b) of the Act.

Was the dismissal harsh, unjust or unreasonable?

[19] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will address each of those criteria separately.

(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)

[20] In Rode v Burwood Mitsubishi 2 (Rode) a Full Bench of the then Australian Industrial Relations Commission canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd.3 The following is an extract from the Full Bench’s decision in Rode’s Case.

“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant's submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”

[21] The issue of whether there was a valid reason for dismissal in circumstances where the dismissal relates to the conduct of an employee was canvassed by a Full Bench of the then Australian Industrial Relations Commission in King v Freshmore (Vic) Pty Ltd (King). 4 In its decision in King the Full Bench, drawing on Justice Moore’s comments in Edwards v Guidice5, stated:

“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[22] What needs to be determined is firstly whether the alleged conduct took place and, if so, whether it constituted a valid reason for Mr Edwards’ dismissal. Consistent with the decision in King, the threshold issue needs to “be determined by the Commission on the basis of the evidence in the proceedings before it.”

[23] In this case no evidence was given by either of the two persons involved in the incident of 4 April 2016, i.e. Messrs Edwards and Toelau. While a witness statement by Mr Toelau had been filed by Jeld-Wen in accordance with the directions issued by the Commission, somewhat surprisingly he was not called to give evidence. As such, the only evidence before the Commission regarding what happened on the day is Mr Bruce’s which appears to be based on his discussion with Mr Toelau. As such, I am unable to form a definitive view as to whether the conduct attributed to Mr Edwards on 4 April 2016, other than him leaving the workplace, actually occurred.

[24] What is clear from the material before the Commission is that:

• Mr Edwards was aggrieved at no longer being required to perform the start-up role on the cutting line;



• there were tensions between Mr Edwards and Mr Toelau;



• Mr Toelau swore when responding to Mr Edwards on 4 April 2016;



• Mr Edwards had not received any formal warnings, though he had been told that his job was at risk unless he “pulled his head in” after the incident of 3 March 2016; and



• Mr Edwards left the facility after the incident on 4 April 2016, informing the most senior person on duty before doing so.

[25] Having considered all of the above factors, I am not satisfied that there was a valid reason for Mr Edwards’ dismissal. More particularly, drawing on the language in Rode, I am not satisfied that the reason for Mr Edwards’ termination is defensible or justifiable on an objective analysis of the relevant facts.

(b) Whether the person was notified of that reason

[26] Mr Edwards submitted that during his telephone conversation with Ms Chesterfield on 4 April 2016 he was advised that he had been dismissed because he hung up on Mr Bruce and because the incident of 4 April 2016 was a continuation of his behaviour of 3 March 2016.

[27] Jeld-Wen submitted that Mr Edwards had potentially not been notified of the reason for his dismissal. Mr Bruce in his oral evidence attested that Mr Edwards had not been dismissed because he hung up on him on 4 April 2016.

[28] The material before the Commission points to Mr Edwards not having been notified of the reason for his dismissal on 4 April 2016. Accordingly, this factor favours Mr Edwards.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[29] Mr Edwards submitted that he was not given a chance to explain what happened on 4 April 2016 in his conversations with Mr Bruce and Ms Chesterfield, adding that neither person was listening to what he had to say. Mr Edwards further submitted that it was for this reason he hung up on Mr Bruce on 4 April 2016.

[30] Jeld-Wen submitted that Mr Edwards’ conversation with Mr Bruce was cut short because Mr Edwards hung up.

[31] There is no material before the Commission which points to Mr Edwards being given an opportunity to respond to any reason related to his conduct on 4 April 2016. This factor therefore also favours Mr Edwards.

(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

[32] Mr Edwards submitted that he was not provided with an opportunity to have a support person, adding that Ms Chesterfield dismissed him shortly after he ended the telephone call with Mr Bruce.

[33] Jeld-Wen submitted that no support person was present during either of the telephone conversations with Mr Edwards on 4 April 2016 and nor was one sought by Mr Edwards.

[34] In the circumstances, I consider this factor to be a neutral consideration.

(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[35] It was not disputed that Mr Edwards’ dismissal did not relate to unsatisfactory performance. Accordingly, this factor is not a relevant consideration in this matter.

(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

(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

[36] It was not disputed that neither of these factors impacted on the procedures followed by Jeld-Wen in effecting Mr Edwards’ dismissal. Accordingly, I consider them to be neutral considerations.

(h) Any other matters that FWC considers relevant

[37] Mr Edwards reiterated that he was never given a chance to explain what happened on 4 April 2016 in his conversations with Mr Bruce and Ms Chesterfield, adding that he did what he was required to do procedurally on the day and that he did not raise his voice to Mr Toelau.

[38] Jeld-Wen did not raise any other matters which the Commission should have regard to.

[39] Mr Edwards’s submissions relate more to whether there was a valid reason for his dismissal and whether he had been given an opportunity to respond. Accordingly, I consider that there are no other relevant considerations.

Finding

[40] Drawing on the above analysis, I find that there was not a valid reason for Mr Edwards’ dismissal, that Mr Edwards was not notified of the reason for his dismissal nor was he given an opportunity to respond, and that there are no other relevant considerations. I further find that the remaining considerations in s.387 are either not relevant in this case or are neutral considerations.

[41] For all these reasons, but particularly in view of the absence of procedural fairness in this case, I consider that Mr Edwards’ dismissal was unreasonable. As such, I now need to consider the issue of remedy.

Remedy

[42] Section 318 of the Act sets out the object of Part 3-2 of the Act, providing at s.318(1)(c) that an object of Part 3-2 is “to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.”

[43] As previously noted, Mr Edwards did not seek reinstatement. Further, Jeld-Wen submitted that reinstatement was not appropriate in this case. Having regard to the circumstances in this matter, I do not consider reinstatement appropriate as I consider that the parties’ respective submissions in this case are likely to have had the effect of making what already was a fractious relationship untenable. Accordingly, I need to consider what, if any, remedy is appropriate.

[44] Section 390 of the Act deals with when the Commission may order a remedy for unfair dismissal and provides at s.390(3):

“(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[45] The criteria relevant to the deciding of the amount of compensation are set out in s.392(2) of the Act.

Remuneration that would have been received (s.392(2)(c))

[46] Mr Edwards made no submission regarding this factor, contending that he simply sought what he would have earned in the period since his dismissal as compensation.

[47] Jeld-Wen submitted that had Mr Edwards been stood down and an investigation undertaken into the incident of 4 April 2016 that he would still have been dismissed and that the termination date would have been one or two weeks after 4 April 2016. Jeld-Wen also highlighted that Mr Edwards had been paid five weeks’ pay in lieu of notice. Beyond this, Mr Bruce attested in his evidence that Mr Edwards was held in high regard as a result of his skills.

[48] At the hearing Mr Edwards’ came across as someone who enjoyed his job but who continued to be upset at no longer being required to perform the start-up role on the cutting line. Against that background and in circumstances where Mr Edwards was involved in two incidents in the space of four weeks and unclear as to whether or not he would take up Mr Bruce’s offer of an alternative position at the facility, I consider it likely that Mr Edwards would only have continued to be employed by Jeld-Wen for a further 12 weeks. Based on his gross weekly wage of $1,250, Mr Edwards would have received $15,000 less applicable tax for this period.

Remuneration earned (s.392(2)(e))

[49] Mr Edwards submitted that he had not received any remuneration other than disability support pension payments since his dismissal. Consistent with the decision in Sprigg v Paul’s Licensed Supermarket 6 social security payments are not deducted. Accordingly, no deduction on this ground is warranted.

Income reasonably likely to be earned (s.392(2)(f))

[50] I consider that no deduction on this ground is warranted.

Other matters (s.392(2)(g))

[51] There are no other matters that I consider relevant to take into account in the determination of an amount of compensation in lieu of reinstatement for Mr Edwards, apart from those in ss.392(2)(a), (b) and (d), s.392(3) and s.392(5) of the Act to which I now turn.

Viability (s.392(2)(a))

[52] In the absence of any submissions from Jeld-Wen regarding this factor, I consider it to be a neutral consideration. Accordingly, no deduction from the proposed amount of compensation is warranted on this ground.

Length of service (s.392(2)(b))

[53] At the time of his dismissal Mr Edwards had been employed by Jeld-Wen for just on two years and two months, though he had also previously been employed by Jeld-Wen. I do not consider Mr Edwards’ relatively short period of service provides a basis for reducing the proposed amount of compensation.

Mitigation efforts (s.392(2)(d))

[54] Mr Edwards submitted that he had been unable to look for work as a result of a back injury he had sustained in 2015 while working for the Respondent. While Mr Edwards provided no material to support his contention that he was unable to work as a result of his injury, he did submit that he was in receipt of a disability support pension which provides “Financial support for people who have a physical, … condition that stops them from working …” 7 I therefore consider that no deduction on this ground is warranted.

Misconduct (s.392(3))

[55] As previously noted, Mr Edwards was aggrieved at no longer being required to perform the start-up role on the cutting line. Mr Edwards’ continuing disgruntlement with the decision in my view was a contributing factor to the incidents of both 3 March and 4 April 2016. While for the reasons set out above I am unable to form a definitive view as to whether the conduct attributed to Mr Edwards on 4 April 2016 actually occurred, I am satisfied that Mr Edwards’ overall attitude and demeanour was likely to have been a contributing factor to the incident. As a result, I propose to reduce the proposed compensation amount by one quarter on account of misconduct. This reduces the proposed amount of compensation to $11,250.

Compensation cap (s.392(5))

[56] The proposed amount of compensation of $11,250 less applicable tax is below the compensation cap of $32,500 less applicable tax for Mr Edwards as per s.392(5) of the Act. Accordingly, no adjustment to the proposed amount of compensation is necessary to comply with the compensation cap.

Conclusion

[57] For the reasons outlined above, I have found that Mr Edwards’ dismissal was unreasonable. As to remedy, I do not consider reinstatement appropriate and determine that compensation in lieu of reinstatement of $11,250 less applicable tax is to be paid to Mr Edwards within 28 days of this decision. An order to that effect will be issued in conjunction with this decision.

Appearances:

L. Edwards on his own behalf.

J. Chesterfield for the Respondent.

Hearing details:

2016.

Melbourne:

August 12.

 1   Exhibit 1

 2   Print R4471

 3 (1995) 62 IR 371

 4   Print S4213

 5 (1999) 169 ALR 89 at 92 per Moore J

 6 (1998) 88 IR 21 at 26

 7   by authority of the Commonwealth Government Printer

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