Martin Doyle v Propell National Valuers Pty Ltd
[2011] FWA 7980
•29 NOVEMBER 2011
[2011] FWA 7980 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Martin Doyle
v
Propell National Valuers Pty Ltd
(U2011/7296)
COMMISSIONER GOOLEY | MELBOURNE, 29 NOVEMBER 2011 |
Application for unfair dismissal remedy.
[1] Mr Martin Doyle (the Applicant) was employed by Propell National Valuers Pty Ltd (the Respondent) from December 2006 until his employment was terminated on 13 April 2011.
[2] Mr Doyle lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed. The application was referred to conciliation on 30 May 2011 and then for hearing on 9 August 2011.
[3] Mr Doyle appeared for himself and Mr Shaun Reidy of Counsel was given permission to appear for the Respondent.
[4] Mr Philip Willington and Mr Lee Doak gave evidence for Mr Doyle and Mr Doyle gave evidence on his own behalf. Mr Brock Shearn, Ms Louise Beardmore and Mr Robert Veivers gave evidence for the Respondent.
[5] After the hearing, the Respondent filed supplementary submissions. No application was made for leave to file further material. I have not had regard to those submissions in this matter.
Jurisdiction of Fair Work Australia
[6] There is no dispute that Mr Doyle is a person who was protected from unfair dismissal. Fair Work Australia has the jurisdiction to determine the application.
The evidence of the Applicant
[7] Mr Doyle was employed as a valuer by the Respondent. His work involved valuing properties in northern areas of the Gold Coast.
[8] Mr Doyle’s contract of employment required him to “value property, business, plant and equipment.” 1
[9] Mr Doyle’s contract of employment provided for working hours as follows:
“7.1 Your ordinary hours of work are 38 hours per week, which may at times be worked outside of standard working hours. The ordinary hours of work may be averaged over any period up to 26 weeks, which means some weeks you may average more than 38 ordinary hours and other weeks less.
7.2 You may be required to work reasonable additional hours to fulfil the requirements of your position. Bonus payments set out in Schedule 1 shall constitute full payment for any additional hours worked.” 2
[10] Mr Doyle gave evidence that the area he was required to service increased from early 2008 and he was required to do valuations which involved significant travel and he “voiced [his] disapproval about receiving valuations in these areas.” 3 He asked that these jobs be grouped to make them more viable.4
[11] On 3 February 2011 Mr Doyle received a first and final warning from his employer. 5 Mr Doyle had attended a valuation but the tenant was not at the property. Mr Doyle asked the valuation exchange (a body which allocates work to different valuation companies) for an additional fee of $55. Mr Doyle described this as normal practice. When this was refused, he wrote to the valuation exchange and said “this matter will need to go to our state manager for direction. I am a valuer running my own car and using my unpaid time to attend these un-kept appointments is not a viable solution. Please contact my state manager to arrange alternative arrangement.”6 Mr Doyle rang his manager who directed him to do the job without the fee and he did so.
[12] Mr Doyle gave evidence that the first two weeks in April were very busy with staff on leave and he was working 80 hours per week. 7
[13] Mr Doyle gave evidence that on 13 April 2011 at 4pm he still had five jobs to complete which would involve six hours work. He also had a private engagement at 5.30pm. At 4.40pm he received from Ms Laura Harding, an administrative staff member, the list of properties he was required to inspect the following day. There were seven valuation jobs “including one complex two hectare property at Logan Village at 9am.” 8 It was Mr Doyle’s evidence that this job was 50 kms from the office and he had only done one valuation in that area in three years. There was also a “prestige canal front property with an effective valuation time of 20 minutes and another property under mortgagee in possession.”9
[14] Mr Doyle considered this to be an impossible schedule of work. He sent an email to Ms Harding in which he said:
“Laura I’m not doing Logan Village. That is not my area” 10
[15] He followed that up with a voice mail message which said:
“that one at Logan Village, mate I’m not going to run all the way up there for one fee....what you do is... you have to group some jobs...I’ll go up there for three jobs or something like that..it’s just ... you can take it up with Brock, but I’m not going... I’ve just had it. So... give it to ... it should be Lexis’s area...um...I can’t be running outside (my area) ...otherwise I’m just burning petrol and not getting paid anything.” 11
[16] It was Mr Doyle’s evidence that these messages did not constitute him turning down the job but that he was asking for it to be reassigned. 12
[17] Mr Doyle then received a phone call from his manager, Mr Shearn who told him that his email was inappropriate and that he can’t ask the administrative staff to remove him from a job. He was told the job was assigned to him and he had to do it. He was told he had to do the job or he would be dismissed. 13 He was told that there would be no future for him in the company if he didn’t go.14 Mr Doyle described Mr Shearn as agitated and it was his evidence that Mr Shearn did not allow him to say anything and continually shouted over him.
[18] It was Mr Doyle’s evidence that, in response to his request to be heard, Mr Shearn said “I’ve heard it all before from you Martin. You are really difficult and if I have my way you won’t work in this industry again. Your job is terminated, would you prefer to give me your resignation now Martin. Go on give me your resignation now. You are fired.” 15 Mr Doyle immediately made a record of the telephone conversation.16
[19] Mr Doyle then spoke to Mr Robert Veivers, a senior valuer, company shareholder and former Director of the Respondent. Mr Veivers told Mr Doyle that he would speak to Mr Shearn and sort it out. 17
[20] Mr Doyle received a phone call from Mr Shearn the next morning. He was told that the procedure for his dismissal had commenced and he was to complete the five jobs he had inspected on Wednesday and to attend a meeting at 1pm for his formal dismissal. Mr Doyle was not provided an opportunity to bring a support person with him to the meeting. 18
[21] Mr Doyle attended work and completed three of the five jobs. He attended the meeting with Mr Shearn and a company human resources officer, Ms Louise Beardmore. Mr Shearn gave Mr Doyle a letter of termination. Mr Doyle said the meeting only lasted a few minutes. Mr Doyle rejected the record of the meeting subsequently produced by Mr Shearn. 19
[22] Mr Doyle gave evidence that he did not have the capacity to complete the work assigned to him on 14 April 2011. He considered the direction to do the work to be an unreasonable direction. It was his evidence that he would have needed to start work at 7am. It was his evidence that he did not have the skills and experience to value the Logan Village job. It was his evidence that insufficient time had been allocated for this job. It was also his evidence that the next job could not have been performed in the 20-25 minutes allocated to it. 20 It was his evidence that he would have been required to work 8.5 hours without a meal break. The workload, he said, was impossible. 21
[23] In cross examination Mr Doyle accepted that he had not complied with the direction given to him on 13 April 2011. 22
[24] Mr Doyle was cross examined about the run he was to perform on 14 April 2011. Mr Doyle accepted that he did not suggest to Mr Shearn that any job, other than the Logan Village job, be removed from the run. 23
[25] Mr Doyle also accepted that his contract required him to do valuations in all areas and he had no contractual right to work in his preferred area. 24
[26] Mr Doyle also accepted in cross examination that he had valued properties with a similar complexity to the Logan Village job. 25
[27] He also accepted that he had done valuations in the post code area that included Logan Village.
[28] Mr Doyle further accepted in cross examination that he was capable of doing the valuations but he needed additional time. 26
[29] Mr Philip Willington was the President of the Australian Property Institute. It was his evidence that a valuer should be able to undertake between five-six valuations per day. It was his evidence that if a valuer had concerns that a scheduled valuation run did not give enough time for the valuations to be undertaken it should be raised with his or her employer. 27
[30] In cross examination Mr Willington said that the number of valuations that could be done by a valuer depends of the circumstances of each property. 28
[31] Mr Lee Doak was the owner of the Logan Village property. It was his evidence that the inspection of his property took between 50 minutes and 1 hour and 5 minutes. 29 In cross examination he accepted that it was possible that the valuation could have taken as little as 40 minutes.
The evidence of the Respondent
[32] Mr Shearn is the Queensland Residential Valuation Manager for the Respondent. He is based in the Brisbane office of the Respondent. He was Mr Doyle’s line manager at the time of the dismissal.
[33] Mr Shearn gave evidence that Mr Doyle generally inspected properties in his preferred areas of the northern suburbs but he could be asked to inspect properties outside of this area if needed. 30
[34] Mr Shearn gave evidence that valuations are allocated to the Respondent by panel management companies. The Respondent then allocates the work to valuers. Valuers work on a base salary plus commission based on the fees written by the valuer. It was his evidence that the time for valuations can vary and therefore some valuations are more profitable than others. The Respondent is required to accept all valuation requests assigned to it by the panel management companies. 31
[35] It was his evidence that Mr Doyle was a competent valuer but that he had previously complained about some of the locations allocated to him because he said they were too far for him and the cost of petrol made the trips less profitable. When Mr Doyle made these complaints Mr Shearn said he told Mr Doyle that “the Gold Coast is your area..you’ve got to do it.” 32
[36] Mr Shearn gave evidence about the circumstances of the first warning given to Mr Doyle. It was his evidence that by demanding the fee for travel Mr Doyle jeopardised further work being allocated to the Respondent. 33
[37] Mr Shearn gave evidence that he discussed this issue with Mr Doyle who did not seem to understand the seriousness of what he had done. As a result he issued Mr Doyle with a letter of warning. 34
[38] Mr Shearn gave evidence that while there were valuers on leave in late March 2011 he did not consider that the workloads in the Gold Coast office were “particularly onerous”. It was his evidence that he and other valuers performed an average of ten valuations per day. 35 In cross examination Mr Shearn accepted that he performed six or seven valuations per day and that would take 12 hours to do.36 However he latter qualified this evidence and said he did not do six or seven valuations every day.37
[39] It was his evidence that “the reality of work as a valuer is that it involves long hours. Most valuers work 12 hour days. Valuers take a commission..... so the more inspections performed the more money earned for the valuer.” 38
[40] It was his evidence that in the week 5-11 April 2011 the Applicant had 32 inspections which is six per day. Mr Shearn did not consider it “unreasonable nor [did he] consider an 80 hour week as being overly unusual for a commission based valuer, on occasion.” 39
[41] In cross examination Mr Shearn did not deny that Mr Doyle was working 80 hours per week. He also accepted that he did not offer Mr Doyle time off with pay when it was quiet. However he gave evidence that Mr Doyle had not let him know that he was struggling with his workload. 40 He did acknowledge that Mr Doyle was busy during this period.41
[42] It was Mr Shearn’s evidence that valuation work ebbs and flows and there were times Mr Doyle complained about a lack of work. He did accept at this time there was “an unusual set of circumstances, where people were on leave, Mr Doyle was busy. [Mr Shearn] was not under the impression that [Mr Doyle] was stressed.” 42
[43] It was Mr Shearn’s evidence that Mr Doyle’s complaint was that he was required to perform work out of his area, not that he worked more than a 38 hour week. 43
[44] While Mr Shearn accepted that the Logan Village inspection would have been less profitable for Mr Doyle, it was his evidence that this job could be allocated to Mr Doyle. 44
[45] Mr Shearn first heard about Mr Doyle’s refusal to do the Logan Village inspection at about 5pm on 13 April 2011 when he was informed of the email to Ms Harding. He then called Mr Doyle. He rejected Mr Doyle’s account of the conversation. He denied telling him that he was very difficult and that he would make sure Mr Doyle didn’t work in the industry again. 45
[46] Mr Shearn gave evidence that Mr Doyle was provided with an opportunity to explain why he did not want to do the Logan Village job. Mr Shearn recounted his conversation with Mr Doyle as follows:
I said: “Martin, I believe you have refused to carry out the inspection scheduled for 9.00am at Logan Village tomorrow.”
He said: “Yes that’s right ... Mate, I’ve had enough, as I’ve told you before, I am not going to keep going everywhere ... Logan Village is not in my area ...Why don’t you get one of the Southside guys to come down and do it? I’m not going to spend money travelling all over the place ... Tomorrow’s run is a joke ...Anyway, how do you expect me to do all those jobs when I’ve still got today ‘s to complete and get out?”
I said: “Martin, as I have said to you on a number of occasions, your attitude is simply wrong ... How do you think we can run a business if people like yourself refuse to carry out the work that they are employed to do? ... To be honest, I can’t believe you feel you can pick and choose what you will or won’t do. “
He said: “Look Brock I’m prepared to do the other jobs but I’m not going to drive to Logan Village as it’s not my area and I won’t be able to get back to the office in time to finish yesterday’s jobs as well as tomorrow’s run ... You just don’t understand ....I’m working until 10.30pm and I’m still behind ... How do you expect me to drive as far as Logan Village as well?”
I said: “Martin, will you inspect the property or not?”
He said: “No, I will not do that job.”
I said: “Martin, I suggest you think carefully about what you are saying...you’ve already been warned about this sort of thing.”
He said: “I don’t care ... I’m not going to Logan Village ... I just can’t keep driving all over the place, I can’t afford to pay for petrol and running costs for $80 a job in commission, the fees are ridiculous. “
I said: “This is the industry we are in and if this is unacceptable you have decisions to make ... lf you refuse the job you will leave me with no alternative.”
He said: “It’s your call.”
I said: “Martin, I’m not asking, I’m now instructing you to complete the inspection at Logan Village tomorrow morning as scheduled ...lf you don’t, I will have no option ... You will be leaving Propell.”
He said: “I’m not going to Logan Village ...I’Il do the other ones but I am not going there.”
I said: “Well, I guess that’s it ... You will be finishing up with Propel! tomorrow.”
He said: “Put that in writing and while you’re at it, I’d like to know what happens with the money due to me and stuff like annual leave and super... You can put that in too. “
I said: “Alright Martin, I’ll get a termination letter organised and bring it down tomorrow ... How does 1.00pm suit you? You should be back at Nerang by then ... Martin, I am serious about you finishing up. “
He said: “Yeah right, I’ll be there at 1.00pm at the Nerang office.” 46
[47] Mr Shearn did not consider seven valuations to be unreasonable or that the Logan Village job should be reallocated.
[48] Mr Shearn attended the meeting with Mr Doyle and Ms Beardmore the next day.
[49] It was his evidence that Mr Doyle did not request a support person. Ms Beardmore attended the meeting to take notes of what was said.
[50] Mr Shearn disagreed with Mr Doyle’s description of the meeting. Mr Shearn gave detailed evidence about what occurred at the meeting. He explained what had occurred the previous day and that he had given Mr Doyle a number of opportunities to agree to inspect the Logan Village property and he continued to refuse. Mr Doyle in the meeting said that Mr Shearn had not let him explain and yelled at him which Mr Shearn denied. Mr Shearn said that Mr Doyle acknowledged in the meeting that he knew that if he refused to do the job his employment would be terminated. Mr Doyle further explained that he had a heavy workload during this time because of other staff absences. Mr Shearn said he listened to Mr Doyle but then provided Mr Doyle with his termination letter. His termination was effective on 15 April 2011. It was Mr Shearn’s evidence that the meeting lasted about 50 minutes. 47
[51] Ms Beardmore, the Human Resources Co-ordinator for the Respondent, gave evidence that on 13 April 2011 she was advised by Mr Shearn that he was terminating Mr Doyle’s employment because he had refused to value the Logan Village property. She was asked to attend the termination meeting on 14 April 2011. 48
[52] Ms Beardmore attended the meeting and took notes. 49 She did not participate in the meeting. She gave evidence that Mr Doyle did not ask for a support person. Ms Beardmore supported Mr Shearn’s evidence that he was not hostile to Mr Doyle. Her evidence about what was said at the hearing was consistent with Mr Shearn’s evidence.
[53] Mr Robert Veivers gave evidence for the Respondent. 50 He had previously been Mr Doyle’s direct manager. It was his evidence that valuers were expected to do valuations outside of their preferred areas.51
[54] It was his evidence that in December 2009 Mr Doyle had refused to do a job because it was too far out. Mr Veivers told Mr Doyle he could not refuse to inspect properties outside of his area. He considered his conversation to be a verbal warning. Despite Mr Veivers’s view that Mr Doyle could not refuse to do the job he arranged for another valuer to do it and did not issue Mr Doyle with a formal warning. 52
[55] Mr Doyle spoke to Mr Veivers after his telephone conversation with Mr Shearn on 13 April 2011. In examination in chief Mr Veivers said that Mr Doyle had told him that he wasn’t doing the job because “that’s out of my area. It’s going to take too long to do. It’s too difficult.....Don’t have time. I’ve got lots of jobs to do...” 53
[56] Mr Veivers gave evidence that Mr Doyle told him that he had been sacked for refusing to do the Logan Village valuation. Mr Veivers told Mr Doyle he would speak to Mr Shearn about it. He then spoke to Mr Shearn who told him what happened and that he had terminated Mr Doyle’s employment. Mr Veivers asked Mr Shearn if he was sure that he wanted to do that and Mr Shearn responded yes. 54
[57] In examination in chief Mr Veivers gave evidence that during his conversation with Mr Doyle he counselled him to think very carefully about what had happened and told Mr Doyle that he should go and do the job. 55 Mr Veivers told him that he couldn’t refuse to do the job and if he agreed to do it he would talk to Mr Shearn and Mr Bart Mead to see if he could get the termination reversed.56 Mr Doyle told Mr Veivers that he would not do the job.57
[58] Mr Veivers was asked by Mr Shearn to inspect the Logan Village job and he did. 58 It was his evidence that it took him 20 minutes to inspect the property.59 In examination in chief Mr Veivers stated that he had been at the property for 45 minutes or a fraction more but that a lot of the time was just social chatting because he was not in a rush.60
[59] It was Mr Veivers’ evidence that Mr Doyle’s evidence about how long it would take to do the run was exaggerated. 61 However Mr Veivers acknowledged in cross examination that the last job on the run meant Mr Doyle wouldn’t get back to the office as early as he wanted to.62
[60] Mr Veivers gave evidence that he had on occasion asked Ms Harding whether a job could be allocated to another valuer because it was 30-40 kms away and there were other valuers located closer to the job. The job was reassigned but it was Mr Veivers’ evidence that if this had not occurred he would have done the valuation. It was his evidence that valuers also swap jobs with the approval of their managers. 63
[61] Mr Veivers’s evidence was that valuers do four to five properties on a typical day but this can increase to seven-ten inspections. 64 It was his evidence that a valuer with Mr Doyle’s experience could be required to inspect at least seven properties and he did not consider the run given to Mr Doyle on 14 April 2011 was unreasonable.65
Submissions of the Applicant
[62] Mr Doyle submitted that the direction to do the run allocated to him on 14 April 2011 was unreasonable. 66 It was a run that would have required him to commence work at “7am with an impossible finish time.”67
[63] Mr Doyle submitted that absence of other staff and the consequent high work levels, as well as the need to supervise a junior valuer, meant that he had completed 32 valuations the previous week whilst working 80 hours per week. 68
[64] When Mr Doyle refused to do the Logan Village job he had five valuation reports to complete, four of which would take a day to complete. He was being asked to do another 7 valuations which would have meant he had no meal break. He would have returned to the office at 3.30pm and was required to have the valuations completed by 5pm. 69
[65] Further Mr Doyle submitted that he would have been required to travel an unreasonably long distance to do the Logan Village inspection. As well, the time allocated to the Helensvale job was inadequate. 70
[66] Mr Doyle submitted that he did not refuse to do the Logan Village job but that he had agreed to do it under different conditions. 71
[67] Mr Doyle submitted that section 62 of the FW Act and his contract of employment provided that he work an average of 38 hours per week and that he had worked 80 hours per week for the two weeks leading up to 14 April 2011 and he had reached his breaking point. 72 It was his submission that his dismissal was unfair because he had exceeded his “required minimum standards requirement of work-hour obligation under his contract.”73
[68] He further submitted that he was not provided with an opportunity to explain why he refused the job. 74
[69] Mr Doyle submitted that he would have breached his professional obligations if he had complied with the direction. 75
[70] Mr Doyle submitted that he was not provided with a fair opportunity to discuss the issues. 76
[71] Mr Doyle submitted that his employer could not rely upon the earlier warning as it was not a valid warning. 77
[72] Mr Doyle submitted he was not provided with an opportunity to have a support person present during the termination process. 78
[73] Mr Doyle submitted that no regard was had by his employer of his exemplary work history over four years. 79
Submissions of the Respondent
[74] The Respondent submitted that the reason Mr Doyle’s employment was terminated was because Mr Doyle failed to follow a lawful and reasonable direction when he refused to do the Logan Village job. That, it was submitted, was a valid reason. Mr Doyle’s conduct was a breach of his contract of employment and was misconduct at common law. 80 It was submitted that Mr Doyle was given the direction to do the Logan Village job many times and he refused many times.81
[75] In response to my question as to whether a direction to work an unreasonable number of hours could be a lawful and reasonable direction, the Respondent submitted that no award applied to Mr Doyle. The Respondent accepted that the National Employment Standards (NES) applied.
[76] Further it was submitted Mr Doyle’s contract of employment provided for the averaging of hours of work over a 26 week period.
[77] It was submitted that section 62 of the FW Act had no application to this matter as the core issue in dispute was not whether Mr Doyle was working excessive hours. It was put that Mr Doyle did not raise with his employer working excessive hours. He simply refused to do the Logan Village job because it was not in his area. 82
[78] The Respondent submitted that Mr Doyle’s conduct involved three stages: the notification of the intention to refuse to do the job; the refusal and the recalcitrance. 83
[79] The Respondent submitted that Mr Doyle’s initial notification by email and telephone message to Ms Harding did not support his assertion that he intended raising this matter with Mr Shearn.
[80] Mr Shearn gave Mr Doyle numerous opportunities to recant but he continued to refuse despite being told his job was at risk. 84 It was submitted that Mr Shearn’s version of this conversation should be preferred to that of Mr Doyle.85
[81] Despite Mr Veivers imploring him to change his mind he was recalcitrant and this continued into his meeting with Mr Shearn. 86
[82] The Respondent submitted that the dispute was always about the Logan Village job and not the other jobs on the list. 87
[83] It was the Respondent’s submission that Mr Doyle did not raise the complaint about excessive workload until latter. 88
[84] It was submitted that each of Mr Doyle’s explanations about why he could not do the job should be rejected. 89
[85] It was submitted that Mr Doyle was notified in the telephone conversation on 13 April 2011 of the reason for his dismissal and he was notified of the reasons again on 14 April 2011. 90
[86] Further it was submitted that Mr Doyle was given an opportunity to respond to the reasons. It was submitted that Mr Doyle in fact responded to the reasons. 91
[87] It was submitted that Mr Doyle did not request a support person be present and the Respondent did not refuse to allow Mr Doyle to have a support person. Mr Doyle was in no doubt about the purpose of the meeting on 14 April 2011. 92
[88] It was submitted that Mr Doyle’s employment was not terminated because of poor performance. It was further submitted that Mr Doyle had previously been given an oral warning by Mr Veivers in relation to a similar incident when he refused to inspect a property in December 2009, and that he had been given a written warning in February 2011 and advised that any future refusal to comply with a lawful direction would lead to the termination of his employment. 93 Further Mr Doyle was repeatedly warned on 13 April 2011 that his employment would be terminated if he did not do the Logan Village job.
[89] The Respondent submitted that sufficient weight must be given to the right of the employer to manage its business appropriately. In this situation the business relies on intermediaries to supply work. The relationship with the intermediaries must be maintained. The work must be provided in a timely fashion and a failure to perform the work would have “a potentially fatal adverse impact on such relationships, and therefore the Respondent’s ongoing viability as a commercial enterprise.” 94
[90] The Respondent rejected the submissions of Mr Doyle about his workload in the fortnight leading up to 13 April 2011 and on 14 April 2011. The Respondent submitted that Mr Doyle’s preference not to work outside of his preferred area or to do less profitable jobs should not take precedence over the right of the employer to allocate work. 95
The Legislative Framework
[91] The FW Act at section 385 provides that a person has not been unfairly dismissed if Fair Work Australia 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.”
[92] The Respondent is not a small business and the dismissal was not a case of genuine redundancy.
Was the termination of employment harsh, unjust or unreasonable?
[93] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, Fair Work Australia must take into account the following:
s387(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);
[94] A valid reason is one which is sound, defensible or well founded. 96
[95] In Container Terminals Australia Limited v Toby 97, a Full Bench of the Australian Industrial Relations Commission said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”98
[96] The Full Bench in Royal Melbourne Institute of Technology v Geoffrey Asher 99 summarised the approach to be adopted when dealing with summary dismissal. Whether there is a valid reason for termination, is not determined by whether the employee is or is not guilty of conduct justifying dismissal at common law. A finding that an employee engaged in serious misconduct or misconduct may constitute a valid reason for termination.
[97] Mr Doyle’s employment was terminated for serious misconduct namely refusal without sufficient cause to comply with a lawful and reasonable direction. He was told of his dismissal on 13 April 2011. He attended a meeting to formalise that dismissal on 14 April 2011 and his dismissal was effective from 15 April 2011. He was not paid any monies in lieu of notice.
[98] Mr Doyle contended that the direction to do the Logan Village job was not a reasonable direction because he would not be able to complete the run allocated in sufficient time to enable him to complete his outstanding work and the valuations scheduled for 14 April 2011. Unfortunately Mr Doyle did not raise this with his employer when he received the email setting out the work to be performed on 14 April 2011. He did not contact his manager to discuss these issues, he simply advised the administrative staff that he was not doing the Logan Village job because it was not his area. In his email to Ms Harding he repeated this and told her to take it up with Mr Shearn. I do not accept Mr Doyle’s evidence that he intended calling Mr Shearn about this. If that had been his intention he would not have told Ms Harding to take it up with Mr Shearn.
[99] While the Respondent contended that Mr Doyle’s evidence and submissions about his workload should be rejected as it was a recent explanation and not the reason he refused the Logan Village job, this submission is not supported by Mr Shearn’s recollection of the conversation on 13 April 2011. It is clear from that conversation that Mr Doyle attempted to discuss his workload with Mr Shearn but Mr Shearn was not interested in hearing what he had to say.
[100] The parties disagreed about whether the direction to do the Logan Village job was a reasonable direction.
[101] On Mr Doyle’s evidence he had been working an 80 week leading up to 14 April 2011. Mr Shearn’s evidence about the working hours of valuers seemed to accept that an 80 hour week was not overly unusual on occasion.
[102] While Mr Doyle relied up section 62 of the FW Act to support his contention that he could not be required to work more than 38 hours per week plus reasonable additional hours he did not consider all the provisions of the FW Act, particularly section 64.
[103] Section 62 of the FW Act provides as follows:
“62 Maximum weekly hours
Maximum weekly hours of work
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee—38 hours; or
(b) for an employee who is not a full-time employee—the lesser of:
- (i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
Employee may refuse to work unreasonable additional hours
(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
Determining whether additional hours are reasonable
(3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee’s personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
(e) any notice given by the employer of any request or requirement to work the additional hours;
(f) any notice given by the employee of his or her intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry, or the part of an industry, in which the employee works;
(h) the nature of the employee’s role, and the employee’s level of responsibility;
(i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
(j) any other relevant matter.”
[104] However section 64 of the FW Act provides for the averaging of hours for award/agreement free employees as follows:
“64 Averaging of hours of work for award/agreement free employees
(1) An employer and an award/agreement free employee may agree in writing to an averaging arrangement under which hours of work over a specified period of not more than 26 weeks are averaged. The average weekly hours over the specified period must not exceed:
(a) for a full-time employee—38 hours; or
(b) for an employee who is not a full-time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
(2) The agreed averaging arrangement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).
Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with an agreed averaging arrangement (whether the arrangement complies with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging arrangement will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).”
[105] There was no evidence before the Tribunal or any submissions that Mr Doyle’s work was regulated by an award or agreement. Mr Doyle’s contract of employment permitted his hours to be averaged over a 26 week period. There was no evidence about the hours worked by Mr Doyle generally. However Mr Doyle had given evidence about his workload leading up to the 14 April 2011 and it was not put to him in cross examination that he did not work 80 hours per week in the weeks leading up to 14 April 2011. In response to this evidence Mr Shearn’s evidence was simply that the work of a valuer involves long hours. He did not consider an 80 hour week to be unusual for a commission based valuer on occasion. 100
[106] There was no evidence before the Tribunal that there was any mechanism in place for an employee’s hours to be monitored. It appears that Mr Shearn took the view that a 12 hour day for valuers was normal. There was no evidence that there was any process in place to ensure that any averaging of hours actually took place. In cross examination Mr Shearn admitted that no consideration was given to Mr Doyle having paid time off when things were slow. 101
[107] It is unfortunate that Mr Doyle did not discuss his concerns about his workload with his manager prior to his decision to reject the Logan Village job. Further it is unfortunate that Mr Doyle focused on the Logan Village job rather than his hours of work. While I do not accept the submissions of the Respondent that Mr Doyle’s concerns about workload were all “ex post facto” 102 I do accept that Mr Doyle’s primary concern was that the Logan Village job was out of his area and not profitable. These were the reasons he gave to Ms Harding and the primary reason given to Mr Shearn and Mr Veivers.
[108] This was not the first time Mr Doyle had raised concerns about working outside his preferred area. It had been made clear to him by Mr Shearn and Mr Veivers that he could not refuse to accept jobs outside his area.
[109] On 13 April 2011 Mr Doyle was given a clear direction by Mr Shearn to do the Logan Village job. That direction by itself was not an unreasonable direction. The Respondent had a valid reason for terminating Mr Doyle’s employment for his refusal to comply with that direction.
s387(b) whether Mr Doyle was notified of that reason;
[110] In Crozier v Palazzo Corporation Pty Ltd 103 the Full Bench of the Australian Industrial Relations Commission considered whether the equivalent provision in the Workplace Relations Act 1996 (as it existed prior to Workplace Relations Amendment (Work Choices) Act 2005) required the employee to be notified before the decision was made.
[111] The Full Bench held that:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG (3) (b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted”.
[112] Mr Doyle was notified of the reason for his dismissal prior to the decision being made. He was told unequivocally by Mr Shearn that his employment would be terminated if he refused to comply with the direction. 104
s387(c) whether Mr Doyle was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[113] For the reasons set out above in relation to section 387(b) the opportunity to respond is a reference to an opportunity to respond before a decision is taken to terminate the employee’s employment.
[114] Mr Doyle was given a limited opportunity to respond to the reason for the termination of his employment. It is clear that the decision to terminate his employment was made on 13 April 2011. The meeting on 14 April 2011 was to formalise the termination. Mr Doyle was given an opportunity to comply or not comply with the direction during his telephone conversation with Mr Shearn. However it is clear from Mr Shearn’s own recollection of the conversation that he did not have any regard to the other issues raised by Mr Doyle in that conversation, namely Mr Doyle’s concern about his workload. Mr Doyle told Mr Shearn that “tomorrow’s run is a joke...anyway how do you expect me to do all those jobs when I’ve still got today’s to complete and get out.” 105
[115] Mr Shearn did not respond to this, he simply focused on Mr Doyle’s refusal to do the Logan Village job. It was Mr Shearn’s view that Mr Doyle’s “attitude was wrong.” It was not clear what Mr Shearn meant by this. Mr Shearn gave evidence that Mr Doyle had on earlier occasions complained about travelling to some jobs because it was unprofitable and Mr Shearn had told him he had to do it. 106 Even after Mr Doyle told him that he was prepared to do the other jobs but due to his work load he could not do Logan Village job as well, Mr Shearn focused on the refusal to do the Logan Village job. Mr Shearn did not respond to these workload issues.
[116] At the meeting on 14 April 2011 Mr Doyle again sought to raise the issue of his workload but Mr Shearn refused to discuss it because it “was revisiting issues we’ve discussed over the last six months.”
[117] An opportunity to respond is a fundamental aspect of procedural fairness. The employee must be provided the opportunity to explain their conduct and an employer who refuses to listen to the explanation or refuses to have regard to the explanation in reaching their decision has not afforded the employee a real opportunity to respond. I find in this matter that Mr Shearn did not, in the telephone conversation, provide Mr Doyle with an opportunity to respond. He further did not provide him with an opportunity in the meeting on 14 April 2011 but in any event, by then it was too late, as the decision to terminate the employment had already been made.
s387(d) any unreasonable refusal by the employer to allow Mr Doyle to have a support person present to assist at any discussions relating to dismissal;
[118] Mr Doyle did not request a support person be present during the phone call of 13 April 2011. This is not surprising as he was not aware that the telephone conversation would lead to his dismissal. He was aware of the purpose of the meeting on 14 April 2011 but he did not bring a support person with him.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Doyle had been warned about that unsatisfactory performance before the dismissal;
[119] It was submitted that Mr Doyle was not terminated for unsatisfactory performance. 107 It was however submitted that Mr Doyle had previously been warned by Mr Veivers about refusing to inspect a property. I do not consider that the discussion between Mr Veivers and Mr Doyle on that occasion constituted a warning. It was also submitted that the warning given to Mr Doyle on 3 February 2011 in which Mr Doyle was warned that a further refusal to comply with a lawful and reasonable direction would lead to instant dismissal, did put Mr Doyle on notice of his contractual obligations. It is also clear that Mr Shearn warned Mr Doyle on 13 April 2011 that if he continued to refuse to do the Logan Village job his employment would be terminated. Mr Doyle cannot complain that he had not been warned.
s387(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;
[120] No submissions were made on this criterion.
s387(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;
[121] No submissions were made on this criterion.
s387(h) any other matters that FWA considers relevant.
[122] I have had regard to the Applicant’s length of service and that there were no issues with his performance as a valuer. I have also had regard to the fact that while Mr Doyle was terminated without notice for serious misconduct, he continued to work on 14 and 15 April 2011 to complete his work.
Conclusion
[123] Mr Doyle on his own unchallenged evidence had been working extremely long hours and had substantial work to complete in a limited period of time when he refused a clear direction from his manager to inspect the Logan Village property. There was no suggestion that Mr Doyle was anything other than a diligent worker. It may not have been unreasonable for Mr Doyle to refuse to work the additional hours required to be worked to complete the work allocated to him on 14 April. However he did not advise his employer that he would not work the additional hours. Mr Doyle was not entitled to pick and chose which jobs he undertook. I have found that his employer did not provide him with an opportunity to fully explain why he refused the Logan Village job before deciding to terminate Mr Doyle’s employment.
[124] However having regard to all the circumstances including the way in which Mr Doyle unilaterally refused the job without any prior discussion with Mr Shearn and continued to refuse to do the job despite being advised that his employment was at risk, leads me to conclude that despite the lack of procedural fairness afforded to Mr Doyle, the termination of his employment was justified.
[125] However I do not consider that Mr Doyle’s conduct warranted termination without notice.
[126] The National Employment Standards provides that an employer must not terminate an employee’s employment unless the employee had been given notice of termination or paid in lieu of notice.
[127] Section 123 provides that notice does not apply if an employee is guilty of serious misconduct. Serious misconduct is defined regulation 1.07 of the Fair Work Regulations as follows:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”
[128] In this situation Mr Doyle’s conduct was not such that it made a period of notice unreasonable and in fact while Mr Doyle was terminated for serious misconduct he was permitted to continue working for another two days. It is clear the Respondent did not consider Mr Doyle’s conduct so serious that it warranted summary dismissal yet it did not pay Mr Doyle any monies in lieu of notice. Termination of employment in a manner inconsistent with the NES cannot be reasonable.
[129] I therefore find that the termination of Mr Doyle’s employment was harsh, unjust and unreasonable primarily because of the lack of notice of termination.
Remedy
[130] Mr Doyle does not seek reinstatement.
[131] The Respondent submitted that any compensation should be nominal and that regard should be had to Mr Doyle’s misconduct. 108
[132] In assessing any amount in lieu of reinstatement, Fair Work Australia is required to have regard to the following:
(a) the effect of the order on the viability of the employer’s enterprise;
[133] No submissions were made on this criterion.
(b) the length of the person’s service with the employer;
[134] Mr Doyle had been employed for 4.5 years.
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;
[135] Mr Doyle should have been dismissed with notice. Had he been paid in lieu of notice he would have received five weeks pay as he was over 45 years of age plus 9% superannuation.
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;
[136] Mr Doyle has applied for in excess of 100 positions. He has also set up a property analyst business and he performed some work for Mr Coughran, a former employee of the Respondent.
(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;
[137] No evidence was put before the Tribunal about how much Mr Doyle earned since the termination of his employment.
(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;
[138] This is not a relevant criteria.
(g) any other matter that FWA considers relevant.
[139] While it was submitted that regard should be had to Mr Doyle’s misconduct 109 I do not consider that this is relevant in circumstances where I have found that the Respondent was entitled to terminate Mr Doyle’s employment with notice because of his misconduct.
Conclusion
[140] I have decided that it is appropriate to order that Mr Doyle receive compensation of five week’s pay including superannuation less applicable taxation. The evidence before the Tribunal was that Mr Doyle’s salary was made up of a base salary plus commissions. I consider that the amount to be paid to Mr Doyle should be equivalent to the amount he earned in the five weeks prior to the termination of his employment plus superannuation.
[141] I therefore issue the following directions:
1. The Respondent is to provide to the Tribunal and Mr Doyle by the close of business on 6 December 2011 its calculations of the amounts to be paid to Mr Doyle and to his superannuation account, consistent with this decision.
2. Mr Doyle is to advise the Tribunal and the Respondent by the close of business on 13 December 2011 whether he agrees with this calculation.
3. In the event that there is no agreement on the amount, the parties are directed to file and serve submissions and evidence in support of the calculations by close of business on 20 December 2011.
COMMISSIONER
Appearances:
M Doyle on his behalf.
S Reidy of Counsel for the Respondent.
Hearing details:
2011.
Brisbane.
August 9, 11.
1 Exhibit A5 at B
2 Exhibit R6 at LB 3
3 Exhibit A5 at [8]
4 Ibid
5 Ibid Attachment J
6 Ibid Attachment K
7 Exhibit A3 at [12]
8 Ibid at [15]
9 Ibid
10 Exhibit R5 at BS 6
11 Ibid at BS 7
12 Exhibit A3 at [16]
13 Ibid at [17]
14 Ibid
15 Ibid
16 Exhibit A3 at Ia
17 Ibid at [18]
18 Ibid at [19]
19 Ibid at [21]-[23]
20 Ibid at [27]
21 Ibid at [30]
22 Transcript PN 208
23 Transcript PN 463
24 Ibid PN 496
25 Ibid PN 563, 568, 569, 573, 578
26 Ibid PN 673
27 Exhibit A1 at [6]
28 Transcript PN 103
29 Exhibit A2 at [6]
30 Exhibit R5
31 Exhibit R5 at [19]-[26]
32 Ibid at [27]
33 Ibid at [30]
34 Ibid at [36]
35 Ibid at [39]
36 Transcript PN 1043
37 Ibid PN 1077
38 Exhibit R5 at [40]
39 Ibid at [41]
40 Transcript PN 1085
41 Ibid PN 1089
42 Ibid PN 1104
43 Ibid
44 Exhibit R5 at [42]
45 Ibid at [43]-[44]
46 Ibid at [45]
47 Ibid [48]-[61]
48 Exhibit R6 at [12]-[13]
49 Ibid at LB4
50 Exhibit R7
51 Ibid at [7]
52 Ibid at [20]-[23]
53 Transcript PN 1408
54 Exhibit R7 at [27]
55 Transcript PN 1409
56 Ibid PN 1409
57 Ibid PN 1410
58 Exhibit R7 op cit at [29]
59 Ibid at [41]
60 Transcript PN 1391
61 Exhibit R7 op cit at [41]
62 Transcript PN 1391
63 Exhibit R7 at [31]-[33]
64 Ibid at [35]
65 Ibid at [36]
66 Exhibit A5 at [6]
67 Transcript PN 1734
68 Exhibit A5 at [9.a]
69 Ibid at [9.b and d]
70 Ibid at [9.f]
71 Exhibit A5 at [7]
72 Transcript PN 1738 and 1747
73 Ibid PN 1761
74 Exhibit A5 at [8]
75 Ibid at [10]
76 Ibid at [11]
77 Ibid at [13]
78 Ibid at [14]
79 Ibid at [17]
80 Exhibit R8 at 2.3
81 Transcript PN 1825
82 Transcript PN 1823
83 Exhibit R9 at [13]
84 Ibid at [15]
85 Ibid
86 Ibid at [16]
87 Ibid at [17]
88 Transcript PN 1823
89 Exhibit R9 at [20]-[32]
90 Exhibit R8 at [3.1]
91 Ibid at [4]
92 Ibid at [5]
93 Ibid at [6]
94 Ibid at [9]
95 Ibid at [9]
96 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
97 Print S8434, 24 July 2000
98 Ibid at [15]
99 [2010] FWAFB 1200
100 Exhibit R5 at [41]
101 Transcript PN 1085
102 Exhibit R9 at [20]
103 Print S5897
104 Exhibit R9 at [33]
105 Exhibit R5 at [45]
106 Ibid at [27]
107 Exhibit R8 at [6.1]
108 Exhibit R9 at [41] and Transcript PN 1879
109 See section 392(3) of Fair Work Act 2009
Printed by authority of the Commonwealth Government Printer
<Price code C, PR516956>
0
2
0