Martin sheng lei Huo v Mandoon Estate
[2023] FWC 2707
•17 OCTOBER 2023
| [2023] FWC 2707 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Martin sheng lei Huo
v
Mandoon Estate
(U2022/10085)
| COMMISSIONER SCHNEIDER | PERTH, 17 OCTOBER 2023 |
Application for an unfair dismissal remedy
On 16 October 2022, Mr Martin Sheng Lei Huo (Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Madoon Estate (the Respondent).
The Applicant seeks compensation.
Background
The Applicant commenced employment with the Respondent on 13 November 2021.
The Applicant was employed as a Kitchen Hand under the Hospitality Industry (General) Award 2020 (the Award).
The Applicant was rostered to commence work at 8:00AM on Saturday, 1 October 2022.
During the course of the Applicant’s shift, his supervisor, Mr Hong Sun (Mr Sun), became concerned about the Applicant’s fitness for work.
Subsequently, the Applicant was sent home early from work, on the afternoon of 1 October 2022, and was not rostered or expected to return to work that day.
The Applicant returned to the workplace, at around 9:15PM, on the evening of 1 October 2022.
The parties are in agreement that the Applicant was not directed or requested by the Respondent to return to the workplace on the evening of 1 October 2022. Rather, the Applicant returned to the workplace of his own accord.
The parties are in dispute about what occurred following the Applicant’s return to the workplace which eventually led to the termination of his employment.
Legislation
Preliminary matters
The Act requires that I determine several initial matters before considering the merits of the Applicant’s application. There is no dispute between the parties concerning these initial matters, and I am satisfied that none of the usual preliminary issues require attention.[1]
When can the Commission order a remedy for unfair dismissal?
Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied.
I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
As has been established, I am satisfied that the Applicant is protected and therefore I must now consider the second limb.
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account several criteria.
Section 387 of the Act reads:
“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 am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[2]
Submissions – Evidence
Applicant
The Applicant confirmed that, on the day in question, following discussions with his supervisor, Mr Sun, he was sent home from work in the mid-afternoon.
The Applicant, at the hearing, confirmed that he consumed an alcoholic beverage after he had returned home.
The Applicant confirmed that, several hours later, he decided to return to work and commence preparations for his shift on Sunday 2 October 2022.
The Applicant’s reason for returning was that he was concerned about the amount of work which would need to be completed on the Sunday morning, and he was keen to complete some of this work the evening prior.
The Applicant was not directed to return to the workplace by the Respondent and was not commencing a rostered shift or similar when he returned to the workplace.
The Applicant, in a timeline provided to the Commission, states that he returned to the workplace at 9:40PM on the evening of 1 October 2022.
The Applicant confirmed that, when he arrived at the workplace on the evening of 1 October 2022, he was directed to leave the workplace and go home.
The Applicant confirmed that he had a discussion and was later told to take Sunday 2 October 2022 off work.
The Applicant, after seeing that he had not been rostered to work the following week, sent an email, on the morning of Monday 3 October 2022, to the Respondent, which is outlined below:
“Dear Michael Hartnell,
I am writing to you about the roster this week.
As you are probably aware, there was an incident on Sunday where there was shouting back and forth between me. This was due to built up frustration and a mixture of bad decisions. I sincerely apologise for my part in this.
However, as previously discussed within meetings, I understand that we, as a company, should be trying to work together as a team.
Could you please give me a reply via email so that we can discuss what went wrong and how we can rectify this situation so it doesn’t happen again”.
The Applicant, in his materials, provided a copy of a letter sent by the Respondent, dated Monday 3 October 2022, which stated the following:
“The purpose of this letter is to inform you that you are required to attend a meeting at Mandoon Estate with Michael Hartnell, Hong Sun at 11am on Thursday 6 October 2022 to discuss the following allegations which have been brought to our attention:
On Saturday, 1 October 2022:
1. at approximately 9.25pm it is alleged you accessed Mandoon estate kitchen while you were not on duty; and
2. it is alleged you were under the influence of alcohol and/or drugs during the alleged incident.
The above allegation are in breach of the following Mandoon Estate policies and procedures, specifically:
Alcohol & Drugs
Mandoon Estate has a zero tolerance for any staff to be at work from the effects of drugs or alcohol. Any staff who fails to abide will face disciplinary action and as a result could be dismissed…..
The purpose of this meeting is to allow you to provide a response to the above allegations. I can confirm that an outcome will not be determined until we have considered your responses.
If the allegations are proven disciplinary action may be taken against you up to and including termination of your employment.
You are entitled to bring a support person to attend the meeting if you wish..”
The Applicant confirmed that he did not take a support person along to the meeting.
The Applicant outlined that, at the meeting in question, he apologised for the verbal exchange that occurred on the evening of 1 October 2022.
The Applicant admitted that he had consumed one alcoholic beverage around 4:00PM, after returning home from his initial shift, but denied he was under the influence of alcohol or drugs when he returned to work at 9:45PM.
The Applicant submits that he explained to the Respondent his actions were impacted by fatigue, and this could have exacerbated the Applicant’s existing health conditions leading to his presentation on the night in question.
The Applicant, in his materials, provided a copy of a Show Cause letter which he received from the Respondent, dated Monday 10 October 2022, outlined below:
“We refer to our meeting on Thursday, 6 October 2022, where we discussed allegations relating to you behaviour in the position of Kitchen Hand.
In response to the allegations outlined above, you stated:
You admitted that it was a mistake and that you apologised for what happened.
You admitted that you had been drinking alcohol before re-entering the kitchen whilst not on duty.Mandoon estate have conducted an investigation into this incident following your responses above. Mandoon estate having:
1. Heard and considered you response to the above allegations.
2. Obtained statements and accounts from work colleagues of your actions on that night, and
3. Reviewed security footage.
Has found the allegations have been substantiated….
In light of the matters discussed during the meeting and previous incidences, we have:
a) Serious concerns about your on-going ability to perform your role; and
b) Lost trust and confidence in your ability to follow lawful and reasonable directions.
We would like to offer you a final opportunity to respond to the above allegations and show cause why your employment should not be terminated for the reasons set out above, before a final decision is made about your ongoing employment.
Any response must be in writing and sent to Michael Hartnell at [redacted email] by no later than 2pm Thursday, 13 October 2022.
I confirm that an outcome will not be determined until we have considered you responses. If you choose not to provide a further response by the date and time outlined above, will make a decision on the evidence currently has before it.”
The Applicant disputes the nature of the information provided in the Respondent’s letter, outlined above.
The Applicant sent an email to the Respondent, at 12:53AM on Thursday, 13 October 2022, as follows:
“I am writing in response to the email received on 10th of October. Firstly, I would again like to clarify that during the meeting held on the 6th of October. I acknowledge I apologised for the incident that occurred on that Saturday night, however I would like to mention what I said during the meeting was “I I one drink once I returned home. Therefore, by the time I arrived at work again later that night no alcohol would have been in my system. I believe over the past year working at mandoon I not only have put in I of hard work, but also always tried my best to ensure all tasks are completed. I don’t agree that I was intoxicated. I enjoy working at mandoon estate and really hope my employment is not terminated due to this isolated incident”.
Later that day, the Respondent sent the Applicant further communication, confirming that his employment had been terminated:
“During the meeting, we provided you with an opportunity to respond to these allegations and provide us with any relevant information…
In response to the allegations, you admitted it was a mistake to come to the venue and enter the kitchen, given you were not on duty. Furthermore, you admitted you had been drinking alcohol before coming to the venue as you were at a concert. You apologised for your behaviour…”
The Applicant does not agree with the Respondent’s letter of termination and gave evidence that he did not attend the concert next door to the Respondent’s place of business.
The Applicant outlined a number of other factors which he believes are reasons as to why the events of this matter unfolded as they did, including:
· Previously being advised that he was promoted, however not receiving a classification increase.
· Alleged underpayment by the Respondent.
· Alleged workplace bullying.
· Lack of job security associated with his status as a casual employee.
· Increase in operations and work due to a recent public holiday.
· Alleged inaccuracy of his timesheets.
The Applicant, in summary, raised the following as to why his dismissal was unfair:
· The Applicant was not intoxicated when he returned to the workplace on 1 October 2022.
· The Respondent incorrectly mistook his fatigue as signs of him being intoxicated.
· The Applicant denies the Respondent’s assertion that he had been drinking or using drugs at a music festival, which was occurring next door to the Respondent’s business.
· The Applicant said that he had previously been offered bar work at the festival, earlier in the week, however declined the work because of his rostered shift with the Respondent.
· The Applicant had not received any prior warnings.
· The Applicant was coming in to complete unpaid work, after hours, which would have benefited the Respondent’s operations.
· When directed to leave the premises, the Applicant left, as directed.
· The Applicant believes he was subjected to a breath test by WA Police when leaving the Respondent’s premises on the night in question.
· The Applicant also raised issues of the Respondent having an inconsistent approach to the application of the alcohol and drug policy.
· The Applicant asserts that other staff members have been intoxicated whilst leaving the workplace on previous occasions.
The Applicant, despite making the above submissions and statements, did not provide notable evidence to support several of the above assertions.
Respondent
The Respondent submits that the Applicant commenced work at 8:00AM on 1 October 2022. During the Applicant’s shift, his direct supervisor, Mr Sun, grew concerned about him. Mr Sun made a decision that the Applicant was not fit for work, and it was agreed between the Applicant and Mr Sun that the Applicant would go home. The Applicant was not expected to return to work.
The Respondent submits that, at around 9:15PM on 1 October 2022, the Applicant returned to the workplace.
The Respondent submits that the Applicant was under the influence of alcohol or drugs when he returned to the workplace and that he breached the Respondent’s drugs and alcohol policy.
The Respondent submits that the Applicant was argumentative and did not leave the workplace immediately when direct to do so. Rather, the Respondent submits, the Applicant continued to argue with various staff members before leaving the workplace.
The Respondent submits that the Applicant, after being sent home from work earlier on 1 October 2022, went to a music festival which was being held next door to the Respondent’s place of business and consumed some type of intoxicating substance prior to returning to the workplace.
In support of the above assertion, the Respondent provided a copy of a Facebook Messenger chat between the Applicant and another staff member. From the screenshot of the messages, it appears the Applicant, at 8:55PM on 1 October 2022, sent the following messages:
“Party next door”
“Wanna cum?”
“Surely”
“Kevs got the hook ups”
The Applicant also sent a message the following day:
“Nar lol i just was really pissed of yesterday n kinda pissed off at work like u dexhlan n so on”.
The Respondent submits that, as the Applicant returned to the kitchen to perform work, albeit without the authorisation of the Respondent, the drug and alcohol policy applied to the Applicant as he was on the premises.
The Respondent submits that it had a valid reason for terminating the Applicant’s employment, as he returned to the workplace under the influence of drugs and/or alcohol.
Witness Evidence - Hong Sun
Mr Sun gave evidence that, at around 9:15PM on 1 October 2022, he was working with other kitchen staff to clean down the kitchen when another staff members stated that “Martin is here”.
Mr Sun explained that he was shocked to hear this as, earlier in the day, he had agreed with the Applicant that he would go home as he was not fit for work.
Mr Sun stated that he was surprised to see the Applicant in the workplace, given the Applicant had been sent home for fatigue related issues earlier in the day.
Mr Sun gave evidence that he spoke to the Applicant who explained that he had returned to work to complete preparation work for the next day.
Mr Sun gave evidence that, whilst having this discussion with the Applicant, he noticed the Applicant was unsteady on his feet.
Mr Sun’s evidence was that he told the Applicant to leave the kitchen and to go home.
Mr Sun’s states that, when he engaged with the Applicant that evening, he smelled of alcohol and appeared to be under the influence of an intoxicating substance.
Mr Sun said he reached this conclusion because the Applicant was slurring his words and he appeared to have some sort of facial twitch which he had not seen previously.
Mr Sun stated he was advised by an apprentice the following day that the Applicant was at the music festival next door and obtained a copy of the message exchange between the Applicant and the apprentice.
Witness Evidence – Anthony Power
Mr Anthony Power (Mr Power), Head Chef, gave evidence that, on 1 October 2022 at around 9:25PM, he was cleaning down the kitchen with fellow team members when the Applicant entered the kitchen.
Mr Power gave evidence that he heard an exchange between the Applicant and Mr Sun, in which Mr Sun questioned why the Applicant had returned to work. Mr Power overheard the Applicant explain that he wished to complete preparation work for the following day. Mr Power then overheard Mr Sun telling the Applicant to go home.
Mr Power gave evidence that both he and Mr Sun repeatedly told the Applicant to leave the workplace and the Applicant finally left the kitchen after arguing with Mr Sun.
Mr Power’s evidence was that, as the Applicant walked towards the change rooms, Mr Power followed the Applicant and told him that he should not be speaking to his boss like he had been and that it was not normal for him to start work at nighttime.
Mr Power said that he was trying to explain to the Applicant that it was not normal to come into work at that hour and commence preparation work for the following day.
Mr Power gave evidence that the Applicant continued to argue and did not seem to understand what Mr Power was trying to explain to him.
Mr Power outlined that, during this interaction with the Applicant, he noticed that the Applicant was slurring his speech and displayed facial twitches.
Mr Power’s evidence was that, having worked in hospitality for over 10 years, he has seen numerous people under the influence of alcohol in the workplace. Mr Power is of the opinion that the Applicant’s slurred speech was consistent with intoxication. Mr Power’s evidence was that he believed the facial twitches were consistent with someone being under the influence of some form of illicit intoxicating substance.
Mr Power explained that he was concerned the Applicant would be putting himself at risk by seeking to work while unfit.
Mr Power stated he was concerned that the Applicant could get stuck in the freezer and potentially damage produce or property.
Mr Power said that he told the Applicant he needed to leave the workplace and go home.
Mr Power said that, around 15 minutes later, he was advised that the Applicant had left the workplace, after having a cigarette with a co-worker outside.
Consideration of criteria
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[3]
I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[4] and should not be “capricious, fanciful, spiteful or prejudiced”.[5] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[6]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[7]
“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.” [8]
The Applicant submits that there was no valid reason for the dismissal related to his conduct as he was not intoxicated in the workplace.
The Applicant also submits that, when he was directed to leave the workplace on the night in question, the Applicant complied with the direction and left the workplace.
The Respondent submits that there was a valid reason for the dismissal, related to the Applicant’s capacity or conduct, as the Applicant had returned to the workplace in a state that was not fit for work and refused a lawful and reasonable direction to leave the workplace when directed to do so.
The Respondent submits that the Applicant presented to the workplace in an intoxicated state. The Respondent submits that this conduct was in contravention of the Respondent’s drug and alcohol policy.
It was the evidence of Mr Sun that, earlier in the day, he was concerned about the Applicant’s fitness for work and, following at least two discussions with the Applicant, it was agreed that the Applicant would finish his shift early and go home.
It was the evidence of both Mr Power and Mr Sun that the Applicant returned to the workplace despite not being rostered and following the order for him to go home.
Both Mr Power and Mr Sun gave evidence that they believed the Applicant was intoxicated and under the influence of an illicit substance and, overall, not fit to be in the workplace.
Both Mr Power and Mr Sun gave evidence that the Applicant was argumentative and was insistent on completing work duties to prepare for the following day despite repeated insistence that he remove himself from the workplace.
Findings
The Applicant had been sent home earlier in the day from work over concerns in relation to his fitness for work. The Applicant returned to work, later that evening, despite previously being requested to leave and not being requested back.
The Applicant, upon returning to work, was directed to leave the workplace. Only after some protesting and repeated insistence from the Respondent’s staff did the Applicant leave the workplace.
Having considered the testimony of the witnesses before the Commission, I do not believe that the Applicant was entirely credible in relation to his version of events.
The Applicant’s version of events, in which he went home for several hours and returned to work in preparation for the next day after consuming only one alcoholic beverage some hours prior, is not consistent with the other evidence before the Commission.
The messages, sent by the Applicant to a co-worker at 8:55PM on the night in question, clearly indicate that the Applicant was already close to the workplace at the music festival. Accordingly, I do not find the Applicant to be an entirely credible witness, nor do I agree with the version of events put forth in his evidence.
I prefer the evidence of Mr Sun and Mr Power and I find that their version of events is more consistent with the evidence before the Commission.
I find that, on the balance of probabilities and assessment of the materials before the Commission, the conduct alleged occurred. There is sufficient evidence before the Commission to support the submissions of the Respondent and the reasons it puts forth as giving rise to the dismissal.
The conduct occurred, although outside of the Applicant’s rostered hours, within the workplace and in connection with the Applicant’s employment.
On assessment of the materials before me, the Applicant’s conduct was willful and resulted in a substantial breach of the Respondent’s workplace drug and alcohol policy.
The risk caused by this breach, and the implications for the Respondent and others surrounding the Applicant on the night in question, was not insignificant. The Applicant’s conduct posed a risk to the safety and welfare of himself and others at the workplace.
The Applicant, in presenting to the workplace in his condition, posed a risk of damaging his own, and the Respondent’s, reputation and interests. Similarly, the Applicant’s conduct eroded the employment relationship itself and damaged the Respondent’s trust and confidence in him as an employee.
Furthermore, in returning to the workplace, the Applicant disobeyed the earlier direction of the Respondent to leave due to a concern over his fitness for work.
Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to the Applicant’s conduct.
Was the Applicant notified of the valid reason?
Proper consideration of section 387(b) of the Act requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under section 387(a) of the Act.[9]
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[10] and in explicit[11] and plain and clear terms.[12]
The Respondent provided the Applicant with initial correspondence regarding their concerns, on 3 October 2022. This correspondence outlined the nature of the allegations being put to the Applicant and confirmed that, should the allegations be substantiated, the Applicant’s employment was at risk of termination.
The Respondent confirmed, in writing, on 10 October 2022, that the allegations had been substantiated and the Applicant was afforded the chance to show cause as to why his employment should not be terminated.
The Applicant was provided with a formal notice of termination, on 13 October 2022, confirming that his employment had been terminated for violating the Respondent’s drug and alcohol policy.
Having regard to the matters referred to above, I find that the Applicant was notified of the reason for his dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[13]
The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[14] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[15]
The Applicant attended a meeting with the Respondent, on 6 October 2022, and was given the opportunity to explain his version of events on the night in question.
The Respondent provided the Applicant with a final opportunity to show cause as to why his employment should not be terminated, on 10 October 2022, and noted that a final decision, in relation to the Applicant’s employment, would be made on 13 October 2022.
The Applicant sent an email for the Respondent to consider, on 13 October 2022.
In all the circumstances, I find that the Applicant was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[16]
The Respondent, in their letter to the Applicant on 3 October 2022, offered the Applicant the ability to have a support person present at the meeting, on 6 October 2022. The Applicant acknowledged that he did not take a support person with him.
Having regard to the matters referred to above, I find that the Applicant had the ability to have a support person of his choosing, however elected not to do so. I find that the Respondent did not unreasonably refuse the Applicant from having a support person present.
Was the Applicant warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Neither party made submissions in relation to this point. The Respondent, on assessment of the materials before the Commission, does not have internal human resources management specialists.
The Respondent, it appears, does not assert that the lack of specialists within the enterprise impacted the procedures followed. I believe the lack of specialists or expertise had no such impact.
What other matters are relevant?
Section 387(h) of the Act requires the Commission to take into account any other matters that the Commission considers relevant.
The Applicant submits that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable:
· Previously being advised that he was promoted, however not receiving a classification increase.
· The Applicant asserts he was underpaid by the Respondent.
· Workplace bullying.
· Lack of job security associated with being a casual employee.
· The Respondent’s operation has been busier than usual due to a recent public holiday.
· The Applicant also raised concerns over the accuracy of his timesheets.
The Applicant has not provided any detailed evidence in relation to workplace bullying that the Commission can consider. Rather, he has made certain statements with no or little details in support.
The Applicant provided copies of timesheets and photos of various tasks or various workstations that he worked on for the Respondent. However, the Applicant has not provided any significant detail or explanation for these documents which support his positions.
Findings
There is no meaningful evidence before the Commission which can be assessed in relation to the Applicant’s various allegations of workplace bullying or similar. I accept that, had these claims been substantiated by the Applicant, such issues could have been a contributing factor in relation to his conduct and the reaction of the Respondent on 1 October 2022. However, the Applicant has failed to provide any notable evidence that the Commission could consider.
I briefly note that, it appears, having witnessed the interactions of the parties before the Commission, the parties do not display a particularly pleasant disposition when interacting with one another. I am inclined to believe that some staff from the Respondent did not have particularly robust opinions of, or fond relationships with, the Applicant, even during the time of his employment. However, I am not satisfied that the presence of lacklustre interpersonal relationships supports any finding other than a simple conclusion that some individuals in the workplace did not particularly like each other, an unavoidable consequence of existing alongside others. I am not satisfied that the apparent incompatibility of some personalities within the workplace contributed to any unfairness in relation to the termination of the Applicant’s employment.
I accept that the Applicant may have been suffering from fatigue due to recent long hours and public holiday work. However, there is no notable evidence to support a conclusion that the Applicant’s tiredness was the sole cause of, or so severe that it could explain, the Applicant’s conduct later in the evening. The Respondent concurred with the Applicant’s submission, regarding tiredness, and submits that this formed part of the reason the Applicant was sent home early. On assessment of the evidence before the Commission, the Applicant, in all probability, did not take advantage of his period off work to rest and instead opted to partake in additional strenuous activities, following which he returned to the workplace. Any tiredness initially caused by work, which contributed to the Applicant’s impaired presentation on the night in question, was significantly exacerbated by his own contributions to such condition.
The Applicant held concerns about his timesheets and classification under the Award. The Applicant has not provided any information as to how or if this had been raised with the Respondent during his employment or how this contributed to his dismissal. On assessment of the circumstances of this matter, I find that this application is not the appropriate forum for the Commission to make findings in relation his Award classification or similar. I accept that such issues could have been sources of frustration for the Applicant during his employment. However, such issues could have been addressed during his employment through the appropriate avenues. I am not passing judgement and have not made any conclusions on these specific issues raised by the Applicant regarding the terms and conditions of his employment. On assessment of the matter before the Commission, I am not satisfied such issues have any correlation to the Applicant’s termination or contributed to the conduct of the Applicant that led to his termination. Accordingly, I am not satisfied these issues are relevant to my consideration of the matter nor have they been substantiated as egregious enough to warrant further consideration.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 of the Act as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable.[17]
Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable.
The Applicant made a severe error in judgement by returning to the workplace while unfit for work and in violation of the Respondent’s workplace drug and alcohol policy. I am not satisfied that this error on behalf of the Applicant is merely a single foolish act that would not amount to a valid reason for his dismissal. I accept that, following this significant error in judgement, the Respondent has, reasonably, lost trust and confidence in the Applicant’s decision-making abilities and conduct in the workplace. The Applicant’s misconduct amounted to a substantial breach of the Respondent’s policies and posed risk to the Respondent and others present. In returning to the workplace, the Applicant put himself and others at risk of injury, by seeking to commence preparation work for the next day. The Applicant acted in contravention of the Respondent’s previous direction to rest and not attend work.
In actioning the dismissal, the Respondent afforded the Applicant procedural fairness and, on the materials before me, I am unable to identify any other circumstances that would support a finding that the dismissal was unfair.
The Respondent followed a reasonable process in actioning the dismissal. Conversely, I wish to highlight what, in my assessment, was a meaningful failure by the Respondent in its management of the incident on the night in question. The Respondent was aware of the music festival occurring, on the night in question, on a neighbouring property, resulting in increased traffic in the area. The Respondent, having concluded that the Applicant was not fit for work and under the influence of unknown substances, only seemed concerned about the Applicant leaving the workplace and exercised no care to ensure the Applicant’s safety or welfare in departing the premises to return home. Nevertheless, this apparent flaw in moral judgment and failure to exercise basic decency only raises the question: If, as the Respondent asserts, it was so deeply concerned about the Applicant’s condition—as well as the potential harm he could cause within the workplace—why, then, did it conclude that such concern for safety did not extend to the Applicant and members of the general public following his departure? And, to the Respondent’s luck, does not influence any conclusion regarding the termination of the Applicant’s employment.
Conclusion
Not being satisfied that the dismissal was harsh, unjust, or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act. The Applicant’s application is therefore dismissed. An Order to this effect has been issued.[18]
COMMISSIONER
[1] The application was made within the relevant time period (s.394(2)). There is no dispute that the Applicant has been dismissed (s.386). The Applicant is a person protected from unfair dismissal as; the Applicant did not earn over the high-income threshold, the Applicant’s employment was subject to a Modern Award, and it is not disputed that the Applicant has served the minimum employment period (s.382). The Applicant’s dismissal was not a case of genuine redundancy (s.389). The Small Business Fair Dismissal Code is not applicable (ss.385; 388(1)), as the Respondent has confirmed it had more than 12 employees at the time of the dismissal. Additionally, the Hearing was held in compliance with section 397. Neither party requested permission to be represented.
[2] [2011] FWAFB 7498, [14]; PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[3] [2011] FWAFB 7498, [14]; PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[4] (1995) 62 IR 371, 373.
[5] Ibid.
[6] (1996) 142 ALR 681, 685.
[7] [1999] FCA 1836, [7].
[8] Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[9] [2020] FWCFB 6429, [19]; [2020] FWCFB 533, [55].
[10] (2000) 98 IR 137, 151.
[11] Print Q3730 (AIRC, Holmes C, 6 October 1998).
[12] Ibid.
[13] Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[14] (2010) 194 IR 1, 14-15.
[15] (1995) 60 IR 1, 7.
[16] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[17] (2002) 117 IR 357, [51]. See also PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; [1999] FCA 1836, [6]–[7].
[18] [PR767324].
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