Michael Osmond v NBS Transport (SA) Pty Ltd T/A NBS Transport
[2010] FWA 6116
•16 AUGUST 2010
[2010] FWA 6116 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Osmond
v
NBS Transport (SA) Pty Ltd T/A NBS Transport
(U2010/5373)
COMMISSIONER RAFFAELLI | SYDNEY, 16 AUGUST 2010 |
Termination of employment.
[1] On 19 January 2010 Mr Michael Osmond (the Applicant) made application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) concerning the termination of his employment by NBS Transport (SA) Pty Ltd t/as NBS Transport (the Respondent). The application was made on the Applicant’s behalf by the Transport Workers’ Union (TWU).
[2] The Respondent reacted to the application by claiming that the Applicant had only been employed as a casual employee for a period of three weeks.
[3] As a result, a hearing was held on 9 July 2010 to determine the jurisdictional objection.
[4] By written decision on 9 July 2009 ([2010] FWA 5076 PR999109) the jurisdictional objection was dismissed. In that decision I found that a transfer of employment had occurred resulting in the minimum employment period requirement under section 383 of the Act being satisfied. I also found that the employment was on a regular and systematic basis and the Applicant had a reasonable expectation of continuing employment.
[5] This decision now concerns whether an unfair dismissal remedy should be made.
[6] The definition of an unfair dismissal is provided by section 385 of the Act
[7] Section 385 of the Fair Work Act 2009 (the Act) defines unfair dismissal as:
“A person has been unfairly dismissed if FWA 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.”
[8] It is not in dispute that the Applicant was dismissed on 12 January 2010 by telephone by Mr Andrew Walczak, one of the owners of the Respondent, a family business. It is not suggested that the dismissal was consistent with Small Business Fair Dismissal Code.
[9] As to whether the dismissal was a case of genuine redundancy, the Applicant put that it was possible to characterise the termination as resulting from changed operational requirements and insufficient work, particularly given the desire of the Respondent to reduce its operations in New South Wales and focus its business in South Australia and Victoria.
[10] On the other hand, I am persuaded by the evidence of Mr Walczak, who said that notwithstanding the original intention of the company to move out of New South Wales, in the first week of January 2010 (and before the Applicant had been dismissed) the gas supplier Origin Energy and the Respondent entered into a one year contract to service the Sydney region. Mr Walczak said that if it had not been for the Applicant’s shortcomings, he would have been kept on. Mr Walczak said that the other three drivers that had come over from the previous employer, Camgas, were all kept on. One was part-time and later left when he secured a full-time position elsewhere, another left only five weeks ago, while the third is still working with the Respondent.
[11] Further, within a few weeks after the Applicant’s termination there had been an increasing need to engage more drivers.
[12] On the basis of the strong evidence of Mr Walczak, I find that the Applicant’s termination was not a case of genuine redundancy.
[13] The only live question is whether the termination of the Applicant was harsh unjust or unreasonable. In that regard section 387 of the Act provides:
“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
[14] The reason given by Mr Walczak for the termination of the Applicant was that he had made enquiries of the Applicant’s former employer, Mr Michael Bain of Camgas. He had been told by Mr Bain that the Applicant had been caught driving under the influence of alcohol, had at another time crashed his truck into the rear of a car and on another occasion damaged the head of a gas tank as he moved his vehicle. He considered that the Applicant had failed to disclose this in his application for employment form (Exhibit NBS 1). In addition, he said that the Respondent does not tolerate any driver returning any alcohol reading, as their trucks are all dangerous goods vehicles.
[15] In making enquiries as to the Applicant’s record, he was acting in accordance with the employment application form signed by the Applicant.
[16] Mr Bull of the TWU (who represented the Applicant) responded by pointing out that Mr Walczak had not asked the Applicant for his version of the events described by Mr Bain. He also pointed to the evidence of the Applicant who said that he had been told that the form was a mere formality and that is why, for example, he had not identified any accidents.
[17] In my view, while driving a dangerous goods vehicle contrary to law is a valid reason for termination, in this case, all that Mr Walczak had before him was the information from Mr Bain. He did not ascertain the veracity of what was told to him and in particular get the Applicant’s version. This does not represent a sound basis for termination. Nor is there any basis for terminating the Applicant because he did not reveal the drink driving incident. He was not obliged to do so.
[18] I also accept the evidence of the Applicant that the employment form was put as a mere formality.
[19] I find that in all the circumstances there was no valid reason for the Respondent to terminate the Applicant summarily on 12 January 2010.
[20] Given that finding, it is not necessary to consider section 387 any further. However, I have done so nevertheless. According to the evidence of the Applicant (Exhibit Osmond 1 at para 27) he was told by Mr Walczak “you are not a suitable applicant”. In his evidence, Mr Walczak admitted that he had not referred to the specific concerns he had, particularly the drink driving incident.
[21] I find that while the Applicant was told that he had been dismissed, he was not informed of the reasons.
[22] I also find on the evidence that the Applicant was not given an opportunity to respond to any concerns which the Respondent had with him.
[23] I have given consideration to the other matters found in section 387 and find that they are either not relevant or are of minor effect.
[24] Overall, I consider that the Applicant’s termination was unreasonable.
[25] Having so found, and given what I have said before, I am satisfied that, pursuant to section 385 the Applicant was unfairly dismissed.
[26] Section 390 provides that Fair Work Australia may order an Applicant’s reinstatement or the payment of compensation. It reads:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”
In this case, I am satisfied of the necessary pre-conditions set out in section 390(1) and (2).”
[27] I have had to consider whether or not in the circumstances the Applicant ought to be reinstated. I note that the Applicant does not seek reinstatement.
[28] I am satisfied that reinstatement of the Applicant is not appropriate.
[29] Pursuant to section 390(3)(b), I consider that it is appropriate to make an order for the payment of compensation in lieu of reinstatement.
[30] In determining the amount of compensation section 392(2) provides criteria for deciding the amount. It provides:
“(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.”
[31] In considering the matters above, I have considered the evidence and submissions where relevant.
[32] There is no evidence as to the effect of any order as to compensation on the viability of the Respondent.
[33] The Applicant’s employment commenced with Camgas in October 2006. In my earlier decision I found that a transfer of business occurred between Camgas and the Respondent. The entire employment period is not insignificant.
[34] As to the consideration of the remuneration which the Applicant would have been likely to have received from the Respondent but for his termination, it may have been that the Applicant might have satisfied the concerns of the Respondent and would still be employed.
Or, the Respondent may have listened to the Applicant’s version of past employment incidents and decided to terminate him, probably by giving him notice. Or he may have been kept on but been involved in another incident causing a termination of his employment.
[35] In the end, I have decided that it is more likely than other outcomes given the evidence of Mr Walczak, and the strict policy of the Respondent as to drink driving, that the Applicant would have been terminated on the basis of his past record and been paid appropriate notice.
[36] The Applicant has taken action to mitigate his loss. He began working for another firm some three weeks after termination, albeit at lesser earnings. He has since resumed similar earnings as before. Mr Bull submitted that overall the Applicant has lost about five weeks of his past income.
[37] I have noted the submissions of Mr Bull that the Applicant has not been paid notice and Camgas failed to pay some leave and superannuation obligations. I am unable to make orders in that regard.
[38] In all the circumstances I have decided to award an amount of five weeks pay.
[39] It is not clear to me what the weekly rate of pay was for the Applicant. I encourage the parties to agree on a figure and I will issue an order in accordance. Should there be no agreement, the matter will be relisted to determine the appropriate rate of pay to enable me to determine an order for compensation at five weeks of pay.
COMMISSIONER
Appearances:
S. Bull for the Applicant.
A. Walczak for the Respondent.
Hearing details:
2010
Sydney:
July 9;
August 4.
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