Mr Adam Rafton v Steelworks Constructions Pty Ltd

[2017] FWC 2279

[2017] FWC 2279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Adam Rafton
v
Steelworks Constructions Pty Ltd
(U2017/446)

COMMISSIONER SIMPSON BRISBANE, 15 MAY 2017

Application for an unfair dismissal remedy.

[1] The following is an edited version of a decision issued in transcript at the conclusion of a determinative conference conducted on 2 May 2017.

[2] An application pursuant to section 394 of the Fair Work Act was made by Mr Adam Rafton alleging his dismissal from Steelworks Constructions Proprietary Limited was unfair. The matter was heard as a determinative conference today, 2 May 2017.

[3] Mr Rafton worked for Steelworks between 2005 and 2012 and I understand completed an apprenticeship in that time.  He left employment with Steelworks and worked in the mining industry for some time and returned and was rehired on 17 October 2014.  You indicated initially with your application, Mr Rafton, that you thought that was in 2013 but we clarified, and you accepted in the course of the conference today, the second period of employment commenced on 17 October 2014.

[4] There was no dispute between the parties that the employment was terminated summarily on 11 January 2016 although I note there were a number of warnings that were addressed in the evidence which I'll come to about previous conduct.  There were no jurisdictional issues in respect to the application.  Steelworks has 21 employees at the time of termination, so it's not subject to the small business code, so it's a matter of applying section 387 and the various considerations in it to decide whether or not the dismissal was unfair.

[5] Mr Rafton has submitted today that on 9 January 2017, and I say this by reference to his original application also evidenced today, and an email that he filed as part of his case in the course of preparing for today on 21 May, which said as follows:

“It was unfair because I had no written warnings and I had two days off because of back pain, and come to work after having a doctor's certificate.  The manager come to me, swearing at me, so he sacked me on the spot and I had no witnesses.”

[6] Further to that there was some further background in relation to the originating application which said that he injured himself, or his back, while at work on 9 January and he said in his application that it became apparent that he could no longer continue to work that day, and he sought to contact the foreman to seek permission to leave work early.  It is alleged that the foreman was unavailable; this was said in the application; and that as a result Mr Rafton informed Mr Johnny Moore, whom he believed to be a leading hand, that he was going home.

[7] On 10 January he said he contacted the foreman and explained that he would be unavailable to attend work, and would present a medical certificate the following day.  There's no contest that a phone call was made on the 10th.  On 11 January he said that he attended work and was informed by Mr Jim Gunn, his manager, that his employment had been terminated.  It is alleged by Mr Rafton that Mr Gunn used harsh language towards him during the conversation between them.  He said he subsequently contacted Mr Colin Simpson, the managing director of Steelworks, and was informed that he was dismissed as a result of leaving work on 9 January without notifying anyone, unsatisfactory performance, and failing to follow instructions, and excessive written warnings.  Mr Rafton submitted there was not a valid reason for a dismissal and he provided notice to Mr Moore that he was leaving work early, and that he was denied procedural fairness in not receiving an opportunity to explain the circumstances.

[8] Steelworks have submitted that over a period of time prior to the dismissal of Mr Rafton he'd received several informal and formal warnings in relation to his conduct.  These warnings related to him arriving late for work, a declining standard of work, his manner towards other employees and management, and disregard for company policy.

[9] It was submitted that 14 October 2015 and 3 August 2016 he received two written warnings in relation to his conduct.  Those were dealt with today in the conference and written documentation was provided regarding the warning on 15 October 2015 which said that Adam was spoken to and warned he was in danger of having his employment terminated for the following reasons:  (1) using his mobile phone in company time; (2) general behaviour and attitude.  The warning was made by Jim Gunn.  A second warning issued on 3 August 2016 said:

“Adam was spoken to again about using his mobile phone in working time.  He was caught using same in workshop office by Steve Gunn on the 2nd of the 8th '16 and was told to put it away.  Adam's response was, 'Hang on, I'll finish sending this text'.  I've told Adam that if he gets caught again his employment will be terminated.  His response was that he understood.”

[10] Both warnings were made by Mr Jim Gunn, the works manager.

[11] In the course of the conference today Mr Rafton accepted that he'd received the warning in regard to the use of his mobile phone in 2016; did not believe he received a warning in 2015.  Mr Gunn has given evidence that both warnings were given in writing as well as orally and he produced what he said were copies of the written warnings.  There's no dispute about the warning of 2016 because Mr Rafton accepted he got it.  Mr Simpson gave evidence supporting Mr Gunn's claim that Mr Rafton was given a written warning in 2015 and he said he saw the warning on Mr Gunn's computer a couple of days after the warning was given in 2015.

[12] I have formed the view that I am inclined to accept Mr Gunn's evidence that both warnings were issued, primarily because he's fairly precise about the nature of what he said had happened.  I'll come to this later, Mr Rafton, but I tend to prefer Mr Gunn's evidence as I think it's more reliable given the precision and consistency with which it was given and the fact that on this and some other issues there was some inconsistency in regard your evidence which tends to draw me to the conclusion that if I have to choose I'm more inclined to accept Mr Gunn's claim.  It's also supported by Mr Simpson.

[13] It was submitted by Steelworks that on 6 October 2016 Mr Rafton left work without permission after having an argument with another employee.  This was set out in Mr Simpson's statement dated 20 January 2017 where he said that he informed Mr Rafton on the following day, 7 October, that this and similar conduct was unacceptable and that further instances may result in his employment being terminated which is evidence of essentially being given a fairly serious warning about any future misconduct leading to dismissal.

[14] Mr Rafton, you accepted today in the conference that you did in fact walk off the job site at Kessels Road in Brisbane at about 11.30am on 6 October.  A timesheet provided by Steelworks in their material, which would've presumably been completed contemporaneously with the events, records that you walked off the job.  Probably more importantly though you today accepted that you did walk off the job, but you gave an explanation being in the context of you having a disagreement with your brother and I think that there'd been some ongoing history of that.

[15] You accepted that Mr Simpson rang you the following day about the incident.  Although I think I recall you saying in the conference you weren't of the view that you were given a warning that your employment could be terminated that day as I recall.  So there's a dispute between your evidence and Mr Simpson's in that regard.  Again, I'm more inclined to accept Mr Simpson's version on that mainly because it follows fairly logically the conduct itself is fairly serious, and it appeared to me, from observing you today in the course of the conference, that I'm not sure that you fully appreciated the seriousness of the impact it can have on an employment relationship if an employee decides to by their own volition just walk off a job.  That is a serious issue and can in fact be a valid reason for dismissal on its own.

[16] But in any event, Mr Simpson went on to say in his statement that he again warned you that you could lose your job if you did not change your ways in connection with an incident on 14 December 2016.  This is the context of the fuel at the farm.  Mr Simpson said the context was you having taken the fuel that was his property, from another property of his, and that it appeared to be there was no dispute you were performing paid employment at that time for Steelworks.  You accepted, in the course of the conference that you did take the fuel, but you said that you thought that it was justifiable on the basis that you weren't getting an allowance for it.  In my view, the proper course would have been, if you were intending to take the fuel, which was the property of Steelworks, that you should have raised it with them before doing it.

[17] On 9 January 2017 it was alleged that you left work at Steelworks by around 9 am after failing to notify either your supervisor or your manager, Mr Steve Gunn or Mr Jim Gunn, that you were leaving.  Mr Moore, a fellow employee of yours, provided a statement in this matter in support of Steelworks' case stating that you told him that you were leaving work.  The statement claimed that he told you that you were to let either the foreman, Mr Steve Gunn, or the manager, Mr Jim Gunn, know that you were leaving.  It was said in Mr Moore's statement that Mr Rafton's response was, "No, I'm just going home and you can tell them".

[18] Mr Moore didn't appear today, so to that extent what was said in his statement can't be given much weight given it couldn't be tested by me or Mr Rafton.  Mr Rafton, you've simply said at the conference that you attended work, you stumbled over an object on the floor and hurt your back, and today in the conference you said about half an hour later you spoke to Mr Moore and told him that you were leaving because you'd been injured.  Your version is that you believed he was a foreman and that you could do that.

[19] Your version in relation to what actually happened on the day is slightly inconsistent with the version that appeared in the application form which appears to say that you actually fell over.  So there's an inconsistency there which does draw my attention.  There appears to be also some inconsistency between the time that you say the incident occurred comparing what you said in the application and what you've said today.  Those inconsistencies tend to undermine the value of your evidence in regard to that event in my mind.  You've claimed that you believed, as I said, Mr Moore was your foreman and that it was sufficient for you to simply tell him.  The reason you've given for saying that you believe Mr Moore was your foreman was that he sometimes checked up on your work although you did accept in your evidence that there were other employees that sometimes checked your work.

[20] Mr Simpson and Mr Gunn have both indicated in their evidence that employees understood that if they were to have to leave work they had to report it, and if there was an incident of some kind or an injury they had to report it.  It was actually a requirement to do that, and also that it had to be reported to the supervisor or the manager if they wished to leave.

[21] On 10 January 2017 it was submitted that you telephoned Mr Steve Gunn, and I don't think there's any dispute about this, saying you wouldn't be coming to work the next day because you had a sore back.  You produced a medical certificate today that was dated 10 January 2017.  That's the day after the injury that you assert occurred.  The certificate itself merely states that:

“Adam Rafton is receiving medical attention from this practice and will be unfit for work from 9 January 2017 to 10 January inclusive.”

[22] So to that extent the medical certificate is retrospective with regard to the 9th because it was completed the day after the incident.  It doesn't provide any particulars about the nature of your injury which doesn't provide me much assistance about trying to test the veracity of claims in regard to how you were affected that day.

[23] On 11 January it's been submitted by Steelworks that upon your return to work Mr Jim Gunn approached you and asked you why you'd left work without informing either your supervisor or your manager.  It's alleged by Mr Jim Gunn that during the course of the conversation you became irritated and yelled at him.  He's claimed today in the course of the conference that at the commencement of the conversation he didn't commence it with any intention to dismiss you, but he claimed in his statement that he said to you words to the effect, "Adam, you can't fucking do that", or something to that effect.  He claimed that, at this point, you became enraged and told him not to swear at you.  He said in his statement that he was not swearing at you but was making a comment.  He said then on two occasions he told you to calm down, take your lumps and accept that what you'd done was wrong, and he claimed that with that you became more aggressive and argumentative and that Mr Gunn then, at that point, made the decision to terminate your employment with Steelworks.

[24] During the conference I asked Mr Gunn to set out the reason Mr Rafton was given, at this time, for the dismissal and he claimed it was because you didn't show any remorse and made no apology; in effect, basically made no concession that you'd done anything wrong.  So it wasn't so much in connection, or there appeared to be no connection from the employer's perspective with the alleged medical condition; it was about the conduct in regard to previous events; 9 January and 11 January.

[25] Steelworks has submitted that your behaviour demonstrated a wilful disregard for company policy and that you'd failed to follow reasonable and lawful directions and as a result you engaged in serious misconduct that was inconsistent with the continuation of your employment relationship with them.  There appears to be no dispute you were paid a week's notice.

[26] I have considered all of the evidence and I am satisfied that Steelworks did have a valid reason for termination on 11 January.  There's been conflict in the evidence between you, on the one side, and Mr Simpson and Mr Gunn on the other, particularly in regard to, most importantly, the events of the 11th.  I'm inclined to prefer the evidence of Mr Simpson and Mr Gunn.  As I explained earlier applications like these are decided on the balance of probability.  It's not a test of where I've got to be satisfied beyond reasonable doubt that the conduct has occurred.  I've just got to be satisfied that one version is more likely than the other.

[27] There were some inconsistencies in your version of events including, in my view, in your version of what happened on 9 January.  I have weighed things up, Mr Rafton, and I'm not inclined to accept, or it's not reasonable to accept, that you genuinely believed that it was sufficient for you just to tell Mr Moore that you were leaving on 9 January in terms of what you understood would be obligations to your employer in leaving that day.

[28] I do that for a number of reasons:  firstly, it seems to me from the evidence the injury did not seem to be of such a severe or acute nature that you would've been unable to remain at the premises or take the step of walking what Mr Simpson described was 20 metres from where you were to the office to inform either Mr Jim Gunn or Mr Steve Gunn what had happened and why you believe you needed to leave work that day.  I'm more inclined to accept that you just made a decision that you weren't going to do that, and you were just going to tell Mr Moore, and it's more likely that you probably understood that you needed to do more than that.

[29] This is a serious matter, particularly in the context of your admission that on 6 October 2016 that you did just walk off the job.  That wasn't that long before this day.  It was only a space of a couple of months, so in that context, and the context of Mr Simpson having warned you about that, you should've been aware that the relationship was already at a point where the employer was losing trust and confidence in you, and that another event of a similar nature was likely to lead to your termination.  I'm satisfied that the event of 9 January, in combination with your response to what I accept was Mr Gunn's version of the engagement with him on the 11th, in totality, was sufficient to give the employer a valid reason to bring the relationship to an end.

[30] That's not the end of the matter.  I have to consider each of the elements of section 387.  I'm also required to have regard to whether or not you were notified of the reason. There's a contest in the evidence.  You say, look, you were basically just told to get your gear and go away.  Mr Gunn's version is he was trying to engage with you, and told you to calm down a couple of times.  I know this is not in keeping with your version, but, as I said, I've given reasons; I'm more inclined to accept Mr Gunn's version for the reasons that I've given.  On his version he did actually say it was on the basis that basically you were showing no remorse or acceptance that you'd done anything wrong and that was the reason, so I accept that that was done, although I accept it's contested.

[31] In terms of whether you were given an opportunity to respond to the reasons related to capacity or conduct, well, look, that's really coloured by the evidence concerning the nature of the exchange between you and Mr Gunn on the morning of the 11th.  Because I accepted Mr Gunn's version I then go on to accept that he was attempting to engage in a conversation with you about what had happened on the 9th, and because you weren't really engaging in that conversation you didn't really respond to the reasons related to your capacity or conduct but I'm satisfied that you would've had an opportunity had you had a proper conversation or been prepared to engage in a proper conversation with Mr Gunn about that.

[32] In terms of whether there was any unreasonable refusal by the employer to allow you to have a support person present, well, look, clearly you didn't have an opportunity to ask for a support person because you were dismissed on the spot following Mr Gunn's decision that that was the appropriate step given your conduct.

[33] I was weighing up whether this was really a dismissal in connection with conduct or performance.  I put the question squarely.  Mr Simpson is a managing director and has said, look, it was really about your conduct.  I know there's been reference made to performance issues earlier but I'm satisfied this was really a dismissal in connection with your conduct, not performance, and on that basis I don't think section 387 subparagraph (e) is relevant.

[34] In terms of whether the size of the employer would be likely to impact on procedures, well, look, the employer is not a large employer at 21 employees.  As I understand, there is not a dedicated full time human resources manager employed by the company, so I think the dismissal could have been effected in a better way, but I think the size of the employer probably would've impacted on the procedures followed given there wasn't a full-time HR expert involved in the process, and that's really in relation to section 387(g) for the same reasons I think there would've been an impact on the process for that.

[35] I don't think there's any other matters I need to consider, so having considered all of the elements of section 387 I'm satisfied that the dismissal was not harsh, unjust or unreasonable, and on that basis, Mr Rafton, I'm going to dismiss your application, and I'm going to adjourn on that basis.

COMMISSIONER

Appearances:

Mr A Rafton appearing on his own behalf

Mr C Simpson appearing on behalf of the Respondent

Hearing details:

2017.

Brisbane:

May 2

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