Mr Andrew Bennett v Sere Corporate Solutions Pty Ltd t/as Perth Freightlines Pty Ltd
[2010] FWA 1278
•4 MARCH 2010
[2010] FWA 1278 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment
v
Sere Corporate Solutions Pty Ltd t/as Perth Freightlines Pty Ltd
(U2009/720)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 4 MARCH 2010 |
Termination of Employment
[1] Mr Bennett commenced employment with Sere Corporate Solutions Pty Ltd t/as Perth Freightlines Pty Ltd (Sere) on 5 July 2004. His employment was terminated for engaging in misconduct, which conduct involved offering to sell company equipment of Sere on 17 June 2009.
[2] Mr Wood, the NSW State Manager of Sere, terminated the employment of Mr Bennett by letter dated 29 June 2009. The relevant parts of the letter of termination are set out below:
“Dear Andrew
As a result of certain actions by yourself, namely offering company equipment for sale, I am left with no alternative but to cease your employment with Perth Freightlines effective immediately (Monday 29th June, 2009).
Any earnings owed to you will be deposited into your nominated bank account by close of business Wednesday 1st July 2009. A statement of service will also be provided if required.
Regards” 1
[3] The company equipment referred to are Dangerous Goods Kits. These kits are supposed to be held on trucks as a result of legislative occupational health and safety requirements.
[4] Sere alleges that Mr Bennett made an offer to sell the kits at a meeting on 17 June 2009, held at Sere’s premises, where there were a large number of persons in attendance (at least 20), including management. Sere also alleges that Mr Bennett repeated the offer after the meeting to a Mr Hughes, and in a further conversation with a Mr Ali on 29 June 2009. This latter conversation with Mr Ali was not relied on by Sere at the date of termination. It was a conversation referred to by Mr Bennett in his materials and relied on by Sere at the hearing of this matter as a further instance of misconduct. Neither party called Mr Ali to give evidence.
[5] Mr Bennett submitted that his remarks were jocular, that he believed everyone around him understood the remarks to be jocular, and that he has never sold, or offered for sale, any company equipment of Sere.
[6] Mr Bennett’s evidence of the events is set out in his statement. I have extracted the relevant sections below:
“5. On 17 June 2009, all drivers, both company employed and sub-contractors were involved in a meeting which usually took place once a month. In these meetings management discussed operational issues and any areas which they felt required some attention or improvement. Drivers also had an opportunity to raise and discuss any issues that they felt needed to be discussed.
6. On this particular day I commenced work at 5:30am to unload all incoming interstate vehicles and prepare freight for delivery. Whilst carrying out my duties I sustained a neck injury after a parcel fell from the top of a load and landed on the top of my head. I remained on site and completed any duties I could to the best of my ability. I spoke with Mr Peter Vincent, Operations manager, and informed him of my injury. Mr Vincent informed me that a drivers meeting was to take place and asked if I would stay until the meeting was completed. I agreed to stay and attend the drivers meeting as I was asked to speak about any OH&S issues.
7. I attended the drivers meeting to speak about some OH&S issues that had been brought to my attention. I asked all drivers in attendance if they all had a current work diary as it was a legal obligation for them to have one. I also asked if all vehicles were equipped with a Dangerous Goods Kit and Fire Extinguisher. It is a legal requirement that the drivers have these items on their truck when carrying dangerous goods. I then stated that any sub-contractors who did not have these items could borrow them but their boss (vehicle owner) must provide them with these items. I then added in humour “but it will cost you fifty bucks”. Every body (sic) at the meeting including management laughed at this comment. Mr Vincent, Mr Greg Woods, and Mrs Edine McIntyre, were all present at the meeting.
8. At the conclusion of the meeting I left and saw my doctor who provided me with a work cover certificate for the injury I had sustained to my neck.
9. On 29 June 2009 I returned to work on full duties. At approximately 10:30am , a sub-contractor, Mr Mick Ali, arrived in the yard with his new truck. He had already completed a pick up and this was the first time he had been in the yard with this vehicle. While another forklift driver (Shane, who is no longer employed by the Respondent) was unloading his truck, I was chatting with Mr Ali about his new truck.
10. While looking around (and admiring) the truck, I noticed that he did not have a fire extinguisher on his truck. I offered to loan him one until he could get one for himself, I got one of our spares and put it on his truck. I also offered to get him the number of the company that provided the Respondent with their fire extinguishers as they completed the periodic servicing and testing. I also asked him if he needed to organise a Dangerous Goods Kit, the following conversation with words to the following effect then took place:
Mr Ali: “I do not have one.”
Applicant: “I can loan you one of the spare kits I have upstairs near my desk. Like I said Mick it will cost you 50 dollars mate.”
Mr Ali: “Come on baldy head I’ve got no money, I bought the truck.”
Applicant: “Come on Mick there’s at least 100 dollars worth of stuff, 50 bucks is a good deal.”
Mr Ali: “Yeah yeah ok.”
At no point was there any seriousness to either of our voices and we were both aware that this was in good fun. At no point did any money change hands, and I did not end up giving Mr Ali a Dangerous Goods Kit. Mr Ali told me to take his truck for a bit of a drive as he wanted to weigh the truck when it was empty, which I did.
11. When I was finished with Mr Ali’s truck, Mr Ali drove out of the yard and I continued with my duties.” 2
[7] I have had regard to the evidence before me, in particular the cross-examination of Mr Bennett by Counsel for Sere. I have made the following findings of fact:
1. Mr Bennett did not make an offer to sell the Dangerous Goods Kits or any other company equipment of Sere at the meeting of 17 June 2009.
2. Mr Bennett did not make an offer to sell the Dangerous Goods Kits or any other company equipment of Sere following the meeting of 17 June 2009 to Mr Hughes or to any other person.
3. Mr Bennett did not make an offer to sell the Dangerous Goods Kits or any other company equipment of Sere to Mr Ali on 29 June 2009.
[8] In relation to the events involving Mr Ali I accept Mr Bennett’s account.
“MR SHOEBRIDGE: What do you say happened in terms of the reference to $50?---MR BENNETT: It was made as a light-hearted comment to Mick yet again and he took it that way. I asked if he had a DG Kit for his truck. He said he didn’t have one yet. I asked if he wanted to use one of the loan ones. He said fine. I told him, well, that will cost you 50 bucks, Mick, come on, I told you that and he just sat there and smiled and laughed and we just carried on.” 3
[9] Mr Bennett gave evidence that, following the termination of his employment, he telephoned Mr Ali. His evidence regarding this conversation is extracted from his statement below:
“14. At 1.55pm that afternoon, I spoke to Mick Ali on the phone and told him what had happened, and asked if he had misunderstood the conversation that morning and knew that it was a joke. He told me that he knew it was a joke because he knows I am not the kind of person to steal he said he was going to speak with management. I asked if he could write me a letter, as I was quite interested in clearing this up, he said that he had no problem with that.” 4
[10] Counsel for Sere cross-examined Mr Bennett concerning differences between his recollection of his conversation with Mr Ali, as set out in his application, and his recollection set out in his statement. I have considered these differences. I do not consider the differences are material.
[11] Counsel for Sere suggested that I should draw an adverse inference from Mr Bennett’s failure to call Mr Ali. That is an argument that goes both ways. Given Mr Bennett’s evidence regarding the conversation Sere could also have called Mr Ali. Perhaps, had the respondent complied with directions and prepared their defence in accordance with those directions, consideration might have been given to that matter. In any event I am not persuaded that the conversation with Mr Ali can be considered as anything but a neutral consideration in the determination of these matters.
[12] Sere’s Counsel also cross-examined Mr Bennett about whether or not he had said “This is bullshit” when the basis of his termination of employment was advised to him. I have determined that nothing turns on whether Mr Bennett said “This is bullshit” or whether he said “……you sack people for having a joke now?” The accuracy of Mr Bennett’s recollection in this regard does not affect any of my material findings.
[13] Mr Fortune’s recollection of his conversation with Mr Bennett post termination of employment was different to Mr Bennett’s recollection. I do not consider those differences material. Mr Fortune’s evidence added nothing to the relevant factual disputes to be determined in this matter. As to credit, given the circumstances surrounding this termination of employment, and Mr Bennett’s consequent heightened emotions, different recollections are almost inevitable.
[14] I have considered Sere’s investigation of Mr Bennett’s conduct. Mr Warrington, the fleet controller for Sere, gave evidence that he had received a telephone call from Mr Steve Pilley. Mr Pilley advised him that Mr Bennett had told him that if he or Paul Adams needed a Dangerous Goods Kit that he had two upstairs and they could buy them for fifty dollars each. Mr Warrington then called Mr Vincent, the New South Wales Operations Manager. He was asked to obtain letters from both Mr Pilley and Mr Adams regarding the alleged conversation. He was instructed not to discuss the matter with anyone else.
[15] Set out below are the statements of Mr Pilley and Mr Adams. These are the statements that were provided to Mr Warrington and forwarded to Mr Vincent.
“17th June 2009
Attended drivers meeting at 7am on 17/6/2009 a topic that was bought (sic) up was dangerous goods (DG). Andrew informed the people at the meeting that there were two (2) dangerous goods kits in the top office and that are for sale & if we would like to purchase them the cost would be $50.00 dollars each. It was said for all to hear.
Stephen Pilley
Roadfreight Transport” 5
“To whom it may concern,
I was at a meeting at PFL on the 17th June 2009 when one of the guys where (sic) talking about dangerous goods. He was saying that every truck is to have a d.g. bag in it. The guy telling us said that there were d.g. bags upstairs and if you wanted one that it would cost you $50.00 and you could receive one. I took this as being a joke and nothing more but some people didn’t.
Yours sincerely
Paul” 6
(my emphasis)
[16] It is clear that Mr Adams regarded the remarks of Mr Bennett as a joke. This is consistent with Mr Bennett’s evidence as to his conduct. Mr Pilley clearly understood the remarks to be more sinister, and it was his complaint to Mr Warrington that brought the matter to Sere’s attention.
[17] There are clearly conflicting understandings of Mr Bennett’s remarks by persons who were at the meeting and also by Mr Hughes. I have decided that, without further investigation, it was inherently unreliable to rely on Mr Pilley’s understanding as to Mr Bennett’s intention. Sere accepted Mr Pilley’s understanding and rejected Mr Adam’s. Mr Bennett had a clear record and there had been no prior allegations of any misconduct of the kind alleged by Mr Pilley or Mr Hughes. I am also concerned that the understanding of Mr Pilley regarding Mr Bennett’s intentions was not put to Mr Adams, nor was the understanding of Mr Adams that Mr Bennett’s remarks were a joke put to Mr Pilley. The allegations were not put in general, or in particular, to any other persons who were at the meeting. Confidentiality was raised as an explanation for this failure but, in the circumstances, it is extraordinary to consider that an allegation of theft was not canvassed more widely. There were at least twenty people at the meeting. The allegations could have been particularised or generalised. Mr Adams’ different understanding could have been put to Mr Pilley quite easily. Some other persons at the meeting could have been tested as to their understanding. It was not necessary that the question of a proposed theft be put. The appropriateness of the remarks could have been the subject of discussion. None of these possibilities were considered by Mr Vincent.
[18] Mr Vincent called the police to investigate the allegations he was making against Mr Bennett. Not surprisingly, given that there had been no loss of Sere’s property, the police declined any action. The matters alleged against Mr Bennett were serious. They were not just misconduct. The acts of misconduct, if established, amounted to criminal conduct. In these circumstances an employer should be very careful to be sure of the matters relied upon. 7
[19] In forming my conclusion as to Mr Bennett’s conduct I also took into account the circumstances surrounding his remarks. It was acknowledged by Mr Hughes that Mr Bennett made no attempt to hide his remarks. He spoke normally and he did not attempt any surreptitious conduct. This is not conduct consistent with an attempt to sell Sere’s equipment.
[20] I have considered Mr Hughes’ evidence. I did not accept his account of the conversation with Mr Bennett. In fact, I am not persuaded that it took place. Wherever Mr Hughes’ and Mr Bennett’s evidence differs I prefer Mr Bennett’s evidence.
[21] Pursuant to ss652(3) of the Workplace Relations Act 1996 (the Act) the Commission must have regard to a number of factors when determining whether a termination of employment was harsh, unjust or unreasonable. This sub-section is set out below.
“(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee – whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(g) any other matters that the Commission considers relevant.”
[22] In determining whether a particular termination is harsh, unjust or unreasonable consideration can be given as to whether the penalty of termination is excessive or inappropriate. See Byrne v. Australian Airlines Ltd (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct is respect of which the employer acted.”
And
“Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable”. 8
[23] The first matter I have to have regard to pursuant to ss652(3) is whether there was a valid reason for the termination of Mr Bennett’s employment. In relation to this matter I intend to apply the frequently quoted and relied upon words of Northropp J in Selvachandran v Peteron Plastics Pty Ltd 9 that “---the adjective valid should not be given the meaning of sound, defensible or well founded.---”
[24] What is alleged against Mr Bennett is misconduct. In this regard I have to determine for myself whether the alleged misconduct occurred. Following that process it is necessary to determine whether the conduct alleged, or any other conduct which I find occurred, amounted to a valid reason for determination. I have set out below a discussion of this issue in King v Freshmore, a Full Bench decision of this Commission which considered earlier legislation but which I consider remains relevant.
“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved. The question of whether the alleged conduct took place and what is 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.” 10
(my emphasis)
[25] I have determined Mr Bennett did not attempt to sell company property of Sere. On the basis of my finding in this regard, and having regard to the matters to which I am directed by the Act, I have determined that there was not a valid reason for the termination of Mr Bennett’s employment.
[26] I have had regard as to whether Mr Bennett was notified of the reason for his termination. I find that he was notified but without adequate time to respond to that allegation.
[27] Unsatisfactory performance is not a relevant issue.
[28] I do not consider that the size of Sere’s undertaking was likely to have impacted on the procedures followed in affecting Mr Bennett’s termination of employment. I do not find that there was any relevant absence of dedicated human resource management specialists which was likely to have impacted on the procedures in affecting the termination of Mr Bennett’s employment.
[29] Sere’s Counsel submitted that Mr Bennett’s conduct in repeating jokes which could lead to inappropriate expectations in contractors and employees, or which did lead to such inappropriate expectations in at least two known cases, was gross misconduct and a valid reason for the summary termination of Mr Bennett’s employment. I reject that submission. In my opinion that conduct could not amount to a valid reason for termination of Mr Bennett’s employment. It certainly could not have amounted to a valid reason for summary termination of Mr Bennett’s employment.
[30] I have considered what, if any, remedy should be applied to Mr Bennett. Whilst it is open for the Commission to consider reinstatement, I do not consider that in these circumstances reinstatement is appropriate. Mr Bennett does not now seek reinstatement and it is opposed by Sere. In the circumstances I consider that compensation is an appropriate remedy in all the circumstances of this case. I have considered the issues to which my attention is directed by ss654(8) which is set out below:
“Subject to subsections (9), (10), (11) and (12), in determining an amount for the purposes of an order under subsection (7), the Commission must have regard to all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s undertaking, establishment or service; and
(b) the length of the employee’s service with the employer; and
(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated; and
(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and
(e) any misconduct of the employee that contributed to the employer’s decision to terminate the employee’s employment; and
(f) any other matter that the Commission considers relevant.”
[31] I have considered the matters raised in this subsection. I do not consider that my order will have any effect on the viability of Sere’s undertaking. I have considered the length of Mr Bennett’s service with the employer. Mr Bennett was employed for a period just less than five years. I have considered that matter. I have considered the remuneration that Mr Bennett would have received or would have been likely to receive if his employment had not been terminated. That amount is agreed.
[32] I have considered Mr Bennett’s efforts at mitigation. They were substantial.
[33] Given my findings, misconduct by Mr Bennett is not a relevant consideration.
[34] I do not consider that Mr Bennett’s separate earnings, derived as a contractor washing trucks for Sere, to be income which I can take into account when calculating his gross weekly income with Sere. Neither do I consider that I can discount from my calculations Mr Bennett’s earnings as a contractor post termination of employment.
[35] It is agreed that Mr Bennett’s gross weekly wage with Sere was $1,018.00 per week. I have calculated from the agreed wage schedule tendered to the Tribunal 11 that the actual gross wage loss suffered by Mr Bennett from 2 July 2009 to the week commencing 12 November 2009 was $3,691.42. I have calculated this by deducting the amount earned by Mr Bennett from his previous gross weekly wage of $1,018.00. After 12 November 2009 Mr Bennett commenced to earn in excess of his previous gross wage with Sere. The amount of Mr Bennett’s wage loss can be calculated exactly in a closed period between termination of employment and the week commencing 12 November 2009. Contingencies are not relevant.
[36] Any award of compensation to Mr Bennett must not exceed six months of Mr Bennett’s gross weekly wage with Sere. In this case that was $26,468.00. Mr Bennett’s actual loss is below that amount.
[37] Mr Bennett was entitled to notice on termination of employment. I calculate his entitlement to notice to be four weeks wages. The respondent should meet its obligations in this respect although no amount for that entitlement is included in my order.
[38] I order that Sere pay Mr Bennett $3,691.42 within fourteen days of the date of this decision.
SENIOR DEPUTY PRESIDENT
1 Exhibit R23 Attachment PV3.
2 Exhibit Bennett 1.
3 Transcript PN208.
4 Exhibit Bennett 1.
5 Exhibit Respondent 1 Attachment PV1.
6 Exhibit Respondent 2 Attachment PV2.
7 Brigginshaw v Brigginshaw (1938) 60 CLR 338.
8 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
9 (1995) 62 IR 371 at 373.
10 King v Freshmore (Vic) Pty Ltd [Print S4213].
11 Wage Schedule.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR993894>
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