Mr Andrew Sopp v Gateway Airport Parking
[2013] FWC 2283
•14 MAY 2013
[2013] FWC 2283 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Andrew Sopp
v
Gateway Airport Parking
(U2012/16160)
COMMISSIONER SPENCER | BRISBANE, 14 MAY 2013 |
s.394 - Application for an unfair dismissal remedy.
Introduction
[1] This decision relates to an application made by Mr Andrew Sopp (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming that the termination of his employment by Gateway Airport Parking (the Respondent) was harsh, unjust or unreasonable.
Legislative scheme
[2] Relevant provisions of the Fair Work Act 2009 (the Act), as they stood at the time the Applicant was dismissed, were as follows.
[3] Section 394 states:
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWA for an order under Division 4 granting a remedy.
[4] Section 384 deals with determining an employee’s period of employment:
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
...
[5] The Applicant’s service meets the jurisdictional requirements.
[6] Relevant to the issues for determination, s.387 contains the criteria for considering harshness etc:
387 Criteria for considering harshness etc.
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.
[7] This decision does not make reference to all of the evidence and materials, but all of such have been considered.
[8] Both parties were self-represented and after consultation with them it was agreed the hearing would proceed as a determinative conference.
Background
[9] The Applicant was employed by the Respondent on 8 January 2011, as a casual shuttle bus driver, until the dismissal on 24 November 2012. The Applicant submitted that the Respondent had dismissed him for not wearing the Respondent’s corporate shirts, exhibiting a belligerent manner in response to directions and not attending mandatory staff meetings. The Applicant stated in relation to wearing the corporate uniform that the shirts he received (three and a half months prior to the termination) had not fit him properly and he had been wearing his own reflective shirts since commencing.
[10] He stated he had tried on other employees’ shirts for sizing. He stated he had undertaken this sizing on two separate occasions. The Applicant submitted that two weeks prior to the dismissal, on 11 November 2012, he had been told by one of the customer service officers that an old shirt had been left by another member of staff. The Applicant stated he had tried the shirt on, it was the correct size, and he left a note to that effect and requested that three shirts of that size be ordered for him by the Respondent.
[11] The Applicant stated that in his 20 months of employment he had not received appropriate work shirts. He also stated he had not received verbal counselling or a written warning for not wearing the shirts, and that he had not been advised that his meeting with the Respondent on 24 November 2012 was to be a termination meeting. Therefore, he had not had the opportunity to take a support person.
[12] The Applicant stated the final meeting occurred at about 7am with Ms Kini Rokosoi, the Manager of Gateway Airport Parking, and Liam Kearney, the Manager of Andrew’s Airport Parking. The Applicant stated that at this meeting he was asked by Ms Rokosoi why he was not wearing the company shirt that had been brought in by another employee, to which he answered that it was a second-hand and faded shirt, that he had tried it on and left a note stating it was the correct size for him and requested three such shirts to be ordered. Ms Rokosoi considered the shirt was in good enough condition for the Applicant to wear. However, the Applicant stated the employee who had brought the shirt in, had been issued with a new shirt. The Applicant, and Ms Rokosoi, then had an exchange where Ms Rokosoi considered that issuing one shirt to the Applicant was sufficient for the number of shifts he was undertaking. The Applicant suggested it was conveyed to him that he should wash and dry it for the start of each shift. Ms Rokosoi considered that the Applicant could wear it for one shift and wear his own clothes on another shift, though the Applicant noted that this would have also broken company policy that required that he wear the shirts each shift.
[13] The Respondent stated that the Applicant was given sufficient warning to improve his behaviour by following the company policy and procedures. The Respondent stated the Applicant exhibited argumentative tendencies when given instructions by Ms Rokosoi or other supervisors and he had consistently refused to wear the correct uniform. This was documented in the Respondent’s review of the Applicant dated 26 June 2012.
[14] The Respondent stated the Applicant had advised them in February 2012 that he did not want a uniform, as he only worked a few days a week. The Respondent stated that the uniforms arrived and were provided to him in July 2012 and he continued working for the next three months. However the Applicant stated that these shirts were too tight on the arms and he returned them.
[15] Further, the Respondent submitted the Applicant was advised that staff meetings were mandatory and that he was required to attend. The Respondent stated that employees are advised of the meetings weeks in advance, and that the Applicant had only attended one of the prior eight meetings. The Applicant stated he had not been at the site, but at his alternative job or at his TAFE studies on the occasions he could not attend. In addition he stated a number of other staff also could not attend and had not been subjected to disciplinary action.
[16] The Respondent stated that the Applicant had also been spoken to on 20 August 2012 regarding the manner he had been parking cars as set out in the Respondent’s document of the discussion. The Respondent stated the Applicant showed little interest in following the direction, preferring to do things his own way.
[17] The evidence of Ms Rokosoi in relation to the issues with the Applicant’s employment were as follows:
“Early July the uniforms had finally arrived after waiting almost 4 months.
On 15th July I noticed Mr Sopp was not wearing his uniform that we had provided. Mr Sopp made no attempt to approach me and explain his reason behind not wearing his uniform. When he was finally approached by myself, Mr Sopp had no explanation. Once again showing absolutely no respect towards me as the branch manager.
The week beginning the 23rd July I had noticed a few staff had parked a lot of the cars incorrectly inside our shed in particular a lot of our cruise cars. Mr Sopp was one of those staff that had parked cars incorrectly, so on the morning of the 24th July 2012 I informed him that it was not to happen again as it makes more work for the yard staff. The 24th July was a cruise day and was extremely busy at the branch, the next day when I came in, I jotted down some notes in my diary on the 25th July 2012 to remind myself that I had spoken to Mr Sopp and also another team member the day before.
On the 12th August 2012, I spoke to Mr Sopp along with another staff member about vehicles being parked incorrectly around the yard and how they were not reversing cars back properly and leaving gaps in the yard. I informed Mr Sopp again that this was not to happen again.
On the 20th August 2012, I issued Andrew with a written warning in regards to how he parked a particular vehicle. The vehicle was parked at the top of the lane with only it’s back tires actually in the lane, the rest of the vehicle was hanging over the drive way. I informed Mr Sopp that I had already spoken to him twice about his vehicle parking and that this type of parking was completely unacceptable. Mr Sopp blatantly disagreed and argued with me once again.
On October 14th 2012, I noticed that Mr Sopp was not wearing his shirts again. Mr Sopp made no effort to approach me to explain why he was not wearing his uniform. At the end of his shift I approached him, he then explained to me that the uniforms did not fit properly around his arms.
Mr Sopp’ s uniform was taking a while to arrive so on Friday the 16th Novmber 2012 I asked the night manager Brad Clarke if he could bring in one his spare shirts over the weekend for Mr Sopp to wear during his shift. On that Monday Pauline Ogle informed me that Mr Sopp refused to wear the shirt as it was second hand and not new. Pauline also explained to me that she told Mr Sopp that all staff start off with second hand shirts but then are issued with new ones. He still refused to wear the uniform even after Pauline had reasoned with him. When I entered my office on that Monday I noticed Brad’s shirt was in a bag with a note written on the shirt from Mr Sopp explaining that this shirt size was fine and for me to order him 2 shirts in that size.
On the morning of the 24th November 2012, Liam Kearney and myself asked Mr Sopp to come in for a meeting, there I explained to him that his refusal to wear the uniform was completely unacceptable and against company policy. I pulled out the shirt to show Mr Sopp that there was nothing wrong with Brad’s shirt and it was acceptable to wear. Once again Mr Sopp displayed his argumentative attitude in the meeting expressing that the uniform was unprofessional and looked bad. This was my day off, as branch manager it is not compulsory to wear the uniform; however our dress must be professional. A white dress with a green jacket in my opinion was professional.” 1
[18] The Respondent provided a number of documents in support of the termination on the basis of earlier discussions, that had been undertaken with the Applicant; Document 1 provided by the Respondent lists those earlier discussions with the Applicant.
[19] The Applicant stated in regards to Document 1, the review of his performance dated 26 June 2012 and the diary note of 15 July 2012, that he did not have a uniform to wear on both of these occasions. The Applicant stated that the diary note relating to a discussion with him about the manner in which he was parking cars was incorrect as he was working at Oldmac Mazda that day from 7am to 3pm as part of his TAFE course to become an auto mechanic.
[20] The Applicant also denied the diary record of 25 July 2012 about receiving a warning regarding the manner in which he was asked to park cars. He stated he had only one discussion regarding this issue. He was aware of the documentation and signed such but considered it was just an advisory notice.
[21] In relation to the Respondent’s fifth and sixth documents, the Applicant stated he was issued with an incident notification on 20 August 2012. He stated as follows in relation to documents five and six:
“Document 5. I was issued an incident notification 20 August 2012. The manager asked me to go with her to the back yard to show me that I had parked a car incorrectly. I explained to her that the vehicle had been parked there because it was due to leave the next day and parking it at the back against the fence would make it hard for the yard officer to get the car out if others were parked in front of it. The lane next to it had a vehicle parked across two lanes and I showed this to the manager stating I could not park it against the fence because of this; she said she would look up who parked it and have a word with them about how the cars should be parked. I asked when the notification was issued if it was a warning and was told it was just an advisory on how cars would be parked. At no time was I told it was a warning as stated in letter to you and given an option to have a representative present.
Document 6. This is diary entry for 14 October 2012 stating I had not spoken to the manager about a problem with the shirts supplied. This is also a False statement as I spoke to the manager at a previous shift stating the shirts rubbed my arms at the front on the seams when I was driving and caused an irritation. I was advised by her to try one of the other members of staff's shirts that were a larger size and to return the two shirts provided for a larger size that the manager would order. I was asked by the manager at a later shift why I wasn't wearing the company shirt and told her I had already told her why and she said 'oh yes they rub your arms’.”
[22] The Respondent justified the Applicant’s dismissal on the basis of his consistent negative attitude towards his supervisor’s directions, the Applicant’s non-compliance with the Respondent’s uniform policy, his lack of compliance with simple tasks such as following the Respondent’s directions for parking cars and his argumentative approach. The Respondent stated the Applicant was spoken to on more than six occasions regarding wearing the corporate uniform, completion of workplace paperwork and attending staff meetings.
[23] The Applicant stated he had not been provided with uniforms. He stated that two company uniforms of the wrong size were provided after 17 months of employment. He had stated he told the manager the shirts provided caused irritation under his arms as they were not the right size and therefore the correct size had to be ordered and this is why he could not wear the uniform. He stated in regard to the staff meetings that he could attend on the day of his shifts, but at other times he was at TAFE or working at Oldmac Mazda. He stated he was told the advisory notice provided to him regarding parking issues was not a written warning although the Respondent stated it was clearly conveyed as a warning to the Applicant.
Considerations
[24] In considering whether a dismissal was harsh, unjust or unreasonable (per s.385(b) of the Act), the Commission must take into account each of the matters in s.387 of the Act.
s.387(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)
[25] The Respondent relied on a series of issues they had with the Applicant’s demeanour in receiving direction, his compliance with company policy and following directions in regards to the wearing of the company uniform, attendance at staff meetings and procedures for parking cars. The Applicant stated there were mitigating circumstances with each of these issues. The Applicant’s belligerence towards Ms Rokosoi was evident at the hearing. The failure to wear the uniform was a common point of contention.
[26] In relation to the dismissal meeting, the Applicant stated that:
“I started work on this day at 3.30am on 24 November 2012. At 7am I was called into the office by my manager who was wearing a white lace dress (not company uniform). In the office were Andrew's Airport Parking's manager and Gateway Airport Parking's manager where I was asked to take a seat. I was asked why I was not wearing a shirt supplied by another member of staff. I explained to them that I had tried the shirt on two weeks previously and left a note attached to the bag the shirt was in stating that this was the correct size and could she order me three to cover the amount of shifts I did and I looked forward to receiving them and wearing them. The shirt that was supplied was old and faded but I was told they regarded this as adequate. I also asked if they thought I was going to be able to get the shirt washed and dried for the next day to which they replied yes. I explained to them that I live with my sister in-law and getting it washed and dried would not be possible to which my manager replied at least you could have it for one shift. I also asked the manager from Andrew's Airport Parking if he thought it was a corporate look putting reflective waist coats on top of cut shirts. His reply was it is company policy and all of his drivers would be wearing cut shirts. This is also incorrect as his drivers are still wearing reflective shirts and are also working at the Gateway branch at busy weekends for when the cruise ships come in. At no stage of this meeting was I told it was a warning or even dismissal and given the chance to have a witness or representative present. The second part of the notice report was added after I left and I did not receive a copy or sign this because this statement is completely un-true.”
[27] The Respondent stated the Applicant at the meeting continued to voice his non-compliant attitude to company policy toward uniforms and directions, this was also evident at the hearing as follows:
Mr Kearney says that you voiced your opinion that you were disapproving of the style of the corporate uniform?---No, this disapproving bit was that we were made to wear reflective waistcoats over the top of a cut shirt, and the company policy was to get the corporate look behind the reception desk, and I just said, “That isn’t very corporate to have a reflective shirt as the public are walking in behind the reception desk”.
But was that a reason not to wear it?---No, no.
But you indicated this – that you didn’t think it was a corporate-looking uniform at the dismissal meeting?---I – I – all I stated was that putting a reflective waistcoat over the top destroyed the corporate look.
All right?---It’s like having a bank manager sat in front of you with a reflective waistcoat on; it doesn’t look very impressive.
No, but is it fair to say that your – that that opinion that you had, is that just about company employees working within the office or about all company employees?---We would all have to wear those reflective waistcoats. If we were driving the bus, we were supposed to wear those waistcoats. If you were working in the yard, you were supposed to wear those waistcoats, but we were also told that we had to serve behind the counter. So it would mean that if you wanted the corporate look, you would have to stand there and undress – you know, take the waistcoat off, serve, put the waistcoat back on to go outside, and a lot of the staff didn’t do that. You know, if they’d been working outside, they would still be wearing their waistcoat while they were serving customers.
Is there anything you want to say in relation to that?
MS ROKOSOI: The waistcoats are worn because they’re high visibility. We work in an environment where there are moving cars, so it’s part of our OH&S policy that all staff wear it. As Andy would know, all staff, whether their front counter office – sorry, front counter, yard or bus – they’re very multi-skilled, and so their position may change within – you know, within an hour or even a couple of minutes, so therefore it would be too much of a hazard or time wasting having to take that vest off and put it back on. It was purely up to them if they wanted to take the high-vis vest off while they’re in the office, but that was their own choice, but then they would have to put it back on if they walked back out again. So, yes, absolutely, and Mr Sopp was correct – that a lot of them would wear it behind the counter because it was easier and it was quicker. Whether or not he thought it was corporate is his own prerogative, I guess, but from a safety point of view and looking after my staff I do mind them wearing their high-vis vest behind the counter.
THE COMMISSIONER: The third category, or the third basis, that the employer has relied for a valid reason for the dismissal is this allegation of an argumentative nature. That you were argumentative and weren’t compliant with the directions?---That’s incorrect. I would comply with all of her directions. I was in a meeting and I was asked why I have a negative – why she only hears negatives from me, and I said, “Well, that’s a good thing”. I said, “Positives don’t need to be heard. The company is running okay if you’re not – why do I need to give positives. You know, I’m telling you negatives – if there’s a problem with a bus – if it needs tyres”, you know, so I – that’s regarded as negative, but I think that’s just informing you, keeping you informed of problems.
MS ROKOSOI: Can I ask you a question, Andy? We’re a 24-hour business, you agree, and we work as a team. If I constantly hear negatives, how do you think that would affect the morale on the team?---You weren’t constantly hearing negatives.
You just said – did you not just say that you only told me negatives?---I said I would tell you negatives, and you regarded that as always negatives. I said I don’t need to tell you positives. I said, “Because positive means everything is running okay”.
[28] Whilst the Respondent’s evidence did not confirm the Applicant’s non-attendance at meetings was a justifiable reason for the dismissal the other reasons provided a valid basis for the termination given the manner in which the Applicant continued his refusal to comply at the meeting.
s.387(b) — whether the person was notified of that reason
[29] The Applicant was notified of the reasons for termination at the meeting. The Applicant had not been provided with prior notification of the meeting or the reasons for it.
[30] Ms Rokosoi stated that the meeting developed, into effecting the dismissal, given the manner in which the Applicant responded to the issues raised.
[31] Mr Kearney stated at PN235 of the transcript that:
“Well, with that – the actual decision with the termination was actually done during the meeting. That meeting was purely found out why the shirt provided wasn’t being worn. Now, when that was actually provided and what led to the dismissal was the blatant disregard and just flat out refusal of even trying to comply in the fact that it was very, very evident that he was just arguing the point, didn’t want to wear it because it was a second-hand shirt, and, as I said before, at not stage did he actually agree to wearing that shirt from one day or any days a week. You know, that was pretty much it. I do agree that the laundry issue did come up, but prior to that it was just the fact that that was just another reason that he wasn’t going to take it and wear it. He wanted two new shirts in that size, otherwise it wasn’t happening. That was what happened in that meeting.”
[32] Whilst the Applicant did not have prior warning of the meeting and the issues, he was well aware of these issues and his clear continued defiance to them brough about the dismissal.
s.387(c) — whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[33] The Applicant noted that the managers effecting the dismissal were not dressed in the company uniform and he stated he was not aware of the reasons for the dismissal prior to the meeting or given any opportunity to properly respond. Ms Rokosoi stated it was her day off so she had worn business like clothes. She stated she came in, to deal with the Applicant’s conduct in a timely manner.
[34] The Applicant was given a clear opportunity to respond to the issues raised with him at the meeting.
s.387(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
[35] The Respondent did not notify the Applicant to bring a support person. He was not given an opportunity to bring one and he did not request one, so no refusal occurred. However, the Applicant had no prior knowledge, it was a dismissal meeting. The Respondent stated their intention had been, to simply deal with the Applicant’s performance issues, but his responses at the meeting, had made continuing his employment untenable.
[36] Given these deficiencies regarding the lack of prior notification of the meeting, and its content, and the failure to allow the Applicant a support person or to appropriately provide considered responses prior to terminating his employment, the process had some procedural deficiencies.
[37] However, Mr Kearney stated the intent was to provide a fair procedure through a meeting to sort out the issues, but the Applicant’s responses diverted that course. Mr Kearney stated the following at the hearing:
MR KEARNEY: And that’s when he said it was actually – it was through the development over that last meeting that that’s it was not to get him in, ambush him and sack him there. We were bringing him in because of the constant refusal on uniforms and everything else, and that’s why we brought him in, but during that meeting when it was still just constant refusal, didn’t want to wear it, anything like that, it was obvious that he just – that he had no interest in complying with the company policies - - -
MR KEARNEY: I can actually answer that question. I was actually – I was asked to come down for that meeting because of the fact that the last time the warning was issued it’s – be it right or wrong – Kini felt quite intimidated on that one, and due to the argumentative nature that he had displayed and that it was the way the last one sort of went during, from what I heard – she just asked me to come down for a little bit of support and to have another manager present so that we could actually try and speak rationally and try and get a determination of what the problems were and try and keep a little bit more control on it and find out exactly what the problems, what the issue with this uniform was.
s.387(e) — if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[38] The Respondent stated the Applicant’s dismissal related to his argumentative and negative attitude and his lack of performance in complying with the uniform policy, directions for parking cars and attendance at meetings. The Respondent’s discussions and prior documentation of discussions with the Applicant had highlighted these issues.
[39] In relation to the Applicant’s on-going performance and his demeanour at the final meeting, Ms Rokosoi stated:
MS ROKOSOI: I guess – no. What I wanted to really add here is that, we’re a small – as a whole we’re a small business compared to our sister company, Andrews Parking. So I just wanted everyone to feel like they were part of a team. And it was obviously very important to build morale in the team, and I just found that Mr Sopp whenever I simple requests were asked of him, you know, in regards to his uniform or in regards to filling out his EE forms and the meetings there was always an objection immediately and an opinion. And I appreciate opinion from any staff member that gives it to me; it helps me run a business better, but when that opinion is then, you know, put in a way of almost detrimental to the company and to myself that’s when it became a problem. Mr Sopp’s attitude and, I guess, way of being at the company was affecting other staff members, and that’s what I had to take into consideration.
The initial meeting with me and Mr Sopp and Liam on 24 November, like Liam said, it was there to speak to him about the refusal of wearing the uniform. And we just determined then it was the constant negative attitude, it was the constant argumentative attitude. Within that meeting he continuously was just arguing the small points; he was not seeing the overall picture that, you know, whether he – for him to wear the shirt, and therefore it was determined that I cannot have someone like that in a 24-hour business because it’s very detrimental to the team. And, you know, he simply said at the beginning of when I first met Mr Sopp that was not part of this because he only worked a couple of shifts a week. He didn’t feel like it was part of it, I just thought, you know - - -
s.387(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
s.387(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
[40] The Respondent did not have immediate access to dedicated human resources or industrial relations expertise. Mr Rokosoi was endeavouring to maintain the Applicant’s employment whilst ensuring he followed directions. The structure of the organisation was taken into account. The procedural deficiencies in the process were not fatal. The Applicant was aware of the issues raised with him and he responded in detail.
s.387(h) — any other matters that FWA considers relevant
[41] The Applicant had a different view of a range of matters raised with him. He considered he had discharged his bus driving duties appropriately and was dedicated to customer service. However, he took issue with team building initiatives and requests to document incidents of extra services provided. He conceded he did not consider the company uniform provided a professional look. His evidence demonstrated he did not consider the supervisors requests or directions were applicable to him.
Conclusion
[42] At the time of the final meeting that resulted in the Applicant’s dismissal, the Applicant’s clear intention was to move to full-time employment with Old Mac Mazda. He had, whilst employed with the Respondent, been undertaking the practical component of his course work at Old Mac Mazda whilst completing auto-mechanical qualifications at TAFE. In fact, the Applicant commenced full-time employment with that employer directly following the dismissal, having just finished his studies.
[43] The employment with the Respondent was on a ‘vestibule’ basis allowing the Applicant to focus on and to complete his qualification and then to assume full-time employment in that capacity. The Respondent had accommodated his study requirements and work days with the alternative employer. However, those arrangements to move to the mechanics had clearly been organised by the Applicant with the new employer with no requisite discussions with his then current employer, namely the Respondent. 2
[44] It is acknowledged the Applicant was a casual employee. However, he had undertaken regular duties for the Respondent, namely bus driving and car parking.
[45] There was a valid reason for the dismissal. The Applicant had conceded he had communicated to the Respondent that he disagreed with a range of requests and that he considered the corporate uniform was unprofessional and that he did not wish to wear it. 3
[46] The Applicant had been provided with corporate shirts, but provided reasons on each occasion to avoid wearing such. In addition, his continual negative attitude to the suggestions of his immediate supervisor was evident at the hearing. Whilst the Applicant was appropriately discharging his bus driver duties, he also had an obligation to comply, without argument, with the directions of his employer, including the requests to complete customer service documents and to be complaint with directions as to the manner in which cars were to be parked. The requests were reasonable and relevant to his duties.
[47] A range of issues that had emerged between the parties formed the basis of counselling discussions and also, as I find, a documented warning, although the Applicant refuted he understood, that to be a warning.
[48] Whilst it was not the intention of the Respondent that the formalised discussion that was arranged with the Applicant, would result in his dismissal, the evidence supported the Respondent’s position that it became clear through the course of the discussion that the Applicant was not willing to amend his approach to his supervisor’s requests and this brought about the end of the employment relationship. The Applicant contributed to the escalation of the meeting, to bring about the dismissal.
[49] Whilst the Applicant suggested he would have made himself available for future weekend work after taking up full-time employment with the new employer, he demonstrated no commitment to the Respondent’s ongoing requirements of him, to the employment relationship.
[50] The information that he had moved to the new employer on a full-time basis, clarified why the Applicant, had maintained an obstinate position to the issues raised by the Respondent, in the final meeting.
[51] The Applicant was not seeking reinstatement, given his alternative employment. The Applicant had not suffered any financial loss, given his seamless transition to the new employer on a full-time basis. 4 The Applicant stated his hourly rate was less in the new job due to moving from a casual hourly rate of pay to a full-time rate. However, on questioning, he confirmed his total remuneration had increased as he was working a greater number of hours on a full-time basis. The Applicant confirmed that by taking into account the greater hours that his remuneration, had nearly doubled.5
[52] The Applicant’s conduct had at the meeting lead to the situation causing his dismissal. The Applicant made no persuasive arguments specifically seeking or justifying an award of compensation. 6 He had agreed, he had not been subjected to any loss in earnings as a result of the dismissal.
[53] The Applicant was primarily seeking a determination of the fairness of the dismissal.
[54] The termination of the Applicant’s employment for all of the aforementioned reasons was “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced”. 7
[55] Whilst the course of the documented disciplinary process did not progress through the usual series of documented warnings, a reasonable series of discussions had been held with the Applicant, and the final meeting, demonstrated the breakdown of the employment relationship, which made on-going emploment unworkable.
[56] Accordingly, the dismissal, on an examination of all the circumstances, was not harsh, unjust or unreasonable. The application is therefore dismissed.
[57] I Order accordingly.
COMMISSIONER
1 Statement of Ms Rokosoi, paragraphs 3 to 10.
2 Transcript, PN345–349.
3 Transcript, PN542; PN190–PN201; PN219–PN223.
4 Transcript, PN475–PN481.
5 Transcript, PN370.
6 Transcript, PN482.
7 Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370 at 372.
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