[2015] FWC 8142 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

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

Mr Arthur Pahnelas
v
Coca Cola Amatil (Aust) Pty Ltd T/A Coca Cola
(U2015/5768)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 30 NOVEMBER 2015

Application for relief from unfair dismissal; dismissal for contravention of code of business conduct; contravention not established; whether valid reason; dismissal unfair; consideration of remedy; whether loss of trust and confidence; reinstatement appropriate; continuity of service maintained; order for partial restoration of wages lost.

Introduction

[1] Coca-Cola Amatil (Aust) Pty Ltd T/A Coca Cola (Respondent) operates a beverage manufacturing and distribution plant at Thebarton in South Australia (Thebarton site). Mr Arthur Pahnelas (Applicant) was, until his dismissal on 18 May 2015, employed by the Respondent as a Beverage Technician. The Applicant had begun working at the Thebarton site in 2001 through a labour hire employer and later in 2006 he commenced employment with the Respondent. 1 Although the Applicant’s dismissal from employment was effected on 18 May 2015 (the same day he was notified of the dismissal), he was not dismissed summarily and was paid an amount in lieu of notice.2

[2] On 5 June 2015, the Applicant applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Turning first to deal with the initial matters which must be decided before the merits of an application are considered. 3 These matters were not in dispute, and I find that:

The application was made within the time prescribed in s.394(2) of the Act;

The Applicant was, at the date of his dismissal, protected from unfair dismissal within the meaning of s.382 of the Act, in that the Applicant was an employee who had completed a period of employment with the Respondent which was greater than the minimum period of employment as set out in s.383(a) of the Act;

the Coca-Cola Amatil (Aust) Pty Ltd, South Australian Manufacturing Employees Enterprise Agreement 2013-2017 covered the Applicant in his employment with the Respondent;

The Respondent was not a small-business employer within the meaning of the Act and so the Small Business Fair Dismissal Code did not apply; and

The dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy within the meaning of s.389 of the Act. 4

[3] I have concluded that the Applicant’s dismissal was unfair and that an order for reinstatement is appropriate. These are my reasons for that conclusion.

Factual background, context and findings

[4] Much of the factual background is not in dispute.

[5] The Applicant was dismissed following his decision to leave a voluntary overtime shift that he worked on Saturday, 28 March 2015, approximately 80 minutes prior to the scheduled completion of the shift. This was said to have been done without notification to, or without the necessary approval of the Operations Manager, and inter alia, was a breach of the Respondent’s Code of Business Conduct. 5

Attendance records

[6] The Respondent operates a time recording system which is known Kronos. 6 Employees are required, when attending for work and when leaving work respectively, to clock on and off. The times at which an employee has clocked on and off are recorded in the Kronos system. The Kronos system also enables Operations Managers of the Respondent to record comments alongside the clock on and clock off data.7 An extract from the Kronos system applicable to the Applicant’s attendance since 1 January 2013 is part of the evidence in these proceedings.8

Late attendances for work

[7] The Applicant has, since 2013, a history of late attendance for work. 9 He has been spoken to and warned about his late attendances.10 He accepted that some of the warnings were justified, but disputed others.11

Counselling – 19 March 2013
[8] On or about 19 March 2013, the Applicant was spoken to and counselled by Mr Garrick Harris, who was then a Team Leader with the Respondent, about being late to work on a number of occasions (seven times that year) and according to the Applicant he was told to ‘keep an eye on it’. 12

Written warning – 27 June 2013
[9] On 17 June 2013, the Applicant signed in at one minute past his rostered time. He was issued with a written warning on 27 June 2013. 13 The Applicant apologised for being late, acknowledged that he had been spoken to about his late attendance in March 2013 and acknowledged that he could not continue to be late as this was counter-productive to the team.14 He did not sign the warning as he thought it was unfair.15 The letter of warning made clear that in order to avoid disciplinary action in the future the Applicant was to arrive at work on time.16

[10] It seems to me more than justifiable to have issued the Applicant with a written warning about his attendance given his history of attendance that year and the earlier counselling that he had received from Mr Harris about his late attendance. That he appeared remorseful and acknowledged the need to improve his timeliness and time management skills is to his credit. 17 But that did not render the warning that he received on 27 June 2013 unfair in the circumstances. It is clear on the face of the warning letter that the Respondent took into account the Applicant’s remorse, contrition and cooperation, as well as his length of service.18 It seems to me that these factors contributed to the issuing of a warning, instead of some more serious form of discipline. Given the Applicant’s apparent tardy attendance record during the early part of the year, the written warning issued on 27 June 2013 appears not only justified but should have served as a timely reminder of the Respondent’s expectation that employees attend for work on time.

Written warning – 16 October 2013
[11] The Applicant received a further written warning on 16 October 2013 in relation to late attendances on 9 and 10 October 2013. 19 The letter of warning of 16 October 2013 reminds the Applicant that, in order to avoid facing further disciplinary action, he was required to, inter alia, arrive at work on time. 20 Before the warning was issued, the Applicant explained that in relation to attendance on 9 October 2013, he suffered stomach cramps and had to stop his car on the way to work to be sick.21 The Applicant had clocked in four minutes past his rostered time and left on sick leave shortly after arrival, after being told by his team leader to go home.22

[12] In relation to the late attendance on 10 October 2013, the Applicant had explained that he had attended work after a sleepless night of illness. He arrived well before his shift was due to commence, parked his car, had a cigarette and walked to the site’s security gate. He noticed his card holder was missing, rushed to his car and searched for it, finally finding it down the side of the car seat. He hurried back through the gate and to the Kronos clock-in machine, and clocked-in one minute past his scheduled start time. 23

[13] The Applicant did not sign the warning as he thought it was unfair. 24 I agree, on the basis of the evidence given before me, that the warning of 16 October 2013 was unfair. Ms Rebecca Vanstone, currently the Respondent’s Manufacturing People and Site Capability Coordinator, was involved in the issuing of the 16 October 2013 warning.25 She gave evidence about the Applicant’s explanation as follows:

‘You recall that his response in respect to 9 October was that he woke up feeling ill, drove into work, on the way he had to stop to vomit, got back in his car, came to work, was four minutes late and pretty shortly thereafter, he and his team leader decided he should go back home. Do you recall that?---Yes.

You accepted that was an accurate explanation of what had happened that morning?---Yes.

But as I understand it from Ms Ioannidis, you thought that, nevertheless, a warning was warranted because he had failed to call in when it became apparent to him along the journey that he might be late for work. Is that according to your recollection?---For the two days he failed to call, yes.

But in relation to 9 October, that was your rationale for warning him in respect of that day?---It was a combination of two days, that warning.

In relation to the second day, you recall his explanation was that he I think had had a bit of a sleepless night because he was ill. He had come to work, nevertheless, and had parked his car in time to get to work, then had a cigarette. He then got to the gate, realised that his swipe card had slipped out of his pocket, went back to the car and then retrieved the card, swiped in, and by that stage, was one minute late. Do you recall that was his explanation?---Yes.

Did you accept that as accurate?---Yes.

But nevertheless, because he'd failed to call in, you felt that it was appropriate to give him a warning?---Yes.

I take it you weren't part of a discussion with Ms Ioannidis where you decided that you didn't accept that explanation that Arthur had given in respect of the second of those days?---I wasn't part of the decision making, no, if that's what you mean.

So if Ms Ioannidis didn't accept that explanation, that wasn't something she communicated to you?---No.

You then issued the warning that you issued?---Yes.

And you understood when you issued the warning it was because of the failure to notify?---Yes.
Not because you disbelieved his explanations?---No.’ 26

[14] Ms Ioannidis gave the following evidence about the 16 October 2013 warning:

‘You recall that the effect of that was on 9 October he had woken up feeling ill. He had tried to come in anyway. On the way he had to stop the car to vomit. He had arrived four minutes late and then very shortly after arriving he had a discussion with his team leader and his team leader advised him to go back home. Do you recall that's the explanation he gave?---Yes.

Nevertheless you felt it appropriate to provide him a warning in respect of that conduct?---And the occasion on the 10th.

That you thought it was appropriate to warn him in respect of that conduct on 9 October?---Yes.

What could Mr Pahnelas have done in that morning, apart from not show up at all, what could he have done? Sorry, I withdraw that. Did you accept that that explanation he gave was the truth?---Yes.

So what was it that he could have done to avoid breaching the lateness requirement if, as you accept, he was on his way to work when he had had to stop to vomit, and it was that that caused him to be late?---Notified as previously counselled numerous times.
So had he notified after he had climbed back into the car, then in respect of 9 October you wouldn't have felt it appropriate to provide him with a warning?---If it was prior to his shift, no.

So his failure to notify was the problem in respect of 9 October?---That caused him to be late.

THE DEPUTY PRESIDENT: Ms Ioannidis?---Yes.

I want to ask you this. An employee on their way to work experiences the difficulty that the Applicant says he experienced, and he vomits but he still wants to get to work on time. He has a choice of ringing up and saying, "I've just vomited. I might be late," or rushing off to try and get to work on time. It's kind of an invidious choice, isn't it?---It's what, sorry?

It's an invidious choice, isn't it?---I don't understand.

Well, it's a difficult choice to make. On the one hand he wants to get to work on time but you say he should stop and make a phone call?---If there was a risk of him being late, yes.

Right. Yes, Mr Blewett.

MR BLEWETT: Thank you, sir. And on 10 October I think do you recall his explanation was that he had arrived – having had a sleepless night because of his illness, he had arrived quite on time, but then as he got to the gate realised he had left his clock card in the car, and gone back to the car to find it and it was that process that caused him to be one minute late actually clocking in. Do you remember he provided that explanation?---Yes.

Again, did you accept that explanation as being likely to be true?---No.

Did you tell Mr Pahnelas that you disbelieved him?---I can't recall.

You didn't tell him you disbelieved him, did you?---I can't recall. I'm not sure.

THE DEPUTY PRESIDENT: Ms Ioannidis, do you have CCTV cameras in the car park?---Yes.

Did anyone bother to look at the CCTV footage to see whether or not the Applicant was telling the truth?---From the statement provided, to the best of how I can interpret this, if the – for our car park, to get into your car park, you need your swipe card. To get out of the car park, you need your swipe card and then you have to cross the road. And then to clock in you need your swipe card. So if he – if Mr Pahnelas forgot his swipe card then he didn't – I'm assuming he didn't park in the car park at all.

Well, I think his evidence was that it was in his car. The card fell down the side of his seat?---Yes. After he parked his car.

So there's nothing inconsistent with him having the swipe card, swiping into the car park, driving in, the swipe card falling down the side of the seat, him leaving and realising he doesn't have it with him when he gets to the clock-in period?---The reason I'm making the suggestion I am is because – if I can read this?

Sure?---"I parked my car" which suggests to me if he parked in our car park, swiped the card, the gate opens. Parked the car. Then there's a turnstile you have to swipe to come out of. "Had a smoke," which you need to close your car and use your card to get out into the smoking area. And then when he was at the gate which is you cross the road to get into our premises, he realised his card holder wasn't in his pocket, and that it was in his car. So he wouldn't have been able to go back to his car if he forgot his swipe card, let alone get out of the car park.

I understand.

MR BLEWETT: Did you – I'm not quite sure you answered his Honour's question. Did you have a look at the CCTV footage to see whether it showed any of that behaviour that day?---To be honest, I can't remember. I can't comment.

So do I take it your evidence is that you accepted his explanation in respect of 9 October but didn't think that was adequate because he had failed to call in; and you didn't accept his explanation on 10 October?---Correct.

And so you warned him in respect of both of those days?---Sorry?

You provided a warning in respect of both of those instances of lateness?---Correct.

And did you accept that part of his response, which was to the effect that again since the warning in June he had made an effort to improve and had had no instances of lateness?---No, because I couldn't see that and I wouldn't be able to see that information.

But you could check. He makes an assertion that he hasn't had an instance of lateness since then, did you check at the time?---I would like to – yes, I believe I would have.
What did you conclude?---That the allegation was substantiated.

No, what did you conclude as to whether or not this was the first occasion of lateness since the time of his warning?---Without the facts I can't comment on that, so I'm not sure.

In any event, you can't recall whether you suggested to him that you did not believe his explanation, did you?---I can't remember.

You would have some note of it if you had, wouldn't you?---Yes.

And you don't have a note of it, do you?---No.

THE DEPUTY PRESIDENT: Sorry, Ms Ioannidis, can I just go back to the car park incident. You seem to be suggesting that the Applicant had to get out of his car to have a cigarette. Why do you suggest that? Why couldn't he sit in his car and have a cigarette?---Because we don't – you're not allowed to smoke in our car park.

I see. Okay?---In the company car park. If that's where he parked.

Well, that's the car park with the gate?---That's correct.

But he might have smoked in the car park?---Maybe. I'm not – I can't comment on that.

So what I'm saying is you're assuming that he did the right thing and not smoke in the car park?---Yes, but even if he did smoke in the car park in this car, in order to get to the gate to walk into our premises, he first would have had to have gone through the gate to get out of the car park.

But that's what he says. He said he proceeded to the gate. Once he got to the gate – so he's not through the gate – he realised he didn't have his card holder?---Yes. Sorry.

So not through the gate?---Yes. Yes.

So he's still in the car park, and then he goes back to his car?---Yes. Yes. Assuming he has, yes, smoked in his car.

Or in the car park?---Or in the car park.’ 27

[15] The first and most obvious point about this evidence is that it now appears that the 16 October 2013 warning was issued because the Applicant had failed to contact his supervisor to advise he was going to be late. The absurdity of this proposition in circumstances where on the two occasions cited, the Applicant was four minutes late, having stopped to vomit on the road side, and one minute late, having hurriedly returned to his car to retrieve his entry pass speaks for itself. More relevant however, is the fact that the proposition that the Applicant should have contacted his supervisor if he was likely to be late, does not warrant any mention in the warning itself. The behaviour for which the warning was given is that of ‘failing to arrive at work on time, more specifically not clocking in and being at your appropriate work station by 6am’. 28

[16] As to the conduct itself, it seems to me that the Applicant’s explanations were reasonable and they explained the slight lateness on each occasion. The Applicant’s explanations were believed and to the extent there was some doubt about 10 October 2013, this could have been easily verified but no action was taken by the Respondent to make further inquiries. In the circumstances, the warning for the conduct was not, in my view, justified. Issuing a warning for a reason not articulated at the time the warning is given is self-evidently unfair. The 16 October 2013 warning cannot, in my view, be relied upon to found a sound, defensible or well-founded reason for dismissal.

[17] To this I would add that there is a great deal of sense in requiring an employee to give advanced notice to a supervisor if the employee is likely to be late for work. However, the requirement should be enforced in a reasonable way. The view that the Applicant should have called his supervisor in the two instances discussed is quite ridiculous and is an example of the enforcement of a requirement in an unreasonable manner.

Final written warning – 13 January 2014
[18] On 13 January 2014, the Applicant was issued with a final written warning in relation to his late attendance at work on 24 December 2013. 29 According to the Applicant there had been a change implemented to the 24 December 2013 shift on which the Applicant and others were rostered from the normal 6.00am start to a 5.00am start to ensure the floor was staffed while another line had a Christmas breakup.30 This change was reversed after questions regarding overtime were raised.31 Subsequently, the Applicant and some others offered to start at 5.00am, finish an hour early and take an hour unpaid leave so they did not have to pay any overtime.32

[19] The Applicant submitted that he changed his usual alarm to wake him up for the 5.00am start but accidently deleted the alarm altogether and slept in. As a result, the Applicant clocked-in very late at 6.47am. 33 Although the Applicant did not at the time sign nor did he agree with the final warning, he now agrees that a warning was reasonable in the circumstances.34 I also accept that it was reasonable in the circumstances. Although the Applicant maintains that a final warning was not justified, nothing turns on this since it plainly was not his final warning as a further warning was issued later that year as discussed below.

Further final written warning – 15 September 2014

[20] On 28 August 2014, the Applicant says that he returned to work after a day of personal leave due to illness. 35 He says that when he arrived on site other staff told him that 13 team leaders had been made redundant.36 The Applicant proceeded to the clock-in machine and continued to converse with the staff.37 According to the Applicant there was a great deal of discussion amongst the staff.38 The Applicant says that he noticed the time on the clock-in machine tick over to a minute past.39 He then clocked in and advised his Team Leader that he had clocked in a minute late.40 The Applicant was subsequently issued with a further final written warning41 which he refused to sign and did not accept because he considered it to be unfair.42

[21] In the circumstances of the Applicant’s attendance record, and putting to one side the 16 October 2013 warning, the warning issued on 15 September 2014 was justified. One wonders how often an employee needs to be told to clock-in on time. True it is that there is an explanation for his failure to clock-in on time on 28 August 2014, but that explanation is not a satisfactory explanation. It had previously been made abundantly clear to the Applicant that he is required to clock-in on time. He was told of this requirement during counselling that he received from 19 March 2013, he received a written warning on 27 June 2013 specifying the requirement and he received a further written warning on 13 January 2014 which again specified the requirement. The burden was on him to show his employer that he could meet the timeliness requirements for attending at work as specified. On this occasion he failed to do so. The warning was justified and served to remind the Applicant of the fairly simple requirement that he attend for work at the time specified as the starting time otherwise there will be consequences. It is, with respect, the height of stupidity to repeat conduct that was the subject of previous warnings and to expect a different result. The Applicant has no cause for complaint about receiving a warning for engaging in conduct, whether through inadvertence or otherwise, that has previously and repeatedly been highlighted to him as not acceptable.

Overtime shift – 28 March 2015

[22] Voluntary overtime weekend shifts are worked by employees at the Thebarton site. The Applicant frequently worked on overtime weekend shifts. According to the Kronos system data produced in relation to the Applicant’s attendance at work since 1 January 2013, 43 the Applicant worked weekend overtime shifts on 41 occasions including on 28 March 2015. The usual starting time for a weekend overtime shift is 6.00am and the usual finishing time is 2.00pm. According to the Kronos system data, the Applicant clocked-off prior to the usual finishing time on 11 occasions, including on 28 March 2015, on weekend overtime shifts that he worked during the period.44 The early clock-off times recorded in the Kronos system data varied from as little as 24 minutes to as much as one hour and 54 minutes prior to the usual finishing time.

[23] There is some, but not significant, disputation about the events of 28 March 2015. There is some dispute about whether the Applicant had a pre-determined plan to leave early, about whether the Applicant and Ms Jayne Koen, the Operations Manager on duty on the day in question, made eye contact at the time when the Applicant was clocking-off; and whether production on the line on which the Applicant had been working had completely finished. These are not matters that I need to resolve because the critical issue that requires determination is whether the Applicant required the permission or consent of the Operations Manager to leave the Thebarton site before the scheduled conclusion of the overtime shift on 28 March 2015.

[24] It is common ground that the Applicant did not seek the permission or consent of the Operations Manager to leave early on 28 March 2015, nor did he notify the Operations Manager of his intention to do so.

[25] The following factual matters also appear not to be in dispute:

the Applicant volunteered to work the overtime shift on Saturday, 28 March 2015 having been offered the opportunity to do so during the week prior;

despite an obvious mistake in at least one version of the roster pertaining to that day, the 28 March 2015 overtime shift for the Applicant to work on the ‘can line’ was understood by all concerned to be a day shift commencing at 6.00am and concluding at 2.00pm;

employees working weekend overtime day shifts do not always work until the scheduled end of the shift;

the Applicant clocked-off at 12.38pm on 28 March 2015, that is 1 hour and 22 minutes prior to the scheduled finishing time of the shift;

the Applicant did not verbally engage with Ms Koen in relation to his departure, but did discuss it with co-worker, Mr Arambatzis;

in the period up to September 2014, the decision to leave an overtime shift early was made in consultation with a senior worker on the line in the position of Team Leader;

the position of Team Leader was made redundant and some of their duties were transferred to the role of Operations Manager;

in the period September – December 2014, there were some weekend overtime shifts 45 where there was no Operations Manager on site.

[26] It is also not suggested that the Applicant sought to hide his departure or that he acted dishonestly, or that he sought some financial benefit by leaving early. To the contrary, the Applicant will have been paid overtime only until the recorded departure time in the Kronos system.

[27] The essential difference between the parties is that the Applicant says that there is an accepted practice that employees of the Respondent who work on a weekend overtime shift are able to leave the workplace once production has finished without seeking the permission of the Operations Manager, and to the extent that the Respondent asserts the contrary, the Applicant was neither aware nor made aware of any requirement that he must seek permission of the Operations Manager to leave early once production had finished on a weekend overtime shift. 46 The Respondent maintains that the Applicant needed permission or at least needed to notify the Operations Manager before leaving early on a weekend overtime shift.47

[28] The Applicant submitted that I should find that an accepted practice of employees of the Respondent was that, on a weekend overtime shift, they were able to leave the workplace once production had finished without the permission of their Manager. 48

[29] The Applicant gave evidence that he had not previously sought permission to leave early on a weekend overtime shift. 49 As previously noted, the Kronos system data show that the Applicant left a weekend overtime shift early on 11 of the 41 occasions that he worked such a shift since 2013. That the Applicant left early on these occasions without seeking permission is not seriously challenged. No probative evidence was produced by the Respondent which would support a conclusion that, on any of the 10 occasions prior to 28 March 2015, the Applicant sought or was given permission to leave early.50 Attached to the witness statement of Ms Ioannidis51 is a document recording an interview between Ms Ioannidis and Mr Justin Searcy, one of the Respondent’s Operations Managers, in which he asserts that he was absolutely positive that the Applicant had in the past asked permission of him to leave early before the scheduled finishing time of a weekend overtime shift. However, this assertion needs to be viewed in the context of Mr Searcy not being able to point to any particular occasion on which the Applicant had sought his permission,52 and to that extent I do not accept the assertion. I accept the Applicant’s evidence on this point to the extent that the Applicant believed that he was able to leave a weekend overtime shift early and without permission. The Applicant’s evidence was also consistent with the position he had adopted during the Respondent’s investigation of the Applicant’s early departure on 28 March 2015.53

[30] It seems to me also that the Applicant had reasonable grounds for believing that he could do so. First, there is the fact that he left early on a number of occasions as demonstrated by the Kronos system data, which shows 11 early departures, seven of which occurred between 30 August 2014 and 28 March 2015. Secondly, the Kronos system data is able to be and is regularly reviewed, as is evident by the capacity to insert comments next to entries. However, the Applicant was not spoken to about leaving early on any of the 10 occasions prior to the 28 March 2015 incident. The failure to speak to the Applicant about his early departures when viewed in the context of the Applicant having received warnings about clocking-on late by periods of between one and four minutes, would tend to reinforce the view that leaving early on a weekend voluntary overtime shift, as he had done, was not an issue. As was properly conceded by Mr Searcy, he had not taken issue with the Applicant leaving his weekend voluntary overtime shifts early in the period August 2014 to December 2014, and the failure to do so could only be explained eitherbecause he did not detect it, or because he had detected it but did not consider it to be an issue. 54 That this is so is likely to have reinforced the Applicant’s view. Thirdly, there is the absence of any evidence of any oral or written instruction consistent with the Respondent’s asserted practice having been given to the Applicant, or anyone else.55

[31] I do not accept however that it was the Respondent’s accepted practice that employees were able to leave weekend voluntary overtime shifts at the conclusion of production without seeking permission or giving notice. The evidence supports a conclusion that some employees including the Applicant engaged in the practice, 56 however there is also evidence given by Mr Arambatzis, an employee who worked with the Applicant on 28 March 2015, who said he would never have left the site early on a weekend overtime shift without obtaining the permission of his Manager, or at least communicating to his Manager.57 The Respondent’s witnesses asserted that permission or at least notification was required,58 although as I have already observed no evidence is produced to suggest the requirement as asserted was ever communicated to the Applicant or to anyone more generally.

[32] Doubtless, such a requirement is common sense, it should go without saying and makes sound practice, particularly in a manufacturing environment where knowledge of the whereabouts of employees is an important occupational health and safety consideration. However, it does not follow in the circumstances of the Applicant, that a common sense requirement which should go without saying and which makes sound practice is sufficient justification, whether alone or in combination with the Applicant’s past attendance warnings, to found a sound, defensible and well-founded reason for the Applicant’s dismissal. The Respondent’s desire that employees should seek permission or at least give notice before leaving a voluntary weekend overtime shift is understandable but given its abject history of paying no apparent attention to the 10 other occasions, prior to 28 March 2015, on which the Applicant left early, when it had both the means to do so, and when the Applicant’s attendance was otherwise on its radar tells against the validity of the reason for dismissal in these circumstances.

[33] I accept that the Applicant held a genuine belief that he was entitled to do that which he did on 28 March 2015. That belief was fostered by his past practice of leaving early and for which he was not called to account. Had he been told on one of those prior occasions the practice of leaving early without permission or notification was not acceptable, then he would have no basis to dispute the disciplinary consequences of his actions on 28 March 2015, but that did not occur. Ultimately, the Applicant was the victim of the Respondent’s desire to clampdown on laissez faire attitudes to attendance, but that desire was not supported by sound and consistent supervisory or management practice.

[34] Furthermore, in these circumstances the assertion contained in the letter of dismissal that the Applicant had deliberately left the workplace without notification to, or the authority or approval of, his Manager 59 cannot be made out. Doubtless, the Applicant deliberately left the workplace but he was not deliberate as to the absence of notification, authority or approval because in my view, the Applicant genuinely believed that no notification, authority or approval was required.

[35] As to the circumstances of the Applicant’s early departure, true it is that he left shortly prior to production having completely finished on his line. However, when he left, production was in the final stages of ‘running out’. 60 I accept the Applicant’s evidence that he had ensured that any areas where beverage cans may bank up had been cleared.61 I also accept that a number of employees on the line had completed their functions and were in the process of tidying up. Mr Arambatzis covered the Applicant's machine in the last minutes of production62 and there seems no dispute that the Applicant spoke with Mr Arambatzis before leaving to tell him that he was leaving without any apparent objection from Mr Arambatzis. In any event, it seems clear that production on the relevant line was at its very late stages but this is of marginal relevance since the decision to dismiss the Applicant was based on his failure to notify his Manager or seeking Managers authority or approval before leaving the workplace on 28 March 2015.

Code of Business Conduct

[36] At or about the time the Applicant commenced employment with the Respondent on 9 October 2006, the Applicant received and subsequently signed an acknowledgement of a letter in which the Applicant relevantly acknowledged that he was required to comply with the Respondent’s ‘Code of Business Conduct in relation to dealing with customers and suppliers’. 63

[37] The Respondent’s Code of Business Conduct 64 is undoubtedly an important instrument to guide employee behaviour. However, I do not accept that the Code of Business Conduct has any clear application to the circumstances which led to the Applicant’s dismissal. The Code of Business Conduct is replete with generalities about values and behaviours that are neither apt, nor could they be clearly understood, to apply to the Applicant’s conduct on 28 March 2015.

[38] The Code of Business Conduct also comprises an identified number of clearly proscribed behaviours, and a number of positively expressed or desirable behaviours. Doubtless, these are designed to guide employee conduct. But again, I do not accept that any of the described behaviours can reasonably be said to govern the Applicant's conduct on 28 March 2015.

[39] To that extent, I accept the Applicant’s submission that the difficulties associated with the application of the Code of Business Conduct to the conduct of 28 March 2015 is amply demonstrated by the conflict between the evidence of Mr Barry Higham, one of the Respondent’s Operations Managers, and that of Ms Marie loannidis, one of the Respondent’s Human Resources business partners. Mr Higham and Ms Ioannidis each considered the Applicant's conduct to have been a breach of the Code of Business Conduct 65 yet each had a different view about the nature of the breach. Mr Higham’s evidence was relevantly:

‘You've never seen that expressed in any sort of written form to employees?---It was against our code of conduct.

Which particular part of the code of conduct?---Behaviour.

Which aspect of behaviour in the code of conduct? I wonder if the witness could be shown Exhibit 6P? If you could turn to attachment MO1?---Yes.

Do you have MO1?---Mm hmm.

Does that appear to be a copy of the code of business conduct?---Yes.

And about the fourth page there's a page of behaviours. Is that part of the code you say sets out that - - -?---Communicative.

Is there another element of the code? If I'm a worker contemplating leaving early on a Saturday overtime shift, what bit of the code do I look to to guide my behaviour?---All of it. Sorry, I don't know where.

Mr Higham, you've just said that leaving the line without permission or proper notification is unsafe and contrary by practice and constitutes a breach of your code of conduct. What I'm asking is to identify, assuming I'm a worker and I want to leave early on a Saturday overtime shift, what bit of the code of conduct tells me whether that's acceptable or not?---If you look at the behaviours, communicative. Hasn't communicated.

Is there any other bit of the code?---I don't know, maybe.’ 66

[40] Ms loannidis’ evidence about the Code of Business Conduct and its relevance to the Applicant’s conduct on 28 March 2015 was relevantly as follows:

‘Now, if I were an employee on a Saturday overtime shift, where would I check in the code of conduct to see whether or not it was acceptable to leave when production finished without obtaining a permission of a manager?---I believe it would come under "Performing your role diligently" which in my mind is thoroughly and complying with policies and procedures.

Well, turning to policies and procedures, there is policies and procedures that I think you referred to in paragraph 8 of your statement as being part of the sort of induction?---M'mm.

Can you point to a policy or procedure, as part of that induction process, that pertains to leaving a Saturday overtime shift early without the permission of the manager?---Again, I believe that comes under the code of business conduct.

Does that again drive you back to your belief that that was performing your role diligently?---Yes, and also if I can refer to the document again, please. And also complying with the code, the policies and procedures, and following the lawful and reasonable instructions of the normal practice.

What's the lawful and reasonable instruction that's breached by leaving an overtime shift early without the permission of your manager?---That you've left prior to your shift – the shift completing.

And where, if I were an employee, would I go to find that lawful and reasonable instruction?---I'm unaware if that would be in the code scripted specifically as you've asked – as you've requested.

I mean, isn't this the case – Coca Cola management has an expectation that if an employee seeks to leave an overtime shift early, they would only do so with either the permission or the knowledge of their manager. Is that right?---Correct.

But nowhere is that set out in writing?---Not that I'm aware of. 67

[41] I do not accept that the word ‘communicative’ as expressed and explained in the Code of Business Conduct can reasonably be ascribed to the conduct of the Applicant on 23 March 2015. As to the requirement under the Code of Business Conduct that an employee perform his or her role diligently, so far as the events of 23 March 2015 are concerned, it is with respect a stretch to suggest that the allegation that the Applicant left a voluntary overtime shift early without permission of the Operations Manager, as falling within the rubric of that aspect of the Code of Business Conduct. Moreover, as to the requirement under the Code of Business Conduct that an employee comply with the policies and procedures of the Respondent, as is clear from the extract of transcript above, Ms Ioannidis was not able to point to a written policy or procedure which applied to the Applicant's conduct and none was produced in evidence before me.

[42] In these circumstances I am not satisfied that the Applicant's conduct on 28 March 2015 was a breach of the Code of Business Conduct.

Consideration and application of the statutory framework

Protection from Unfair Dismissal

[43] An order for reinstatement or compensation may only be made if I am satisfied the Applicant was, at the date of the dismissal, protected from unfair dismissal under the Act.

[44] Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal as follows:

‘382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.’

[45] There is no dispute, and I am satisfied, that the Applicant was, on 18 May 2015, protected from unfair dismissal within the meaning of s.382.

Was the dismissal unfair?

[46] The Applicant’s dismissal will have been unfair if I am satisfied, on the evidence, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.’

[47] There is no dispute that the Applicant was dismissed at the Respondent’s initiative within the meaning of s.386 of the Act. As I have previously indicated, the Respondent is not a small business employer so the issue of compliance with the Small Business Fair Dismissal Code does not arise, and the dismissal of the Applicant was not a case of genuine redundancy within the meaning of s.389 of the Act.

Harsh, unjust or unreasonable

[48] It remains therefore, for me to consider whether the Applicant’s dismissal was harsh, unjust or unreasonable. The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act:

‘387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.’

[49] I am obliged to consider each of these matters in reaching my conclusion and I do so below, having regard to the factual findings earlier made. 68

[50] The ambit of the words ‘harsh, unjust or unreasonable’ in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd 69 by McHugh and Gummow JJ as follows:

‘. . . 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 may 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 in respect of which the employer acted.’ 70

[51] Ultimately, however, it is the matters set out in s.387 of the Act to which regard must be had.

Valid reason – s.387(a)

[52] There must have been a valid reason for the dismissal related to the Applicant’s capacity or conduct, although it need not be the reason given to the Applicant at the time of the dismissal. 71 The reason should be ‘sound, defensible or well-founded’72 and should not be ‘capricious, fanciful, spiteful or prejudiced.’73 Where conduct of the Applicant is relied upon to justify the decision to terminate employment, I would need to be satisfied that the conduct as alleged, occurred.74 A mere suspicion of conduct does not amount to a valid reason.75

[53] The reason for the Applicant’s dismissal related to his conduct. The letter advising the Applicant of his dismissal sets out the reason for dismissal as follows:

‘As you know, you have received a number of warnings during your employment related to breaches of the CCA Code of Business Conduct and your repeated lateness/attendance issues. The most recent allegation (which has been substantiated) involved you deliberately leaving the workplace without notification to your manager or authority or approval from your manager on 28 March 2015. This represents a further breach of the CCA Code of Business Conduct and of your employment obligations generally.

Further, the previous warnings, including the second Final Warning issued 15 September 2014 made clear the expectations required of you and also warned you that a ‘A failure to meet the expected behaviours and performance, without reasonable cause, may result in further disciplinary action up to and including termination of your employment’.

CCA has considered all of the relevant information. In the circumstances, CCA has lost trust and confidence in you as an employee and in your willingness to adhere to company policies and expected standards of behaviour. Accordingly, there is no viable alternative available but to terminate your employment, effective as at 18 May 2015.’

[54] The factual findings that I have earlier referred to in these reasons, do not support a conclusion that the Applicant had engaged in the conduct alleged in the letter of termination. As I have earlier observed, of the late attendances for which earlier warnings were given all but one was justified but the Applicant’s late attendances did not, on any view, amount to a breach of the Respondent’s Code of Business Conduct. Nevertheless, if the Applicant had engaged in the conduct on 28 March 2015 as alleged by the Respondent, I would have been satisfied that that conduct in combination with the earlier late attendances for which warnings were given, would be a valid reason for the dismissal. But, as I have already noted, the combination of the Applicant’s belief that he was entitled to leave early on a voluntary weekend overtime shift without permission or notice to his manager, the lax supervision of the Applicant’s practice on 10 prior occasions and the lack of any clear communication of the Respondent’s expectation as to permission or notification has the result that the reason relied on by the Respondent is neither sound, defensible nor well-founded.

[55] Furthermore, the suggestion in the letter of dismissal that the Respondent has lost trust and confidence in the Applicant as an employee and his willingness to adhere to company policy is, in my view, classically an example of a letter drafted to meet a desired outcome rather than one based in fact. There is no evidence of any ‘company policy’ which deals with the conduct that the Applicant is said to have engaged in on 28 March 2015. That there should be is beside the point. As to the ‘expected standards of behaviour’ referred to in the letter of dismissal, it is true that the expectation that the Applicant attend for work on time was clearly and repeatedly communicated to him, but the expectation that he seek permission to, or give notice of an intention to leave early on a voluntary weekend overtime shift appears, on the evidence, not to have been communicated. An expectation without communication is merely a pipedream, and a breach of an uncommunicated expectation does not form a sound, defensible or well-founded reason for dismissal.

[56] In the circumstances I am not satisfied that there was a valid reason for the Applicant’s dismissal.

[57] I accept that repeated lateness as demonstrated by the Applicant if repeated would likely provide a valid reason for the Applicant’s dismissal. The Respondent submitted that it was open for me to find that the Applicant’s unexplained late arrival at work on 23 March 2015, at which time the Applicant had clocked-in some 16 minutes after the 6.00am starting time 76 could have been a valid reason for the Applicant’s dismissal.77 I accept that this will likely have been so, had the Respondent acted at that time, but it did not. It is not the case that the Applicant’s late attendance on that day was not known to it. The Kronos system data is and was available for review. The Respondent had material available to it upon which it could have, but for reasons which are not explained, did not act. In those circumstances I am not prepared to accept now that incident should, in combination with the earlier warnings, act to found a valid reason for the Applicant’s dismissal.

[58] As I have earlier observed, that an employee should seek permission or give notice of an early departure from work should be self-evident. However, the Respondent did not dismiss the Applicant because this was self-evident. The Respondent dismissed the Applicant because he had failed to comply with the Code of Business Conduct and company policy. Neither proposition is made out on the evidence. Moreover, the Respondent dismissed the Applicant in circumstances where it had not previously intervened in relation to the very same conduct occuring on no less than 10 occasions, seven of which occurred in the seven months preceding the dismissal. The Respondent had the information and means to intervene, but it did not. The self-evident nature of permission or notice become less so, when consistently contrary conduct is permitted to occur.

Notification of the valid reason – s.387(b)

[59] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made 78, in explicit terms,79 and in plain and clear terms.80 In Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport)81, a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:

‘As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.’ 82

[60] There is no dispute that the Applicant was notified of the Respondent’s reasons for dismissing him.

Opportunity to respond – s.387(c)

[61] An employee protected from unfair dismissal should be given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. It seems to me clear on the evidence that the Applicant was given an adequate and fair opportunity to respond to the reason for his dismissal, both as to his late attendances, and the circumstances of his leaving the workplace on 28 March 2015.

Unreasonable refusal by the employer to allow a support person – s.387(d)

[62] If an employee protected from unfair dismissal has requested that a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse to allow that person to be present. It is clear from the plain language of s.387(d) of the Act that this consideration is directed to an employer’s unreasonable refusal to allow a support person to be present. It is not concerned with whether an employer offered the employee such an opportunity. In most cases, the section will be engaged if the employee asks for a support person to be present and the employer refuses the request. 83 It may well be appropriate in some cases to consider the overall circumstances in which meetings to discuss an employee’s performance, capacity and conduct or dismissal occurred to properly determine whether there was an unreasonable refusal by the employer to allow the employee to have a support person present.

[63] There is no dispute that the Applicant had a support person with him at each of the two meetings held on 15 April and 22 April 2015 to discuss the allegations which founded reason for his dismissal..

Warnings regarding unsatisfactory performance – s.387(e)

[64] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 84 For present purposes, I am prepared to accept that the Applicant’s failure to attend for work on time on a number of occasions is capable of being described as unsatisfactory performance. To that extent, I accept that the Applicant had been warned on a number of occasions about his performance in that he persistently failed to meet the most basic of performance requirements, namely arriving for work on time.

Impact of the size of the Respondent on procedures followed – s.387(f)

[65] The Respondent is a large employer. There is no evidence that the Respondent’s size, in and of itself, affected the procedure adopted in effecting the dismissal. In my view, the procedure adopted by the Respondent in the lead up to the dismissal was fair insofar as procedures go. However, as is evident from my earlier findings, to the extent that the procedure adopted by the Respondent relied upon alleged breaches of the Code of Business Conduct, other company policies and unarticulated expectations, the procedure was flawed.

Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)

[66] There was no absence of a dedicated human resources function. It is apparent that human resources management specialists were involved both in the earlier warnings and in the dismissal of the Applicant.

Other relevant matters – s.387(h)

[67] Section 387(h) provides the Commission with broad scope to take into account any other matters it considers relevant. I have also taken into account the following matters:

That the Applicant had been engaged at the at the Thebarton site for some 14 years, nine of which were as a direct employee of the Respondent;

That the Applicant has been engaged at the Thebarton site for most of his adult working life;

That the Applicant lacks any formal qualification;

That a lack of formal qualification and a record of dismissal from his most recent employment do not augur well for his prospect of securing alternative employment.

[68] In the circumstances of this case, and taking into account the matters set out above, I am satisfied that the dismissal of the Applicant was unfair.

Remedy

[69] I turn next to consider the question of remedy.

The statutory provision

[70] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:

‘390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement or the payment of compensation to a person, if:

(a) the FWC 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) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.’

[71] Given my earlier conclusions, the matters set out in ss.390(1) and (2) are satisfied. Therefore, the jurisdictional preconditions to the order of an appropriate remedy are satisfied. The question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one. Neither party suggested that I exercise my discretion not to order a remedy at all if the dismissal was found to be unfair. I consider that a remedy is appropriate in all the circumstances of this case.

Reinstatement as the primary remedy for an unfair dismissal

[72] Subsection 390(3) of the Act underscores the primacy of reinstatement as a remedy for an unfair dismissal. The discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is inappropriate.

[73] In Colson v Barwon Health (Colson) 85I discussed at length the relevant factors that may be taken into account in determining whether reinstatement of the person is inappropriate,86 particularly in cases where there is said to have been a loss of trust and confidence by a former employer in the employee, as is the case here.87 I adopt that which I set out in Colson without repeating it.88 From the authorities that I discussed in Colson the following propositions may be distilled concerning the impact of a loss of trust and confidence on the question of whether reinstatement is an appropriate remedy:

An assessment of whether there has been a loss of trust and confidence must be decided on the circumstances of the particular case, including the nature of the employment;

An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise any claim by an employer that reinstatement is inappropriate because of a loss of confidence in the employee;

The appropriateness of reinstatement does not depend on notions of a loss of trust and confidence in the employee, although it is a relevant and even important consideration;

Dismissal for misconduct, assuming the employer is acting honestly, will in most cases imply a loss of trust and confidence in the employee. If the dismissal is ultimately found to be ‘unfair’, the question becomes whether the relationship can be restored if the employee is reinstated. In answering that question all of the circumstances must be taken into account, not just the views of management;

The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed;

The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct is not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate;

In most cases, employment relationships are capable of withstanding some friction and doubt and in this context, trust and confidence are concepts of degree;

The question, so far as it relates to reinstatement is ultimately, whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.

[74] As I have already observed, the Respondent has submitted that reinstatement as a remedy is inappropriate because there has been a loss of trust and confidence in the Applicant.

[75] The Respondent submitted that:

It has lost all trust and confidence in the Applicant;

The Applicant's direct Managers (Ms Koen, Mr Higham, Mr Searcy and Mr Trevor Harding) describe in consistent terms the basis for that concern. That is, if the Applicant were to be reinstated they would hold genuine concerns as to the example it would set to others in the workforce;

In particular, the Respondent’s ability to maintain its chosen operational culture (as to attendance, the importance of punctuality and communication with management) would be severely impacted;

Other employees would likely perceive the Respondent’s punctuality, attendance and compliance with directions and requirements as of reduced importance, and not serious matters;

The authority of management would be undermined; and

The Respondent is concerned about the effect upon discipline if the Applicant is allowed to return.

[76] While these are all matters of understandable concern they do not, with respect, demonstrate that there has been a loss of trust and confidence such that the employment relationship cannot be restored. The matters to which the Respondent has pointed are matters going to embarrassment and perceptions by Managers of an undermined authority rather than reflecting irreparable damage to the employment relationship.

[77] There is nothing in this decision which condones the Applicant’s conduct, it merely assesses the gravity of the conduct committed in the circumstances confronting the Applicant. Lest there be any doubt, it is not acceptable for the Applicant to clock-in after the start of the shift without an acceptable explanation for the conduct. Moreover, it should now be evident to the Applicant that he is required to seek the approval of a Manager before he clocks-off duty, whether on a weekend overtime shift, or otherwise. The warnings that have previously been issued, and which I have identified as warranted, do not go away merely because I have found that the dismissal was unfair. If the Applicant is reinstated, the authority of the Managers is not undermined. The Applicant would remain in a situation where he has been given a further final written warning and where conduct which occurred on 28 March 2015 might not have been understood by the Applicant to be unacceptable, should now clearly be understood by him to be unacceptable and if repeated, or if further late arrival is repeated, the likely consequence will be his dismissal. That should be incentive enough for the Applicant to become a model attendee at work.

[78] As to the perception of other employees and the undermining of the Respondent’s desire to improve attendance and punctuality, the Applicant’s reinstatement would not undermine that desire, but the Respondent would be well served in promulgating policies which clearly articulate the desire, and by communicating that to its employees. Although timely attendance at work and seeking permission to leave work early are the minimum requirements of a healthy and on-going employment relationship, these requirements need to be clearly articulated to a workforce that has perhaps, prior to 2013, been used to a contrary culture.

[79] The Respondent also submitted that the Applicant has not shown any understanding or remorse at his actions. I place little store in this submission since on the basis of my findings I am satisfied that the Applicant genuinely believed he was entitled to do that which he did on 28 March 2015 at that belief was, in part, fostered by the Respondent’s own inaction.

[80] As to the Respondent’s submission that the Applicant's attitude was one of obstinacy and that considerations similar to those arising in Colson 89apply, I do not accept that submission. I agree with the Applicant that the question of obstinacy does not arise and is not apt to describe the Applicant’s conduct. His is a problem of time management and self-discipline, not obstinacy. The Applicant will need to improve both if he hopes to have a long-term future with the Respondent.

[81] In all of the circumstances, I do not consider that reinstatement is inappropriate. Consequently, an order for reinstatement will be made.

Continuity of employment

[82] Section 391(2)(a) of the Act provides discretion to the Commission to determine if it is appropriate for an order maintaining the Applicant’s continuity of employment and continuous service with the Respondent.

[83] An order for continuity is an exercise of discretion ‘separate and distinct from the decision to reinstate the employee’. 90 This means that a person may be reinstated with or without an order for continuity of employment.91 An order for continuity ‘ensures that the period specified is taken into account in determining any entitlement to service related benefits.’92

[84] I consider that in the circumstances of this case where the Applicant was a long serving employee, that the absence of an order for continuity would operate as a penalty and adversely affect, in a significant way, the Applicant’s entitlements that are based on a period of continuous employment. No submission was made to the effect that if reinstatement were determined to be the appropriate remedy that an order for continuity should not be made. I am unaware of any discretionary reasons why an order for continuity in the circumstances of this case should not be made and I propose to make such an order.

Restoration of lost pay

[85] Section 391(3) of the Act provides the Commission with discretion, where appropriate, to make an order causing the Respondent to pay the Applicant an amount for the remuneration lost, or likely to be lost, by the Applicant because of the dismissal. Section 391(4) of the Act sets out factors which must be taken into account in determining the amount under s.391(3). These factors are:

any remuneration earned by the employee between the dismissal and making the order for reinstatement; and

any remuneration reasonably likely to be earned between making the order for reinstatement and the actual reinstatement.

[86] As I have indicated, an order to restore lost pay is discretionary. The Commission may take into account ‘all of the circumstances of the case, including the conduct’ of the employee that led to the dismissal. 93 Any misconduct by the employee that has led to the dismissal may reduce the amount ordered.94

[87] I propose to take into account the Applicant’s history of lateness for which he has received counselling and warnings, and for which, in my view, he was fortunate not to have been earlier dismissed. The Applicant needs to understand that it is a core requirement of his employment with the Respondent to attend for work and clocking-in on time. His history of lateness formed part of the reason for the dismissal, although as I indicated earlier, the conduct did not in terms amount to a breach of the Respondent’s Code of Business Conduct. Nevertheless, the Applicant’s all too frequent periods of lateness were not acceptable. In the circumstances, I propose to reduce the order that I will make for lost pay by 30%.

[88] The Applicant was dismissed on 18 May 2015 and was paid four weeks’ pay in lieu of notice. I propose that the order for reinstatement will take effect on Monday, 7 December 2015. Therefore, the period for which a restoration of pay order would be made is 25 weeks. With the 30% reduction that I propose, the order for restoration of pay will be for 17 and a half weeks at the Applicant’s ordinary rate of pay. From this I propose to deduct any income that the Applicant has earned between the date of his dismissal and the date on which the reinstatement order takes effect. In order that such deduction, if any, is properly calculated I require the Applicant to verify by affidavit, the sources and sums of any income that he has earned (or will likely have earned) for the period between 18 May 2015 and 7 December 2015. The affidavit must be filed in my chambers and served on the Respondent within seven days of the date this decision.

Conclusion

[89] For the reasons earlier given, I am satisfied that dismissal of the Applicant by the Respondent was unfair. I am also satisfied in the circumstances that a remedy is appropriate, and that reinstatement is not inappropriate. I propose to order reinstatement, continuity of service and partial restoration of pay. The reinstatement will take effect on Monday, 7 December 2015 and the restoration of pay order will be 25 and a half weeks’ pay at the Applicant’s ordinary rate of pay less any income earned between 18 May 2015 and 7 December 2015.

[90] The Applicant is required to file and serve an affidavit verifying the sources and sums of any income that he has earned (or will likely have earned) for the period between 18 May 2015 and 7 December 2015 within seven days of the date of this decision.

[91] Orders giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

Appearances:

S. Blewett, United Voice for the Applicant.

K. Clark, Counsel for the Respondent.

Hearing details:

2015.

Adelaide.

September 9, 10, 11.

Melbourne.

October 1.

Final written submissions:

Applicant’s Final Submissions, 18 September 2015.

Respondent’s Final Submission, 25 September 2015.

Applicant’s Final Submissions in Reply, 29 September 2015.

1 Exhibit 1 at [5]-[6]; Exhibit 2.

2 Exhibit 1 at Attachment U.

3 Section 396.

4 Applicant’s Outline of Argument at [1.1]-[1.2]; Respondent’s Outline of Argument at [7].

5 Exhibit 1 at Attachment U.

6 Exhibit 6 at [6].

7 Exhibit 9 at [4].

8 Exhibit 9 at [6]; RV6.

9 Exhibit 1 at [8], [10].

10 Ibid at [12]-[47].

11 Ibid.

12 Exhibit 1 at [13]; Exhibit 6 at [27]-[28]; Exhibit 10 at [15]-[19].

13 Exhibit 10, JS6.

14 Exhibit 10, JS5.

15 Exhibit 1 at [18].

16 Exhibit 10, JS6.

17 Exhibit 10, JS5.

18 Exhibit 10, JS6.

19 Exhibit 8 at [17], RV3.

20 Exhibit 8, RV3.

21 Exhibit 8, RV2; Exhibit 1 at [19]-[21].

22 Exhibit 1 at [21]-[22].

23 Exhibit 8, RV2; Exhibit 1 at [23]-[26].

24 Exhibit 1 at [27].

25 Exhibit 8 at [17].

26 Transcript PN 1221-PN 1232.

27 Transcript PN 835-PN 876.

28 Exhibit 8, RV3.

29 Exhibit 10, JS8.

30 Exhibit 1 at [28]-[29].

31 Ibid at [30]-[31].

32 Ibid at [31]-[32].

33 Ibid at [33]-[35].

34 Ibid at [36].

35 Ibid at [37].

36 Ibid.

37 Ibid at [38].

38 Ibid.

39 Ibid at [39].

40 Ibid at [40].

41 Exhibit 10, JS11.

42 Exhibit 1 at [47].

43 Exhibit 9, RV6.

44 Ibid; specifically on 23 March 2013, on 24 August 2013, on 16 November 2013, on 7 June 2014, on 27 September 2014, on 8 November 2014, on 29 November 2014, on 13 December 2014, on 28 February 2015, on 7 March 2015 and on 28 March 2015.

45 See Footnote 2 to Respondent's Final Submissions - The Applicant contends there were no Operations Managers during that period; the Respondent disagrees and says some Team Leaders remained employed during this transition period and some personnel were acting in the role of Operations Manager, but it accepts there were some shifts where there was no manager of any type present on site.

46 Applicant's Final Submissions at [4].

47 Respondent's Final Submissions at [5] – [11].

48 Applicant's Final Submissions at [6].

49 Exhibit 1 at [61] and [65A]; Transcript, PN 95, PN 232, PN 239-PN 240, PN 301.

50 Transcript PN 1106-PN 1108, PN 1687-PN 1688, PN 1882 and PN 2068-PN 2069.

51 Exhibit 6, MI13.

52 ibid; Transcript PN 1865-PN 1882.

53 Exhibit 1, Attachment O, Attachment P and Attachment R.

54 Transcript PN 1668-PN 1689, PN 1754-PN 1755.

55 Transcript PN 643- PN 647, PN 777-PN 783, PN 2097 and PN 2101.

56 For example Mr Christos Kartsonis, and Stratos Pahnelas, both long-serving employees.

of the Respondent gave evidence that there was a practice that employee were able to leave the premises once production had finished on an weekend overtime shift, without needing to seek permission (Exhibit 3 at [6]-[8], Exhibit 4, at [5]-[10], Transcript PN 382-PN 386 and PN 514-PN 515).

57 Transcript PN 1338-PN 1340, PN 1352, and PN 1361.

58 Transcript PN 1776-PN 1777, PN 1789-PN 1790, PN 1797-PN 1799, Exhibit 5 at [20], Exhibit 11 at [25], Transcript PN 609-PN 618 and PN 1950-PN 1955.

59 Exhibit 1, Attachment U.

60 Exhibit 1 at [56] - [58], Transcript PN 210-PN 211, PN 214 and PN 1400.

61 Exhibit 1 at [57], Transcript PN 210 and PN 240.

62 Transcript PN 214.

63 Ibid.

64 Exhibit 6, MI1.

65 Transcript PN 772-PN 775 and PN 1964-PN 1969.

66 Transcript PN 1964-PN 1972.

67 Transcript PN 772-PN 779.

68 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14].

69 (1995) 185 CLR 410.

70 Ibid at 465.

71 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377–378.

72 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

73 Ibid.

74 King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213) at [23]–[26].

75 Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

76 Transcript PN 115; Exhibit 9, RV6 at page 58.

77 Respondent's Final Submissions at [115].

78 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

79 Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at 150–151.

80 Previsic v Australian Quarantine Inspection Services Print Q3730.

81 (2000) 98 IR 137.

82 Ibid at 151.

83 See also Fair Work Bill 2008 – Explanatory Memorandum at [1542].

84 Annetta v Ansett Australia (2000) 98 IR 233 at 237.

85 [2013] FWC 8734.

86 Ibid at [13]-[25].

87 see Respondent's Outline of Submissions at [37].

88 noting that the judicial controversy about which an observation is made in the third sentence of [19] in Colson has since been settled by the High Court of Australia – see Commonwealth Bank of Australia v Barker [2014] HCA 33.

89 See [2013] FWC 8734 at [40].

90 Kenley v JB Hi Fi (unreported, AIRCFB, Ross VP, Watson SDP, Holmes C, 22 June 2000) Print S7235 at [27].

91 Ibid.

92 Ibid at [34].

93 Ibid at [36].

94 Ibid.

Printed by authority of the Commonwealth Government Printer

Mr Arthur Pahnelas v Coca Cola Amatil (Aust) Pty Ltd T/A Coca Cola

[2014] FWCA 4089

30 NOVEMBER 2015

DECISION

Introduction

Factual background, context and findings

Consideration and application of the statutory framework

Remedy