Mr Bernard Green v Pool Werx Ringwood - [2014] FWC 740

[2014] FWC 740

FAIR WORK COMMISSION

DECISION

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

Mr Bernard Green
v
Pool Werx Ringwood
(U2013/11743)

COMMISSIONER ROE

MELBOURNE, 5 FEBRUARY 2014

Termination of employment – small business code.

[1] This matter arises from an application filed on 21 or 22 July 2013 under Section 394 of the Fair Work Act 2009 (the Act) by Mr Bernard Green (the Applicant) for relief in respect to the termination of his employment from D.J. Copsey Pty Ltd T/A Pool Werx Ringwood (the Respondent). The application referred to the employer as Pool Werx Ringwood. The Respondent confirmed that the legal name of employer is D.J. Copsey Pty Ltd.

[2] The Respondent raised a jurisdictional objection concerning the minimum employment period which was later withdrawn and this contributed to the delay in finalising this matter. The matter was heard on 22 January 2014. After consulting the parties and considering the requirements of the legislation I agreed to the Respondent being represented and determined to proceed in a determinative conference. I considered the evidence and submissions of the Applicant and of Mr Copsey who is the manager of the Respondent and is joint owner of the business with his partner. They were subject to cross examination.

[3] At the start of proceedings I identified a range of matters which did not appear to be contentious and the parties confirmed the accuracy of these matters. I am therefore satisfied that:

● The Respondent is a national system employer.
● The Applicant was a full time employee.
● The Applicant was dismissed at the initiative of the employer. The Applicant was not made redundant.
● The Applicant earned $840.00 per week gross which is less than the high income threshold.
● The Applicant commenced employment on 2 July 2012. The employer sent a termination letter by email and post on 1 July 2013. However, the Applicant was on pre-arranged approved annual leave and was interstate and was not aware of the dismissal letter until 7 July 2013.
● The Applicant had more than 12 months continuous service and is protected from unfair dismissal.
● The Respondent is a small business employer and there are no associated employing entities.

[4] The termination letter set out the reasons for termination which relate to the conduct and performance of the Applicant. The letter included the following:

● “Over the past 11 months we have regularly discussed your performance and in particular the number of customer complaints we have received”.
● The initial probation period was extended and full time employment was accepted at the end of that extended probation period in early January 2013.
● A number of customers have requested that the Applicant not attend their property or have cancelled their services.
● On the recent job at Wilson Concourse the Applicant did not follow instructions about the scope of work and performed work outside the scope of work and failed to keep the employer adequately informed of progress despite requests to do so. On Wednesday 26 June 2013 the Applicant was asked to remove everything from the job but this had not been done on Thursday 27 June 2013. The materials were removed later on that day but because the Applicant did not advise the employer of this Mr Copsey made an unnecessary trip.
● On Friday 27 June the Applicant was asked by text message to return the work vehicle to the shop as it was booked for repairs at the panel beaters. The Applicant did not respond and Mr Copsey “had to keep ringing our shop and the panel beaters all day to see if it had turned up. I was informed by the panel beaters at 4pm that it had been dropped off...”
● “In the course of this week I have been doing your service work and have met with a number of customers who have told me how disappointed they are with your work. You and I have discussed this many times and as your performance is not improving, and for the other reasons mentioned above, I have decided to terminate your employment.”
● “Your employment will end immediately. Based upon your length of service, your notice period is 1 week. In lieu of receiving that notice, you will be paid the sum of $840.00 gross.”

[5] It is not in contention that the Applicant injured himself when working on the Wilson Concourse job on Tuesday 25 June but he continued to work on Wednesday 26 June. The Applicant advised Mr Copsey of the incident when Mr Copsey attended the site. The Applicant attended the doctor on the morning of Thursday 27 June and had a doctor’s certificate to be absent from work on Thursday 27 and Friday 28 June 2013. It is also not in contention that the Applicant generally worked Monday to Friday and that he was on pre-approved annual leave from the end of Friday 28 June 2013 until scheduled return to work on 8 July 2013. The Applicant informed Mr Copsey that he was injured and was going to the doctor on the morning of 27 June 2013 and provided a medical certificate later that day.

[6] It is not in contention that on Wednesday 26 June 2013 Mr Copsey spoke to the Applicant at the Wilson Concourse job and told him to finish up the job and remove equipment and materials by the end of that day. The Applicant says that there were some materials he could not fit on the work vehicle and that he told the owner of the premises that he would return the following day to remove the materials which he temporarily stored under the house. However, Mr Copsey says that he received a call about the materials under the house on Thursday 27 June 2013. Mr Copsey says that he went to the site but the Applicant had removed the materials by the time he arrived.

[7] Mr Copsey did not suggest in his evidence that he ever told the Applicant that his employment was at risk or that he ever provided a warning to the Applicant about his conduct or performance. Mr Copsey gave evidence that on numerous occasions he advised the Applicant of customer complaints and of customers who had been lost because of errors or omissions by the Applicant. The Applicant does accept that on some occasions Mr Copsey made him aware of customer complaints and of customers who cancelled their service arrangements with the Respondent. However, in respect to many of the incidents to which Mr Copsey referred the Applicant denies that Mr Copsey told him that the customer complaint or loss of custom was attributable to his poor performance. The Applicant did accept that he made a number of errors mostly during the early period of his employment.

[8] The matters which Mr Copsey says he discovered during the week or two weeks when the Applicant was working on the Wilson Concourse job and which were referred to in the letter of termination were not known to the Applicant or put to the Applicant prior to the termination.

[9] In respect to the Wilson Concourse job Mr Copsey believed that the scope of work could be completed in about two days. The Applicant considered that the job required two weeks to complete and in fact he worked on the job for one and a half weeks. The scope of work included putting some tiles back on a pool. Mr Copsey alleges that the Applicant removed far more tiles than was necessary. This was the only specific allegation of failure to work within the scope of work at this site. The Applicant gave evidence that the tiles were so loose that it was not possible to complete the work properly without removing additional tiles. The Applicant says that a worker from another firm who had quoted for the job told him that it would take two weeks to complete. The Applicant says that Mr Copsey was unaware of the amount of work required to properly complete the job. The Applicant says that the pool was in very poor condition and the amount of work required to clean it up was much greater than had been anticipated by Mr Copsey.

[10] In respect to the allegation that the Applicant failed to return phone calls the Applicant denies that this occurred during the period when he was working on the Wilson Concourse job. The Applicant says that his phone was on a table close to where he was working. The Applicant accepts that he was not able to be contacted on the work phone on Thursday 27 June 2013 and Friday 28 June 2013 when he was on sick leave. The Applicant says that he put the mobile phone in the glove box of the car as he was not at work and he was going on annual leave. The Applicant says he could still have been contacted by email or on his private phone.

[11] The Applicant says that he never got the text message sent by Mr Copsey on Friday morning, 28 June, to his work phone asking him to deliver the work Ute to the shop as the phone was in the glove box of the car. It is not in contention that the Ute was booked in at the panel beaters for Saturday 29 June 2013. The Applicant gave evidence that it was understood that he should drop off the Ute on Friday 28 June either at the panel beaters or the shop. The Applicant gave evidence that he worked on cleaning out the Ute on 27 and 28 June whilst on sick leave and delivered the Ute to the panel beaters on the afternoon of 28 June.

Small business fair dismissal code.

[12] The Respondent argues that the dismissal was in accordance with the small business fair dismissal code (the Code). The primary submission is that the dismissal was in accordance with the summary dismissal section of the Code and the alternative submission is that it was in accordance with the other dismissal section of the Code.

[13] The Code is as follows:

“Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[14] The Respondent did not complete a check list at the time of the termination. A check list was completed as part of the submission provided on 9 December 2013 some five months after the termination. I do not regard this as evidence of compliance with the code. The evidence provided by the Respondent in support of its contention that the termination was in compliance with the Code is the termination letter and the witness statement of Mr Copsey of 9 December 2013 provided for these proceedings. The termination letter is quite detailed and is contemporaneous and I consider it is the best evidence of what the employer believed was the basis for termination of the Applicant’s employment.

[15] I am satisfied that the section of the Code which deals with Summary Dismissal concerns dismissal for reasons of serious misconduct. These are the circumstances where immediate dismissal without notice or warning can be justified. This is consistent with the scheme of the Act:

● Section 117 requires notice of termination or payment in lieu of notice.
● Section 123 provides that notice does not apply to an employee “terminated because of serious misconduct”.
● Serious misconduct is defined for the purposes of the Act in the Fair Work Regulations 2009.

[16] The Fair Work Regulations 2009 define serious misconduct for the purposes of the Act as follows:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.”

[17] There is nothing in the letter of termination which mentions serious misconduct or summary termination or words of similar effect. The letter states “based on your length of service your notice period is 1 week. In lieu of receiving that notice you will be paid the sum of $840.00 gross.” The letter does not say or imply that the Applicant is being dismissed for serious misconduct but despite this the employer will pay in lieu of notice. The letter does say that “employment will end immediately”. However, that is a common situation in dismissals and is not in itself indicative of dismissal for serious misconduct. I can find nothing in the dismissal letter which is evidence that the employer believed on reasonable grounds that it was justified in terminating the Applicant for serious misconduct.

[18] The situation is quite different from the situation in the case referred to by the Respondent, Chan Huynh v R Barel & Associates Pty Ltd. 1 In that case there was evidence of written warnings and written evidence of the misconduct. The termination letter specifically referred to matters which are covered in the definition of serious misconduct including conduct that was in complete violation of the terms of employment and theft or fraud.

[19] The approach to be taken to the summary dismissal section of the Code is set out in the Full Bench Domingo case. 2

“[27] Deputy President Bartel in Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe said:

“[60] At the outset it is appropriate to note that unlike a consideration of the dismissal of an employee of a business that is not a small business employer, the function of FWA is not to determine on the evidence whether there was a valid reason for dismissal. That is, the exercise in the present matter does not involve a finding on the evidence as to whether the applicant did or did not steal the money. The application of the Small Business Fair Dismissal Code involves a determination as to whether there were reasonable grounds on which the respondent reached the view that the applicant’s conduct was serious enough to justify immediate dismissal. As such, the determination is to be based on the knowledge available to the employer at the time of the dismissal, and necessarily involves an assessment of the reasonableness of the steps taken by the employer to gather relevant information on which the decision to dismiss was based.”

[28] Senior Deputy President O’Callaghan in Harley v Rosecrest Asset Pty Ltd T/A Can Do International said:

“[8] For an employer to believe on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal, it is firstly necessary for the employer to establish that the employer did in fact hold the belief that as a matter of fact that (i) the conduct was by the employee; (ii) the conduct was serious; and (iii) that the conduct justified immediate dismissal. This is to be contrasted to the provisions of s.387(a) where FWA, in determining whether there was a valid reason for the dismissal, must find whether the conduct in fact occurred.

[9] Secondly, it is necessary for the employer to establish that there are reasonable grounds for the employer holding the belief. It is thus necessary for the employer to establish a basis for the belief held which is reasonable. In this regard it would usually be necessary for the employer to establish what inquires or investigations were made to support a basis for holding the belief. It would also ordinarily be expected that the belief held be put to the employee, even though the grounds for holding it may not be. Failure to make sufficient inquiries or to put the accusation to the employee in many circumstances might lead to a view that there were no reasonable grounds for the belief to be held.”

[29] We believe that the approach and observations in these two decisions are correct. There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.” 3 (references omitted)

[20] I am satisfied that the Respondent did not have a reasonable basis upon which to believe that the Applicant had deliberately failed to carry out a lawful and reasonable instruction in respect to the removal of materials from under the house at Wilson Concourse because the Respondent made no adequate inquiry or investigation as to why the materials had not been moved. The Applicant provided the following explanation for the delay:

● There was insufficient room in the ute to put all the materials.
● The Applicant made an arrangement with one of the owners of the property that he would return the next day to remove the remaining materials.
● The Applicant suffered an injury which impeded his capacity to do the work and for which he provided a medical certificate to the Respondent.
● Notwithstanding his injury the Applicant did return to the property and remove the remaining materials.

[21] If the Respondent had made reasonable inquiry or investigation they would have heard the Applicant’s explanation. There is no basis to dispute the explanation and that explanation clearly establishes that there was no wilful disregard for a lawful and reasonable instruction. There was no reasonable basis for the employer to believe that serious misconduct had occurred in respect to this matter. There was no reasonable basis for reaching a conclusion that there had been serious misconduct in the circumstances of this allegation when the Applicant was not given any opportunity to respond to the allegation.

[22] I am satisfied that the Respondent did not have a reasonable basis upon which to believe that the Applicant had deliberately failed to carry out a lawful and reasonable instruction in respect to the allegation that he failed to respond to a text message to return the Ute to the shop on Friday 28 June 2013 and instead returned the Ute to the panel beaters. The Respondent made no adequate inquiry or investigation as to why there was no response to the text message and as to why the Ute was delivered to the panel beaters. The Applicant provided the following explanation:

● The Applicant and the Respondent had made an arrangement for the ute to be repaired at the panel beaters on Saturday 29 June 2013 because the ute would not be required as the Applicant was going on annual leave.
● The Applicant understood that he was to deliver the ute on Friday 28 June 2013 either to the panel beaters or to the shop for this purpose. The Applicant says he acted in accordance with this understanding and delivered the ute to the panel beaters.
● There was no advantage to the Applicant to deliver the ute to the panel beaters as it was the same distance from his home as the shop.
● The Applicant was on sick leave and in preparation for his period of annual leave stored the Respondent’s equipment in the ute including the mobile phone.
● The Applicant did not receive the mobile phone text message as the phone was switched off and in the ute.

[23] If the Respondent had made reasonable inquiry or investigation they would have heard the Applicant’s explanation. That explanation clearly establishes that there was no wilful disregard for a lawful and reasonable instruction. There was no reasonable basis for the employer to believe that serious misconduct had occurred in respect to this matter. Mr Copsey confirmed that the mobile phone had been left in the Ute with the other equipment, that the Applicant was on sick leave and a medical certificate had been provided, that the arrangement had been made for the Ute to be at the panel beaters on Saturday 29 June, that the Applicant was going on approved annual leave, and that the Applicant did in fact deliver the Ute to the panel beaters on Friday 28 June 2013. There was no reasonable basis for reaching a conclusion that there had been serious misconduct in the circumstances of this allegation when the Applicant was not given any opportunity to respond to the allegation. Having heard the explanation of the Applicant there may have been some basis for the Respondent to have been critical of the Applicant’s behaviour in switching off the mobile phone and leaving it in the Ute but in all of the circumstances this could not reasonably be regarded by the employer as constituting serious misconduct.

[24] I am satisfied that the Respondent did not have a reasonable basis upon which to believe that the Applicant had deliberately defied a lawful instruction in respect to the scope of work at Wilson Concourse and had deliberately failed to keep the Respondent informed. Again the Respondent failed to make reasonable inquires or investigation by failing to put the allegation to the Applicant when it would have been reasonable to do so. Had the allegation been put to the Applicant then the Respondent would have been aware that:

● The Applicant was not experienced with tiling and in fact the Respondent was already aware of this fact.
● The Applicant says that the removal of additional tiles was unavoidable.
● The Applicant says that Mr Copsey had not properly understood the scope of necessary work.
● The Applicant says that his phone was always close by on a table next to where he was working and that he did not fail to respond to inquiries from Mr Copsey.
● Mr Copsey visited the Applicant at the site on more than one occasion during the period when the work was undertaken.
● Mr Copsey undertook the work normally performed by the Applicant during the period of the Wilson Concourse job and was therefore well aware of how long the job was taking and could have intervened at any time during this period to stop the work or reduce the scope of the work.

[25] If the Respondent had made reasonable inquiry or investigation they would have been satisfied that there was no wilful disregard for a lawful and reasonable instruction nor any other basis for a conclusion that the Applicant had engaged in serious misconduct. Of course there may have been a basis for the Respondent to have disagreed with the Applicant’s assessment of the work or of his competence in performance of the work.

[26] The matters raised in the letter of termination concerning complaints about the performance of the Applicant’s work prior to the Wilson Concourse job could not reasonably be the basis for the Respondent to reach the view that the Applicant was guilty of serious misconduct. These are matters which occurred over the twelve month period and the Respondent continued to employ the Applicant without providing him with any warning or other sanction during that period in response to these complaints other than the extension of his probation period in the first part of his employment.

[27] Finally, the matters raised in the termination letter concerning complaints about the performance of the Applicant discovered by Mr Copsey during the period of the Wilson Concourse job are not matters which could reasonably be the basis for the Respondent to reach the view that the Applicant was guilty of serious misconduct. These matters all related to complaints by customers about the performance or conduct of the Applicant. None of the complaints relate to matters which are of the sort covered by the definition of serious misconduct in the Regulations. It is possible that some of the alleged poor performance of the Applicant might cause risk to the reputation, viability or profitability of the employer’s business. Failure to perform work satisfactorily obviously can lead to loss of business and damage to reputation. However, given that the Applicant had been employed for twelve months and that there had been a number of alleged problems during that time the discovery of a number of other issues could not be described as causing a “serious and imminent risk” to the business. This is particularly the case when the Applicant was on paid annual leave. There would have been no risk or damage to the business to have waited until the Applicant returned from leave and then given the Applicant the opportunity to respond to the allegations. In the circumstances it is not reasonable to reach conclusions about these matters without reasonable inquiry or investigation including providing the Applicant with the opportunity to provide an explanation. Mr Copsey accepts that these matters were never put to the Applicant and he had no opportunity to respond.

[28] The conduct is not serious misconduct if, in the circumstances, the conduct was not conduct that made employment in the period of notice unreasonable. I can see no reasonable basis for the Respondent to believe that employment during the period of notice was unreasonable.

[29] I am satisfied that none of the matters raised in the letter of termination, taken individually or together, establish that the Respondent believed on reasonable grounds that the Applicant’s conduct was sufficiently serious to justify immediate dismissal that is to justify dismissal on grounds of serious misconduct.

[30] The alternative submission that the Code is satisfied in respect to other dismissal cannot be made out because there is absolutely no evidence that the Applicant was warned that his employment was in jeopardy. The allegations were not put to the Applicant and he was not given an opportunity to respond. It is true that some of the historical concerns about customer complaints had been put to the Applicant but this was not a warning and many of the allegations were not put to the Applicant at all prior to the termination. The Applicant was dismissed by email and letter when he was on approved paid annual leave. There was no opportunity to rectify problems with performance identified in a warning as there was no warning. There was no assistance including through training to enable the Applicant to improve his performance.

[31] The dismissal was not in accordance with the Code. I must now consider whether or not the termination was harsh, unjust or unreasonable.

Valid Reason.

[32] There was considerable conflict between the evidence of Mr Copsey and the evidence of the Applicant concerning the allegations of poor performance and conduct by the Applicant.

[33] I found the Applicant to be a forthright witness. He readily accepted responsibility for a number of shortcomings. I am satisfied by the evidence including the conduct and demeanour of the Applicant in the proceedings that the Applicant was strongly motivated by a desire to protect the interests of the Respondent’s business and to make sure each job was completed to the best of his ability. The evidence of the Applicant convinced me that he went out of his way to assist the Respondent and the clients of the Respondent including by activity out of normal working hours. The Applicant also satisfied me that he sought to build relationships with the clients of the Respondent in order to protect the business.

[34] I am satisfied that at the time of the dismissal Mr Copsey was genuinely dissatisfied with the performance of the Applicant and continues to be dissatisfied. I am satisfied that Mr Copsey genuinely believed that he had tolerated some shortcomings in the Applicant’s performance and that the length of time taken to complete the Wilson Concourse job and the customer dissatisfaction he discovered during that period when he was doing the jobs normally performed by the Applicant resulted in Mr Copsey losing all patience with and confidence in the Applicant. The evidence does establish that there were some shortcomings in the Applicant’s performance, however, I found that in respect to his evidence about the conduct of the Applicant Mr Copsey was quick to judgment and tended to generalise and at time exaggerate.

[35] Where there is a conflict between the evidence of the Applicant and Mr Copsey I generally prefer the evidence of the Applicant.

[36] For these reasons and for the reasons given earlier in considering the Code I am not satisfied that the following matters constitute misconduct or contribute to a valid reason for termination. The Applicant has provided reasonable explanation concerning these matters and I prefer his version of these events:

● The failure to respond to the text message about delivering the ute to the store rather than the panel beaters and the actions in delivering the ute to the panel beaters rather than the store.
● The removal of additional tiles (the work beyond scope) on the Wilson concourse job.
● The failure to remove all the materials from the Wilson Concourse job on the day specified.

[37] I am also not satisfied that the Applicant failed to keep the Respondent adequately informed or unreasonably failed to be contactable on the Wilson Concourse job.

[38] I am not satisfied that the Applicant wilfully failed to properly perform his duties.

[39] The Applicant gave evidence, which I accept, that he was not trained in respect to solar equipment and was generally unable to deal with faults and the setting of such equipment. I also accept that solar equipment is present in many, perhaps in the majority, of the sites the Applicant was required to visit. Mr Copsey gave evidence that the failure of the Applicant to properly address these issues was the source of a number of customer complaints. I accept that evidence. Mr Copsey gave evidence that the customer Bruerton cancelled their service with the Respondent after the Applicant failed on a number occasions to detect and correct faults associated with solar equipment. 4 I accept the evidence of the Applicant that he was aware of the loss of the business but that Mr Copsey did not discuss the problem with his performance at the time.

[40] There was no evidence that the Applicant took steps to make Mr Copsey aware of the deficiency of his skills in this area. I am satisfied that once Mr Copsey became aware of a possible deficiency following the loss of the Bruerton business he did not take steps to investigate the matter or to warn the Applicant or to provide the Applicant with further training. The Applicant should have made the Respondent aware of the deficiency in his skills in this area. In the week prior to the termination Mr Copsey became aware of problems with the Applicant’s treatment of solar equipment at three other sites. These matters were not put to the Applicant but I am satisfied that the complaints were probably justified and due to the Applicant’s lack of skill in this area.

[41] The Applicant acknowledged that there had been a build up of calcium in the Webb pool. 5 However, the Applicant said that he did not have the skills to address the problem.

[42] Mr Copsey gave evidence that the Applicant took too long in respect of the Semken job and that the customer was unhappy with the extra cost. 6 I accept the evidence of the Applicant that he consulted with Mr Copsey about billing for the work and that he did his best to do the job well and as quickly as possible.

[43] The Applicant accepted responsibility for some errors in his performance during his period of probation. The Applicant accepts that some of these matters were drawn to his attention at the time. 7 These matters occurred more than six months prior to the termination, were not the subject of any warning and following these incidents the Applicant was confirmed in ongoing employment. They cannot be a valid reason for termination. However, they are part of the evidence which establishes that the Respondent did have concerns about the performance of the Applicant.

[44] Mr Copsey gave evidence of the following incidents:

● A case where the Applicant was offered and borrowed a bird cage from a customer. I accept the evidence of the Applicant that the bird cage was returned when requested which was consistent with the arrangement made. There is no suggestion that this caused damage to the business. There is no evidence of any clear policy or contractual term against this practice. I am not satisfied that this forms part of a valid reason for termination.
● A case where there was a broken gate and dogs escaped once or twice. I accept the evidence of the Applicant that he cannot be held responsible for the rusty gate and that he made every effort to assist the customer by seeking to secure the gate. I am not satisfied that this forms part of a valid reason for termination.
● A case where the Applicant purchased materials from a customer. 8 I accept the evidence of the Applicant that this did not interfere in the performance of his duties and that there was no clear policy or contractual term against this practice. I am not satisfied that this forms part of a valid reason for termination. There is no evidence of any harm to the business.

The Applicant did repair jobs for three clients. One of these jobs was done in the Respondent’s time and Mr Copsey authorised the billing of the client for the work. The other two jobs were done by the Applicant outside of working time. I accept the evidence of the Applicant that he did the jobs to build customer relations. There is no evidence of any clear policy or contractual term against this practice. I accept that Mr Copsey told the Applicant that he did not favour this practice but there was no clear evidence that the Applicant continued with the practice.

The Applicant allegedly made inappropriate comments to a house cleaner. 9 The Applicant was aware of the complaint and provided an explanation. The evidence of the Applicant that he returned to the job at a later date was not seriously challenged. I am not satisfied that the Applicant behaved inappropriately and accept the evidence of the Applicant that it was a minor misunderstanding.

The Applicant allegedly swore whilst working at one location. 10 The Applicant strongly denied this allegation. I prefer the evidence of the Applicant in response to this vague reported allegation.

[45] Mr Copsey gave evidence of other incidents of customer complaint about the service provided by the Applicant prior to the Wilson Concourse job as follows:

● Bates threatened to cancel work with the Respondent if the Applicant didn’t lift his game. I am not satisfied from the evidence that the performance issues were particularised to the Applicant. In these circumstances I doubt that it could have been a significant problem. 11

Stafford complained that the pool was not clean on a number of occasions and the service had to be redone. 12 It is clear from the cost alleged by Mr Copsey and from the evidence of the Applicant that this occurred on one occasion not on a number of occasions. The Applicant gave evidence that the service visit occurred as scheduled but it was at a time when the owner was away. By the time the owner returned a week later the pool was no longer clean. Mr Copsey raised the issue with the Applicant and the Applicant returned to clean the pool again. I am not satisfied that this was evidence of poor performance on the part of the Applicant.

Swan complained that costs had gone up but service had gone down and threatened to cancel around the time of the Wilson Concourse job. 13 The Applicant gave evidence that the equipment for this pool had ongoing problems and that this created additional costs and difficulties in maintaining the pool. The Applicant gave evidence that he was not aware of the complaint but Mr Copsey gave evidence that he did tell the Applicant that the owner was unhappy. I accept the evidence of the Applicant that the equipment problems made it difficult to provide service to this customer and I am not satisfied that this was strong evidence of poor performance by the Applicant.

● Innes cancelled their service with the Respondent. The Applicant gave evidence which was not contested by Mr Copsey that Mr Copsey had said to the Applicant that this client was only going to be with the Respondent for a short period of time. The Applicant denies that he was told that the cancellation was due to poor performance. Mr Copsey says that he told the Applicant that the cancellation was because of poor performance. Given that the client had said he was only going to be with the Respondent for a short period of time I prefer the evidence of the Applicant.
● Blunden complained about the service and the Applicant had to return three times to redo the service. The service was cancelled. Mr Copsey visited the site and observed that the pool was not clean. I accept the evidence of the Applicant that he was only required to return to redo the service on one occasion which was the time when Mr Copsey visited the site in response to a complaint. The Applicant accepts that there was dirt on the steps of the pool. The Applicant gave evidence that he was not told why the service was cancelled but I consider that it must have been obvious to the Applicant that the cancellation was because the customer was unhappy with the service. I accept that this incident may in part be evidence of poor performance by the Applicant.

[46] Mr Copsey gave evidence of a number of other problems he discovered with the Applicant’s performance whilst the Applicant was working on the Wilson Concourse job in the final weeks of his employment. Mr Copsey accepts that these matters were never raised with the Applicant. I have dealt with the solar equipment and the swearing allegation earlier.

● Applicant had been vacuuming through a suction port which he should not have used and it became blocked. 14 The Applicant denies that he was ever told that he should not have used the suction port. I accept the evidence of Mr Copsey that cost was incurred rectifying the issue.

Applicant left energy efficient pump on high speed at two locations. The Applicant accepts that he may have made these errors. 15

● Applicant left equipment turned off at a property which meant pool went green and it then took additional time to fix. The Applicant says that the equipment had to be turned off as it was faulty and the fault needed to be attended to by the suppliers of the equipment and they took some time to come. I accept this uncontested evidence of the Applicant. 16

Applicant failed to detect and replace calcified and corroded salt cell. The Applicant says that he did identify and fix this problem before he was terminated. 17

Applicant left energy efficient pump on high speed and key was missing. The Applicant was not able to respond to the allegation about the energy efficient pump. I accept the evidence of Mr Copsey. The Applicant denies any knowledge of the missing key and suggested that it may well be in another location. There is no basis to conclude that this was due to any error or negligence on his part. 18

The Applicant left pool running for six hours per day instead of three. The Applicant had no recollection of changing the setting of this pool. I accept the evidence of Mr Copsey that this occurred but it is possible that the Applicant may not have been responsible for altering the setting. 19

[47] This is a situation where the conflicts in the evidence concerning conduct and performance are great. I have carefully considered the evidence as a whole including how the witnesses responded to questioning. Assessing the matter of valid reason in the circumstances of this case is difficult. The Respondent has raised a bewildering array of allegations which are contested by the Applicant. Reading the list of allegations one is tempted to conclude that there must have been serious problems with the performance and conduct of the Applicant which provide a valid reason for termination. In the many cases, however, these allegations are based upon what Mr Copsey says that customers have alleged. In this situation the direct evidence of the Applicant in response should be given considerable weight particularly in circumstances where I found the Applicant to be a credible witness.

[48] I have reached the following conclusions:

● Mr Copsey did have a relatively small number of concerns about the performance of the Applicant during the early part of his employment which led to the extension of the probation period but Mr Copsey was satisfied with the performance of the Applicant at the end of six months’ employment and confirmed his ongoing employment.
● The nature of the business generally involves relatively short visits to a significant number of customers. It is inevitable that there will be customer complaints and concerns. Not all of these will be attributable to poor performance by the service worker.
● The number and nature of complaints was not a matter of serious concern to Mr Copsey prior to the Wilson Concourse job otherwise Mr Copsey would have raised the matter with the Applicant and issued him with some sort of warning and/or taken steps to improve his skills and training if there was a shortfall in that area. This did not occur.
● I am satisfied that when Mr Copsey decided to terminate the Applicant’s employment he tried to remember every issue ever raised by a customer to support his actions. Although I am satisfied that Mr Copsey did advise the Applicant of some of the customer concerns, I am not satisfied that Mr Copsey generally attributed these incidents to poor performance by the Applicant at the time. Once Mr Copsey decided to terminate the Applicant he accepted the validity of every customer complaint and attributed responsibility for all problems to the performance of the Applicant.
● Mr Copsey was annoyed that the Wilson Concourse job ended up costing more in time than was able to be charged to the customer. I accept the evidence of the Applicant this was to some extent because Mr Copsey had underestimated the scope of the job. Mr Copsey was aware that the Applicant was not qualified in tiling. I accept the explanation of the Applicant as to why additional tiles were removed. I do not accept that the Applicant displayed misconduct in his work on the Wilson Concourse job. I accept that Mr Copsey made it clear to the Applicant that he should hurry up and finish the Wilson Concourse job. The Applicant was not willing to “cut corners” and did not adequately appreciate the level of Mr Copsey’s concern.
● I am satisfied that the concerns arising from the removal of rubbish and the delivery of the ute are more likely attributable to misunderstandings, unfortunate coincidences and poor communication than they are attributable to poor performance or misconduct. I can understand Mr Copsey’s frustration, but reasonable inquiry would have resolved these matters.
● I accept that Mr Copsey did discover a number of apparent problems with the Applicant’s performance in the period when the Applicant was working on the Wilson Concourse job. I accept that these problems were not trivial and could be the basis for legitimate disciplinary action if, after considering the response of the Applicant, these concerns were properly established to be the responsibility of the Applicant. However, these matters were never put to the Applicant.

[49] The Respondent raised further issues which were discovered after the termination of the employment. It is alleged that the Applicant did not adequately clean the Ute prior to delivering it to the panel beaters. The Applicant gave evidence that he spent a considerable amount of time putting the Ute in order. I accept the evidence of the Applicant. The Applicant concedes that there was a green paint mark on one of the seats and that this was his responsibility. Even if I accepted the evidence of Mr Copsey that the Ute was not clean in the circumstances I do not consider that this would be a valid reason for dismissal.

[50] The Respondent says that the equipment and chemicals returned to the Respondent by the Applicant were in such poor condition that they had to be disposed of. The Applicant denies this. There was no evidence about the age of the materials and equipment. In respect to the chemicals it was said that they had to be disposed of because they were not properly labelled. If the Applicant had not been terminated whilst on annual leave I consider it possible that the Applicant could have assisted in the identification of the chemicals which the Applicant says he had labelled. I am not satisfied that this matter could constitute a valid reason for termination.

[51] The Respondent says that the Applicant has rung a number of customers who said that the Applicant had told them that the business was in trouble and offering to do work for them. Of course if this is true it is a matter of concern. The Respondent did not put these allegations to the Applicant during the proceedings. In all of the circumstances I am not prepared to rely on these allegations.

[52] Although I have found that most of the allegations of poor performance and/or conduct have not been made out or do not constitute a valid reason for termination I am satisfied that there was some substance to the matters discovered by Mr Copsey during the period of the Wilson Concourse job. Upon further investigation these matters might have been a valid reason for termination. However, in the absence of investigation, namely seeking the response of the Applicant, it was not reasonable for the Respondent to draw conclusions about responsibility for these matters. However, the Applicant was given an opportunity to respond to these matters during these proceedings. Taking into account his responses I am satisfied that the Respondent would have been justified in issuing the Applicant a warning and specifying the areas of performance which must improve. If performance did not improve then there would have been a valid reason for termination.

[53] I am not satisfied that there was a valid reason for termination related to the Applicant’s conduct and performance.

Notification of reasons for dismissal and opportunity to respond.

[54] The letter of termination makes it clear that the termination was for reasons related to the Applicant’s performance including his capacity and conduct. The Applicant was notified of those reasons but was given no opportunity to respond. The failure to advise the Applicant of the reasons in advance of the termination and provide an opportunity to respond stands in favour of a finding that the termination was unjust and unreasonable. It is also particularly harsh and unfair in the circumstances of this case to terminate the Applicant whilst on a short period of pre-arranged paid annual leave. There is no reason at all in the circumstances of this case why the allegations could not have been put to the Applicant at a properly arranged meeting following his return from annual leave.

Was the Applicant refused a support person?

[55] The Applicant was not denied a support person because there were no discussions. The Applicant was dismissed by email and post whilst he was on paid annual leave. This is a neutral factor in the circumstances of this case.

Unsatisfactory performance?

[56] There was no warning concerning unsatisfactory performance. The Applicant was made aware of some customer complaints but I am not satisfied that the Applicant was told that he had to improve his performance and it is accepted that there was no warning. This stands in favour of a finding that the termination was unjust and unreasonable. Many of the matters alleged are matters which are being relayed second hand by the Respondent as they are matters which were raised by customers or depend upon the perception of customers. Customers do not always have all the relevant information. In these circumstances the failure to give the Applicant an opportunity to respond is particularly unjust.

Was the size of the employer’s undertaking and or the lack of human resource management specialists likely to impact on the procedures followed?

[57] The Respondent is a small business and it does not have access to human resource management specialists. I believe that this did have an impact on the procedures followed. However, the size of the employer and the lack of human resource management specialists does not mean that an employee does not have the right to a fair go. The Applicant was still entitled to fair treatment and particularly an opportunity to respond. The unfairness of the process of dismissal in this matter is obvious for the reasons already outlined. These are neutral factors in the circumstances of this case.

Other relevant matters.

[58] The matters raised in respect to post termination conduct were not sufficient to alter my conclusions based upon the other factors.

[59] The other factor that I take into account is that the Applicant is more than 60 years of age and given the nature of his skills and experience it is very difficult for him to obtain further employment. This is a factor which stands in favour of a finding that the termination was harsh.

Was the dismissal harsh, unjust or unreasonable?

[60] I have no hesitation in concluding that the termination was harsh, unjust and unreasonable. Even if I had concluded that there was a valid reason for the termination the procedural unfairness in this case was so extreme that I would be satisfied that the termination was harsh, unjust and unreasonable.

Remedy

[61] The Applicant does not seek reinstatement. In all of the circumstances I do not consider reinstatement would be appropriate or practical. The strong view of both parties is that a relationship of trust is not able to be restored. I am satisfied by the evidence of the Applicant that he was shattered and surprised by his termination and the circumstances in which it occurred. The Applicant has still not recovered from the impact of the termination. Responding to the termination has absorbed much of his time and energy in the six months since the dismissal. These have been relevant considerations in finding that reinstatement would not be appropriate. In considering compensation I have not included a competent by way of compensation for shock, distress or humiliation caused by the manner of the dismissal as this is specifically excluded by Section 392(4) of the Act.

[62] In all of the circumstances I find that an order for compensation is appropriate. I have considered each of the matters specified in Section 394 of the Act in determining the amount of compensation.

[63] The Respondent conceded that any order I might make would not affect the viability of the employer’s enterprise.

[64] The length of service is just in excess of one year. In the circumstances this is a neutral factor in determining the level of compensation.

[65] Having considered the evidence of the Applicant I am satisfied that he has made adequate efforts to mitigate the loss suffered because of the dismissal. In reaching this assessment I take into account the effect of the termination on the Applicant. I note that there was a possible contact which may have led to employment which was not followed up because the Applicant was absorbed by pursuit of his unfair dismissal claim. It was not a firm job offer and it related to possible employment starting many months later. The Applicant has applied for ten jobs each week but has been unsuccessful in obtaining ongoing employment. The Applicant has participated in unpaid voluntary community work. This is a neutral factor in determining the level of compensation.

[66] The Applicant has earned $2000 from employment in the period since the termination.

[67] I am satisfied that the Applicant has no immediate job prospects and that he will not earn anything from employment in the very short period between the hearing of this matter and the making of this order. I also consider it unlikely that there will be any earnings in the period between the making of the order and the actual payment of the compensation.

[68] I estimate that the Applicant would have been employed for a period of four months or 17 weeks if he had not been dismissed. I make this assessment taking into account the following factors:

● The Applicant had been employed for one year without any prior warnings or significant problems with his employment. The Applicant was dedicated to his employment with the Respondent and very keen for it to continue.
● The industry is not likely to disappear, there will continue to be a demand for pool maintenance, but the business is subject to some uncertainty due to competition and changes in economic conditions.
● Had the allegations concerning poor conduct and performance been put to the Applicant it is possible that his response would have overcome some misunderstandings and reduced the concerns of Mr Copsey.
● There were some identified deficiencies in the skills of the Applicant in respect to maintenance and servicing of solar equipment which is common in pools. These deficiencies may have been overcome with training but it is also possible that the deficiencies may not have been overcome.
● There were clearly some differences in the approach of Mr Copsey and the Applicant to the relationship with customers and the approach to communication. This reduces the likelihood of a longer period of further employment.
● Had the Applicant been warned and provided with clear instructions and support it is possible that the Applicant’s performance would have improved and the employment continued satisfactorily for a further twelve months.
● It is also possible that following an appropriate warning the Applicant’s performance would have failed to improve and the Applicant’s employment would then have been terminated. In this scenario employment would only have continued for a further one month.

[69] The Applicant earned $840 gross per week. The Applicant would have earned $14,280 if his employment had continued for a period of four months. The only uncertainty in these conclusions relates to the time employment would have continued in the event that the termination had not occurred. I will deduct contingency of 25% for the uncertainty associated with that estimate resulting in a figure of $10,710.

[70] I deduct the $2000 earned since the termination. This leaves an amount of $8,710.

[71] I am not satisfied that the Applicant’s misconduct contributed to the employer’s decision to dismiss the Applicant. I certainly accept that there were elements of the performance of the Applicant that contributed to the employer’s decision to dismiss the Applicant. However, I was not satisfied that the allegations of misconduct were established. I will therefore make no deduction for misconduct.

[72] I will therefore Order compensation of $8,710. Appropriate taxation should be deducted from that amount as required by law. The amount should be paid within three weeks of this decision. The Respondent is at liberty to apply for a variation to this time period.

COMMISSIONER

Appearances:

Mr B Green appeared for himself.

Mr M Corrigan with Mr D Copsey appeared for the Respondent.

Hearing details:

2014

Melbourne

January 22

1 [2013] FWC 7701.

2 John Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo [2012] FWAFB 1359.

3 [2012] FWAFB 1359.

4 Exhibit Pool 2, at para 75.

5 Exhibit Pool 2, at para 62.

6 Exhibit Pool 2, at para 63.

7 This relates to the matters raised in Exhibit Pool 2, at paras 59, 66, 67, and 72.

8 Exhibit Pool 2, at para 69.

9 Exhibit Pool 2, at para 64.

10 Exhibit Pool 2, at para 81.

11 Exhibit Pool 2, at para 65.

12 Exhibit Pool 2, at para 70.

13 Exhibit Pool 2, at para 71.

14 Exhibit Pool 2, at para 78.

15 Exhibit Pool 2, at paras 79 and 86.

16 Exhibit Pool 2, at para 80.

17 Exhibit Pool 2, at para 82.

18 Exhibit Pool 2, at para 84.

19 Exhibit Pool 2, at para 85.

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