Mr Christopher Gillis v A W Tod Stairs & Flooring Pty Ltd

[2024] FWC 3205

[2024] FWC 3205

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Christopher Gillis
v

A W Tod Stairs & Flooring Pty Ltd

(U2024/10197)

DEPUTY PRESIDENT CROSS SYDNEY, 20 DECEMBER 2024

Application for an unfair dismissal remedy – jurisdictional objection – small business fair dismissal code – poor attendance – summary dismissal

1. Mr Christopher Gillis (the Applicant) was employed by A W Tod Stairs & Flooring Pty Ltd (the Respondent) from 27 June 2019 until 12 August 2024, as a Carpenter. The Applicant was dismissed on 12 August 2024 after failing to attend work.

1. On 31 August 2024, the Applicant filed an application, pursuant to s 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy (the Application).

1. In response, the Respondent raised the jurisdictional objection that the Respondent is a small business employer, and the employer complied with the Small Business Fair Dismissal Code (the Code).

1. On 20 November 2024, I heard the above matter (the Hearing). The Applicant represented himself and Mr Paul Conlon represented the Respondent.

The Legislation

1. Section 385 of the Act defines when a dismissal is unfair. It provides as follows:

‘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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

1. Section 396 of the Act requires the Commission to determine a number of preliminary

matters, before considering the merit of the Applicant’s claim. The section provides as follows:

‘396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under
Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.’

1. In relation to those preliminary matters, I find:

(1) The Applicant is a national system employee, and the Respondent is a national system employer (ss 380, 13, 14);

(2) The Applicant was employed under the terms of the Timber and Allied Industries Award (s 382(b)).

(3) The Applicant had been employed for the minimum employment period for a small business of at least twelve months (ss 382(a), 383(b));

(4) The Applicant’s dismissal was not a case of genuine redundancy (s 385(d));

(5) The Applicant was summarily dismissed on 12 August 2024 (ss 385(a), 386); and

(6) The application for a remedy from unfair dismissal was lodged within the statutory time limit of 21 days (s 394(2)(a)).

1. The only outstanding preliminary issues are:

(a)   Whether the Respondent’s business is a small business as defined by s 23 (ss 396(c), 388); and

(b)   Whether the Respondent complied with the Code and consequently, the Applicant’s claim for an unfair dismissal remedy was beyond the Commission’s jurisdiction.

1. I note that if, however, it is found that the Respondent had not complied with the Code, then considerations going to whether the dismissal was ‘harsh, unreasonable or unjust’, within the terms of s 387 of the Act, will arise.

The Evidence

(a)       The Applicant

1. The Applicant outlined a history of injuries from 10 April 2024, and noted that on 7 August 2024, he was asked to perform a duty in excess of the limitations advised to the Respondent in a medical certificate. The Applicant stated that as a casual employee, he felt pressured to perform this task or he could be at risk of losing his job.

1. The Applicant stated as a result of this task, he injured his neck and was in significant pain. From Saturday 10 August until Tuesday the 13 August he experienced a severe worsening of his neck injury. Because of the acute pain the Applicant stated he was unable to attend work and notified David Conlon by text message. Later that day, Paul Conlon replied “Do not come back”. The Applicant sent another text to Mr Conlon indicating that he probably would not be able to work on the Tuesday either as the acute neck pain was still present.

(b)      The Respondent

1. Mr Paul Conlon gave evidence for the Respondent. He noted:

(a)       On 18 June 2020, the Applicant received his first written warning- poor performance, which stated:

Poor Performance – First Written Warning

This letter is your first warning notice and it is a follow up to several verbal warning already given to you due to your continual lateness most mornings and not turning up for work at all.

There is no need to turn up for work tomorrow, as your working days have been reduced to only Monday, Tuesday & Wednesday.

Should there be no improvement, I will have no alternative but to issue you a final written warning.

(b)       In 2020, the Applicant was not at work for 19 days (sick).

(c)       In 2021, the Applicant was absent 29 days.

(d)      In 2022, the Applicant was not at work for 10 sick days and 4 days no show.

(e)       In 2023, the Applicant was not at work for 21 sick days and 2 days no show/slept in, and late for work 21 mornings. On 22 February 2023, he was issued with a second warning as follows:

Poor Performance – Second Written Warning

This letter is your second warning notice and it is a follow up to several verbal warning already given to you due to your continual lateness and your continuing attendance problems.

Your uneven attendance is beginning to affect other parts of your job, making improvement even more essential.

Should there be no improvement, I will have no alternative but to issue you a final written warning.

(f)       On 26 March 2023, the Applicant received a warning for poor handling of a forklift. The following day he sent a text message joking about the warning and signing off “from ur forklift speeding Chris”.

(g)       From 1 January to 12 August 2024, the Applicant was not at work for 3 days sick leave, 23 days with a sore arm (tennis elbow), 19 days light duties, and 5 mornings late.

(h)       On Monday, 12 August 2024, the Applicant was aware that the Respondent had employed special contractors to work in the factory to help him and others catch up on projects that were falling behind. He was instructed on Thursday and Friday to prepare materials and
tools which were only of a light nature and the Applicant was instructed to be there and just sit on the chair and tell people what to do.

When Mr Conlon arrived at work about 10.00am the Applicant was not there, and nobody had heard from him. Mr Conlon sent the message saying “don't bother coming back”. Later, the Applicant sent Mr Conlon a message saying he was sorry he just slept in, and then again at 5:30pm, he messaged stating that he had a sore neck that started on the Saturday not due to anything at work. Mr Conlon considered there was no point in talking to the Applicant any further.

1. In evidence were numerous example text messages of the kind received by the Respondent from the Applicant throughout his employment. They disclose a deplorable attitude to punctual work attendance and timely notification of absences. The Respondent would be advised of non-attendance as late as 1.29pm, with excuses as trivial as “I bloody slept in this morning” and “Just woke up Dave … Give me a sec and I lol be on my way” sent at 10. 02am.The Applicant’s oral evidence regarding his conduct was:[1]

And it lists the reasons, for example, in 2023 for you being late, 'No show, slept in', and then late on, roughly, 26 occasions in a year.  In your experience of working, somebody being late so often or even not turning up for work is extraordinary conduct.  Would you agree or disagree? --- I would agree.

And it's not isolated to 2023.  It occurred in 2024 and throughout your employment? --- Yes.

Applicant’s Submission

1. The Applicant’s outline of submissions provided that he claimed his dismissal was harsh because no reason for dismissal was given, he was not given an opportunity to respond to the dismissal, and he was not given any performance warnings for approximately 18 months leading up to the dismissal.

1. The Applicant submitted the immediate cause for his dismissal appeared to be in relation  to being unable to work, when he received the text message stating “Do not come back” at 11.51am on 12 August 2024. This text was the result of the Applicant informing the Respondent at 10.33am that he was unable to work due to the neck injury he claimed he sustained at work on 7 August 2024.

1. The Applicant submitted the neck injury sustained at work on 7 August was a direct result of the Respondent disregarding medical advice that he should gradually increase lifting capacity over a 6–8 week period.

1. The Applicant submitted he did not receive any warning in 2024 that he would have to improve his performance or he would be dismissed. In February 2023 he received a performance warning but it was his understanding that those concerns had been resolved in 2023. Because he did not receive any warning in 2024, he was not given any time to improve his performance or conduct.

1. The Applicant also submitted that was not given a genuine opportunity to respond to the dismissal and that his text message questioning the dismissal was ignored.

Respondent’s Submission

1. The Respondent submitted it was a small business. It had 4 employees, and even when separate unrelated companies were considered, there were only 12 employees.

1. The Respondent submitted that the Applicant was aware of the need to be at work on Monday 12 August 2024, to direct contractors who had been specially employed to help him. As was not unusual for the Applicant, he failed to attend and failed to make any contact with the Respondent.

Consideration

1. I accept that the Respondent was a small business. Mr Conlon gave unchallenged evidence of the names of employees, and the numbers employed at the relevant times.

1. The Code deals with dismissals separately in respect to serious misconduct and poor

performance. The Code provides:

The Code

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.

1. While the Applicant was summarily dismissed, it is apparent that, as the dismissal related to performance and attendance, compliance with the Code should also be assessed against the provisions under the heading “Other Dismissal” above.

1. The Applicant’s oral evidence regarding 12 August 2024, was as follows:[2]

Is it untrue that you sent the message that you're going to be late, or untrue that you had an appointment? --- I sent the message, but there was more to that message.  There was, 'Sorry I'd slept it', and then, 'My neck is giving me some serious grief'.  That was at 10.33, by memory, 10.33.  There should be a screenshot of that text message, and as far as the not true part of that, the RMS - this RMS appointment is fabricated.  There was never one at all. 

Stepping through, so you agree you slept in? --- Yes. 

It was an important day to be at work, was it not? --- Yes.  It was an important day at work.  I woke up, and I couldn't move, and then I woke again.  Like, I went to my normal alarm.  I woke again, and I looked at the time, and I messaged Dave, and I said, 'Mate, I'm in some serious grief'. 

So the first time you woke up, you couldn't move? --- Yeah. 

But the second time you woke up, you could? --- No.  Both times, I couldn't move.  I should have messaged him at - the only problem is Dave only gets to work at 8, and Paul gets to work at about 9, and I saw the time, and it was - I get up super early to get to work, and it was probably around about 5-ish that my first alarm went off, and I felt - I went back to sleep thinking that I'd just message him at, like, 7 or 6.30 or something like that and then - because no one would have been at the office at 5 and yeah.  I - - - 

But you didn't, and you didn't phone them until 10.30? --- I didn't text him until 10.30, yes. 

So for hours on what you agree is an important day, they didn't know where you were? --- Yes.  Yes, I know.  It's bad, but I couldn't get out of bed the whole weekend, the Saturday and the Sunday. 

You could message at 10.30? --- Yeah. 

You could have messaged at 7.30? --- I should have, yes. 

Could have and should have? --- Agreed, agreed. 

Particularly in light of your history of absences? --- Yes. 

1. It is ludicrous to assert, as the Applicant does, that he was unable to message at 7.00am on 12 August 2024, but was able to message later in the morning. It is abundantly clear that, notwithstanding the importance of his attendance to direct contractors specifically engaged to assist him, the Applicant just slept in, again. Even if he had a neck injury, which I accept Mr Conlon had no knowledge of at the relevant time, the Applicant could still have made contact with the Respondent.

1. The Applicant’s written Submission included the following:

1.   I did not receive any warning in 2024 that I would have to improve my performance or I would be dismissed. In February 2023 I received a performance warning but it was my understanding that these concerns had been resolved in 2023.

2.   Because I did not receive any warning in 2024, I was not given any time to improve my performance or conduct.

1. The submission outlined in the above paragraph is fanciful. There could be no basis for submitting that the February performance warning, which was the second for poor performance, had been resolved because it was dated 22 February 2024, and thereafter the Applicant’s poor attendance record continued without necessary improvement. The Applicant was clearly aware of the unacceptability of his conduct but chose not to improve to the requisite level.

1. Mr Conlon, who presented as a responsive and honest witness, gave the following evidence when questioned by the Commission:[3]

It might be put against you, well, you clearly provided two warnings regarding lateness? --- Yes.

And in the second one you said, 'Should there be no improvement, I'll have no alternative but to issue you with a final written warning'? --- Yes.

Now, you didn't issue a final written warning? --- Yes.

Why was that? --- Because we were short of office staff at the time and David wasn't on the premises at that time.  I had asked him had he heard from Chris.  He said no.  I asked Jodie in the office did he know – you know, had he been recognised.  Jodie is the one – like, there's an accident book.  If something did happen, he should have written in the accident book.  Other people do.  You know, even if it's not something for Worker's Comp, you know, let you know, like they've cut their finger here.  Yeah.  So no, purely lack of time on my part.

Well, I'm not asking why on 12 August 2024, you didn't provide a final written warning as opposed to simply summarily dismissing him? --- Yes.

What I'm saying to you is that, well, prior to that day, you hadn't issued a final written warning? --- Yes, I should have.  Yes.

And why was it not? --- Just timing.  There were written warnings typed up for me to give him, but whether I didn't see him or whatever, it was - yes, but, anyway, no.  There wasn't any given.

1. The Full Bench in Pinawin v Domingo,[4] considered the summary dismissal aspect of

the Code at length, and 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.

1. The question I need to consider in this case is whether Mr Conlon believed on reasonable

grounds that the Applicant’s conduct was sufficiently serious to justify his summary dismissal. Unlike previous non-attendance by the Applicant, the Applicant’s absence on 12 August 2024 was of significantly increased severity because the Respondent had specifically engaged contractors to assist him in his duties. In that circumstance, the Applicant’s non-attendance and lack of communication regarding his absence constituted wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment.[5]

1. The second matter to address is whether Mr Conlon had ‘reasonable grounds’ to believe the Applicant’s conduct was sufficiently serious to justify his dismissal. The meaning of ‘reasonable grounds’ in the Code is that the grounds are ‘reasonable’ when viewed from the standpoint of what a reasonable person would conclude as grounds which are credible, sensible, logical or plausible.[6]

1. It is entirely unremarkable that Mr Conlon concluded that he had reasonable grounds for believing the Applicant’s conduct was such as to justify instant dismissal, due to the significantly increased severity of the Applicant’s absence on 12 August 2024.

1. From these circumstances, I am comfortably satisfied that Mr Conlon, and the Respondent, had reasonable grounds to believe that the Applicant’s conduct was sufficiently serious to justify his immediate dismissal, and there were reasonable grounds for the employer holding that belief.

1. I also consider that the Respondent complied with the provisions under the heading “Other Dismissal” in the Code. The Applicant was provided with an opportunity to respond to the two written warnings, and other verbal warnings provided, and was given a reasonable chance to rectify the attendance problem. I also accept from the totality of the warnings provided that the Applicant was aware that he risked being dismissed if there was no improvement.

1. While the Applicant focussed on receiving the email on 12 August 2024, without prior discussion, simply stating “Do not come back”, the failure to provide an opportunity to respond as a consideration arises under paragraphs (b) and (c) of s.387 of the Act, and not under the Code.

1. Similarly, while both written warnings referred to the possible issuing of a final written warning, the Respondent was not bound to having to issue such final warning if circumstances warranted dismissal.

1. The Respondent complied with the Code in respect to the dismissal of the Applicant.  Accordingly, as the dismissal was consistent with the Code, the Applicant was not unfairly dismissed for the purposes of s.385 of the Act, and the Commission has no jurisdiction

to deal with the Application.

1. It is unnecessary to make findings as to whether the Applicant’s dismissal was ‘harsh, unreasonable or unjust’ for the purposes of s.387 of the Act.

1. The Application must be dismissed. Orders to that effect will issue simultaneously with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr C Gillis, the Applicant.

Mr P Conlon, on behalf of the Respondent.

Hearing details:

20 November 2024.
10AM.
Sydney.

[1] Transcript PN 343 and 344.

[2] Transcript PN 269 to 279.

[3] Transcript PN 585 to 591.

[4] (2012) 219 IR 128.

[5] Fair Work Regulations 2009. Reg. 1.07(2)(a).

[6] Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited[2011] FWA 8288.

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