Mr Craig Green v Naisda Ltd T/A Naisda Dance College
[2011] FWA 8372
•6 DECEMBER 2011
[2011] FWA 8372 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Craig Green
v
NAISDA Ltd T/A NAISDA Dance College
(U2011/9361)
COMMISSIONER CARGILL | SYDNEY, 6 DECEMBER 2011 |
Termination of employment.
[1] This decision arises from an application by Mr C Green (the applicant) pursuant to section 394 of the Fair Work Act (the Act) for relief in respect of the termination of his employment by Naisda Ltd trading as Naisda Dance College (the respondent). The applicant’s dismissal occurred on 15 June 2011 but did not take effect until 17 June 2011. The claim was lodged with Fair Work Australia (FWA) on 30 June 2011.
[2] The matter was dealt with by an FWA Conciliator but did not settle. It was heard by me in Sydney on 7 and 22 November 2011. The matter proceeded by way of hearing as I considered that it was appropriate to do so having taken into account the factors set out in section 399 including the views of the parties as reflected in the Conciliator’s report.
[3] The applicant represented himself. The respondent was represented by Ms Schleger, its General Manager.
[4] The applicant gave evidence. His witness statement was marked Exhibit Applicant 1 and his oral testimony is at PN86-201 of Transcript. The following witnesses also gave evidence on behalf of the applicant:
Mr L Robinson Former colleague of the applicant. His witness statement was marked Exhibit Applicant 2 and his oral testimony is at PN213-258 of Transcript;
Ms J Nieuwenhuys Friend of the applicant. Her witness statement was marked Exhibit Applicant 3 and her oral testimony is at PN263-302 and 418-427 of Transcript;
Mr M Nieuwenhuys Friend of the applicant. His witness statement was marked Exhibit Applicant 5 and his oral testimony is at PN 467-501 of Transcript;
Ms T Gissell Former colleague of the applicant. Her witness statement was marked Exhibit Applicant 6 and her oral testimony is at PN511-563 of Transcript;
Ms A Borowy Partner of the applicant. Her witness statement was marked Exhibit Applicant 7 and her oral testimony is at PN565-614 of Transcript.
[5] A witness statement from Mr C Wasserman, a friend of the applicant, was admitted into evidence without the requirement for cross-examination. The statement was marked Exhibit Applicant 4.
[6] Ms Schleger provided evidence for the respondent. Her witness statement was marked Exhibit Respondent 1 and her oral testimony is at PN625-762 of Transcript. Evidence was also given on behalf of the respondent by Ms S Gosson, Human Resources Officer and elected staff representative for the National Tertiary Education Industry Union (NTEIU). Her witness statement was marked Exhibit Respondent 2 and her oral testimony is at PN778-860 of Transcript.
FACTS AND EVIDENCE
[7] The respondent’s full name is the National Aboriginal and Islander Skills Development Association Inc. It operates a dance college for indigenous students which is located at Kariong on the New South Wales central coast. The employer’s response to the application, Form F3, discloses that, at the time of the applicant’s dismissal, it employed 16 full time and part time staff as well as 16 casuals.
[8] The applicant commenced his employment with the respondent in September 2007. He was employed on a full time basis in the position of Bus Driver/Handyman.
[9] There was evidence about whether or not the respondent had been informed prior to the start of the applicant’s employment that he had a reading disability. The applicant’s evidence is that he understood that the employment agency which referred him for the position had revealed this to the respondent. Ms Gosson’s evidence is that she understood that the situation had not been made known to them.
[10] In any event, Ms Gosson, who is also a teacher with lengthy special education experience, became aware of the applicant’s situation. The respondent then put a support process in place to assist the applicant with his disability so far as it impacted on his employment.
[11] On 3 May 2011 the applicant telephoned Ms Gosson and told her that his driver’s licence had been suspended for a period of three months. He informed Ms Gosson that the suspension was as a result of him speeding over the Easter long weekend when there had been double demerit points in place. The applicant told Ms Gosson that he had been on a road with varying speed limits. A hessian bag had covered up one of the speed signs.
[12] Ms Gosson’s evidence is that she provided emotional support to the applicant about the situation. She informed him that she would contact the NTEIU for advice. She also informed him that she would let Ms Schleger know what had happened.
[13] A number of meetings were then held between Ms Schleger and the applicant with Ms Gosson also in attendance. Ms Schleger’s evidence is that she made it clear to the applicant that the suspension of his licence would have a huge impact upon the operations of the organisation. There were discussions about possible options.
[14] One of the options, which had been suggested by the NTEIU, was to explore the possibility of the applicant seeking to be placed on a probationary licence with minimal points and for a longer period than the three month suspension. Ms Schleger agreed that, if this occurred, the applicant would not be required to undertake any excursions to Sydney so as to minimise the chance of him losing any demerit points. Ultimately the applicant decided not to pursue this option.
[15] Other options which were discussed included the applicant taking his accrued leave and time in lieu entitlements or carrying out other work during the suspension period. The applicant’s evidence is that his duties were evenly distributed between the roles of bus driver and handyman. A copy of his position description is attached to his witness statement.
[16] The applicant’s evidence is that he did a lot of tasks which didn’t require a vehicle or a licence. These jobs included mowing lawns, trimming edges, doing basic maintenance to buildings, cleaning gutters, office work, moving furniture and dance props and laying special “Tarkett” dance flooring. The applicant offered to have friends and family assist him to do things such as obtaining petrol from the service station and other driving duties.
[17] The witnesses called on behalf of the applicant attested to him being a good, enthusiastic and diligent employee. This was not disputed by the respondent. The witnesses also gave evidence about the tasks which the applicant had undertaken during his employment especially the “non-driving” components of his work. It should be noted that, except for Ms Gissell, most of the witnesses had had limited or no direct observation of the applicant’s work.
[18] Ms Schleger’s evidence is that about 90% of the applicant’s duties involved the use of a vehicle and, consequently, the need for a licence. As well as the twice daily bus runs to take students to and from the Gosford station, there was a daily “business run”. Her evidence is that, because of the size of the campus, many of the applicant’s other duties also required him to use a vehicle to transport items from one area to another. In addition, he needed to obtain petrol for the mower and go to stores such as Bunnings for supplies. There were also excursions with students and round trips to the airport in Sydney.
[19] Ms Schleger’s evidence is that there was not sufficient other “meaningful” work for the applicant to do during the three month period. The applicant disagreed with this and maintained that he could have been usefully employed during the time of the suspension.
[20] In any event it was agreed that the applicant would take his accrued leave and time in lieu entitlements during the suspension period. It was also agreed that, rather than pay the applicant in a lump sum at the start of the leave, he would be paid on the basis of three days’ pay a week. This was to assist him in maintaining a regular income as he did not have sufficient leave for the entire period.
[21] During the course of the discussions with the applicant, Ms Schleger made it clear that she required information about the incident which had led to the suspension of the licence. Her evidence is that she required this information in order to ascertain whether the incident had taken place in the respondent’s vehicle or in the respondent’s time. She also needed to assess whether there were any occupational health and safety issues that needed to be addressed in respect of the applicant himself as well as in relation to students and other staff.
[22] The applicant’s evidence is that he had been informed by a representative from Legal Aid who had assisted him in his court appearance at Gosford Local Court, that he did not have to tell his employer why or under what circumstances he had lost his licence. His evidence is that he felt it was not the respondent’s business as the incident had not occurred in its vehicle or time. The applicant considered it was an invasion of his privacy to be asked to provide the information.
[23] During a meeting with the applicant on 16 May Ms Schleger informed him that the respondent was unable to provide him with sufficient work that did not require a licence and that he was to begin using his accrued annual leave and time in lieu entitlements. The applicant was issued with a letter which confirmed this position and which also noted that he had not yet provided the required information about the traffic incident. The letter also noted that further contact about the matter would be made before the end of June. This letter is Attachment B to the applicant’s statement, Exhibit Applicant 1.
[24] In the meantime, as Ms Schlger had not received the information that she required about the incident, she contacted the Local Court which provided a response on 18 May 2011. That revealed that the actual cause of the applicant’s licence suspension was not due to speeding but to driving whilst under the influence of alcohol. The applicant’s evidence is that he had stopped drinking since the incident.
[25] Ms Schleger’s evidence is that she was very disappointed to discover that the applicant had behaved in such a covert and deceptive manner. Because the applicant had to work largely unsupervised, she needed to have absolute confidence in his skills, responsibility and truthfulness. Ms Schleger’s evidence is that the applicant’s behaviour had eroded any sense of trust in him. This was a great concern because of her occupational health and safety responsibilities for students, staff and visitors.
[26] The evidence of Ms Schleger and Ms Gosson is that they attempted to make telephone contact with the applicant on a number of occasions to discuss the situation in the light of the material received from the Court. The applicant’s evidence is that there had been no phone calls and no messages left on any of his phones.
[27] Ms Schleger decided to terminate the applicant’s employment. A letter informing the applicant of this is dated 15 June 2011 but was not received by the applicant until 17 June. A copy is Attachment C to the employer’s response to the application. The reason for the dismissal which is set out in the letter is the applicant’s inability to fulfil the requirements of his position. The applicant was paid five weeks’ salary in lieu of notice in accordance with the relevant enterprise agreement. He was also offered the continued use of the employee assistance program.
[28] The applicant seeks reinstatement or, alternatively, compensation. His evidence is that he has worked for one day only since his dismissal.
SUBMISSIONS OF THE APPLICANT
[29] The applicant’s witness statement also contained his written submissions. In addition he made oral submissions.
[30] The applicant submits that his dismissal was harsh, unjust and unreasonable.
[31] He submits that he is sorry for what happened and wants the respondent to acknowledge that he was a good employee. The applicant submits that he made only one mistake and for 98% of the time of his employment he had been honest and loyal to the respondent.
[32] The applicant also submits that it was not fair that the respondent dismissed him by way of a letter when he knew he had reading difficulties. He emphasised that he did not want other employees to be mistreated in the same way.
[33] The applicant submits that he deserves another chance and wants to be reinstated to his position. He notes that he is presently unemployed.
SUBMISSIONS OF THE RESPONDENT
[34] Written submissions on behalf of the respondent were provided prior to the hearing. Ms Schleger also made oral submissions.
[35] The respondent submits that there was a valid reason for the applicant’s dismissal. Because of the suspension of his licence, the applicant was unable to carry out a significant portion of his duties. In addition, his untruthfulness about the circumstances surrounding the suspension had led to a loss of trust. It had also raised occupational health and safety concerns especially in relation to the future transport of students and staff.
[36] Ms Schleger submits that the suspension of the applicant’s licence had had a huge impact on the respondent which is a small organisation with minimal funding. She emphasised that there was insufficient meaningful work for the applicant which did not involve the need for a licence.
[37] Ms Schleger submits that the respondent had followed a fair process. The respondent submits that the applicant had been informed of the reasons for termination. It submits that further attempts to discuss the matter with him after 16 May were not fruitful because he did not answer his phone.
[38] Ms Schleger submits that she did not take the decision to dismiss the applicant lightly however the outcome was not harsh, unjust or unreasonable.
CONCLUSIONS
[39] Section 396 of the Act sets out four matters which must be decided in applications of this type before the merits of a claim are considered. Those matters are:
“(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.”
[40] The application in this matter was lodged within the period required in section 394(2). There is no issue that the applicant is a person protected from unfair dismissal within the meaning of section 382. The Small Business Fair Dismissal Code is not relevant to this matter. Paragraph (d) of section 396 has no relevance either.
[41] Section 385 provides that a person has been unfairly dismissed if FWA 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.”
[42] Paragraph (a) is clearly met. Paragraphs (c) and (d) have no relevance to this matter.
[43] In order to decide whether the applicant’s dismissal was harsh, unjust or unreasonable it is necessary to turn to section 387 which sets out the factors which must be taken into account by FWA. Those factors are as follows:
“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[44] I shall address each of these factors in turn.
[45] There were, in essence, two reasons for the applicant’s dismissal. The first of these, and the only one specifically mentioned in the termination letter, was the lack of sufficient meaningful work. The second was the loss of trust when it was discovered that the applicant’s licence had been suspended because of a reason which was different to that which he had told the respondent.
[46] I accept that there was insufficient work to have occupied the applicant on a full time basis during the period of the suspension of his licence. However, in the particular circumstances of this case, that in itself would not have been a valid reason for his dismissal. The applicant and the respondent had already agreed that he would use up his accrued leave and time in lieu entitlements during the suspension period. It is also relevant to note that, as at the date of the dismissal, he was already half way through the suspension period.
[47] On the other hand, I consider that the second reason relied on by the respondent did amount to a valid reason for the applicant’s dismissal. If the applicant’s role had not involved driving duties then it would probably not have been reasonable for the respondent to have inquired into the licence issue. Indeed, in such circumstances there would have been no requirement for the applicant to have informed the respondent about the incident or the suspension at all.
[48] However, given that even on the applicant’s evidence, at least half of his duties involved driving not just himself and inanimate goods but students and other staff, it was reasonable and appropriate that the respondent inquire about the details of the incident.
[49] Further, the applicant did not just refuse to divulge the relevant information to the respondent. He actually lied to Ms Gosson about the incident and the cause of the suspension of his licence. It is understandable that when Ms Schleger became aware of this she felt a loss of trust in the applicant.
[50] As stated, there was a valid reason for the applicant’s dismissal.
[51] The applicant was informed of one of the reasons for his dismissal but was not told of the second reason. I am not satisfied that the applicant was provided with a proper opportunity to respond. Clearly he was not given such an opportunity in relation to the second reason for the dismissal as he was not informed of it until after the commencement of these proceedings.
[52] In addition, although I accept that attempts were made to contact the applicant by phone to discuss the situation, when these proved to be fruitless, it would have been prudent to have sent him a letter to organise a meeting for that purpose. I note in passing that the outcome may not have been different even if there had been a meeting however, the applicant should have been provided with the opportunity to properly respond.
[53] There was no unreasonable refusal by the respondent to allow the applicant to have a support person at any of the meetings which were held although, strictly speaking, there was no discussion about dismissal.
[54] The dismissal did not relate to the applicant’s performance so the question of any prior warnings does not arise.
[55] Although the respondent is not a small business employer within the meaning set out in the legislation, it is not very large. It has a human resources officer. I have taken account of the degree to which these factors impacted upon the procedure which was followed in effecting the dismissal.
[56] The other factors which I consider to be relevant in this case are the applicant’s reading disability, the difficulties he has experienced in obtaining alternative employment and the fact that he has stopped drinking since the traffic incident.
[57] In all of the circumstances and having taken account of each of the factors in section 387 and my findings thereon I have determined, on balance, that the termination of the applicant’s employment was not harsh, unjust or unreasonable.
[58] It follows from this that the dismissal was not unfair. The application is dismissed.
COMMISSIONER
Appearances:
Mr C Green, the applicant
Ms D Schleger, for Naisda Ltd trading as Naisda Dance College
Hearing details:
2011.
Sydney.
November 7 and 22.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR517446>
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