Mr Craig Ramsay v Hoover Container Solutions Pty Ltd

[2015] FWC 6704

[2015] FWC 6704

FAIR WORK COMMISSION

DECISION

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

Mr Craig Ramsay
v
Hoover Container Solutions Pty Ltd
(U2015/7499)

COMMISSIONER ROE MELBOURNE, 29 SEPTEMBER 2015

Termination of employment – alleged unfair dismissal.

[1] Mr Ramsay was employed by Hoover Container Solutions Pty Ltd from January 2014 until 21 April 2015. Mr Ramsay is protected from unfair dismissal as he was continuously employed for more than 12 months, the employer is a national system employer and there is no suggestion that the termination was for reasons of genuine redundancy. Mr Ramsay resigned his employment on 21 April 2015. It is not necessary to determine if an Award applies as Mr Ramsay earned less than the high income threshold.

[2] Mr Ramsay says that Mr Jennings told him that he had two choices; either resign and he would be paid four weeks’ in lieu of notice and his outstanding annual leave or he would be dismissed without notice or accrued entitlements. Mr Ramsay says that he agreed to resign. Mr Jennings made a follow up telephone call to Con Gianas shortly after when the written resignation had not been received. Mr Ramsay says that he was in a car with Mr Gianas and he heard Mr Jennings repeat the statement that Mr Ramsay would be dismissed without any payment if he did not provide the resignation letter by email. Mr Jennings conceded that he may have told Mr Gianas in the second phone call that he would sack Mr Ramsay if the resignation was not received. However, Mr Jennings says that in the first phone call he told Mr Ramsay a long list of concerns he had with his conduct and performance and then Mr Ramsay said that he had probably better fall on his sword and then they had negotiated the payment of four weeks in lieu of notice.

[3] Mr Ramsay provided a supporting statutory declaration from his wife that he had told her immediately afterwards that he had been given the ultimatum to resign or not receive his entitlements. Mr Jennings provided a supporting statutory declaration from Mr Gianas. Neither of these people were available for cross examination and given the nature of the contested evidence I do not have regard for either statement.

[4] Considering all of the circumstances I am satisfied that Mr Jennings had decided to terminate Mr Ramsay’s employment in the telephone conversation on 21 April 2015. I am satisfied that Mr Jennings outlined in very considerable details a very long list of alleged misconduct and poor performance. I am satisfied that Mr Jennings made it clear to Mr Ramsay that he would only receive four weeks’ notice payment if he resigned. I prefer the evidence of Mr Ramsay on this issue and accept that Mr Jennings told Mr Ramsay that he would be dismissed without notice if he did not resign. I am satisfied that Mr Ramsay was constructively dismissed. The actions of the employer led to the ending of the employment relationship.

[5] The parties agreed that Hoover was a small business in that it employed less than 15 employees, including Mr Ramsay, at the time of the dismissal. However, later in the proceedings Mr Jennings said that the company was overseas owned and employed 5 people in Australia but up to 300 worldwide. I will determine this matter on the basis that the small business code does not apply. Mr Jennings did not suggest that the small business code had been followed. It is therefore not necessary to finally determine whether or not Hoover is a small business.

[6] It is accepted that Mr Ramsay received a detailed written warning on 22 October 2014 which listed a number of concerns about conduct and performance and which advised that failure to improve or any repetition will result in action including termination of employment.

[7] It is also accepted that the incident which led to the dismissal on 21 April 2015 was the alleged failure to complete the log book for the company vehicle in an accurate and timely manner and the related inability to account for the level of fuel purchases.

[8] Mr Ramsay provided a log book after a number of requests and some delay. Mr Jennings said that the log book was required for FBT purposes. It was accepted that the vehicle was able to be used for both work and personal purposes. Mr Ramsay accepted that he had been told how to use the log book and to record the odometer readings at the start and end of each trip. Mr Ramsay said that some of the figures in the log book were taken from the odometer readings but others he worked out from assessing the distance of various work trips he could recall making using Google maps.

[9] Mr Ramsay accepted the evidence provided by Mr Jennings which showed that during the period from 16 February 2015 to 10 April 2015 620 litres of fuel had been purchased using the company fuel card. He also accepted that the car used approximately 1 litre for each 10 kilometers. He denied that he used the fuel card to purchase anything else but fuel. He therefore accepted that about 6200 kilometers should have been travelled during the period in question. The log book first produced showed that 2201 kilometers had been travelled. A revised log book was eventually produced after further exchanges between Mr Ramsay and Mr Jennings. That log book showed completely different odometer readings but showed only 1581 kilometers driven during the period from 16 February to 10 April 2015. Mr Ramsay says that he did not include private trips in the log book and he accepts that he just could not get the log book right.

[10] Mr Ramsay gave evidence that the starting figure in the first log book had been taken from the odometer. This figure was about 1000 kilometers higher than the known odometer reading a week earlier when the car had been in for repairs. I accept Mr Ramsay’s evidence that the opening odometer reading was 63401. There is no odometer reading for 10 April 2015 which is approximately 6200 kilometers higher than this figure.

[11] I am satisfied that Mr Ramsay did not use actual odometer readings for the figures in the log book other than the starting 63401 figure. There are inadequate gaps between the finish reading for one trip and the start reading for the next work trip to allow for private usage.

[12] I do not find that Mr Ramsay was guilty of theft or fraud. It is possible that the problem was due to the failure to properly fill in the log book by reference to the odometer.

[13] However, I am satisfied that the failure to complete the log book accurately when directed to do so does constitute a valid reason for dismissal related to the conduct of Mr Ramsay. In reaching this conclusion I take into account that Mr Ramsay received a written warning on 22 October 2014. One of the issues in that warning related to alleged inappropriate use of the company credit card and poor handling of documentation. That letter specifically required that Mr Ramsay provide the odometer reading to the petrol station console operator when using the company fuel card to purchase petrol. If that had occurred then some of the issues concerning the log book could have been resolved. I am satisfied that the company is at risk of significant harm if it is unable to properly document vehicle use and costs for FBT purposes. The actions of Mr Ramsay mean that the vehicle use figures have to be guessed or estimated and there is no verifiable documentation available due to the failure to complete the log book on a progressive basis.

[14] The existence of the valid reason stands in favour of a finding that the dismissal was fair.

[15] I am satisfied that Mr Ramsay was notified that the primary reason for the dismissal was that he had failed to complete the log book for the company vehicle in an accurate and timely manner despite having been instructed to do so and the related inability to account for the level of fuel purchases. The factor also stands in favour of a finding that the dismissal was fair.

[16] I am satisfied that Mr Ramsay had adequate opportunity to respond to the allegations about the log book and the fuel card usage over a number of days prior to the dismissal. I accept that his opportunity to respond to the proposed termination of his employment was limited in the telephone conversation on 21 April 2015. The procedural deficiency was not serious in the circumstances of this case. The failure to provide a reasonable opportunity to respond at the dismissal meeting can lead to a dismissal being unfair. However, in the circumstances of this case this is not a strong factor given the prior warning and the earlier requests for the information and the earlier opportunity to provide an explanation.

[17] Mr Jennings did not refuse to allow Mr Ramsay to have a support person, although there was no reasonable opportunity to have one given the telephone call was not organised in advance. This is a neutral factor.

[18] The dismissal related to conduct not performance and there had been a prior warning about alleged related conduct. This is a neutral factor.

[19] I am not satisfied that the size of the employer or the lack of human resource management expertise impacted the manner of the dismissal. This is a neutral factor.

[20] I take into account that Mr Ramsay was paid four weeks in lieu of notice, notwithstanding that his entitlement under the NES was two weeks. I do not consider there to be any other relevant matters.

[21] I have made findings in respect to each of the matters in Section 387 of the Fair Work Act 2009. Taking all these matters into consideration I am not satisfied that the dismissal was unfair. The application is dismissed.

COMMISSIONER

Appearances:

Mr C Ramsay represented himself.

Mr W Jennings appeared for the Respondent.

Hearing details:

2015

Perth

September 25

Printed by authority of the Commonwealth Government Printer

<Price code C, PR572389>