Mr Craig Ross Bunton v Caloundra Removals & Storage Pty Ltd T/A Caloundra Removals & Storage

[2011] FWA 1762

[2011] FWA 1762

FAIR WORK AUSTRALIA

DECISION

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

Mr Craig Ross Bunton
v
Caloundra Removals & Storage Pty Ltd T/A Caloundra Removals & Storage
(U2010/7143)

COMMISSIONER ASBURY BRISBANE, 25 MARCH 2011

Termination of employment - arbitration - harsh unjust or unreasonable.

OVERVIEW

[1] This is an application to Fair Work Australia (FWA) by Mr Craig Ross Bunton, for an unfair dismissal remedy, under s.394 of the Fair Work Act 2009 (the Act). The respondent is Caloundra Removals and Storage Pty Ltd T/A Caloundra Removals & Storage (Caloundra Removals). Mr Bunton commenced employment with Caloundra Removals on or about 25 March 2008 and was dismissed by letter dated 1 March 2010.

[2] The grounds in support of the application filed on behalf of Mr Bunton contend that he was dismissed while on a temporary period of absence from work due to illness, and was not guilty of gross misconduct. A response to the application filed by Caloundra Removals maintained that Mr Bunton was guilty of gross misconduct involving falsification of time sheets. The application was not resolved through conciliation and after the matters in s.399 of the Act and the views of the parties were considered, it was listed for hearing in Maroochydore.

[3] Directions were issued on 19 June 2010 requiring both parties to file with FWA, and serve on the other party, outlines of submissions and any witness statements and other documentary material upon which the party intended to rely. The Directions also made it clear that the matter was listed for Arbitration Conference/Hearing in the arbitration roster, and that this would occur in Maroochydore.

[4] Mr Bunton, through his representatives complied with the Directions and filed and served a submission and witness statements. On 5 August 2010Caloundra Removals filed a document headed: “Response to Submission in Support of the Unfair Dismissal Remedy Application Craig Bunton v Caloundra Removals & Storage Pty Ltd”. Caloundra Removals did not file witness statements.

[5] At the hearing, Mr Bunton was represented by an Industrial Advocate, Mr J. Fuhrman-Luck. Caloundra Removals was represented by Directors, Mr C Craig and Mr M Craig. At the commencement of the hearing, representatives of Caloundra Removals indicated that it was their understanding that the proceedings were for the purposes of conciliation and on the basis of that understanding, no witness statements had been filed. It was decided, with the acquiescence of Mr Fuhrman-Luck, that Mr M Craig would give evidence on the basis that he adopted the response to the application filed on 24 March 2010 and the submission filed on 5 August 2010. Mr Fuhrman-Luck was granted a short adjournment during the proceedings to prepare cross-examination in relation to that material.

[6] This approach was adopted in the interests of fairness to the parties. Mr Bunton and his representative had the response to the application filed by Caloundra Removals on 24 March 2010, before the date upon which they were required to file and serve submissions and witness statements in support of the application. Many of the matters dealt with in Mr Bunton’s witness statement are directly in response to matters set out in that document. Mr Bunton and his representative also had the submissions which were adopted by Mr M. Craig as evidence, before the hearing. Mr Fuhrman-Luck on behalf of Mr Bunton, did not seek to put any further evidence before the Tribunal, upon becoming aware that the submission would be adopted by Mr M. Craig as his evidence in the proceedings.

[7] As required by s.396 of the Act, it is necessary to decide a number of initial matters before the merits of an application under Division 4 of Part 3-2 are considered. These matters are not in dispute. The application was made on 15 March 2010. Mr Bunton said that although the letter notifying him of his dismissal was dated 1 March 2010, it was not received by him until 3 March 2010, as he was absent from the workplace on sick leave. No issue was taken by Caloundra Removals with the application being lodged outside the time required in s.349(2) and accordingly I am satisfied that it was made within the time required in s.394(2).

[8] Mr Bunton’s contention that he was employed on a “permanent” basis was not contested, and I am satisfied that he is a person protected from unfair dismissal as defined in s.382 of the Act. Mr Bunton gave evidence about the number of persons employed by Caloundra Removals stating that the Company has 23 full time employees and another 20 casual employees employed on a regular and systematic basis, and premises in Townsville, Kawana, Melbourne and Sydney. In the response to Mr Bunton’s application filed on 15 March 2010it is asserted that at the time of Mr Bunton’s dismissal, the Company had 11 permanent employees and several part-time employees. Mr Bunton’s evidence on this point was not challenged by Caloundra Removals and in the absence of any real evidence to the contrary, I am unable to be satisfied that the question of whether the dismissal was consistent with the Small Business Fair Dismissal Code is relevant. The dismissal was not a redundancy.

LEGISLATION

[9] Relevantly, by virtue of s.385 of the Act, a person has been unfairly dismissed if FWA is satisfied that:

“(a) the person has been dismissed;

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

[10] In deciding whether a dismissal is harsh, unjust or unreasonable, FWA must take into account the following matters as set out in s.387 of the Act:

(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 the dismissal; and

(e) If the dismissal related to unsatisfactory performance – 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 FWA considers relevant.

[11] The criteria in s.387 go to both procedural and substantive matters, and FWA is required to weigh the evidence and material before it and to decide on balance whether a dismissal is harsh, unjust or unreasonable. A dismissal may be:

• harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;

• unjust, because the employee was not guilty of the misconduct on which the employer acted; and/or

• unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer." 1

[12] A valid reason for termination of employment is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.” 2 The reason for termination must also be defensible or justifiable on an objective analysis of the relevant facts,3 and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.4 In determining whether a reason is valid:

“It is not the court’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct...”. 5

EVIDENCE

The relevant evidence in this matter can be summarised as follows. It is not in dispute that Mr Bunton was employed from on or about 12 February 2008 in the capacity of Operations Assistant. The terms of Mr Bunton’s employment were set out in a document which was Exhibit 3 in these proceedings, in the following terms:

“Craig Bunton

$22.00 per hour

52.5 hour week

$1314.50 per week gross

$1001.00 per week net

3 month trial basis

Includes:

2 weeks trial basis (no holiday/sick pay)

Balance of 3 months on permanent (holiday/sick pay)

Either party can cease agreement at any time.

After 3 months supply Company vehicle/phone eligible for performance bonus schemes.”

[13] Mr Bunton was employed in the role of Operations Assistant for approximately 12 months. At that point, a sales person, Mr Cooper was leaving the employment of Caloundra Removals and Mr Bunton requested that he be considered for this position when it became vacant. Mr Bunton was offered the position by Mr M Craig and took over that role upon the departure of Mr Cooper. Mr Bunton said that he worked in that role until his dismissal and maintained that it was not an additional role created for him. Mr Bunton undertook five to ten quotes per day and worked five or six days each week. Mr Bunton said that he had a good success rate with his quotes, and only misquoted on four occasions to any significant extent. Mr Bunton was spoken to by Mr C Craig in relation to two of these quotes and told to “Just keep an eye on the volumes.” Mr Bunton maintained that there were no warnings or issues raised with respect to his conduct or work performance.

[14] According to the response filed by Caloundra Removals, and adopted by Mr M Craig, after 12 months in the position of Operations Assistant, Mr Bunton stated that he could not “get a handle” on the job, and his forté was sales. To avoid terminating Mr Bunton’s employment, a position was created as an Estimator/Salesperson and Mr Bunton was provided with a company vehicle and other items necessary for him to carry out that role. Mr Cooper was standing down from his sales role due to his son having a life threatening illness. It was asserted by Caloundra Removals that Mr Bunton regularly underestimated volumes which resulted in consignments not fitting into trucks and unhappy customers due to the fact that their goods were required to be sent on the next available truck. This was said to be a continual issue.

[15] Mr Bunton’s evidence was that approximately one week prior to 19 February 2010, he was called into Mr M Craig’s office for a chat. Mr Nicholson was also present. Mr Bunton was informed that Mr M Craig and Mr Nicholson had been keeping an eye on him through satellite tracking in his vehicle and had noticed that he was taking breaks during the day and going home. Mr Bunton responded by saying he was aware that they knew his location and he had nothing to hide. Mr M Craig and Mr Nicholson informed Mr Bunton that they did not have a problem with him going home because he was entitled to a meal break during the day, but wanted Mr Bunton to know that they were keeping an eye on him. Mr Bunton said he was not shown any paperwork in relation to the satellite tracking and there was no mention of his time sheets. Mr Bunton then had a conversation with Mr M Craig and explained that he had a medical condition which required him to shower after going to the toilet, and that he needed to go home during the day to go to the toilet. Mr M Craig said that this was not a problem and that he would prefer that Mr Bunton go home and wash rather than going out to clients “smelling like shit”. Mr Bunton denied that he admitted to recording incorrect times on his time sheets or that he told Mr M Craig that he needed extra money to make car repayments.

[16] Mr M Craig said in his evidence that there was a meeting with Mr Bunton in early February, when it was brought to Mr Bunton’s attention that his time sheets and GPS reports for his company vehicle did not reconcile. According to Mr M Craig, Mr Bunton acknowledged that he had recorded incorrect times, and stated that he needed extra money to make repayments on a late model BMW that he had recently purchased.

[17] Under cross-examination, Mr M Craig maintained that Mr Bunton was shown copies of the time sheets and the GPS reports during the meeting, and that Mr Bunton acknowledged that he had recorded incorrect times on his time sheets. Mr M Craig denied that he told Mr Bunton he would rather that he go out to clients clean than “smelling like shit”, but said that he acknowledged the fact that Mr Bunton had a health issue and needed to stop in at home and do what needed to be done to ensure that he could complete his role properly.

[18] Mr Bunton said that not long after this meeting, he heard that Mr Cooper was coming back to work for Caloundra Removals. This caused Mr Bunton to be concerned and to approach Mr M Craig to ask whether this was the case. Mr M Craig responded by confirming that Mr Cooper was coming back to work, and stating that the intention had been to talk to Mr Bunton about this next week. Mr M Craig went on to confirm that Mr Cooper was coming back as a supervisor on the truck and that he was going to come back into the business. Mr Bunton was told that he could go back on to the trucks as an off-sider, on the same hourly rate, but on a casual basis.

[19] Mr Bunton responded by saying that he was not physically able to do this and it was a really bad time. Mr M Craig told Mr Bunton to go away and think about the offer, and to come back on Monday and let him know what Mr Bunton had decided. Mr Bunton maintained that there was no mention of any mistakes or issues raised with his conduct or work performance when he was informed of this proposal. Mr Bunton said that he was stressed and consulted his Doctor, who issued a medical certificate stating that Mr Bunton was unfit for duty up to and including 26 February 2010. 6 The medical certificate was faxed to Caloundra Removals by Mr Bunton’s representatives, on 22 February 2010. Mr Bunton continued to be stressed and again consulted his Doctor on 26 February 2010, resulting in another medical certificate being issued to Mr Bunton stating that he was incapacitated for work for the period up until 5 March 2010.7

[20] The Response to the unfair dismissal application filed by Caloundra Removals stated that prior to his dismissal Mr Bunton was offered another position in the company, which he declined. The Response went on to state that if Mr Bunton had accepted the role offered, he possibly would still be employed by the Company. Under cross-examination, Mr M Craig confirmed that this was the case, subject to Mr Bunton’s ability to carry out that role.

[21] On 3 March 2010, Mr Bunton received a letter dated 1 March 2010, terminating his employment. That letter was in the following terms:

“Craig

During a reconciliation of our GPS system and wage records, we have discovered you purposely noted incorrect finish times on your time sheet on a number of occasions. When brought to your attention, you acknowledged this. Falsification of records is deemed gross misconduct by our company as per our Employee Manual, therefore your employment is immediately terminated.

Upon receipt of your uniforms, your final pay will be processed.” 8

[22] According to the evidence of Mr M Craig, Mr Bunton’s start and finish times varied each day due to the nature of his role. The majority of Mr Bunton’s time was spent conducting inspections for household removals. Mr Bunton would generally start his day at Caloundra Removals’ office at Warana. On arrival, Mr Bunton would note his start time on a manual time sheet. Mr Bunton would also complete his working day at the office and would note the time he left the office on his time sheet. On other occasions Mr Bunton would finish work at his home, if he was working at a location closer to his home than to the office. On these occasions, Mr Bunton would record the time that he arrived home on his time sheet on the following day.

[23] Mr M Craig said that at some time prior to February 2010, a random inspection of reports from vehicle GPS systems was conducted. The reports show the activities of vehicles for each day. The audit showed that Mr Bunton’s start and finish times as noted on his time sheets, were very different from the times indicated on the GPS reports at which the vehicle was at Mr Bunton’s home.

[24] According to Mr M Craig, Mr Bunton falsified his start and finish times on twenty occasions during January and February 2010, and overstated the hours that he worked. Mr M Craig produced documents headed “Craig Bunton Minutes Gained” for January and February 2010. These documents were appended to a submission in response to the application filed by Caloundra Removals. Also appended to the submission were copies of time sheets completed by Mr Bunton and copies of GPS reports from his vehicle. Mr Craig said that the documents demonstrated discrepancies between hours noted on Mr Bunton’s time sheets, and the GPS reports. Mr Craig also said that any discrepancies of 15 minutes or less, were not recorded in the “Minutes Gained” documents, on the basis that the Company’s payroll system provided for minimum periods of 15 minutes, and all portions of an hour indicated on time sheets were rounded on that basis.

[25] The “Minutes Gained” documents state that in January 2010, Mr Bunton indicated on his time sheets that he worked for 372 minutes in excess of the actual time worked, and in February 2010 the amount was 277 minutes. According to Mr Craig, every additional hour claimed by Mr Bunton cost Caloundra Removals approximately $40.00 on the basis of on-costs in addition to Mr Bunton’s hourly rate of $22.00. The days upon which minutes were said to have been gained in January and February 2010 were as follows:

• 14 January 2010 - 47 minutes with the start time on the time sheet being 6.00 am and the start time on the GPS being 6.36 am and the finish time on the time sheet being 5.00 pm and the finish time on the GPS being 4.49 pm;



• 16 January 2010 - 87 minutes with the finish time on the time sheet being 12.00 pm and the finish time on the GPS 10.33 am;



• 20 January 2010 - 26 minutes with the finish time on the time sheet being 5.00 pm and the finish time on the GPS being 4.34 pm;



• 21 January 2010 - 71 minutes with the finish time on the time sheet being 5.00 pm and the finish time on the GPS being 3.49 pm;



• 22 January 2010 - 70 minutes with the start time on the time sheet being 6.00 am and the start time on the GPS being 6.10 am and the finish time on the time sheet being 5.30 pm and the finish time on the GPS being 4.30 pm;



• 25 January 2010 - 12 minutes with the start time on the time sheet being 6.00 am and the start time on the GPS being 6.12 am;



• 27 January 2010 - 30 minutes with the start time on the time sheet being 6.00 am and the start time on the GPS being 6.30 am; and



• 28 January 2010 - 29 minutes with the finish time on the time sheet being 5.00 pm and the finish time on the GPS being 4.31 pm.



• 1 February 2010 - 58 minutes with the finish time on the time sheet being 5.00 pm and the finish time on the GPS being 4.29 pm.



• 3 February 2010 - 34 minutes with the finish time on the time sheet being 4.00 pm and the finish time on the GPS being 3.40 pm.



• 4 February 2010 - 86 minutes with the finish time on the time sheet being 5.00 pm and the finish time on the GPS being 4.08 pm.



• 5 February 2010 - 38 minutes with no finish time on the time sheet and no finish time for the GPS.



• 8 February 2010 - 31 minutes with the finish time on the time sheet being 5.00 pm and the finish time on the GPS being 4.29 pm.



• 11 February 2010 - 17 minutes with the finish time on the time sheet being 5.30 pm and the finish time on the GPS being 5.13 pm.



• 16 February 2010 - 13 minutes with the finish time on the time sheet being 5.00 pm and the finish time on the GPS being 4.47 pm.

[26] Mr Craig said that at no time have hours recorded on time sheets been estimates. All times recorded by employees are used to calculate their actual hours of work for the relevant period. The payroll officer inserted start and finish times on Mr Bunton’s time sheets for only three days, and the days on which this occurred were not in question.

[27] Under cross-examination, Mr M Craig said that discrepancies between the time sheets and the GPS records of less than 15 minutes had not been recorded as minutes gained by Mr Bunton because the payroll system recorded time in 15 minutes increments. The proposition was put to Mr M Craig that various time sheets appeared to have been amended in handwriting which was not that of Mr Bunton. Mr M Craig rejected that proposition and disputed that time sheets had been altered by payroll staff, other than on three occasions, on days which were not in question.

[28] In relation to the time sheets and the GPS records, Mr Bunton said that:

“I did not falsify records as alleged in the termination letter. My representatives were on 7 May 2010 provided by Michael Craig with time sheets and GPS reports and a list of alleged discrepancies for January - February 2010...I have perused these documents. My weekly time sheets were completed by me as directed by the respondent. They were to reflect a broad estimate of the start and finish times and were to be rounded off. It is noted that the start times on the annexed time sheets are recorded as 5AM, 6AM, 6.15AM, 6.30AM, 7AM or simply 6 or 7. That is how the time sheets were recorded from the start of my employment and this is how I was directed to record them. The Respondent never raised this until the termination letter which was in my second week off work on stress leave.” 9

[29] Mr Bunton also alleged that his hand writing had been altered by “a third party presumably in the Respondent’s employ or control”. Further, Mr Bunton stated that he had audited the documents provided by Caloundra Removals and the alleged discrepancies, and the correct record is that he worked more hours in the period than what was recorded in his time sheets.

[30] It was contended by Mr Bunton that Caloundra Removals is a very viable enterprise with 20 late model vehicles and gross revenue from its transport division of between $1.5 million and over $3 million dollars.

[31] It was contended for Caloundra Removals that its turnover for the year ended 30 June 2009 was $4.71 million and the net profit was nil. The forecast for the year ended 30 June 2010 was for a minimal profit if any, and the owner of the business has not drawn wages since February 2010. It was also contended that the business is surviving on a month to month basis and turnover has dropped. The Company has received a WorkCover invoice for the amount of $172,537.94 and has arranged to pay that invoice in monthly instalments. Caloundra Removals provided evidence about the management fees paid to the owner in 2007-8 and stated that no fees were paid in 2008-9. An Operating Statement for the period ending 30 June 2009 was also provided by Caloundra Removals.

[32] Mr Bunton said that he commenced searching for other employment shortly after he was dismissed, and that his search included positions outside his previous fields of employment. At the point this application was heard, Mr Bunton’s search for alternative employment had not been successful. Mr Bunton said that he had been unable to meet his regular financial commitments and his car was about to be repossessed. Mr Bunton also contended that the stress of losing his job and these proceedings, had contributed to the breakdown of his personal relationship. Further, Mr Bunton said that he had been in receipt of Centrelink benefits since his dismissal, and had obtained casual work for approximately 30 hours per week at the rate of $20 per hour, commencing on 16 August 2010. The total earnings from this work were $1,800.00. No details of Mr Bunton’s earnings from Centrelink benefits were provided.

SUBMISSIONS

[33] It was submitted for Mr Bunton that his evidence should be preferred to that of Mr M Craig, on the basis of the limited cross-examination of Mr Bunton. The reliance of Caloundra Removals on serious misconduct as the grounds for the dismissal was said to be inconsistent with the fact that between the discussion about Mr Bunton going home during the day, and his dismissal, he was offered another job. It was also pointed out that on Mr M Craig’s evidence, there were no warnings in relation to the conduct that was used to justify the dismissal.

[34] Further, it was submitted that at the point he was dismissed, Mr Bunton was absent on sick leave, covered by a medical certificate. Before Mr Bunton could indicate his position in relation to the redeployment offer, he was dismissed. It was submitted that the reason given for the dismissal was fallacious, and the real reason for the dismissal was that Mr Bunton did not immediately accept redeployment.

[35] It was submitted by Caloundra Removals that the reason for the dismissal was that Mr Bunton falsified his time sheets and overstated the hours he actually worked, resulting in Mr Bunton being paid for that excess time when he was not entitled to such payment. Mr Bunton disputed this allegation.

CONSIDERATION OF MATTERS IN S.387 OF ACT

Was there a valid reason for the dismissal related to Mr Bunton’s conduct (including its effect on the safety and welfare of other employees)?

[36] Mr Bunton’s evidence about this matter was inadequate, given that he carried the onus of establishing that his dismissal was unfair. Before filing and serving his material, Mr Bunton had the benefit of a detailed response to his application from Caloundra Removals, and was provided with copies of documentary materials comprising time sheets completed by him and GPS records for his vehicle, upon which Caloundra Removals relied to justify the allegation of gross misconduct which was the reason given for the dismissal. Mr Bunton attached those materials to his witness statement.

[37] Notwithstanding his access to this information and the conclusions drawn from it by Caloundra Removals, Mr Bunton’s response was confined to the bare assertion that he had audited the document prepared by Caloundra Removals listing alleged discrepancies for January - February 2010, and the correct record is that he worked more hours in that period than what was recorded on his daily time sheets. Mr Bunton did not provide any evidence about the basis of this assertion.

[38] Although there are some errors in the calculations tendered by Mr M Craig on balance I am satisfied that Mr Bunton incorrectly recorded the hours he worked on his time sheets. I am also satisfied that this resulted in Mr Bunton being paid for time that he did not work. In reaching this conclusion I do not accept Mr Bunton’s evidence that he was simply making a “gestimate” about his starting and finishing times, or that he was “rounding off”. The discrepancies are beyond what could reasonably be regarded as rounding off. In the present case the uncontradicted evidence of Mr M Craig was that the payroll system used by Caloundra Removals calculates time in 15 minute intervals. In light of this it is improbable that the Company would direct Mr Bunton to complete time sheets in the way that he did. Further, I do not accept that someone other than Mr Bunton altered or completed his time sheets and that this provided an explanation for the discrepancies.

[39] The result was that Mr Bunton was paid in excess of ten hours wages for time that he did not work, in January and February 2010. While this type of conduct could constitute misconduct, and provide a valid reason for dismissal, in the present case it does not. Because of the deficiencies in the manner in which Caloundra Removals presented its case there is insufficient evidence upon which I could conclude that there was a valid reason for the dismissal. While Mr Bunton was not a convincing witness in relation to the matter of the time sheets and his evidence was improbable, he was not cross-examined about the assertion that he was directed to record his starting and finishing times in this way, or that this matter was not raised prior to the termination letter. There was no evidence of Company policy or instructions to employees about completing time sheets to contradict Mr Bunton’s assertions.

[40] The offer to Mr Bunton on alternative employment prior to his dismissal, makes it at least equally probable that Mr Bunton’s refusal to accept that offer was the reason for his dismissal. Further, the conduct of Mr M Craig in offering Mr Bunton the alternative position, and stating in evidence that Mr Bunton would possibly still be employed if he had accepted that position, is inconsistent with Mr M Craig believing that discrepancies in Mr Bunton’s time sheets warranted dismissal on the ground of serious misconduct.

Was Mr Bunton notified of the reason for his dismissal?

[41] It was not in dispute that Mr Bunton was notified of the reason for his dismissal by letter dated 3 March 2010. 10

Was Mr Bunton given an opportunity to respond to any reason related to his capacity or conduct?

[42] I do not accept that Mr Bunton was given an opportunity to respond to the reasons for his dismissal related to his conduct. The evidence about the meeting in the week prior to 9 February 2010, does not establish that allegations of falsifying time sheets were put to Mr Bunton. There were two representatives of Caloundra Removals present at that meeting - Mr M Craig and Mr Nicholson. Only Mr M Craig gave evidence on behalf of the Company about what transpired, Mr Nicholson was not called as a witness to corroborate Mr M Craig’s evidence. Further, Mr M Craig agreed with some of the matters Mr Bunton said were discussed at that meeting, including the need for Mr Bunton to go home during the day so that he could shower, when he needed to use the toilet.

[43] It is also the case that the time sheet entries that Caloundra Removals alleged were falsified by Mr Bunton were entries relating to January 2010. The meeting at which the Company claims the matter of discrepancies between the time sheets and the GPS system in Mr Bunton’s vehicle was raised with Mr Bunton, took place in early February 2010. It is probable that if the alleged false entries were discussed at that meeting, Mr Bunton would have been dismissed at that point or some disciplinary action taken against him.

[44] Shortly after that meeting, there was a further discussion with Mr Bunton, during which Mr M Craig offered him a position as an offsider on a truck. It is improbable that in circumstances where allegations of falsifying time sheets were discussed with Mr Bunton in early February, he would subsequently be offered another position with Caloundra Removals.

[45] It is also the case that at the point of his dismissal, Mr Bunton was absent from the workplace on sick leave, and had provided medical certification to Caloundra Removals covering the period from 19 February until 5 March 2010. Notwithstanding this Mr Bunton was dismissed, before the expiration of his notified period of absence.

Was there any unreasonable refusal by Caloundra Removals to allow Mr Bunton to have a support person present to assist at any discussions relating to the dismissal?

[46] This consideration is not relevant in the present case. There was no discussion relating to the dismissal and therefore there was no refusal, unreasonable or otherwise, to allow Mr Bunton to have a support person present.

Was Mr Bunton warned about unsatisfactory performance before the dismissal?

[47] I am unable to accept that the discussion with Mr Bunton in early February 2010, constituted a warning about unsatisfactory performance. At best, there was a discussion about Mr Bunton needing to go home to shower when he used the toilet. That discussion did not constitute a warning about unsatisfactory performance. The subsequent discussion about Mr Bunton being offered a different position, was initiated by Mr Bunton who had discovered that the employee who had previously performed his job, was returning to Caloundra Removals.

To what degree was it likely that the size of Caloundra Removal’s enterprise would impact on the procedures followed in effecting the dismissal?

[48] There is insufficient evidence in relation to the size of the enterprise for me to draw a conclusion about this matter.

To what degree was it likely that the absence of dedicated human resource management specialists or expertise in the enterprise would impact on the procedures followed in effecting the dismissal?

[49] I assume, from the deficiencies in the conduct of the case on behalf of Caloundra Removals, that it does not have a dedicated human resource management specialist. It is likely that the absence of such a specialist impacted on the procedures followed in effecting the dismissal.

Other relevant matters

[50] There are no other matters I consider to be relevant to whether Mr Bunton’s dismissal was unfair.

CONCLUSIONS

[51] After weighing all of the matters required to be considered pursuant to s.387 of the Act, I have decided that the dismissal of Mr Bunton was unfair because it was harsh, unjust and unreasonable. The dismissal was harsh, because it had consequences for the personal and economic circumstances of Mr Bunton. Mr Bunton was dismissed while he was absent on sick leave. He had difficulty obtaining other employment. Mr Bunton’s personal relationship broke down and he attributed this to the stress associated with his dismissal.

[52] I am also of the view that the dismissal was harsh because it was disproportionate to the gravity of the conduct engaged in by Mr Bunton. On the evidence given by Mr M Craig, the issue of discrepancies in time sheets was raised with Mr Bunton at a meeting in the week prior to 19 February 2010, and shortly thereafter Mr M Craig offered Mr Bunton a different position with Caloundra Removals. It was only after Mr Bunton indicated concerns about his capacity to undertake this position, and went on sick leave due to work related stress, that the dismissal was effected. If Mr M Craig genuinely viewed the discrepancies in the time sheets as being so serious as to justify Mr Bunton’s dismissal, it is unlikely that he would have offered Mr Bunton another position. The statement in the Response to the application filed by Caloundra Removals, and repeated by Mr M Craig under cross-examination, to the effect that Mr Bunton would possibly still be working for the Company if he had accepted the other position, is also indicative that Mr M Craig did not view the discrepancies in the time sheets as misconduct on the part of Mr Bunton, which justified dismissal.

[53] The dismissal was unjust, because the decision to dismiss Mr Bunton was taken without any discussion about the allegations in relation to the time sheets, and with no opportunity being given to Mr Bunton to defend himself.

[54] The dismissal was also unreasonable because it was decided on inferences that could not reasonably have been drawn on the basis of the material before the employer. When the decision was made to dismiss Mr Bunton on the ground that he had falsified his time sheets, there had been no discussion with Mr Bunton in relation to this allegation. Had there been such a discussion, Mr Bunton may have been able to satisfactorily explain the discrepancies, or if he could not explain them, to come to some arrangement with the Company about rectifying any overpayment resulting from the discrepancies. In the absence of such a discussion it was unreasonable for Mr M Craig to infer that Mr Bunton’s conduct was serious enough to warrant summary dismissal.

REMEDY

[55] I am satisfied, as required by s.390(1) of the Act, that Mr Bunton was protected from unfair dismissal at the time he was dismissed. I am also satisfied that Mr Bunton was unfairly dismissed and that a remedy should be ordered. As required by s.390(2), Mr Bunton has made an application under s.390(4) of the Act.

[56] Mr Bunton does not seek reinstatement. Immediately prior to his dismissal, there was a proposal to change Mr Bunton’s job, and Mr Bunton objected to this. The employee Mr Bunton replaced has returned to the Company and even if Mr Bunton sought reinstatement, that person has been employed in the position Mr Bunton held. In these circumstances, reinstatement is not an appropriate remedy. I am also of the view that an order for compensation is appropriate in all of the circumstances of the case.

[57] Considering the factors I am required to take into account in determining an amount of compensation, as provided in s.392(2) of the Act, I have come to the following conclusions.

[58] In relation to the effect that an order would have on the viability of Caloundra Removals, there is evidence that the net profit for the financial year ending 30 June 2009, was nil and that in the financial year ending 30 June 2010 any profit would be minimal. I am satisfied that any Order for compensation will impact on the viability of the business of Caloundra Removals, and this is a factor I have taken into account in calculating compensation for Mr Bunton.

[59] Mr Bunton had less than two years service with Caloundra Removals.

[60] In relation to the remuneration that Mr Bunton would have received, or would have been likely to receive had he not been dismissed I am of the view that Mr Bunton would not have remained in employment with Caloundra Removals for a lengthy period of time. I base this conclusion on the nature of Mr Bunton’s employment contract. That contract does not specify that Mr Bunton is employed in any particular capacity and it would have been open to Caloundra Removals to redeploy Mr Bunton to another role. The evidence establishes that he was initially employed as an operations assistant, and obtained the role of sales person when another employee left the Company for personal reasons. The employee Mr Bunton replaced was intending to return to work. Immediately before his dismissal, Mr Bunton was offered another role, that of off-sider on the truck at the same wage rate but on a casual basis. Mr Bunton did not look favourably upon this offer, and had Mr Bunton not been dismissed, it is unlikely that he would have accepted the role. In my view it is likely that Mr Bunton would have remained in employment with Caloundra Removals for no more than twelve weeks past the date of his dismissal.

[61] Mr Bunton would have earned an amount of $15,774.00 had he remained in employment for that period. There was no evidence that Mr Bunton was paid notice on termination of his employment and no deduction can be made in this regard. Mr Bunton was not successful in obtaining alternative employment during the period of twelve weeks after his dismissal, and any earnings from alternative employment did not commence until some five months after the dismissal. Mr Bunton did not provide evidence about social security payments received by him after his dismissal. Mr Bunton was not cross-examined about this matter. In the absence of evidence on this point, and in light of the fact it was not pursued by Caloundra Removals, I am not prepared to discount the award of compensation to take such payments into account.

[62] In relation to mitigation Mr Bunton said that he had made significant attempts to obtain alternative employment and is prepared to work outside his previous field of employment. That evidence was not challenged and I am satisfied that reasonable attempts were made by Mr Bunton to mitigate the loss of his employment, and that no deduction should be made from the amount of compensation awarded for Mr Bunton’s unfair dismissal in this regard.

[63] I am of the view that an amount of 25% should be deducted for contingencies. In particular, there was evidence that a restructuring of the business was taking place involving Mr M Craig coming back into the business, and Mr Cooper working as a supervisor on the truck. There was also evidence that the business was not making a profit. In light of these matters, there is a possibility that Mr Bunton may have been dismissed due to restructuring or economic downturn. The 25% deduction from the remuneration Mr Bunton would have been likely to receive had he not been dismissed, results in an amount of $11,830.50 gross.

[64] Given that the period I have determined as the basis for calculating remuneration likely to have been received is twelve weeks, I can see no basis for making an addition or a deduction for the period between the making of this order and the actual compensation. I am not satisfied that Mr Bunton engaged in misconduct, to the extent that compensation should be reduced on this ground. The amount of compensation of $11,830.50 gross is less than the compensation cap in s.392(5) of the Act, and no further reduction can be made for that reason.

[65] Accordingly an Order will issue with this decision that Caloundra Removals & Storage Pty Ltd pay to Mr Craig Bunton, the amount of $11,830.50, less taxation deductions as required by law, within 14 days of the date of release of this decision.

COMMISSIONER

Appearances:

Mr J. Fuhrman-Luck on behalf of the applicant.

Mr C. Craig and Mr M. Craig on behalf of the respondent.

Hearing details:

2010.

Maroochydore:

September 13.

 1   Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-468 per McHugh and Gummow JJ.

 2   Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 3   Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

 4   Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 Aguust 2003, per Gray J.

 5   Walton v Mermaid (1996) 142 ALR 681 at 685.

 6   Exhibit 1 Statement of Craig Bunton Annexure “A”.

 7   Exhibit 1 - Statement of Craig Bunton Annexure “B”.

 8   Exhibit 1 - Statement of Craig Bunton Annexure “C”.

 9   Exhibit 1 paragraphs 79 - 87.

 10   Exhibit 1 - Statement of Craig Bunton Annexure “C”.

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