Mr Dale Cockroft v InterPark Australia Pty Ltd T/A InterPark Australia
[2015] FWC 7721
•30 NOVEMBER 2015
| [2015] FWC 7721 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Dale Cockroft
v
InterPark Australia Pty Ltd T/A InterPark Australia
(U2014/15421
DEPUTY PRESIDENT BULL | SYDNEY, 30 NOVEMBER 2015 |
Application for relief from unfair dismissal, on-going poor performance, complaints from staff, summary termination, application dismissed.
[1] On 21 November 2014, Mr Dale Cockroft (the applicant) made an application seeking a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Cockroft’s employment had been terminated by InterPark Australia Pty Ltd (the respondent/InterPark) on 13 November 2014.
[2] The originating application form (F2) named “InterPark” as the employer. The Employer’s Response (F3) identifies the legal name of the employer/respondent as being InterPark Australia Pty Ltd trading as InterPark Australia.
[3] On 17 March 2015, the applicant filed an amended application F2 and submissions with respect to the correct legal name of the respondent to be InterPark Australia Pty Ltd. Pursuant to s.586(a) of the Act, the application is amended to reflect the name of the true and correct employer.
[4] Mr Cockroft commenced employment with InterPark in or around April 2008 as a parking attendant and subsequently as a cleaner. Mr Cockroft was engaged as a casual employee, however working up to 104 hours per fortnight at the time of dismissal. 1
[5] In the originating application, the applicant sought reinstatement and 6 months’ pay as compensation, subsequently in the amended application, and later in the proceedings Mr Cockroft sought 6 months’ pay, no longer seeking reinstatement. Since his dismissalhe has obtained a job as a full-time cleaner and part-time kitchen hand. 2
[6] The matter was the subject of telephone conciliation on 16 December 2014; however, the matter was not resolved. The matter was subsequently referred to me for determination and was initially listed for hearing on 12 and 13 March 2015.
[7] The matter was heard over six days:
i. 12 March 2015
ii. 30 March 2015
iii. 22 April 2015
iv. 8 May 2015
v. 22 July 2015; and
vi. 23 July 2015
[8] Mr Jethro Horowitz, a solicitor from Sweeney Tiggemann Solicitors appeared on the applicant’s behalf and Mr Peter Stewart Managing Director of InterPark appeared for the respondent and also gave evidence later in the proceedings. Mr Horowitz was granted leave to appear for the applicant on 30 March 2015 pursuant to s.596 of the Act which was not opposed by the respondent.
[9] Mr Cockroft, the applicant did not attend the first day of the hearing 12 March 2015, citing illness and stress 3, and he also did not attend 3 other hearings4.
[10] Mr Lindon Johnsson, Car Park Manager for the respondent assisted Mr Stewart in the proceedings and provided a written statement. At the initial hearing on 12 March, the applicant advised the Fair Work Commission (the Commission) that Mr Johnsson was not required for cross examination by the applicant 5. Subsequently on 30 March, Mr Horowitz advised that he now intended to cross examine Mr Johnsson in relation to his written statement. On this basis, Mr Johnsson was instructed to vacate the hearing room whilst the applicant gave his evidence.
Background
[11] Domain car-park is one of the car-park sites that is operated by InterPark Australia Pty Ltd, at which the applicant, Mr Cockroft was employed. Mr Cockroft had worked at the Domain car-park for approximately 6.5 years commencing employment in around April 2008, until he was dismissed on 13 November 2014. Mr Cockroft was originally providing services as a car-park attendant, and subsequently assigned to the role of a cleaner in or around June 2012. Mr Cockroft was engaged as a casual employee and was covered by the Car Parking Award 2010 (the Award) at the time of his dismissal.
[12] At the time of his dismissal, Mr Cockroft was working 40 hours per week with an hourly rate of $22.94, which is the hourly casual rate as per the Award.
[13] The respondent terminated Mr Cockroft’s employment on 13 November 2014 without notice for gross misconduct and neglect of duty. 6
Submissions and evidence of Dale Cockroft
[14] Mr Cockroft provided submissions, 7 two written statements,8 gave evidence and was subject to cross examination by Mr Stewart on behalf of the respondent. Mr Cockroft did not call any witnesses in support of his application.
[15] Mr Cockroft has been employed by InterPark for approximately 6.5 years, he commenced in May 2008. Initially Mr Cockroft worked as a cashier/cleaner from 6.00am until 11.30am every Saturday for approximately 6 weeks with a gradual increase in hours and shifts. In or around January 2009 Mr Cockroft started working 6.5 hour shifts per evening Monday to Friday, 12 hours on Saturday and 5.5 hours on Sundays.
[16] In or around mid-June 2012, InterPark restructured the company such that the contract cleaner who was employed at the time was dismissed and Mr Cockroft was subsequently engaged as a casual cleaner working Monday to Friday 4pm till 12.30am.
[17] On 27 June 2013 Mr Cockroft sustained personal injuries due to an attack on him on his journey home from work, and was off work till 31 July 2013. Upon his return to work Mr Cockroft was assigned to ‘remote monitoring duties’ as he was unable to perform cleaning duties due to an injured leg sustained from the attack and only working 25 hours per week for a period of one month.
[18] By January 2014, Mr Cockroft was working up to 80 hours per fortnight, and by May 2014 up to 104 hours per fortnight and continued to do so up until his dismissal. 9
[19] Mr Cockroft submits that he was dismissed by the respondent 13 November 2014 for unsatisfactory performance and that the dismissal was without proper warning or valid reason, and denies the allegations of fraudulently signing timesheets or displaying abusive behaviour as cited by the respondent. Mr Cockroft also denied allegations of drug use during working hours as suggested by the respondent. He stated that he had never smoked marijuana prior to or during a shift. The marijuana smell was from homeless people and backpackers who frequented the car park.
[20] Mr Cockroft also submitted that the respondent did not provide him with a ‘valid’ reason for his dismissal or any warnings leading up to the dismissal. Accordingly, the termination was harsh, unjust and unreasonable as ultimately, he was not provided an opportunity to respond to the allegations, all of which are untrue but that ultimately led to his dismissal.
[21] Mr Cockroft stated that on the day of his termination he was told by Mr Moylan the respondents Operation Manager:
“It is difficult to manage an employee in this role. It is better to have contractors. And we’ve had issues with your cleaning in the past. We are going to replace you with contractors effective immediately. They have started today”
[22] Mr Cockroft states that he was not provided with an opportunity to respond and was terminated without notice, receiving three days’ pay after his termination.
[23] With respect to the warnings the respondent relies on, the applicant refutes that these constitute as ‘warnings’ and that during his period of employment with the respondent, he has received only 2 warnings, being that of 24 July 2012 and 22 March 2013. Mr Cockroft provided the following explanations in relation to the written warnings that are relied upon by the respondent. It is submitted that apart from the 2 warnings of 24 July 2012 and 22 March 2013, he had an unblemished employment record.
Warnings/Complaints
Letter from Mr Peter Stewart dated 24 July 2012
[24] With respect to the warning letter from Mr Stewart dated 24 July 2012 10, InterPark’s Managing Director concerning issues with customer service, the standard of cleaning and repeated lateness, Mr Cockroft recalled that on or about 20 July 2012, he had a conversation with Mr Stewart who said words to the effect of ‘Overall you are doing an ok job. Please pay more attention to the travelators’ and then showed Mr Cockroft a customer complaint.
[25] As Mr Cockroft was only recently, at the time; assigned to the role of a cleaner, he was of the belief that Mr Stewart’s comment was positive feedback of his performance. Mr Cockroft later discussed this with Mr Johnsson, the car-park manager who told him to continue to mop the travelator at the end of every night. Mr Cockroft agreed and continued to do so every night.
[26] In his evidence Mr Cockroft was reluctant to accept the warning as being justified and provided explanations for his conduct at the time.
Email from Mr Mick Moylan dated 30 January 2013
[27] Mr Cockroft submits that the email dated 30 January 2013 11 from Mr Mick Moylan to himself does not constitute as a ‘warning’, much less a ‘written warning’, and that the email does not make it clear that the applicant’s employment is at risk unless the performance issue identified was addressed. The email reads:
“I refer to our discussion on 29 January 2013 regarding a situation that developed during your shift at the Bond Store One car park on Monday, 28 January.
I have your apology and statement that states you recognise the improvement in your performance as needed and you now fully understand the responsibility you have in monitoring all car parks in a diligent manner.
It is of utmost importance for you to understand that relying solely on the intercom as a means of awareness of a car park problem is not acceptable. A hand over process must be in place whereby you check all car parks when replacing another staff member. … This role requires you to be proactive and look for issues, not sit back and wait for a call that may never arrive … .
I look forward to a greater commitment from you to your duties as part of the remote monitoring team.”
[28] In relation to the events that led to him receiving the email, Mr Cockroft recalls that on or about 28 January 2013, he was on remote monitoring duty which required him to often leave his desk to attend to customers which may have led to a customer not being able to communicate with staff due to a failed intercom and his absence from the counter. Mr Cockroft did not accept full responsibility for the event that precipitated this memo.
[29] On 22 March 2013, a memo 12 was sent to Mr Cockroft by Mr Lyndon Johnsson the respondent’s car park manager; regarding the applicant’s unsatisfactory level of cleaning stating it was a final warning with termination of employment a likely outcome for ‘non-compliance’.
[30] It was put to Mr Crockroft in cross examination that he had been frequently late for work. This was not accepted by Mr Cockroft. Mr Cockroft was shown text messages he had sent to Samantha Dillon the assistant car park manager at Domain, advising he would be late for work. Mr Cockroft said he sent these out of courtesy and they did not mean that he actually arrived at work late. The timesheets for these periods indicated that Mr Cockroft signed on at work as having arrived on time 13.
[31] Mr Cockroft stated he believed he performed his work in a satisfactory manner despite having received three written reprimands regarding his work performance.
Submissions of the Respondent
[32] On behalf of the respondent, Mr Peter Stewart, the respondent’s Managing Director made submissions and gave evidence, Mr Stewart also called on a number of witnesses in support of the respondent’s case (Mr Jose Le Roy’s statement had been filed as part of the respondent’s case but was withdrawn during the course of the proceedings) 14:
1. Samantha Dillon, Domain car-park supervisor/assistant manager
2. Naeem Khan, Domain car-park attendant and remote monitor
3. Sami Uddin, Domain car-park attendant and remote monitor
4. Lindon Johnsson, Operations manager; and
5. Mick Moylan, NSW operations manager
[33] The respondent submitted that Mr Cockroft’s employment was terminated for dereliction of duty and gross misconduct including:
1. Repeated fraudulent behaviour by being consistently late for work but signing in on time;
2. Total failure to perform his cleaning duties satisfactorily and trying to avoid detection of company management;
3. Making a complete mess of company property so that it was rendered unusable by other staff members;
4. Aggressive behaviour towards customers (which resulted in a role change from car park attendant to cleaner); and
5. Aggressive, abusive behaviour towards his supervisors Samantha Dillon and colleague Sami Uddin.
[34] Mr Cockroft’s abusive behaviour toward his supervisor and colleagues in conjunction with ‘on-going fraudulent behaviour’ and neglect of duties are specified as being the ultimate incidents which led to the decision to terminate Mr Cockroft’s employment. At the time of termination, Mr Cockroft was advised that it was due to his ‘totally unsatisfactory performance’ that he was to be replaced so as to ensure a reasonable standard of cleaning.
[35] Whilst there were a number of under-performance issues with the applicant’s work, which were conveyed to the applicant, it was put by the respondent that it was a culmination of these issues including the neglect of his duties and his aggressive behaviour, which justified his termination without notice.
[36] Contrary to the applicant’s submissions, it is submitted that the respondent had issued numerous verbal and written warnings to Mr Cockroft, and that his employment history was anything but unblemished. The respondent tendered various material as evidence that such verbal and written warnings were issued to the applicant in relation to his work performance. These included:
● 24 July 2012 - written warning from Mr Steward
● 30 January 2013 – written warning from Mr Moylan
● 22 March 2013 – warning memo from Mr Moylan
[37] The written warning from Mr Peter Stewart dated 24 July 2012 15 states:
“Further to our meeting on Friday evening, I wish to confirm that the performance of your duties in your new role as cleaner is, to date, unsatisfactory. This is particularly concerning as you have been moved to this role due to:
i. Your unsatisfactory performance in terms of customer service in your previous role;
ii. The need to provide a high standard of living in this very high profile car park.
……………..
Also of concern is your repeated lateness and what can only be described as “the inaccuracy” of the timesheets you sign off on at times. Please ensure there is a significant improvement in all areas of your work performance or you will face a reduction in your hours or termination of your employment.
(My underline)
[38] The written warning from Mr Mick Moylan 16 , NSW operations manager dated 30 January 2013 states:
“I refer to our discussion on 29 January 2013 regarding a situation that developed during your shift at the Bond Store One car park on Monday, 28 January.
I have your apology and statement that states you recognise the improvement in your performance us needed and you now fully understand the responsibility you have in monitoring all car parks in a diligent manner.
It is of utmost importance for you to understand that relying solely on the intercom as a means of awareness of a car park problem is not acceptable. A hand over process must be in place whereby you check all car parks when replacing another staff member.”
[39] Warning memo from Mick Moylan titled ‘cleaning issues’ and dated 22 March 2013 17 states:
“Dale
This memo is to clarify the issues raised at my recent meeting with you and Lindon.
Unsatisfactory level of cleaning:
● You were advised that the general state of cleaning is not to the standard expected.
● Raised and discussed with you was that there have been previous complaints about the standard of cleaning that you have been advised of and given the opportunity to address.
● I stated that you are replacing a contractor and if the standard of cleaning did not improve then we would seriously consider sub-contracting the cleaning instead of having it done in-house.
● It was agreed that you would use the checklist each night and indicate on this list what cleaning had been done and your comment/s about any cleaning issue you wished to raise.
● It was stated that the cleaning standard was to improve immediately following our meeting and non-compliance would not be accepted.
● This is your final warning about the standard of cleaning with termination if employment a likely outcome for non-compliance.
You should take this opportunity to carefully read and fully understand the meaning of this memo and raise any issues with it with Lindon or myself. This should be done ASAP.”
[40] To support the respondent’s case for the applicant’s lack of cleaning, Mr Stewart referred the Commission to photos of the car-park’s disused shower room now used as a storeroom occupied exclusively by Mr Cockroft. 18
[41] The respondent also referred to material to demonstrate the applicant’s unacceptable behaviour including:
● Email from Mr Cockroft to Mr Johnsson which contained swear words in reference to customers at the car park and
● Complaint from a customer dated 31 May 2015 which refers to that customer being verbally assaulted by Mr Cockroft. 19
Evidence of Mr Peter Stewart
[42] Mr Stewart is the Managing Director of InterPark, and stated in his evidence that he made the decision to terminate Mr Cockroft’s employment on 12 November 2014 without notice for gross misconduct and neglect of duty 20. His reasons included extremely poor performance over a number of years which was finally brought to a head by two incidents, these being the applicant’s:
1. Aggressive behaviour towards his supervisor, Samantha Dillon on or about 20 October 2014; and
2. Aggressive behaviour resulting in a written complaint from Sami Uddin (Mr Cockroft’s fellow colleague) on 10 November 2014.
[43] With respect to the alleged aggressive behaviour from Mr Cockroft to Ms Dillon, the incident involved Mr Cockroft refusing to perform his duties as a cleaner and verbally abusing/swearing about his manager Lindon Johnsson to Ms Dillon in an aggressive manner. 21. Ms Dillon then warned Mr Cockroft that it was his job to clean toilets, which he had been requested to do. Mr Cockroft then left the office, failed to clean the toilets as instructed and went to the storeroom in the car park which he used and did not reappear for the next half an hour, which was when Ms Dillon left the work premises. Mr Stewart stressed the importance that the toilets needed to be cleaned before the afternoon peak period at 3.30pm.
[44] With respect to the complaint from Sami Uddin, a letter was written from Mr Uddin to Mr Johnsson 22, the car park manager noting Mr Cockroft’s ‘aggressive behaviour’. Mr Uddin’s letter arose from him requesting Mr Cockroft take-over from his shift on 10 November 2015, 1.5 to 2 hours earlier than normal, as he was exhausted from working long continuous shifts, and wanted to leave 2 hours earlier than normal. In response to Mr Uddin’ s request for Mr Cockroft to relieve him 2 hours earlier, the response from Mr Cockroft was “Ok, I will come 2-3 minutes early”. Mr Uddin then repeated that he wished for Mr Cockroft to take over from him 2 hours earlier, and not 2-3 minutes. Following this, Mr Cockroft displayed aggressive behaviour toward him which prompted him to write the letter to Mr Johnsson.
[45] Mr Uddin’ s letter refers to Mr Cockroft displaying aggressive behaviour, constant lateness to work but signing in on time, as well as general tardiness. The letter in part, reads:
“………………………
After that he started shouting on me his behaviour was too aggressive and abusive…….. his body language was aggressive too.
…………………………
Most of the time he comes late not only10 or 15, 20 minutes sometimes even more than 1 and a 1/2 hours but I never say anything to someone about him. He never cleans properly the car park on Sunday…I never seen him even on any single cameras that he is doing cleaning on Sunday. First couple of weeks when he started new 12.30 start time shift on Sunday, he used to come around 3.40 or sometimes 3.50pm and he always writes on his timesheet 12.30pm start time. Is it not cheating?
He puts mop buckets in front of northern stairs and in front of toilets and pretends that he is doing cleaning……”
[46] In his witness evidence, Mr Stewart stated that had wanted to take harsher action against Mr Cockroft on several occasions previously due to his performance but had not done so due to Mr Johnsson and Ms Dillon supporting Mr Cockroft’s continued employment. 23 It was not until the event of the incident regarding the ‘aggressive behaviour’ toward Ms Dillon that Mr Johnsson stated to Mr Stewart that he would no longer support Mr Cockroft’s continued employment.
[47] With respect to not having taken action sooner after the incidents having occurred, Mr Stewart stated that he was on leave from work in between the time of the occurrences of the two incidents culminating in his decision to terminate Mr Cockroft’s employment, that is from early November he was on leave for a couple of days but was not aware of the incidents till after his return from leave. 24
[48] With reference to the date of dismissal not having occurred till some 4 days after the second incident (receipt of Mr Uddin’s letter), Mr Stewart stated that the date of dismissal was the date when the evidence about the extent of Mr Cockroft’s misbehaviour and his abusive behaviour towards the other members of staff was drawn to his attention. 25
[49] Mr Stewart further pointed to Mr Cockroft’s alleged smoking of marijuana during work hours as unacceptable, although when questioned by the Commission agreed that this was not bought to his attention until after Mr Cockroft’s dismissal. 26
[50] Mr Stewart stated that the respondent’s dissatisfaction toward Mr Cockroft regarding his underperformance of his cleaning duties had been expressed to him on a number of occasions. 27
[51] Mr Stewart stated that InterPark does not have a dedicated human resources department, despite it employing over 70 employees. Mr Stewart’s evidence was that InterPark has accumulated a loss in revenue over the last ten years of operation of $281,000. 28 Mr Stewart, on behalf of the respondent provided evidence with respect to the respondent’s financial losses29.
[52] During his evidence, Mr Stewart admitted to having committed a number of mistakes in terms of procedure and management of the applicant 30, however, justified this with InterPark’ s philosophy for providing a supportive workplace for staff.
[53] With respect to why the applicant was engaged as a casual employee when his hours of work were that of a full time employee, Mr Stewart stated that this was in part due to Mr Cockroft’s hours of work having varied greatly throughout his employment. However, when Mr Cockroft’s hours of work did stabilise, he was asked to be engaged as a full-time employee on two occasions, which he declined. It was submitted that Mr Cockroft wished to stay engaged as a casual employee due to the higher casual rate to generate more income on a weekly basis. 31 Accordingly, as Mr Cockroft was engaged as a casual employee, he was not provided with any notice.32
[54] With respect to the alleged fraudulent signing of time sheets by Mr Cockroft, under cross examination by Mr Horowitz, Mr Stewart stated that InterPark worked on a trust system with respect to the signing of timesheets. InterPark relied on the trust and good faith of its employees to accurately and honestly complete their time sheets, which supervision then accepted as being correct. 33 Mr Stewart stated that Mr Cockroft had fraudulently completed in his timesheets by claiming wages for time not worked.
[55] It was Mr Stewart’s decision to terminate Mr Cockroft’s employment and he instructed Mr Moylan to carry out this task. In doing so he instructed Mr Moylan not to advise Mr Cockroft of Mr Uddin’s letter or Ms Dillon’s complaint because in his view both had already been subject to Mr Cockroft’s abusive and aggressive behaviour and he did not want to put them in a position where they may be exposed to a repeat of this behaviour.
[56] Mr Stewart’s evidence was that over Mr Cockroft’s employment he had been extremely fair and compassionate towards Mr Cockroft. In his opinion he and his managers had been manipulated by Mr Cockroft over time where he would cry and plead his case and they would be sympathetic to him to the disadvantage of other staff. He allowed Mr Cockroft to be allocated Sunday work on a permanent basis where he would receive a Sunday penalty rate of double time because Mr Cockroft had said he needed the extra income.
[57] Mr Cockroft was also allowed to start in the afternoon to suit his personal circumstances. It was put by Mr Stewart, that these concessions afforded to Mr Cockroft were to the disadvantage of other staff. Mr Stewart stated he had reached the stage where he was not prepared to make any further exceptions for Mr Cockroft.
Evidence of Samantha Dillon
[58] Ms Samantha Dillon is the Car Park Supervisor at the Domain car-park 34 who provided a witness statement35 for the respondent and gave evidence.
[59] Ms Dillon had worked with Mr Cockroft for approximately 6.5 years, and stated that during this time Mr Cockroft would often be late to work. 36 Ms Dillon stated that Mr Cockroft’s shifts started at 3pm every afternoon, and that 95% of the time, he would arrive late, ranging between 15 to 45 minutes later than the rostered start time.37
[60] With respect to the incident of 20 October 2014, Ms Dillon stated that Mr Johnsson had requested Mr Cockroft arrive early to work early one afternoon to clean the toilets as they needed extra attention 38. Mr Cockroft did not arrive early as requested but also five minutes late. Mr Cockroft then stated:
“It’s not my f**king job, I’m not a cleaner nor did I choose to be a f**king cleaner” 39.
[61] Ms Dillon stated that this was said in an abusive tone. 40 Ms Dillon acknowledged that other staff including her swore at work, but did not abuse each other by swearing like Mr Cockroft.
[62] Ms Dillon stated that it was Mr Cockroft’s job to clean the toilets 41 and she stated this to Mr Cockroft and told him that he had to clean the toilets.42 Following this, Mr Cockroft disappeared to his room for the next half an hour and Ms Dillon did not see him again that day as she left work.
[63] Ms Dillon also gave evidence to the effect that she often smells marijuana from Mr Cockroft’s room 43 and that when he starts work, at times his eyes are ‘glassy’.44Despite this, she took no action to address Mr Cockroft’s alleged marijuana smoking, although she had no authority to issue a written warning.
[64] Mr Uddin approached her at work to complain about Mr Cockroft and she advised him to put it in writing and give it to Mr Johnsson which he did.
Evidence of Sami Uddin
[65] Sami Uddin, a car park attendant and remote monitor at the Domain car-park provided a written statement 45 and gave oral evidence.
[66] Mr Uddin has worked with the applicant for approximately 1.5 years and stated that Mr Cockroft often “cheats on his timesheet,” 46 arrives to work late but records his intended start time rather than his actual arrival time. Mr Uddin also stated that Mr Cockroft behaves aggressively toward him as well as towards customers.
[67] Mr Uddin explained the reasons for his letter to Mr Johnsson of 10 November 2014 describing Mr Cockroft’s behaviour as aggressive and abusive and that Mr Cockroft was often late to work, but would still sign in as having arrived to work on time. Mr Uddin stated that Mr Cockroft would often arrive up to 2 and 3 hours later than the actual recorded start time. 47
[68] Mr Uddin recounted the events that culminated in him writing the letter, which was due to Mr Cockroft not complying with his request for Mr Cockroft to take over from his shift 2 hours earlier than scheduled, so that he could leave work early. It was stated that he wrote the letter following his shift on the same day as the incident having occurred, being 10 November 2015 48 and submitted it the following day.
[69] Mr Uddin further stated that when he takes over a shift from Mr Cockroft, he would often observe the smell of marijuana 49 in the office. In cross examination, Mr Uddin stated that he had never reported Mr Cockroft’s marijuana use to management or the police.50
Evidence of Naeem Khan
[70] Mr Naeem Khan is employed by the respondent as a car-park attendant and remote monitor. Mr Khan provided a witness statement 51 and gave evidence.
[71] Mr Khan had worked with the applicant for a period of approximately 2.5 years. Mr Cockroft and Mr Khan worked together on the Monday to Friday roster, and Mr Cockroft would take over the afternoon shift from Mr Khan on the Sunday roster. 52
[72] Mr Khan stated that Mr Cockroft was often late to work, and at times, would arrive to work 3 hours after his start time of 12.30pm. 53 Further, when Mr Cockroft is on duty, he is often hard to locate.
[73] Mr Khan in his evidence went on to state that it was his observation that Mr Cockroft would use marijuana at work 54 and not attend to his duties even when required. He had made these observations as he could smell marijuana either on his person or in his room which was exclusively occupied by him. Later, during cross examination, Mr Khan stated that he had seen Mr Cockroft smoke marijuana, despite this not being contained in his written statement.55
[74] The bulk of Mr Khaan’s oral evidence elaborated on Mr Cockroft’s work ethic and the alleged use of marijuana at work. Mr Khan’s evidence did not address the two events which led to the termination of Mr Cockroft.
Evidence of Lindon Johnsson
[75] Mr Johnsson has worked as the car-park manager of the Domain car-park for 8.5 years and is currently employed as the Operations Manager with InterPark 56. He had worked with Mr Cockroft for approximately 6.5 years until Mr Cockroft’s dismissal. Mr Johnsson stated that the applicant’s initial performance, toward the beginning of his employment was satisfactory but that soon into his employment, he was often late. Mr Johnsson did not issue any warnings for his lateness but rather ‘gently chided’ him on his lack of punctuality.57
[76] At point 4 of Mr Johnsson’s statement he states that the applicant’s lateness became so habitual that Mr Cockroft was required to call Mick Moylan, the Operations Manager on the Sunday shift upon his arrival as a procedural formality. However, this procedure soon lapsed.
[77] With respect to Mr Cockroft’s lateness and underperformance at work, Mr Johnsson stated in his evidence that Mr Moylan had issued formal warnings to Mr Cockroft, and that Ms Dillon and himself had issued the applicant with informal warnings. 58On one occasion he intervened to prevent Mr Cockroft being terminated for calling a customer a ‘silly bitch’. Mr Johnsson’s evidence was that he did not report Mr Cockroft’s poor performance to management as often as he should have.
[78] With respect to the applicant’s abusive behaviour toward Ms Dillon on 20 October 2014, which the respondent alleges had ultimately led to the Mr Cockroft’s dismissal, Mr Johnsson stated that he had called Mr Cockroft to go into work half an hour earlier than his scheduled shift, to clean the disabled toilet which was in a ‘disgusting’ state 59. Cleaning the toilet was the cleaner’s job and he was also mindful that Mr Cockroft wanted to work more hours, which was why he thought that Mr Cockroft would appreciate the extra half hour of work.
[79] Following the incident, Ms Samantha Dillon then reported to Mr Johnsson that Mr Cockroft did not react well to Mr Johnsson’s request and cursed Mr Johnsson for having called him into work to clean the toilet. 60
[80] During Mr Johnsson’s evidence under cross examination, regarding the accuracy of Mr Cockroft’s timesheets, which Mr Johnsson was responsible for, he stated that he had signed the timesheets without knowledge of whether the times of work were accurately recorded, and this was done so on the basis that Mr Johnsson did not like conflict. 61
Witness evidence of Mick Moylan
[81] Mr Moylan is the NSW Operations Manager for the respondent whom has worked with Mr Cockroft for approximately 6 years and 8 months. Even though he signed off on Mr Cockroft’s timesheets he had no idea whether they were the actual hours worked.
[82] Mr Moylan stated that the applicant had been subject to disciplinary procedures as a result of his lack of punctuality 62. This involved Mr Cockroft having to call Mr Moylan at the commencement of his Sunday shift to ensure that he had arrived on time. However, this procedure was not upheld for very long.63 On two occasions he had asked Mr Cockroft to work fulltime and on both occasions he declined.
[83] With respect to Mr Cockroft’s level of cleaning, Mr Moylan stated that he understood this issue was raised with Mr Cockroft by Mr Johnsson. 64 A culmination of Mr Cockroft’s sub-standard cleaning performance and lack of punctuality led to a boardroom meeting at the Sydney head office on 22 March 2013, where Mr Cockroft, Mr Johnsson and himself were in attendance.65
[84] At that meeting, Mr Cockroft was advised that his level of cleaning was below standard and stated in conclusion:
“This is your final warning about the standard of cleaning with termination of employment a likely outcome for non-compliance.”
[85] Mr Moylan stated that he spent more time on Mr Cockroft’s poor performance than any other employee. Cleaning issues in the car park were regularly raised and discussed at the fortnightly operations meetings leading up to his termination.
[86] Mr Moylan’s evidence referred to the complaint of aggressive behaviour from Mr Cockroft toward Ms Dillon on 20 October 2014, which was reported to him by Ms Dillon 66, and Mr Uddin’s complaint letter of 10 November 2014 regarding Mr Cockroft’s work behaviour and attitude.
[87] Following these complaints a decision was reached that for the sake of the staff, Mr Cockroft’s behaviour could no longer be tolerated. On instruction from Mr Stewart, Mr Moylan held a meeting with Mr Cockroft on 13 November 2014 67 and advised Mr Cockroft that as a result of his poor cleaning which was not up to standard, he was terminated.68 As a result, cleaning would be split into two shifts and performed by a contractor. He did not advise Mr Cockroft of the complaints from Ms Dillon or Mr Uddin for fear of retribution by Mr Cockroft against the complainants. 69 Mr Cockroft responded by stating that it was unfair, but did not discuss the reasons given.
Relevant Legislation
[88] In considering whether the dismissal was harsh, unjust or unreasonable, the Commission must take into account the provisions under s.387 of the Act which states:
“(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 the FWC considers relevant.”
[89] I now turn to consider these provisions.
Consideration under s.387
a) Whether there was a valid reason related to capacity or conduct for the dismissal
[90] There must be a valid reason for the dismissal of the applicant which is related to the applicant’s capacity or conduct.
[91] Mr Cockroft was terminated without notice for gross misconduct and neglect of duty including abusive bullying behaviour towards work colleagues. The respondent’s evidence relies heavily on the applicant’s consistent lateness to work, lack of cleanliness, sub-standard work behaviour and “aggressive” attitude.
[92] I am satisfied that Mr Cockroft was made sufficiently aware of the issues raised by the respondent with respect to his lateness and general underperformance of his duties as a cleaner. These warnings have been discussed previously:
● 24 July 2012 - written warning from Mr Steward
● 30 January 2013 – written warning from Mr Moylan
● 22 March 2013 – warning memo from Mr Moylan
[93] In cases of summary dismissal, the respondent bears the onus of establishing the serious misconduct that justifies the summary termination having occurred. The test this Commission applies under the Act 70 is whether the employer can demonstrate it had reasonable grounds for holding the belief the employee is guilty of misconduct.
[94] It is well established that a valid reason is one which is sound, defensible or well-founded but not capricious, fanciful, spiteful or prejudiced 71', and is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable’.72
[95] Selvachandran v Peteron Plastics Pty Ltd 73stated that in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly ...”
[96] In Parmalat Food Products Pty Ltd v Wililo 74, the Full Bench held:
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”
[97] In the present case, InterPark has led evidence to demonstrate to the Commission that the conduct of Mr Cockroft amounts to a valid reason. That is; Mr Cockroft’s consistent lack of timeliness for work, below standard performance of duties, and attitude that he displayed to both customers and work colleagues. Mr Cockroft’s explanations for his alleged poor performance were a combination of either complete denial of the complaints put by the respondent, an attempt to blame others or that other witnesses were lying, in particular Mr Moylan and Mr Uddin.
[98] It is reasonable for an employer to expect its employees to arrive to work on time and perform their duties to a standard required from them.
[99] Having carefully assessed all the evidence concerning the conduct of Mr Cockroft and concluding that the conduct of Mr Cockroft was serious and warranting disciplinary action, I find that a valid reason did exist for the termination of the applicant in the circumstances of this case.
b) Whether the person was notified of that reason
[100] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[101] In the present case, Mr Cockroft attended a board room meeting on 22 March 2013 with the Operations Manager and the NSW Operations Manager with respect to his work as being below standard and he was put on notice that should his level of cleaning not improve subsequent to the meeting, then he would be terminated. 75 On 13 November 2014, Mr Cockroft attended a meeting with the NSW Operations Manager at which he was dismissed.
[102] At the dismissal meeting Mr Cockroft was not advised of the two issues which finally led to his dismissal namely the incident between Mr Cockroft and Ms Dillon on 20 October 2014, and the letter of complaint from Mr Uddin on 10 November 2014. 76
[103] These incidents should have been brought to Mr Cockroft’s attention resulting in a procedural fairness failure on behalf of InterPark. However after having heard the explanations of the applicant, I am not convinced that the outcome of the matter would have differed had the opportunity to respond been provided. The comments of Nicholson J in Shire of Esperence v Peter Maxwell Mouritz 77are apposite in this case:
“No injustice will result if the employee could be justifiably dismissed. … The unfairness of the dismissal cannot therefore be determined by the procedural unfairness alone.”
[104] Mr Cockroft denies the allegations of misconduct and remains resolute in that position.
c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct
[105] I am satisfied and find that there was no opportunity to respond to the reasons provided by InterPark for the termination of Mr Cockroft's employment. There was no appropriate opportunity for Mr Cockroft to meet with InterPark management and discuss the issues on which the respondent had relied upon for the termination of his employment. Further the reasons to which the respondent submits ultimately led to Mr Cockroft’s dismissal were not put to him at the time of his dismissal, much less providing the applicant with an opportunity to respond.
d) Any unreasonable refusal to allow the person to have a support person present to assist at any discussions relating to dismissal
[106] This was not raised as being an issue in these proceedings.
e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[107] I am satisfied that Mr Cockroft was made sufficiently aware of the issues raised by the respondent with respect to his lateness and general underperformance of his duties as a cleaner.
f) and g) The size of the enterprise and human resource management capacity
[108] InterPark employs around 70 employees and does not have internal human resources expertise or advice. This may have impacted on the process followed in ending Mr Cockroft’s employment relationship with InterPark, which was proffered in their defence by Mr Stewart, the Managing Director. The respondent conceded in its evidence that the processes leading up to the dismissal of Mr Cockroft may not have been ideal owing to the fact that the company, despite employing 70 employees, is a small company with no dedicated human resources team. 78
h) Any other relevant matters
[109] I have considered all of the evidence and submissions provided in this matter. Much evidence was tendered by the respondent which sought to rely on the applicant’s consistent lateness to work, unsatisfactory performance of his cleaning duties and alleged abusive behaviour towards his co-workers. Evidence was given by Ms Dillon, Mr Uddin and Mr Khan alleging that Mr Cockroft smoked marijuana at work. Mr Stewart was not aware of these allegations when he decided to terminate Mr Cockroft’s employment and I had determined not to take the allegations into consideration. Unlike issues relating to Mr Cockroft’s attendance at work and inadequate cleaning performance, the matter of marijuana use at work had never been raised with the applicant previously and it appears as a significant failure in Ms Dillon’s role as a supervisor not to have brought her concerns on this issue to the attention of InterPark management.
[110] Whilst I am satisfied that the applicant’s conduct or lack thereof may constitute a valid reason for his dismissal, I am not satisfied that the termination of employment was not unfair. As stated in Container Terminals Australia Limited v Toby 79 at paragraph 10:
“the issue of whether there is a valid reason for termination is different from the issue of whether some other element/s might make the termination of employment unfair. In other words the issue of whether there is a valid reason for termination is different from the issue of whether some other element/s might make the termination of employment unfair.”
Conclusion
[111] Section 387 specifies a range of matters that must be considered in each case. Section 387(h) requires consideration of “any other matters that the FWC considers relevant”. In any given case, there will be a range of matters, beyond those specified in s.387(a) to (g), that rationally bear upon whether the dismissal is “harsh, unjust or unreasonable” and thus are “relevant matters” that must be considered pursuant to s.387(h).
[112] In a serious misconduct case, the Commission is concerned with whether the serious misconduct in fact occurred. 80 I am satisfied that the behaviour of Mr Cockroft complained of by Ms Dillon and Mr Uddin did in fact occur. The Full Court of the Federal Court has recently been held by that, in order to justify summary termination, it is not necessary for the employer to establish that the misconduct of the employee was such as amounted to a repudiation of the contract or its terms.81 Following this decision Jessup J stated in Jocelyn Hansen v Mt Martha Community Learning Centre Inc.82
“I consider that the only course open to the court is to recognise the existence of a species of non-repudiatory misconduct that is nonetheless sufficiently serious to justify summary termination.”
[113] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 83 took the approach that in reaching an overall determination of whether a dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. This involves the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable.
[114] InterPark had a sound and defensible basis, thus a valid reason for the dismissal of Mr Cockroft. He could not be relied upon to perform his duties and role as a cleaner to the standard required and his conduct had been over a lengthy period of time far below reasonable expectations. The events culminating in his termination were unfortunately not one off, or out of character, but reflected an ongoing example of behavioural issues that could no longer be tolerated by InterPark.
[115] The condition of the room allocated to Mr Cockroft for his personal use (based on the photos provided by InterPark 84) was akin to a room having been abandoned and inhabited by squatters, or that it was being used as an overflow rubbish room. Mr Cockroft had been asked to clean the room on a number of occasions; which he clearly failed to act upon instruction. His explanations for failing to do so were like many of his explanations for poor performance unconvincing.
[116] Mr Cockroft, however, was not afforded the procedural opportunity to provide an explanation to the two issues that Mr Stewart determined should lead to his summary termination. Despite this deficiency, having heard Mr Cockroft’s explanations in the witness box, I do not consider that the result would have been any different had Mr Cockroft been able to provide an explanation to the two recent and serious complaints that Mr Stewart had received from his staff. It appears to me very much to be the case on the evidence that Mr Cockroft’s continuing employment had become unsustainable; indeed he could consider himself fortunate that his employment lasted as long as it did.
[117] Given my conclusion in this regard, Mr Cockroft’s application under s.394 of the Act is dismissed for reasons that his dismissal was not harsh, unjust or unreasonable.
DEPUTY PRESIDENT
Appearances:
Mr Jethro Horowtiz, Solicitor on behalf of the applicant
Mr Peter Stewart for the respondent
Hearing details:
Sydney
2015
12 and 30 March
22 April
8 May
22 and 23 July
1 Paragraph 12 of the applicant’s outline of submissions dated 3 February 2015
2 PN294
3 PN64-74
4 PN3497, Mr David Sweeney, principal solicitor of Sweeney Tiggemann Solicitors filed an affidavit, gave evidence and was subject to cross examination from Mr Stewart on 30 March 2015 with respect to Mr Cockroft’s absence on 12 March 2015. Mr Sweeney’s evidence was that on the first day of the listed hearing, 12 March, the applicant was sick and was crying in front of him when he went to check on him personally and to escort him to the 12 March hearing. Attached to Mr Sweeney’s affidavit was a copy of a letter from a counsellor of the Kirketon Road Centre (which is a primary health centre based in Darlinghurst). The letter states that Mr Cockroft attended the centre on 13 March 2015 where he advised the counsellor that he was in an unfit mental state to attend the tribunal on 12 March 2015.
5 PN182-183
6 Exhibit R3
7 3 February 2015 and supplementary submissions on 27 March 2015
8 Exhibits A2 and A3
9 Paragraph 25 of Exhibit A2, Affidavit of Mr. Cockroft
10 Exhibit R7
11 Exhibit R4
12 Exhibit R5
13 Exhibit R6
14 PN3459
15 Exhibit R7
16 Exhibit R4
17 Exhibit R5
18 Exhibit R2
19 See Attachments (e) and (f) of Employer response
20 PN2699 and at point 2 of Exhibit R3
21 PN2699 and PN 3005 to PN3020, and PN3027
22 Exhibit R9
23 PN2699
24 Ibid
25 PN2143
26 PN2713
27 PN2142
28 See InterPark’ S response to unfair dismissal application
29 Attachment S of Exhibit R13
30 PN2757
31 PN2758
32 PN2759
33 PN2879 to PN2883
34 PN1635
35 Exhibit R10
36 At 2 of R10 and
37 PN1679
38 PN1746 and at 14 of Exhibit R10
39 Also see PN2016 to PN2018
40 PN1755
41 PN1762
42 At 14 of Exhibit R10
43 PN1792
44 At 15 of Exhibit R10
45 Exhibit R15
46 PN3828
47 PN3829
48 PN3947
49 PN3846
50 PN3983
51 Exhibit R17
52 PN4570
53 PN4483-4484
54 PN4490-4493
55 PN4614 -4617
56 PN3602
57 At paragraph 3 of Exhibit R14
58 PN3566
59 PN3583
60 PN3584 and at 13 of Exhibit R14
61 PN3630-3631
62 PN4082-4085
63 Exhibit R16 at 5
64 Ibid at 7
65 See Point 9 of Exhibit R16, Exhibit R5 and PN4104 - 4106
66 PN4111-PN4117 and at 11 of ExhibitR16
67 PN4140 and 12-15 of Exhibit R16
68 At 11 of Exhibit R16 , PN4116, and PN4136
69 Ibid and PN4129 to PN4137
70 (Harley v Rosecrest Asset Pty Ltd. t/a Can Do International [2011] FWA 3922)
71 Selvachandranv Peteron Plastics Pty Ltd (1995) 62 IR 371
72 Container Terminals Australia Limited v Toby [2000] Print S8434
73 (1995) 62 IR 371
74 [2011] FWAFB 1166
75 Exhibit R5
76 PN4136-4137
77 71 WAIG 891 at 899
78 PN2731
79 Print S8434
80 See for example Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1)
81 Melbourne Stadiums Ltd v Sautner (2015) 317 ALR 665, 671, [15]
82 VID 703 of 2014
83 [2013] FWCFB 6191
84 Exhibit R2
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