Mr Daniel DeGasperi v Caradvice.com.au Pty Ltd (ABN: 84 116 608 158)

[2015] FWC 8617

[2015] FWC 8617

FAIR WORK COMMISSION

DECISION

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

Mr Daniel DeGasperi
v
Caradvice.com.au Pty Ltd (ABN: 84 116 608 158)
(U2015/1381)

COMMISSIONER CAMBRIDGE SYDNEY, 17 DECEMBER 2015

Unfair dismissal - car accident - misconduct - valid reason for dismissal with notice - procedural deficiencies - unreasonable dismissal - compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 26 March 2015. The application was made by Daniel DeGasperi (the applicant) and the respondent employer is Caradvice.com Pty Ltd (ABN: 84 116 608 158) (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 23 March 2015. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] Unfortunately, the matter was not resolved at conciliation and it has proceeded to arbitration in a Hearing conducted in Sydney on 20 August and 24 September 2015.

[4] At the Hearing, the applicant represented himself, he provided witness evidence and he called one other witness in support of his unfair dismissal claim. The employer was represented by its Chief Executive Officer and Managing Director, Andrew Beecher, who also gave evidence as a witness and called three other witnesses, who provided evidence on behalf of the employer.

Factual Background

[5] The applicant had worked for the employer for almost 2 ½ years. The applicant is a motoring journalist and he was employed as the respondent’s Deputy Editor. Relevantly, the work of the applicant involved driving and testing motor vehicles and subsequently providing written reports about those motor vehicles which were then published on the employer’s website.

[6] The employer is a small to medium sized business which employs in excess of 30 staff. The employer conducts a business which is primarily focused upon the operation of its website, CarAdvice. The CarAdvice website contains numerous car reviews, and a variety of other automotive industry news, information, and commentary.

[7] A significant part of the employer’s business operation involves the testing and subsequent review of motor vehicles which are provided to the employer by motor vehicle manufacturers or their agents. The motor vehicles that are provided for these promotional purposes are loaned to the employer and are known as “press cars”. The work of the applicant regularly involved the testing and review of press cars.

[8] On 19 March 2015, at approximately 11:45 pm, on the old Pacific Highway near Brooklyn, the applicant was involved in a single-car accident whilst test driving an Alfa Romeo 4C, which had been loaned to the employer as a press car. The Alfa Romeo 4C did not appear to be extensively damaged and the applicant was not injured in the accident. The applicant was able to drive the damaged car away from the accident site.

[9] Shortly after the car accident, at about 1 am on 20 March 2015, the applicant made telephone contact with the employer’s Chief Executive Officer, Mr Beecher. The applicant informed Mr Beecher of the car accident and he sent photographs of the damaged vehicle to Mr Beecher’s phone. At that time, Mr Beecher indicated that he was most concerned about the physical well-being of the applicant, and that issues regarding the car would be addressed later that day once the company who had provided the press car, Fiat Chrysler Australia (FCA) had been advised of the accident.

[10] Later on 20 March 2015, once FCA had been advised of the accident, and the damaged car had been examined, Mr Beecher requested that the applicant provide a written response to a series of questions which sought detailed information about the circumstances of the accident with the Alfa Romeo 4C (the Alfa accident). At about 4 pm on 20 March, the applicant provided Mr Beecher with written responses to his questions regarding details of the Alfa accident.

[11] The Alfa Romeo 4C was a new model sports car, and there were only two of them in Australia at the time of the accident. Further, because of the particular materials used in the construction of the Alfa Romeo 4C, the cost of the repairs to the vehicle would be significantly more than would otherwise appear from the extent of the visual damage. Consequently, FCA was unimpressed with the damage that had occurred to the Alfa Romeo 4C and they expressed their displeasure to Mr Beecher.

[12] On Sunday, 22 March 2015, Mr Beecher sent an email to the applicant requesting that he meet with him the next morning at his office. Mr Beecher indicated that he wanted to talk to the applicant about his, (Beecher’s), response to FCA concerning the Alfa accident before the applicant proceeded to conduct a further car test comparison scheduled for later the following day, 23 March.

[13] The applicant attended at Mr Beecher’s office on the morning of 23 March, and he met with Mr Beecher who was accompanied by the employer’s Commercial Director, Mr Clark. Mr Beecher informed the applicant that his employment was terminated on the basis of misconduct associated with the Alfa accident. Mr Beecher provided the applicant with a pre-prepared termination of employment letter. The termination of employment letter stated, inter alia, that the employer considered the applicant’s actions to constitute serious misconduct warranting summary dismissal. However, the employer decided that having taken into account the applicant’s service to the business, the dismissal would include payment in lieu of notice. The applicant was paid his accumulated leave and other entitlements together with payment for a further four weeks in lieu of notice.

[14] Following the dismissal, the applicant attempted to find alternative employment without success. However, approximately two months after the dismissal the applicant commenced to receive payments for work undertaken as a freelance motoring journalist.

The Case for the Applicant

[15] The applicant made oral submissions which elaborated upon a documented outline of submissions. The applicant submitted that his dismissal was harsh, unjust and unreasonable. The applicant made submissions which referred to the various provisions of s. 387 of the Act.

[16] The applicant submitted that the termination of his employment was without valid reason. The applicant said that the primary reason for his dismissal involved an allegation that he had deliberately deactivated stability control on the Alfa Romeo 4C. The applicant asserted that this was factually incorrect and that the employer did not have any policies or procedures with respect to the use or deactivation of stability control systems whilst reviewing motor vehicles.

[17] The applicant asserted that the stability control system of the Alfa Romeo 4C was not deactivated when race mode was engaged but merely suspended until the driver pressed on the brake. Therefore, according to the applicant, the accurate description of the Alfa accident involved a vehicle with particular characteristics that in race mode meant that the throttle response was underestimated and this caused a slight instability involving a brush of a guard rail on a tight, regular testing road. Further, the applicant stressed that the Alfa accident did not involve any windows being broken or airbags activated, and all car doors were able to be opened.

[18] The applicant also said that having a car accident could not constitute misconduct or serious misconduct because it was not wilful or deliberate behaviour, despite that the employer had concluded as such. Therefore, the applicant did not accept that there was a valid reason for the termination of his employment.

[19] The applicant made further submissions in respect of alleged procedural unfairness. The applicant complained that he was not notified of the reason for his dismissal prior to being terminated. The applicant said that he was only made aware of his dismissal when he was terminated by Mr Beecher during the meeting held on 23 March 2015. Further, the applicant said that he was not provided with sufficient time to formally respond to allegations, and he was deprived of the opportunity to bring a support person to the meeting at which he was dismissed.

[20] In further submissions, the applicant stated that the impact of the termination of his employment had involved severe emotional strain and serious financial penalty. The applicant said that he had to correct misinformed allegations regarding aspects of his dismissal. Further, the applicant stressed that he had been a “regular 100% KPI employee” who had had no verbal or written warnings at the time of the termination of his employment.

[21] In summary, the applicant submitted that his dismissal was harsh, unjust and unreasonable. The applicant submitted that although he had initially sought to be reinstated as Deputy Editor of CarAdvice, he no longer believed that reinstatement was appropriate. Instead, the applicant submitted that he should be provided with six months compensation of earnings and that the “…classification of termination of employment [be] moved to a resignation.” 1

The Case for the Employer

[22] The employer was represented by Mr Beecher who submitted that the dismissal of the applicant was not unfair.

[23] Mr Beecher commenced his submissions by stating that the applicant’s accident with the Alfa Romeo 4C was the worst accident that the employer had had to deal with in nine years of operation. In particular, Mr Beecher rejected that it was normal practice to test cars at night with driver safety aids disabled, and it was these aspects of the Alfa accident which were the most concerning.

[24] Mr Beecher further submitted that the contest about whether stability controls in the Alfa Romeo 4C were or were not switched off should lead to the correct conclusion that the stability controls were disabled in the car when it was operating in race mode.

[25] Mr Beecher also submitted that there was a great deal of personal accountability in motoring journalism generally and particularly in respect of the position that the applicant held as Deputy Editor. Mr Beecher stressed that the applicant as Deputy Editor was responsible for setting standards across the entire editorial team. According to the submissions made by Mr Beecher, it was the applicant’s abject failure to adhere to safe operating practices that represented the primary contributing factor to his dismissal. Mr Beecher said that the employer had to act to protect its own business reputation, as it could not continue to have a person in a senior position such as Deputy Editor, who had acted in a manner which would endanger his own life, and potentially the lives of others.

[26] In further submissions, Mr Beecher acknowledged certain procedural deficiencies in the manner in which the applicant was dismissed. Mr Beecher said that in hindsight the employer could have suspended the applicant and delayed his dismissal. However, Mr Beecher said that the employer was a small business which did not have dedicated human resource personnel, and it had acted quickly in order to try and protect its business reputation.

[27] In summary, Mr Beecher submitted that the applicant’s conduct in respect to the Alfa accident involved wilful, irresponsible, and thoughtless misconduct which was totally at odds with the way in which the employer conducted its business. In these circumstances, Mr Beecher said that the employer felt that it had to act to protect its own reputation and therefore, dismissal of the applicant was necessary.

Consideration

[28] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.

[29] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(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.

387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct

[30] The reason for the applicant’s dismissal involved his conduct connected to the Alfa accident which occurred late on the evening of Thursday, 19 March 2015. The employer determined that the applicant’s actions in respect to the Alfa accident constituted misconduct sufficient to justify his dismissal. In broad terms, the applicant has contended, inter alia, that the absence of any wilful intent renders the reason for the dismissal as invalid.

[31] Other than in unusual circumstances such as vehicle crash test monitoring or a demolition derby, no sane person would deliberately crash a motor vehicle. The applicant did not intend to damage the Alfa Romeo 4C, it was an accident. However, it is not the unintended accident involving the Alfa Romeo 4C coming into contact with a guard rail on the old Pacific Highway which involves an action or actions that are said to constitute misconduct.

[32] The actions which the employer relies upon as establishing misconduct involved, in particular, deliberate, conscious conduct on the part of the applicant which contributed to the Alfa accident. Firstly, the applicant was testing the vehicle late at night on a public road and secondly, the applicant had engaged race mode in the Alfa Romeo 4C. These two actions, particularly in combination, must, on any objective analysis, involve a conscious engagement in high-risk activity. The deliberate actions of the applicant had considerably increased the potential for an accident. These particular actions of the applicant were not in dispute, and unfortunately, the conscious risk-taking of the applicant materialised in the Alfa accident.

[33] Conduct that may validly represent misconduct in employment circumstances should be properly evaluated in the context of the particular employment. Conduct which involves risk-taking might amount to misconduct in the context of employment of a particular nature or position, and in another employment circumstance such risk-taking may not be validly construed to be misconduct. The context of the employment in this instance is an important consideration. Motoring journalists involved in conducting vehicle road tests would be likely to engage in certain activities that would have inherently greater risk than, for example, a person that might be driving a motor vehicle in the ordinary course of their employment as a sales representative.

[34] Consequently, the risk-taking of the applicant on the night of 19 March 2015, must be properly considered in the context of employment as a motoring journalist. Further, the senior position that the applicant occupied is also a relevant consideration when assessing whether the risk-taking could be validly held by the employer to represent serious misconduct.

[35] A careful evaluation of the evidence regarding the actual conduct of the applicant in the context of his employment as a motoring journalist occupying a senior position such as Deputy Editor, leads me to the conclusion that the employer was entitled to find that the applicant’s conduct was serious misconduct. The risk-taking of the applicant involving his conscious decisions to test the Alfa Romeo 4C late at night on a public road and to engage race mode, can be properly held to represent serious misconduct.

[36] Consequently, there was valid reason for the applicant’s dismissal arising from his misconduct associated with the Alfa accident.

387 (b) - Notification of Reason for Dismissal

[37] The employer provided written notification of the reason for the applicant's dismissal in the letter of termination provided to the applicant in the meeting of 23 March 2015. This was the first indication that the applicant was given that his employment was in jeopardy as a result of the Alfa accident.

387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[38] The employer arranged for the applicant to meet with Mr Beecher in his office on Monday, 23 March 2015, at which time he was told of the decision to terminate his employment. In such circumstances, the employer did not provide an opportunity for the applicant to respond to the findings of misconduct that it had identified from the applicant’s written responses to Mr Beecher’s questions of the preceding Friday.

[39] It is irrelevant whether the applicant may have been able to provide explanation or other responses which may have persuaded the employer to decide on a course of action other than dismissal. Importantly, the applicant was plainly denied an opportunity to advance any explanation, or offer any defence, or provide other factors which may have had some influence on the decision to dismiss.

387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[40] As a further example of the adoption of a highly erroneous procedure, the employer arranged for the meeting with the applicant, at which time it would advise of termination of employment, without providing any indication to the applicant that the meeting might consider disciplinary action including termination of employment. In fact, the email advice inviting the applicant to the meeting misleadingly implied that the discussion was to be held before the applicant conducted a scheduled car comparison test.

[41] The arrangements for the meeting at which the applicant was dismissed, had the effect of denying the applicant an opportunity to have a support person to assist him because there was no indication that the meeting was of a nature that would ordinarily anticipate a requirement for an opportunity for a support person to be present.

387 (e) - Warning about Unsatisfactory Performance

[42] This factor is not relevant in the circumstances of this case.

387 (f) - Size of Enterprise Likely to Impact on Procedures

[43] I have been cognisant that the employer’s operation is of a small to medium size. The employer’s business operation may benefit from a review of its employee management practices.

387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[44] It appeared that the employer did not have dedicated employee relations management specialists, and regard has been made for the consequential impact that the absence of such personnel would have in respect to the highly erroneous procedures that were adopted by the employer.

387 (h) - Other Relevant Matters

[45] It is appropriate to acknowledge that before the Alfa accident the applicant was a highly regarded member of the employer’s staff. The applicant was considered to be a prodigious provider of motoring journalism copy. It is also relevant to note that the applicant was engaged in a senior position which had certain leadership responsibilities. The financial and reputational impacts of dismissal upon the applicant have also been recognised. The reputational impacts of the Alfa accident and the potential consequences upon the employer’s business operation must also be acknowledged. These various factors have been carefully considered and appropriately evaluated and balanced.

Conclusion

[46] The applicant was dismissed because of misconduct arising from a single-vehicle motor accident involving a press car. The misconduct has been identified as the deliberate actions of the applicant whereby he conducted a test of a press car late at night on a public road, and with race mode engaged in the vehicle. Evidence presented during the Hearing has established that, when properly considered in the context of the particular employment circumstances, the actions of the applicant were correctly construed as misconduct which represented valid reason for dismissal with the requisite notice.

[47] However, notwithstanding the valid reason for the dismissal of the applicant, he was not provided with an opportunity to respond to the particular findings of misconduct made by the employer. The applicant was denied procedural fairness, he was not given any opportunity to provide explanation, or offer a defence, or provide other potentially mitigating information. The applicant was required to attend a meeting at which he was to be advised of his dismissal in circumstances where the employer deliberately concealed the true purpose of that meeting.

[48] The procedures that the employer adopted in dealing with the employment issues which arose from the misconduct of the applicant were, regrettably, severely deficient. The particular manner in which the employer implemented the dismissal of the applicant was unreasonable and unnecessarily harsh.

[49] In summary, the dismissal of the applicant was for valid reason involving misconduct. However, the dismissal was implemented by way of an entirely unreasonable and unjust process. The applicant was denied procedural fairness but the employer did have valid reason to dismiss him. Consequently, when these various factors have been carefully evaluated and balanced, the dismissal of the applicant has been found to have been unreasonable.

[50] Therefore, the applicant’s claim for unfair dismissal remedy has been established.

Remedy

[51] The applicant has not sought reinstatement as remedy for his unfair dismissal. Instead he has sought remedy in the form of payment of an amount of monetary compensation.

[52] I have decided that compensation would be an appropriate remedy for the applicant’s unfair dismissal and I turn to the factors which involve the quantification of any amount of compensation.

[53] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that were established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket 2 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd 3.

[54] Firstly, I confirm that an Order for payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.

[55] Secondly, in determining the amount of compensation that I Order, I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[56] There was no evidence that an Order of compensation would impact on the viability of the employer’s enterprise.

[57] The applicant had almost 2 ½ years of service. The applicant would have been likely to have received remuneration of approximately $1,700 per week if he had not been dismissed. There was significant prospect that the employment of the applicant would have continued for perhaps several years.

[58] Immediately following the dismissal, the applicant did make efforts to mitigate the loss suffered because of the dismissal. Initially these efforts were unsuccessful in obtaining other employment. However, after a period of approximately two months the applicant has obtained remuneration from freelance motor journalism work.

[59] Thirdly, in this instance there was misconduct of the applicant which contributed to the employer's decision to dismiss. Therefore, the Commission must reduce the amount that it would otherwise Order as compensation.

[60] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.

[61] There are no other relevant matters in this instance.

[62] Consequently, for the reasons outlined above I have decided that an amount approximating with four weeks remuneration should be provided as compensation to the applicant. That amount is $6,800.00. Accordingly separate Orders [PR575014] providing for remedy in these terms will be issued.

COMMISSIONER

Appearances:

Mr D DeGasperi representing himself.

Mr A Beecher appeared for Cardadvice.com Pty Ltd.

Hearing details:

2015.

Sydney:

August, 24 and September, 20.

 1   Transcript @ PN1077.

 2 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 3   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR575012>