Mr Daniel Hutchings v Alex Fraser Group

[2013] FWC 73

[2013] FWC 73

FAIR WORK COMMISSION

DECISION

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

Mr Daniel Hutchings
v
Alex Fraser Group
(U2012/12931)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 21 JANUARY 2013

Summary: whether harsh, unjust or unreasonable - persistent failure to notify non-starts and lateness for shift commencement.

[1] This is an application under s.394 of the Fair Work Act 2009 (“the Act”) in which the Applicant, Mr Daniel Hutchings, seeks an unfair dismissal remedy in relation to his dismissal from his employment by the Alex Fraser Group (“the Respondent”).

[2] The Applicant lodged his application on 2 September 2012. The matter came to hearing the arbitration on Tuesday 15 January 2013.

[3] The Applicant was employed by the Respondent as a labourer for a period of some nine months until his dismissal on 31 August 2012. The Applicant contends that his dismissal was harsh, unjust or unreasonable and that he was therefore deserving of a remedy as provided for under the Act.

LEGISLATIVE PROVISIONS

[4] The relevant legislative provisions arise under s.387 of the Act which reads as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.

CONSIDERATION

(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

[5] On or about 13 April 2012, the Applicant was served with a first written warning by the Respondent. The reason for the written warning was:

• “the repeated failure of arriving on site at a suitable time to begin your shift actual rostered start time”;



• “the repeated failure of advising the management team of your need to be absent from work I telephoned as outlined within the collective agreement”, and;



• “the repeated failure of advising the management team of your inability to start your shift at the rostered time by telephone as outlined within the collective agreement” (sic)

[6] The written warning stated that the Applicant’s employment would be in jeopardy if it was repeated.

[7] The Applicant acknowledged receipt of the written warning by counter signing the warning. The warning included an opportunity for a right to request a review of the warning. The Applicant did not take up the opportunity in any instance. The Applicant conceded he was in the wrong.

[8] The evidence of the Respondent was that the Applicant had also been given warnings of a verbal kind in relation to being late for work and not notifying the Company of his prospective absence. The evidence of Mr Daniel Faux, the Site Manager, which was confidently given and considered, was that he had in the Applicant’s short period of employment given him repeated warnings about lateness (putting aside minor infractions relating to workplace tardiness).

[9] The Respondent claimed that the requirement to provide notice in advance of seeking personal leave was stipulated in the relevant enterprise agreement and was necessary so that the workforce could be reconfigured and plant safety was assured during production (which dealt with crushing and aggregate and gravel production processes). It appears as though the relevant agreement is the Queensland Recycling Agreement 2012-2015 (“the Agreement”). It further appears that the provision to which the Respondent made reference was to subclause 6.2.4 of the Agreement, which reads as follows:

Before taking personal\carer's leave, an Employee, where practicable, must give at least two hours notice before their next rostered starting time. If it is not practicable for the Employee to give prior notice of their absence, the employee must notify the Employer by telephone at the first opportunity. Text messages or e-mails will not be accepted as sufficient notice.

[10] The further unchallenged evidence was that the requirement to notify absences was raised frequently in tool box meetings. 1

24 August Incident

[11] On 24 August 2012 further written warning was given to the Applicant in relation to:

• “the failure of arriving on site at a suitable time to begin your shift actual rostered start time”, and;



• “the failure of advising the management team of your inability to start your shift at the rostered time by telephone as outlined within the collective agreement.”

[12] Again, the Applicant countersigned the warning and did not avail himself of an opportunity to have the warning reviewed. The particulars of this incident are as follows.

[13] The evidence of Mr Faux, the Site Manager, was that the Applicant telephoned him at around 10:30 AM on Tuesday, 21 August 2012, and well after the usual shift commencement time of 6:20 AM, and advised him that he had missed a flight from Perth on Sunday night and would be resuming work on Wednesday, 22 August 2012.

[14] The Applicant also contended that he had telephoned Mr Faux and his Site Supervisor, Mr Graham Howland, at 2.00 AM on the Tuesday morning to explain his situation, but neither party had answered his call. There is some significant dispute about whether these calls were ever made or any messages ever received. 2

[15] On Wednesday, 22 August 2012 the Applicant telephoned Mr Faux at around 2.00 PM and indicated that he would not be able to return immediately because he was waiting for funds to be available to purchase another fare for his return flight to Brisbane.

[16] At around 11.00 AM on Thursday, 23 August 2012 the Applicant telephoned Mr Faux and said that he would resume work on Friday. According to the Applicant, he returned to Brisbane around that time on the Thursday, which would mean he caught an early morning flight out of Perth.

[17] Despite having returned to Brisbane the prior day, the Applicant was some two hours late to work on Friday, 24 August 2012. His explanation was that his “clocks” had been set for Perth time which was two hours behind Eastern Standard Time, and therefore he had been late to work. What the Applicant meant here was that his own watch and his mobile phone were still fixed to Perth time, that his personal alarm clock at his home had been unplugged, and that his housemate had altered the alarm they used in common (which was connected in his absence to the stereo tuner it appears) so that it did not come on to wake him for his 6.20 AM shift as it ordinarily would have.

[18] The Applicant received a further warning as set out in relation to the 13 April warning as a consequence of his conduct in not attending for work at the scheduled time.

The 31 August Incident

[19] The Applicant was eventually terminated from his employment on 31 August 2012. It appears at this time the Applicant was some three hours late for the commencement of his usual shift (6:20 AM).

[20] The context for the Applicant’s late presentation at work on 31 August 2012 (at least as he sees it) was that he had been in a fight (with his housemate, who also was a co-worker), had hurt his neck and cut his chin (so that it needed four stitches). The Applicant had conceded that alcohol had been involved in the incident and that he had been intoxicated. 3

[21] The Applicant claimed that on that Friday morning he had awoken at between 5:45 AM and 6.00 AM and noticed that he was bleeding from the chin. As a consequence, the Applicant attended an out of hours Medical Centre at around 6:30 AM. The Applicant claims he sent an SMS text to Mr Howland at around 6.00 AM to notify him of his non attendance and had not received a response. Mr Howland argues he did not receive any such text message nor did he receive or participate in any telephone communication - as the Applicant further alleged - between 6:30 AM and 7.00 AM. Mr Howland claims that while the Agreement does not permit notifying an absence for personal/carers leave by way of text messaging, he nonetheless accepts such communications. Mr Howland also indicated that a call had been received on his telephone at 2.00 AM from the Applicant’s housemate indicating that he would not be able to attend work that day, but no call had been received from the Applicant.

[22] The Applicant further alleges that at 7:30 AM he spoke directly with Mr Howland and explained that he was obtaining medical treatment. Mr Howland was said to have indicated to the Applicant that he had been dismissed as a consequence of not being in attendance at work.

[23] Mr Howland claims, however, that this conversation took place around 9.00 AM. Mr Howland also willingly conceded that he indicated to the Applicant that this incident could lead to dismissal and asked him to present at his office and to bring any medical certificate he had with him.

[24] The Applicant claimed he had no access to telephone carrier billing accounts that he could call in aid of his claims.

[25] The Applicant obtained medical attention around 9.30 AM and claims that thereafter he rode his bicycle to work and presented at Mr Howland’s office. The Applicant states that he tried to persuade Mr Howland of the circumstances and attempted to give Mr Howland a copy of his medical certificate (which stated he was not fit to resume work that day) but that Mr Howland refused to accept it stating that, “It doesn't matter mate, you are fired.” This meeting appears to have taken place around 10.30 - 11.00 AM.

[26] Mr Howland for his part claims that upon the Applicant presenting himself at his office (following his request) he (Mr Howland) twice asked for his medical certificate but the Applicant, having searched his pockets, claimed he must has lost it. Hence no medical certificate was proffered and Mr Howland informed him that in light of previous warnings he would be dismissed. Mr Howland then invited the Applicant to go and see Mr Faux if he had a problem with the decision he had taken to dismiss him.

[27] The Applicant did meet with Mr Faux on Monday, 3 September 2012. The Applicant according to Mr Faux attempted to show him some injuries - apparently inside his mouth - but other than that the Applicant made no effort to give evidence of any medical certificate. The Respondent claims generally the existence of the Applicant’s medical certificate did not become apparent until the subsequent conciliation conference.

Factual disputes in relation to 31 August incident

[28] There are a number of factual disputes that need to be resolved in the evidence.

[29] The first concerns the time at which the Applicant contacted his site manager or site supervisor to advise his non attendance at the start of his 6.20 AM shift. As has been stated above, this was a salient issue given that the Applicant had been warned about omissions in this regard on prior occasions.

[30] Having heard the evidence, I very much doubt that having awoken between 5.45 and 6.00 AM with his chin bleeding and after having been involved in a fight after having been consuming alcohol, the Applicant ever took the steps to text and then later to telephone Mr Howland as he claims to advise that he would not be attending the 6.20 AM shift. I prefer Mr Howland’s evidence. His telephone was attended. A phone had been rung earlier that morning by the Applicant’s housemate advising of his non attendance. But no call or text message had been received from the Applicant until 9.00 AM, when he indicated to the Applicant that he could be dismissed given the previous warnings (and the last one being only a few days earlier).

[31] Mr Howland’s evidence was given in a matter of fact manner and I did not discern any subterfuge in his claims. Indeed, Mr Howland frankly conceded he would have accepted the text message as notice of non attendance, had it been received. Mr Howland did not reveal any enmity towards the Applicant. Moreover, his recollection of when the telephone call with the Applicant took place was also better supported than the Applicant’s. Mr Howland also recalled where he was when the 9.00 AM conversation took place (which was at the smoko that takes place at or around that time it appears). The Applicant’s time frame was uncertain, in contrast. 4

[32] Generally, Mr Howland’s evidence was more definitive and persuasive than that of the Applicant (who even displayed uncertainty as to whom he had sent the text message). 5

[33] The pivotal issue here, of course, is that despite prior warnings the Applicant, on my findings, took no steps to convey to the Respondent his pending absence prior to the commencement of his shift on 31 August 2012. It would appear to me that an employee who had been warned previously (and most recently in the last few days) about the importance of timely communication with his employer would take all reasonable steps to fulfil his obligations as faithfully as possible. But here, as elsewhere in his brief period of employment, the Applicant had not been able to ensure that his lifestyle could accommodate the ordinary and common disciplines of the workplace.

[34] Another factual dispute concerns whether Mr Howland dismissed the Applicant in his telephone call at 9.00 AM on 31 August 2012, or later at the meeting between himself and the Applicant. If the former, the Respondent might have acted precipitously before having had an opportunity to hear the Applicant’s explanation or review his medical certificate.

[35] But I do not think that the Applicant's construction of events is credible. Mr Howland, in my view, at 9.00 AM, asked the Applicant to attend a meeting with him later that morning and invited the Applicant to bring in any medical certificate he might possess. Properly, the issue of the medical certificate was the subject of the subsequent meeting. This construction provides a somewhat more logical narrative to that of the Applicant. In contrast, the Applicant’s claim is less convincing in that it required him (the Applicant) having been dismissed the at 9.00 AM by telephone by Mr Howland, to have appeared at a later time, unannounced, to plead his case to the same person. In hand with my earlier comments on credit, Mr Howland’s evidence, to my mind, provided a stepped process which better structures the actual events.

[36] There is a further factual dispute still between the parties as to whether or not a medical certificate was presented on the morning of the 31 August 2012. Having heard the evidence, my view is that no medical certificate was presented to the Respondent at that time. As I found above, I think the narrative of events supports this claim. There would seem to have been no reason for Mr Howland to invite the Applicant to his office following the 9.00 AM telephone conversation (which I have accepted that he did) other than if he had advised the Applicant, as he claims he did, to attend to provide any medical certificate he may have. It would therefore appear incongruous for Mr Howland then to claim that he did not wish to see the certificate, which the Applicant maintained.

[37] Mr Howland’s evidence - concerning his subsequent meeting with the Applicant - was that he asked the Applicant twice for his medical certificate (only to have the Applicant feel around his pockets and claim to have lost it). This evidence follows logically from his evidence of his request of the Applicant made during the 9.00 AM telephone conversation.

[38] In hand with this evidence, Mr Faux was adamant at the time of the Monday meeting between himself and the Applicant to review the decision of Mr Howland, that no medical certificate was proffered by the Applicant. This evidence is congruent with that of Mr Howland.

[39] The Applicant’s recollections generally also fall into question further for reason that he claimed he made no call to Mr Faux on the 31 August 2012. Mr Faux had a specific recollection of the Applicant calling him late morning that day (presumably shortly after the meeting with Mr Howland, after which he appears to have been in an emotional state) and indicating to him that Mr Howland had dismissed the Applicant. This structure of events also complements my findings above as it would appear reasonable for the Applicant to have been distressed at that time which was immediately after the late morning meeting with Mr Howland at which he was dismissed. Mr Faux recalls this telephone call because he was on annual leave at the time and in a boat (fishing), which caused him to invite the Applicant to come in and sort the issue out on Monday (rather than engage in a discussion then and there). 6

[40] Generally, I have found the evidence of Mr Howland and Mr Faux to be genuine and credible, and accept that it was not until a much later date that the Applicant ever made his medical certificate available to the Respondent. There is no need for me to speculate upon the reasons for the Applicant’s conduct in this regard.

18 April 2012 Incident

[41] The Respondent also issued a written warning to the Applicant on 18 April 2012 in relation to the Applicant’s “failure to lock out the plant correctly on 2 August 2012 as per procedure shown by the training modules which [he] had completed and signed on 29 May 2012.” This matter concerned the non-completion of the protocol. Once an employee indicates by placing his name on the register that the plant was locked out, he must sign the register again to demonstrate that he has removed his lock. The Applicant did not sign the register to indicate that he had removed his lock. The matter appears to have been resolved at a practical level at the time, but the Respondent issued a warning in respect of the need to execute the shutdown protocol comprehensively, and not partially.

[42] As with the warnings above, the Applicant had countersigned the written warning and been given an opportunity to request a review thereof.

[43] Putting this last matter aside, it appears to me that the Applicant’s conduct in not advising his employer promptly of his unavailability to perform the duties for which he was contracted created significant doubt as to the trust and confidence the employer could vest in the Applicant as an employee.

[44] That is, the Applicant, by his conduct over time, had shown himself to be an unreliable employee. Indeed, he is perhaps fortunate not to have been dismissed after the incident of 24 August 2012, in which he was several hours late to work that day (and had advised no one in advance) after missing three consecutive shifts and arriving back in Brisbane the prior day at midday.

[45] For the above reasons, I am of the view the Respondent possessed a valid reason for the dismissal of the Applicant.

(b) whether the person was notified of that reason

[46] The Applicant was dismissed on 31 August 2012 on the basis that he had been given various warnings about his punctuality and that his failure to notify in advance his non-start that day had exhausted the Respondent’s tolerance.

[47] Mr Howland indicated to the Applicant at 9.00 AM on 31 August 2012 that he may face dismissal given his conduct in not notifying his non-start at that morning’s 6.20 AM shift. In so doing, Mr Howland notified the Applicant of a reason for his pending dismissal. Mr Howland appears not, however, to have made any mention at this time, or at the subsequent meeting, of the failure of the Applicant to have complied with the protocols in relation to the production shut down procedure. This factor, I add, appears to have been an afterthought in relation to the principal reason for the dismissal, which concerned the failure to advise his supervisor(s) of his non-attendance at work that day.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[48] The Applicant was advised the pending, principal reason for his dismissal and asked to attend a meeting with his medical certificate in respect of his explanation for his non-attendance. The Applicant could not produce the medical certificate. He was dismissed subsequently. No opportunity to respond to the other reason for the dismissal - concerning the completion of the lock out register - was put to the Applicant and he had no opportunity to respond to this further reason as claimed as a reason for the dismissal by the Respondent.

(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

[49] Given the manner of dismissal, no issue arose in relation to their being an unreasonable refusal by the Respondent to allow the Applicant to have a support person present in any discussions relating to his dismissal.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[50] As I have said above, it does not appear to me that any issue as to the Applicant’s unsatisfactory performance was central to the dismissal. That said, the Applicant was warned in relation to an apparent failure to lock out the plant in accordance with the Respondent’s procedures (which I have construed to be a performance issue, as it was a matter in which he was trained). The manner of the proper execution of the procedures was made clear to him, such that he had an opportunity to improve his performance in future. But that said, this issue was of limited significance for the dismissal decision compared to the issues around punctuality and attendance.

(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

[51] I very much doubt the size of the employer’s enterprise had any impact upon the manner in which the dismissal was given effect. I say this because the Respondent had managed the Applicant’s conduct and performance with some care and detail in the period prior to his dismissal.

(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

[52] While the actions taken to dismiss the Applicant were taken by his direct supervisors, the Respondent was represented at the proceedings by its national HR manager. It would appear to follow that the Respondent had at its disposal specialist human resource management skills. Whether it would draw upon those skills the purposes of its decision-making is a moot issue; it seems the entirety of the matter was managed by the on-site supervisors.

(h) any other matters that FWA considers relevant.

[53] The Applicant contends that he was at times discriminated against in relation to his leave requests. It is difficult to establish whether any untoward conduct is in evidence. The Applicant claims there was an incident in which a leading hand expressed anger at the Applicant’s absences when his grandmother died. But it is uncertain whether that leading hand was ever advised of the reason for the absence at the time. In any event, even if true, there is little relationship between this matter and the reasons for the dismissal that are in evidence.

[54] Further, it does not appear that the Respondent took a robust view about the precise limits of employees’ access to sick leave either or ever had a practice of scrutinising medical certificates such that the Applicant could claim he was harshly dealt with over time by his employer.

CONSIDERATION

[55] Whilst the Respondent possessed a valid reason for the dismissal of the Applicant it cannot be said that it afforded him procedural fairness in relation to the non-completion of the lock out protocol. But that said, there is little practical or reasonable likelihood that if the Applicant had been afforded such an opportunity that the ultimate outcome would have in any way been different. Nothing the Applicant brought to these proceedings about that matter (the lock out protocol) was persuasive of an alternative set of facts that if conveyed and appropriately considered at the relevant time (prior to the dismissal) would have been sufficient to sway the Respondent’s decision making on the wider front.

[56] In any event, the principal reason for the dismissal was the Applicant’s pattern of behaviour in relation to attendance, and in this regard he had been fully informed of his employer’s concerns and expectations, and its intentions should he not comply in the future. As it was, the Applicant did not comply with those known and reasonable expectations, and the Applicant was dismissed as a consequence.

[57] Therefore, even allowing for the procedural deficiency that I have highlighted above in relation to the dismissal, I nonetheless conclude that the dismissal itself was neither harsh or unjust, nor unreasonable. The Applicant, by his course of conduct, evinced a degree of unreliability as to his punctuality and attendance which the employer reasonably concluded was unsustainable on the part of one of its rostered shift employees.

[58] Because I have reached this view, I must therefore dismiss the Applicant’s application under s. 394 of the Act.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr D. Hutchings, Applicant

Mr J. Burns, of the Respondent

Hearing details:

2013.

15 January.

Brisbane.

 1   Transcript of proceedings dated 15 January 2013, at PN573.

 2   Transcript of proceedings dated 15 January 2013, at PNS79; 400-404; 495; 669-671.

 3   Transcript of proceedings dated 15 January 2013, at PN218.

 4   Transcript of proceedings dated 15 January 2013, at PNS607-612.

 5   Transcript of proceedings dated 15 January 2013, at PN156.

 6   Transcript of proceedings dated 15 January 2013, at PN464.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR532899>