Mr Darren Ross v ZC Technical Pty Ltd

[2013] FWC 5503

[2013] FWC 5503

FAIR WORK COMMISSION

DECISION

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

Mr Darren Ross
v
ZC Technical Pty Ltd
(U2013/690)

COMMISSIONER SPENCER BRISBANE, 6 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] This decision relates to an application, made on 7 March 2013, by Mr Darren Ross (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment from ZC Technical Pty Ltd (the Respondent) was harsh, unjust or unreasonable.

[2] The matter was conciliated before a Fair Work Commission (the Commission) Conciliator but was not able to be resolved. Directions were issued for the filing of material and the matter was listed for Arbitration, before the Commission as currently constituted.

[3] At the Hearing the Applicant was represented by Mr T O’Brien and Mr A Cousner, Legal Officers of the Construction, Forestry, Mining and Energy Union (the CFMEU/Union). The Respondent was represented by Ms MacFarlane, General Manager/Director.

[4] While this decision does not reference all submissions and evidence, all of such have been considered.

Relevant Legislation

[5] The application has been made pursuant to s.394 of the Act, which provides:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[6] The Act provides those matters that the Commission must take into account in considering whether a dismissal was harsh, unjust or unreasonable as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”

Background

[7] The Applicant commenced permanent employment with the Respondent on 30 May 2011 working for the first 20 months as a leading hand (involved in zinc cladding), at the Gold Coast University Hospital site. The Applicant continued to work at this site for the majority of his employment.

[8] The Applicant finished at the Gold Coast University Hospital site in about January 2013. The Applicant stated at no point did the Respondent raise concerns about the quality of his work. The Applicant performed some other minor works on several other sites around Brisbane for the Respondent, until the occurrence of the events, which are material to his termination.

[9] In about February 2013 the Respondent directed the Applicant to work at a site in Townsville. The Applicant did, for a period, work in Townsville in February 2013. It is the circumstances of the Applicant’s alleged refusal to continue to work in Townsville that the Respondent relies upon as the reason for the termination. This matter will be discussed in more detail below.

Summary of the Applicant’s submissions and evidence

[10] The Applicant filed an outline of submissions and a statement of the evidence in the matter.

[11] The Applicant’s case, in summary, was that; the Respondent’s request for the Applicant to work in Townsville, was unreasonable, in that the Respondent did not provide the Applicant with reasonable notice of the request to work in Townsville. Further that the Respondent deceived the Applicant, as to the expected duration of the work; that the Applicant gave a reasonable period of notice (to the Respondent) about his requirement to be in Brisbane for a particular weekend; and that the Respondent could have deployed the Applicant to other work in Brisbane for the period in question, to allow him to attend his weekend commitment.

[12] The Applicant stated that on 6 February 2013 he was instructed by Mr Simon Johansen that he was being temporarily “supplied” to a major site in Townsville for a period of some 2 weeks. 1 The Applicant stated that the period of this work was to end on 23 February 2013.2

[13] It was the Applicant’s evidence that he “made it clear” to Mr Johansen that he, the Applicant, would only be able to work in Townsville for this two week period as the Applicant had “significant and long term plans” coming up in early March which required him to be in Brisbane. 3 The Applicant stated that he was content to travel to Townsville on this proviso, despite the short notice of the requirement.

[14] The Applicant worked in Townsville from 11 February 2013.

[15] The Applicant stated that Mr Johansen advised the Applicant on 20 February 2013, that his stay in Townsville was going to be extended indefinitely. The Applicant advised Mr Johansen that he was agreeable to this extension to remain on the Townsville project “provided I could be in Brisbane for the weekend of 2 and 3 March 2013” 4. At the time of this conversation the Applicant was schedule to return to Brisbane on 23 February 2013, some 3 days later.

[16] The Applicant’s evidence is that Mr Johansen stated to the Applicant that he was required to be in Townsville on 25 February 2013. Mr Johansen stated to the Applicant at this time, that the Respondent would not be responsible for returning the Applicant to Brisbane for the weekend of 2 and 3 March 2013.

[17] The Applicant expressed his view to Mr Johansen that “given the circumstances surrounding the relocation” 5 it was his view that it was not unreasonable for the Respondent to participate in his return to Brisbane for the weekend in March. The Applicant advised Mr Johansen that he, the Applicant, could not afford to return himself to Brisbane and the assistance of the Respondent “would be appreciated”6.

[18] The Applicant stated that subsequent to his conversation with Mr Johansen on 20 February he was contacted by Mrs Michelle MacFarlane, also on 20 February 2013, who advised the Applicant that if he did not return to Townsville on 25 February, the Applicant would be dismissed.

[19] The Applicant returned to Brisbane on 23 February 2013 along with another employee Mr Daryl Evans. It is the Applicant’s evidence that Mr Daryl Evans was deployed to the Gold Coast University Hospital site the following week.

[20] The Applicant stated that he and Mr Evans have a similar skill set, given this, the Applicant stated that it was his view, that Mr Evans could have been returned to Townsville allowing the Applicant to take Mr Evans’ place on the Gold Coast for that week. The Applicant stated that Mr Evans offered to return to Townsville “to facilitate my request” 7.Evidence was not called from Mr Evans.

[21] The Applicant stated that in the week commencing 25 February 2013, the disputed week, Mr Evans and a further employee, Mr Daniel Woglemouth, worked at the Gold Coast site. The Applicant does not state on what basis this occured.

[22] The Applicant also stated that in the week commencing 25 February, he could have been deployed to the St John’s Cathedral job or the Respondent’s workshop. Again the Applicant gave no evidence of the basis on which he held this belief.

[23] Since dismissal, the Applicant stated that he had been applying for work in different areas; geographically and professionally, but has been unsuccessful in securing permanent employment. No further evidence of this has been filed, specifically, no job applications or responses to such were filed as evidence of this, in the matter.

[24] As at the date of his statement, 8 May 2013, the Applicant had only undertaken work on an “ad job” basis for family and friends. The Applicant does not given evidence of any earnings that he has received as a result of this work.

[25] The Applicant originally sought reinstatement to his former position, however by the time of Hearing in the matter the Applicant had successfully obtained alternative full-time employment. The Applicant subsequently sought compensation, rather than reinstatement.

[26] In closing submissions, the Applicant contended that the primary matter in dispute between the parties was whether the Applicant did, in fact, refuse to perform his duties.

[27] The Applicant submitted that, the evidence of each of the Respondent witnesses was that an important part of working life was effecting the work-life balance. 8

[28] The Applicant submitted that the unchallenged evidence was that, he did not refuse to go to Townsville. The Applicant submitted that, in fact, he had stated that he was happy to go to Townsville, but that he needed to be in Brisbane for the weekend of 2 and 3 March 2013.

[29] The Applicant submitted that the investigation or research undertaken by Ms Kim Ayres (of the Respondent) into the Respondent’s position, regarding the Applicant’s alleged refusal to continue in Townsville, was flawed in that Ms Ayres had never spoken to the Applicant regarding his alleged refusal. The Applicant referred to the following exchange in cross-examination with Ms Ayres:

“You say that Darren refused to go to work but that's not true, is it? He says, "I can't be in Townsville for this weekend." He didn't say, "I'm not going to go to work. I'm refusing to go to work." He said, "I need to be back in Brisbane for the 2nd and 3rd - - -"?---Well, I never had a conversation with Darren. My only comment that I heard was Simon had said to me, "He won't go back. He just won't go." 9

[30] The Applicant submitted that in these circumstances, primarily because of Ms Ayres’ mistaken view as to the allegations of the Applicant’s conduct, the Respondent’s view was that the Applicant simply refused to go to Townsville. The Applicant stated that the Respondent reached this view based on the limited research undertaken by Ms Ayres, and the view was inappropriate.

[31] The Applicant also submitted that Mr Johansen also failed to make any meaningful contact with the Applicant to “investigate” the matter. The Applicant submitted that, at its highest, Mr Johansen’s action was, signing the termination letter, the day after he became aware of the allegations. The Applicant stated this inaction included a failure to consider alternatives to dismissal.

Summary of the Respondent’s submissions and evidence

[32] The Respondent filed an outline of submissions and statements of Ms Kim Ayres, Office Manager, Mr Simon Johansen, Managing Director and Ms Michelle MacFarlane, General Manager/Director.

[33] The Respondent’s case, in summary, is that the Applicant was required to travel for his position and his refusal to return to Townsville, was a refusal to obey a lawful and reasonable direction. The Respondent submitted that this amounted to serious misconduct. The Respondent also submitted that employees at the Townsville project were compensated for living away from home and that this additional remuneration could have paid for the flights to and from Brisbane.

[34] The Respondent submitted, that the Applicant applied, by email, for a position with the Respondent on 10 May 2011. Contained in that job application, the Respondent submitted, the Applicant confirmed he was available to travel for work. A copy of this email was attached to the Respondent’s submissions. The email stated:

“... I am available to travel and I am looking for long term employment.”

[35] The Respondent submitted that, the Applicant commenced in a full-time capacity after a brief period of work as a casual. The Respondent filed a document, that was submitted as an extract of the contract of employment, which outlined the “living away from home” policy, which relevantly stated:

“You are paid a living away from home allowance...if you are required to work in a location where you cannot reasonably return to your home each night” 10

[36] And further:

“Unless you are travelling away from home for a period of more than 3 months you will not be provided with travel costs to return home during your stay.” 11

[37] The Respondent submitted that the Applicant commenced work on site in Townsville on 11 February 2013. The Respondent’s evidence was, that the Applicant was “informed” on Wednesday, 6 February 2013, of the “requirement” for him to attend in Townsville. The Applicant was provided an RDO early on the Friday before departing for Townsville. The Respondent submitted that the Applicant accepted this requirement “without complaint” and worked on the Townsville site until he was dismissed.

[38] The Respondent agreed that the Applicant was scheduled to return to Brisbane on Saturday 23 February and was advised on Wednesday 20 February that he would be required to return to Townsville on Monday, 25 February. The Respondent submitted that the Applicant was not directed to work on the weekend of 23/24 February or 2/3 March (being the weekend that the Applicant requested to return to Brisbane for his other commitments).

[39] The Respondent submitted that the Applicant did advise the Respondent that he required to return to Brisbane for Saturday 23 February 2013 due to other commitments. The Respondent stated, that this request was accepted. It was the Respondent’s submission that at the time the expected duration of the Townsville work was to be two weeks.

[40] The Respondent submitted that the Applicant refused to return to Townsville for “any further period”. This is in dispute between the parties.

[41] The Respondent stated that, the notice given of the requirement to work in Townsville, was the same in both instances and that further the Applicant had not complained, that the notice was insufficient on the first occasion. The Respondent also stated, that another employee was given the same amount of notice and did not suggest the request was unreasonable. There is no direct and reliable evidence of this, the alleged other worker was not identified and no evidence was called from this worker.

[42] The Respondent submitted that the Applicant was asked to “seriously consider” his refusal and was provided with an opportunity to consider the offer over night. It was at this time, the Respondent submitted, that he was advised that if he refused to attend in Townsville, no further work would be available to him. This is inconsistent with the evidence of the parties and the submissions. The Respondent submitted that it “thoroughly investigated”, and made enquiries of other work at projects throughout the state etc. However, on their evidence he was told of the requirement to return on 20 February, he refused at this time, and either at this time or a few minutes/hours later (this is unclear on the evidence), the Applicant was advised to think about his position overnight, and that there was no other work.

[43] The Respondent relied upon a document, annexed to their submissions, with the title “Brisbane jobs Mon 25th”. The document is a handwritten document that indicates the of the jobs, that were currently underway with the Respondent, at that time.

[44] The Respondent considered that the Applicant, was being “uncooperative, imprudent and verbalised no care for the consequences of his actions” 12.

[45] The Respondent submitted, that the Applicant was contacted, after having been provided an opportunity to reconsider his decision not to return to Townsville (which was overnight) and he again confirmed that he would not return to Townsville, unless the Respondent paid for him to return on the weekend of the 2nd and 3rd of March 2013.

[46] The Respondent’s evidence is that the Applicant was advised of his termination verbally on 21 February 2013, but was advised to return to work, until the conclusion of his shift on Friday 22 February 2013. The Respondent completed a “letter of serious misconduct” and provided it to him, after he had worked for the remainder of the 21st and the 22nd of February 2013.

[47] The Respondent submitted that it had a valid reason for dismissing the Applicant. It was submitted that the Respondent’s basis for the termination, was that the Applicant’s refusal to return to Townsville, meant that if the Applicant was to remain employed, he would have to be deployed at a site in Brisbane. In the Respondent’s submission, there was no operational need for the Applicant to work in Brisbane and to do so would have been “superfluous” and resulted in “wasted wages”. The Respondent stated that as a small company, accommodating the Applicant in this manner presented an unnecessary financial burden and the Applicant was required for work in Townsville.

Consideration

[48] In considering an application for unfair dismissal remedy and, in particular, whether the dismissal was harsh, unjust or unreasonable, the Commission must consider s.385 and take into account those matters in s.387 of the Act. Each of those matter will be considered;

(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)

[49] The issue in contention in this matter does not relate to the Applicant’s capacity to perform his duties with the Respondent. The issue also does not involve a consideration of the effects on the safety and welfare of other employees.

[50] The main issue under consideration is, whether the Applicant’s conduct in allegedly refusing to return to Townsville, to perform work, was a valid reason for dismissal but, more importantly from the Applicant’s position, whether he did, in fact, refuse to return to Townsville.

[51] In this respect the Applicant submitted that the actions of the Respondent, in relation to the dismissal of the Applicant, were not reasonable. The Applicant submitted that the Respondent requested Ms Ayres to investigate the position of the Respondent in regards to the alleged conduct of the Applicant. The Applicant submitted that this task was done without seeking all the information from the Applicant, or the Applicant having the opportunity to provide his views to Ms Ayres, and therefore her consideration of the issues was flawed and incomplete. However, the central issue was that the Applicant had refused to return to Townsville on the basis of his requirement to be in Brisbane that following weekend.

[52] Further the Respondent contended that the Applicant therefore refused to return at all. The Applicant, whilst critical of the Respondent’s investigation and consideration of the issue did not displace that the actions of the Applicant in refusing to return fur duties was the appropriate conducted under review.

[53] The Applicant referred to the extract from the case authority of Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, where Sheppard and Heerey JJ stated:

“Employers can promulgate policies and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in particular circumstances of an individual case, be harsh, unjust and unreasonable.” 13

[54] The Applicant submitted that in the case of Bostik is authority for the proposition that even though a direction from an employer may be reasonable, which the Applicant does not concede it was, failure to comply with such direction by an employee may not always justify summary dismissal.

[55] The Applicant submitted that a consideration of the concept of a “valid reason” for dismissal, requires application of the test of, whether the reason for dismissal is sound, defensible and well founded, providing a fair go all round, 14 and that the reason cannot be capricious, fanciful, spiteful or prejudiced.

[56] The Respondent submitted that there was a valid reason for the dismissal, relating to the Applicant’s conduct. The Respondent stated that the Applicant’s conduct, was that he was given a lawful and reasonable instruction, that he refused to perform and thus “abandoned” his position. The Respondent submitted that his conduct, was such that other forms of discipline (eg a warning), were not appropriate in the circumstances.

[57] Specifically the Respondent submitted that the direction to return to Townsville was both lawful and reasonable. The Respondent summarised the valid reason for the dismissal as follows:

“...It is common practice in the construction industry to work away from home, in particular at ZC Technical due to the nature of our very specialised work. The Construction Industry On-Site Award states that employees are to be flown home at company expense only every four months when working away from home

It was part of Mr Ross's contract of employment that he was required to travel at times for work. Mr Ross advised when he applied for his job that he was willing to travel. This particular trip to Townsville was the first time Mr Ross had been required to travel for ZC Technical. Mr Ross's instruction was to return to work in Townsville for a period of approximately two weeks after a company-paid weekend to Brisbane. He was given five days' notice of the need to return to Townsville. His flights, accommodation and food were to be paid for by ZC Technical. In addition, he was paid a further 180 per week living away from home allowance. This above-award payment was sufficient to cover a return flight back to Brisbane for a weekend visit to attend a concert.

Mr Ross was not required to work on the weekend that he claims he needed to be in Brisbane, on 2 and 3 March. Mr Ross was given sufficient and reasonable time - nine days, in fact - to make travel arrangements to return to Brisbane on the weekend of 2 and 3 March. Mr Ross had only been away for two weeks when he refused to return to Townsville.

Mr Ross was given a reasonable and lawful instruction that was consistent with his contract of employment and with the award. At no stage did Mr Ross communicate compelling reasoning as to why he could not return to Townsville. Mr Ross was fully informed as to the consequences of his refusal to return to Townsville. Mr Ross was given 24 hours to consider the consequences of his decision so as to allow him to seek advice and to ensure he was not making an emotional decision when he refused to return to Townsville.

Mr Ross's dismissal was not unfair or unreasonable. Mr Ross chose to walk away from his career with ZC Technical. We believe wholeheartedly that we have not acted unfairly in our dismissal of Mr Ross. The decision to dismiss Mr Ross was not a simple one. In fact, dismissing Mr Ross was not a desired outcome and at the time it caused us undue stress, pressure, time and money.”

[58] The Respondent submitted that the evidence was, that despite knowing that the Respondent required and had directed the Applicant to return to Townsville, he nevertheless chose not to do so, therefore disobeying a lawful and reasonable request.

[59] In accordance with s.385(a), it must be examined, whether there was a valid reason relating to the Applicant’s conduct in this matter, and whether the reason was sound, defensible or well grounded.

[60] The evidence shows that the Applicant willingly went to Townsville for the first period. It is also clear that on 20 February 2013, the Applicant was advised of the requirement to remain working in Townsville. Whether or not this requirement was stated to be “indefinitely”, as contended by the Applicant, or for a fixed period of two weeks, as contended by the Respondent, has been taken into account, as has the Applicant’s later refusal to attend and to follow a lawful direction in accordance with the employment contract.

[61] The circumstances as a whole included that the Applicant had, prior to this, received a stable and continuous period of employment at the Gold Coast site, and he had made long term plans in his personal life on that basis. The Applicant was given 5 days notice of the requirement for him to work elsewhere. The Applicant was willing to do this on the basis that he was returned to Brisbane to meet his particular week-end commitments.

[62] The Applicant stated that he had gone to some expense in making arrangements for him to attend at the music festival including the cost of attending and accommodation for that purpose. The Applicant also gave evidence that people from interstate would be attending with him. While these are matters relevant to the Applicant’s out of work plans, and which would not ordinarily be in the Respondent’s consideration, they were, nevertheless, relevant to this matter as to the reasonableness of the Respondent’s direction, to the Applicant, to return to Townsville to work.

[63] It is also relevant that there was no evidence of any prior performance issues with the Applicant and that there is no evidence that any performance issues were considered by the Respondent. Whilst the Respondent submitted that the Applicant had previously refused to work overtime, there was no evidence, that the Respondent had taken any steps, to institute performance management in this regard, or to take this matter into consideration in terms of the dismissal.

[64] The fact that the Applicant had a music festival to attend, was permissible, it was the Applicant’s free time away from work and the Respondent has no ambit in that sphere. However, in the circumstances, the Applicant was not required to work during the period of attendance at the festival. The Applicant however took issue with having to pay for the cost of returning to attend such.

[65] The circumstances were no doubt frustrating to the Applicant. However, the additional monetary payments the Respondent stated were provided by the Respondent were designed to compensate for such travel. The Respondent argued that alternative working arrangements for the Applicant for a limited period were not available.

[66] Taking into account all of the submissions and evidence, it is determined there was a valid reason for the dismissal, when the circumstances, as a whole, are considered. However, the circumstances do not amount to serious misconduct within the meaning of the law.

[67] The evidence was that the Applicant willingly went to Townsville for the first two week period and did so with 5 days notice. The Applicant did not at this time, raise any objection to the period of notice.

[68] However, Ms Ayres conceded in cross-examination, that it was not unreasonable for the Applicant, at the time of his initial attendance in Townsville, not to inform the Respondent of his requirements regarding the weekend of 2 and 3 March 2013, because he was, at that time, only required to be in Townsville for two weeks. 15 The Applicant had referred to forthcoming commitments in Brisbane.

[69] The Applicant was again requested to return to Townsville for a further period, which was to be for a further two week period.

[70] There was no requirement for the Applicant, at any time, to advise the Respondent of his personal plans on days on which he was not required to work. However the Applicant’s position was that for the Respondent on, limited notice, to assume that the Applicant should change and adapt all of his plans is unreasonable. The Applicant’s approach was that the solution in the circumstances should have been for the Respondent to make arrangements for the Applicant to remain in Brisbane or, if as the Respondent put, that was not an option open to them, to make paid arrangements for him, for his return on the weekend, to meet his plans.

(b) whether the person was notified of that reason

[71] The Applicant was notified of the reason for the dismissal, being his refusal to follow the direction to attend for work at the Townsville site.

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

[72] The Applicant submitted that, while Ms MacFalane may have stated the intention of the Respondent to terminate the Applicant over their concerns, regarding their allegations, those allegations were never clearly put to the Applicant for him to respond in a substantive manner.

[73] The Applicant emphasised the evidence that he raised his concerns regarding his continued attendance in Townsville on 20 February 2013 and was dismissed on 21 February 2013. However there was disparity on this issue. The Applicant did not provide sufficiently clarity on his overall refusal to attend work in Townsville on an ongoing basis.

[74] The Respondent, in contrast, submitted that the reasons for the dismissal were put to the Applicant and he was given an opportunity to respond. The Respondent submitted that the Applicant was given an opportunity to consider his decision to refuse to work and told that he would be contacted the following day to advise him of the decision.

(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;

[75] This matter was not in dispute between the parties. The Applicant submitted that this matter was not relevant. 16

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

[76] As stated this consideration does not arise in this matter, the incident in question relates to the ongoing need for the Respondent to have the Applicant work in Townsville and the Applicant’s refusal to do so given his imminent weekend commitments in Brisbane.

(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

[77] The Respondent submitted that it was not a small business for the purposes of Part 3-2 of the Act.

(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

[78] The Respondent was self-represented in the proceedings and did not have dedicated human resource or industrial relations expertise. This has been taken into account.

[79] The Respondent submitted that the Office Manager, Ms Ayres, of the Respondent is also the Human Resource Manager. It was submitted that Ms Ayres undertook a “thorough investigation” into the circumstances surrounding the alleged refusal of the Applicant to work, she conceded that she relied on the version of the Applicant’s refusal conveyed to her by the Applicant’s Director.

[80] Ms Ayres did not make any factual findings about any allegations and, the evidence discloses, simply put the information that she had found on various websites and sources to the Director for their consideration.

[81] It does not seem that there was a consideration of the law, or human resources practices, to the specific facts of the matter. The Respondent simply referred to the Regulations and the definition of serious misconduct contained there, without any further consideration.

[82] It is acknowledged however that Ms Ayres is not qualified in law or human resources. There is no evidence that any other management of the Respondent is so qualified.

(h) any other matters that the FWC considers relevant

[83] The parties did not raise any other matter for consideration of the Commission.

[84] However I have taken into account the general nature of the building and construction industry and the nature of that work.

Conclusion

[85] Taking into account all of the circumstances of the matter, there was a valid reason for the dismissal however this reasons was not commensurate with serious misconduct in terms of the Regulations. Accordingly the Applicant should have been afforded wages in lieu of notice, in accordance with the relevant provisions of the National Employment Standards or the appropriate contractual or award entitlements. The Commission recommends that this be rectified within a period of two weeks of this decision.

[86] The findings are that the Respondent in no way impeded the Applicant’s attendance at the festival for which he sought to be returned to Brisbane. He was not required in Townsville on the weekend and he had received additional money for working award from home. The Applicant had provided the Respondent with an ultimatum, requiring payment for him to attend his weekend commitments and further to return him to Townsville for work.

[87] Accordingly the Application pursuant to s.394 of the Act is dismissed.

[88] I Order accordingly.

COMMISSIONER

 1   Statement of Darren Ross at 8.

 2   Statement of Darren Ross at 9.

 3   Statement of Darren Ross at 10.

 4   Statement of Darren Ross at 13.

 5   Statement of Darren Ross at 17.

 6   Statement of Darren Ross at 18.

 7   Statement of Darren Ross at 23.

 8   In this regard the Applicant referred to PN194, PN507 and PN825.

 9   PN229.

 10   Respondent outline of submissions, Attachment A.

 11   Respondent outline of submissions, Attachment A.

 12   Respondent outline of submissions at 14.

 13   Ibid at 29.

 14   Said v Jokar Holdings Pty ltd[2011] FWA 977 at paragraph 13.

 15   PN216.

 16   Applicant closing submissions dated 26 August 2013 at 49.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR539964>