Mr David Maynard v Inner West Towing Pty Ltd

[2016] FWC 8582

[2016] FWC 8582

FAIR WORK COMMISSION

DECISION

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

Mr David Maynard
v
Inner West Towing Pty Ltd
(U2016/2587)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 14 DECEMBER 2016

Application for relief from unfair dismissal.

[1] This decision arises from an application by Mr David Maynard for an unfair dismissal remedy pursuant to s.394(1) of the Fair Work Act 2009 (the Act).

[2] Mr Maynard was represented in these proceedings by Ms Lucy Saunders from the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU). Mr Charly Tannous, solicitor, from Sage Solicitors, and the brother of Mr Francis Tannous, the manager of the respondent, represented Inner West Towing Pty Ltd (the respondent).

[3] In correspondence from the respondent dated 26 July 2016 the respondent set out a summary of its submissions on jurisdictional issues as follows:

“……

In summary, the Respondent’s submissions on the jurisdictional issue fall within the following three categories:

1. The Applicant has not satisfied the minimum employment period as a casual employee as the Applicant did not have a reasonable expectation of ongoing employment on a regular and systematic basis;

2. If the Commission was to find that the Applicant had met the minimum employment period, the Respondent would submit that the Applicant’s employment was not terminated, but rather the Applicant resigned or abandoned his employment;

3. Should the Commission find that the Applicant’s employment was terminated, the Respondent submits that it is a Small Business Employer and that it complied with the Small Business Code of Conduct in that the Applicant committed serious misconduct by the theft of the money that he received from towing work undertaken on 5 May 2016.

In light of the third matter, I would respectfully suggest that this matter should not proceed on submissions alone, but rather the Commission should receive evidence in the normal course as it will need to make findings in relation to the third matter. I will submit a more detailed outline of submissions later today.”

[4] The respondent’s jurisdictional objection, that the applicant had not been employed for the minimum employment period prescribed by the Act, was withdrawn on 1 August 2016 at the listing to determine that issue.

[5] At the next listing before me on 31 August 2016 Mr Charly Tannous appeared to be confused as to what issues were jurisdictional issues heard by the Fair Work Commission (the Commission) prior to the arbitration of the merits of an application and what issues involved the merits of an application. If I understood his submission correctly he considered that the question of what remedy should apply was a merit argument and all other issues were jurisdictional.

[6] Over the objection of the AMWU I advised Mr Charly Tannous that if he had not had an opportunity to prepare material in relation to outcome or remedy because of his position regarding the operation of the le6islation regarding these issues, and his consequent failure to prepare, then he would be given that opportunity. 1 That accommodation became unnecessary because the application was listed on the further day to complete the hearing

[7] In any event, at the hearing before me on 31 August 2016 and 16 September 2016, the issues to be resolved were whether there had been a dismissal and, if there had been a dismissal, was it consistent with the Small Business Fair Dismissal Code? Was the dismissal harsh, unjust or unreasonable?

[8] The respondent is a small business and therefore the Small Business Fair Dismissal Code (the Code) is relevant to any consideration of the termination of Mr Maynard’s employment. The Code is set out below:

(a) Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
(b) Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
(c) Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

(My emphasis)
[9] It is necessary for me to determine whether Mr Maynard’s termination of employment was harsh, unjust or unreasonable having regard to the criteria referred to in s.387 of the Act which is set out below:

“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 for followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[10] Mr Maynard commenced work in February 2014. He alleged that his employment was terminated on 11 May 2016. The text by which Mr Maynard submits that his employment was terminated is extracted below.

“Dave, I have been contacted by the solicitor who advised me that you told him that I threatened you. I don’t accept that I threatened you at all.

I would like you to bring the truck to the yard and finish up today until we finalise this issue.

The relationship between us is unattainable based on these and other allegations.

You are required to bring the truck immediately to the yard.”

[11] Mr Maynard gave oral evidence and provided a Statement 2 dated 29 July 2016,a Supplementary Statement3 dated 10 August 2016, a bundle of pay slips4 and excerpts from Mr Maynard’s work diary5 from 2 May 2016 to 11 May 2016.

[12] Having considered the evidence and submissions of the parties I have resolved various factual issues relevant to the criteria I am required to consider pursuant to s.387 of the Act. In resolving the factual background and any conflict in the facts presented by the parties I have accepted the evidence of Mr Maynard in preference to that of Mr Francis Tannous. Without drawing adverse inferences regarding his honesty, I did not find Mr Francis Tannous a reliable witness.

Was Mr Maynard dismissed from his employment?

[13] I am satisfied and find that Mr Maynard was terminated from his employment with the respondent by text message on 11 May 2016. I am persuaded that the text message forwarded by Mr Francis Tannous to Mr Maynard was a termination of employment. Mr Francis Tannous’ use of the word attainable was a mistake. He intended to use the word unsustainable. It is possible that Mr Francis Tannous’ reference to “finalising this issue” may have been meant to indicate that he intended that a conversation should take place before employment could continue but, after considering the evidence of the parties, I reached the opposite conclusion.

Valid reason - s.387(a)

[14] I have set out my key findings below:

● Mr Maynard worked for the respondent as a tow truck driver for 2 ½ years. He drove one of the respondent’s tow trucks home each night and stored it at his house on the weekend. That practice ceased at the instruction of Mr Francis Tannous just before Mr Maynard’s employment ceased. He was assigned tasks throughout the working day by Mr Francis Tannous.

● Mr Maynard recorded the vehicle, the pickup and drop-off address and the payment amount and method on run sheets. He gave the sheets, as well as any cash or cheques collected, to the respondent throughout the week.

● The relevant desk drawer was not locked and workers come in and out of the office.

● The system for signing run sheets and leaving cash payments was not consistent.

● Given the operating system for the collection of run sheets and monies it was not possible for the respondent to reliably conclude that Mr Maynard had failed to provide the $220 which Mr Francis Tannous claimed that Mr Maynard had stolen. Mr Francis Tannous’ conclusion in that regard was not reasonable in all the circumstances.

● I am satisfied that the involvement of the AMWU, acting on behalf of Mr Maynard in relation to industrial entitlement issues, played a part in Mr Francis Tannous’ decision to terminate Mr Maynard. Following correspondence from the AMWU there were acrimonious exchanges between Mr Francis Tannous and Mr Maynard including a conversation wherein Mr Francis Tannous said words to the effect: “You think you are a smart cunt eh? Well you’re not welcome in the yard any more. You’re to pick up the truck every morning and drop it off at the yard when you’re finished”.

[15] I am satisfied and find that Mr Francis Tannous’ reason for the termination of Mr Maynard was not sound, defensible and well founded. I am not persuaded that Mr Maynard stole any property, including cash payments, from the respondent. I am not satisfied that there was a valid reason for the termination of Mr Maynard’s employment, either summarily or with notice or that the respondent believed on reasonable grounds that Mr Maynard’s conduct was sufficiently serious to justify immediate termination of employment or termination of employment with notice.

[16] Having considered the issues to which my attention is directed by s.387 of the Act I am satisfied that the dismissal of Mr Maynard was harsh, unjust or unreasonable.

Remedy

[17] Having determined that there was not a valid reason for the termination of Mr Maynard’s employment I now have to consider remedy. I have considered ss.390, 391 and 392 of the Act.

[18] I have considered whether the remedy of reinstatement is appropriate in the circumstances of this application. I am satisfied that it is not appropriate. The absence of a valid reason for termination of employment as well as the inappropriate influence the AMWU’s involvement in representing Mr Maynard had, in influencing Mr Francis Tannous’ decision to terminate Mr Maynard’s employment, both weigh in favour of reinstatement. However, I am satisfied that restoring Mr Maynard to employment with the respondent would be entirely inappropriate. I am satisfied that the relationship of Mr Maynard and Mr Francis Tannous cannot be restored. I am satisfied that it would place Mr Maynard in a very awkward position. I am also satisfied that Mr Francis Tannous would find the relationship untenable given his firm, but mistaken, belief that Mr Maynard engaged in misconduct. I have also taken into account the fact that Mr Maynard has obtained further employment in a situation which, although it provides him with a lesser income, provides much greater job satisfaction.

[19] I have considered whether an order for payment of compensation is appropriate in all the circumstances of this case and I am satisfied that it is. I have considered in particular the criteria set out in s.392(2) which I have extracted below.

“392 Remedy—compensation

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.”

[20] I have considered the issues to which my attention is drawn by s.392 of the Act:

● There is no evidence that any order I might make in relation to compensation would have any effect on the viability of the respondent’s enterprise.

● Mr Maynard was not employed for a long period. I have given consideration to that issue.

● I have given consideration to the remuneration that Mr Maynard would have received had he not been dismissed. Without the intervention of the termination of his employment I am satisfied that Mr Maynard would have continued to be employed for at least another twelve months.

● There is no evidence that Mr Maynard had any settled intention of leaving his employment and, apart from those reasons relied on by Mr Francis Tannous for the termination of his employment, there is no evidence of any matter which might otherwise have provided a reason for the termination of his employment prior to that date.

● I am satisfied that Mr Maynard made efforts to find other employment but was not successful until he obtained part-time work as a bus driver. When determining compensation I will take into account the fact that Mr Maynard did not seek work as a tow truck driver which may have been more remunerative.

● There is no evidence of any amount earned by Mr Maynard from termination of employment to commencement of his new employment.

● The amount likely to be earned by Mr Maynard from the date of my order until actual compensation will be taken into account.

[21] I will not take into account any shock or distress suffered by Mr Maynard.

[22] I will not reduce any amount of compensation by any consideration of any possible misconduct by Mr Maynard. I am satisfied that he did not engage in any misconduct.

[23] I will consider the compensation cap at the date of Mr Maynard’s termination of employment and I will not order any compensation above the compensation cap applicable at the date of termination of employment.

[24] It has been 12 weeks since final submissions in this application. The circumstances of Mr Maynard may have changed. I will determine the amount of compensation payable to Mr Maynard on receipt, within three days, of further submissions from the AMWU setting out its calculations and any submissions in reply from the respondent within a further three days.

[25] Mr Maynard will be responsible for the declaration of that compensation and for the payment of any taxation arising from that compensation.

[26] If it is established that Mr Maynard was not paid his accrued entitlements on termination of employment or underpaid his wages these issues can be pursued elsewhere.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms L Saunders for the applicant.

Mr C Tannous for the respondent.

Hearing details:

2016

Sydney:

August, 31

September, 16

 1   TPN 75

 2   Exhibit Maynard 1

 3   Exhibit Maynard 2

 4   Exhibit Maynard 3

 5   Exhibit Maynard 4

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