Mr David Miatke v Cooper Bros Holdings Pty Ltd T/A Triple R Waste Management

[2010] FWA 8381

[2010] FWA 8381

FAIR WORK AUSTRALIA

DECISION

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

Mr David Miatke
v
Cooper Bros Holdings Pty Ltd T/A Triple R Waste Management
(U2010/6890)

COMMISSIONER ROE MELBOURNE, 29 OCTOBER 2010

Termination of employment – misconduct.

[1] The matter arises from an application filed on 10 March 2010 under s 394 of the Fair Work Act 2009 (the Act) by Mr David Miatke (the Applicant) for relief in respect to the termination of his employment from Cooper Bros Holdings T/A Triple R Waste Management (the Employer or the Respondent).

[2] Following an unsuccessful conciliation conference the matter proceeded to arbitration. The parties elected to proceed to a hearing.

[3] Directions were issued by Fair Work Australia and the matter was heard on 22 October 2010 in Brisbane.

[4] At the hearing the Applicant was represented by Mr J Fuhrman-Luck and the Respondent was represented by Mr JE Merrell. Leave was granted for them to appear.

[5] Evidence was given for the Respondent by Mr Cooper who is the Managing Director of the Respondent, and by Mr Twidale who was the direct supervisor of the Applicant at the time of the dismissal and a fellow driver at the same work location in the early part of the Applicant’s employment. The Applicant gave evidence.

[6] There was no dispute and I am satisfied that the Respondent is a national system employer covered by the Waste Management Award 2010 and that the Applicant was employed as a full time employee by the Respondent for a continuous period exceeding 6 months. The Applicant commenced employment with the Respondent on or about 27 July 2009 and was dismissed on 24 February 2010. The Respondent employed 28 employees and is not a small business employer. The Applicant was dismissed at the initiative of the Employer. There is no challenge to the jurisdiction. The Applicant is protected by the unfair dismissal laws.

[7] The Applicant was dismissed without notice. He was paid his entitlements up to the date of dismissal but no notice period. There is some dispute about whether the Applicant was paid his sick leave entitlements.

The reason given for dismissal.

[8] The reason given for dismissal was that the Applicant abandoned his employment. In a letter sent on the afternoon of Wednesday 24 February 2010 the General Manager of the Respondent advised the Applicant that:

“It is has come to my attention that you have been absent from work without reasonable excuse or notice since Monday February 22 2010....

You have apparently consulted a doctor today to have a Medical Certificate issued excusing you from work from the 22/02/2010 to 28/02/2010 inclusive however this was only received at approximately 2.10 pm (ESDT) today.

As you have apparently failed to make every reasonable effort to notify the Company of your absence from normal duties I assume that you have abandoned your position and that therefore you have also constructively terminated your employment with the Company”. 1

[9] However, the Respondent wisely acknowledged in these proceedings that it could not be sustained that the Applicant abandoned his employment and the Respondent therefore accepted that the dismissal was at the initiative of the Employer. 2

[10] The Applicant was absent from employment from 15 February 2010 until the day of his dismissal on 24 February 2010.

[11] The Respondent does not suggest that there was any conduct by the Applicant during his employment which could provide a valid reason for dismissal other than the events which began on 12 February and ended with his dismissal on 24 February 2010. These related to the decision of the Employer to change the starting and finishing location of the Applicant’s employment from the Sunshine Coast to Wacol south of Brisbane. Mr Twidale gave evidence that there were a few occasions when the Applicant left early from work on a Friday. 3 This was disputed by the Applicant. The Applicant produced evidence that he worked overtime during two of the weeks when Mr Twidale said this occurred. Given that the Respondent did not advance this material as contributing to a valid reason for dismissal it is not necessary for me to determine the truth of this matter.

The applicable Award and contract of employment.

[12] The Waste Management Award 2010 applied to the Applicant and the Employer. Prior to 1 January 2010 theTransport Workers' (Refuse, Recycling and Waste Management) Award 2001 applied. The Employer is incorporated in Victoria and the 2001 Award applied to the Employer by virtue of common rule application. The Respondent accepts that the Waste Management Award 2010 applies. In addition to the Award provisions and only to the extent that is not inconsistent with the Award a contract of employment also applied. That contract was signed by the Applicant upon engagement although the Applicant never received a copy of that contract. The contract was not signed by the Employer. 4

The change of work location.

[13] On Friday 12 February 2010 the Employer sent a memo by email to the Applicant giving ten days notice that instead of starting and finishing work each day at a location 20 kilometres from his home on the Sunshine Coast north of Brisbane he would be required to start and finish work each day at a location approximately 140 kilometres from his home. The reasons for the change were stated in the letter to be as part of “extensive cost cutting measures” and it was said that the changed location would “reduce vehicle wear and tear, fuel costs and yard rental costs.” 5 It was uncontested evidence that despite efforts to win new work on the Sunshine Coast and to the north and west of Brisbane a big majority of the work currently won by the Respondent was located on the south side of Brisbane. The new location was on the south side of Brisbane at Wacol. This change would involve very significant increased private vehicle transport costs and also many hours additional unpaid time each day for the Applicant. Much of the journey to and from Wacol would involve navigation of heavy city traffic.

[14] When the Applicant started work he was required to commence duties at Narangba which was on the north side of Brisbane about 60 kilometres from his home. This location was identified in the contract of employment as the location for starting and finishing work. Clause 1.3 of the Contract provided under the heading “location” that:

“Ordinarily you will report for work at the Company depot located at Cnr Boundary Road & Potassium Street Nerangba however, the Company may direct you to report and perform work at other locations, provided that such a direction does not impose unreasonable hardship on you.” 6

[15] The Applicant says that it was always understood and agreed that the location was going to shift to the Sunshine Coast which was closer to his home. The Respondent denies this. Mr Cooper does however agree that at the time he hired the Applicant he had been looking for someone on the Sunshine Coast for a couple of years. 7 Mr Cooper under further cross examination said that when he had said Sunshine Coast he was referring generically to South East Queensland. I found Mr Cooper’s evidence in this respect confusing and unconvincing.

[16] However, there is no doubt that within three to five weeks of commencing work the location for commencing duties was in fact shifted by agreement to the Sunshine Coast and remained in that location for the next six months until 22 February 2010 (two days prior to the dismissal of the Applicant). Mr Cooper for the Respondent says that the move to the Sunshine Coast location occurred in the first week of September 2009 and that Mr Twidale and the Applicant’s trucks were both relocated to the Sunshine Coast at the same time. Mr Twidale agreed with the Applicant that in fact the Applicant’s truck was relocated a week or so earlier than Mr Twidale’s truck. 8 The Applicant says his truck was relocated in the last week of August 2009. Given Mr Twidale’s evidence I am inclined to accept the evidence of the Applicant that the relocation for the Applicant took place in the last week of August 2009 which was only about three weeks after the Applicant commenced employment in Queensland. The Applicant was trained for two days in Melbourne at the commencement of employment and then drove the truck from Melbourne to Narangba.

[17] The Respondent says that the relocation only occurred because the yard at Narangba became unavailable at short notice and the Applicant was then asked to find alternative premises which he did. The Applicant says that the move to the Sunshine Coast was agreed to at the time he was engaged. I find there is some support for the Applicant’s version of events because Mr Cooper acknowledges that at the time the Applicant was engaged there was already significant doubt as to whether the arrangement at Narangba would be able to continue. 9 However, I am unable to draw a firm conclusion about whether or not the move to the Sunshine Coast was agreed to at the time of engagement.

[18] Both Mr Cooper and Mr Twidale for the Respondent gave evidence that they regarded the move to the Sunshine Coast as temporary. However, there is nothing in the evidence that suggested that the lease arrangement for the Sunshine Coast parking location was temporary or that the Applicant was advised that the location was temporary. Given that the new location was operative for most of the period of the Applicant’s employment and that it had been operative for approximately six months and that there was no advice to the Applicant that the location was temporary I do not regard the location as temporary. I am satisfied that the location was changed from Narangba to the Sunshine Coast consistent with the contract of employment by agreement between the parties. This must be regarded as the starting point for the consideration of any further proposed change.

[19] Mr Cooper gave evidence that one of the purposes of the engagement of the Applicant was that the Applicant was expected to canvass for new business in new areas. This included the Sunshine Coast and other areas to the north of Brisbane. The Applicant travelled to Kingaroy which is to the west of Brisbane on two occasions to canvass for new business. I am satisfied that the location on the Sunshine Coast was chosen for at least two business reasons. Firstly, because Mr Twidale and the Applicant lived in the area (in the case of Mr Twidale he moved to the Sunshine Coast prior to the parking being arranged in the Sunshine Coast). 10 Secondly, because it was hoped that the Applicant would expand the business in the area. There was some conflict in the evidence as to the area to be targeted. Mr Cooper said that it was an area within a radius of about 200 kilometres from the Sunshine Coast (he suggested within 200 kilometres of greater Brisbane at other points of his evidence) whilst the Applicant said that it was a wider area bounded by Bundaberg, Kingaroy and Slacks Creek.11 Mr Cooper and Mr Twidale both said that it was too early in the process of building the business to consider places as far afield as Bundaberg and the Applicant conceded that he had never been to Bundaberg for the Respondent. I accept Mr Cooper’s evidence that the focus of the Applicant’s work was a radius of 200 kilometres from the Sunshine Coast and that the large majority of the work was in fact in the south of Brisbane near Wacol.

[20] The Applicant was understandably upset by the memo he received on the evening of Friday 12 February 2010 advising of the changed location. The change came without any prior warning. The Applicant was also advised of the change on the evening of 12 February 2010 by his immediate supervisor Mr Twidale. I am satisfied that the proposed change constituted a major change of the sort which required the Employer to observe the consultation about change provision of the Award.

[21] Clause 8 of the Waste Management Award provides;

“Consultation regarding major workplace change

8.1 Employer to notify

Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

8.2 Employer to discuss change

(a) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1.

For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

[22] Having considered all of the evidence I find that the Employer took inadequate steps to observe its Award obligations. I am also satisfied that the proposed change in location was not permitted under the contract of employment signed by the Applicant in that the change clearly imposed unreasonable hardship on the Applicant and therefore the location could not be changed under the contract.

[23] I am satisfied that there were legitimate operational and business reasons for the proposed change. There was unchallenged evidence that the Employer was facing economic difficulties and that the proposed change would reduce costs for the Employer in particular rental costs for truck parking and wear and tear on the vehicles. As most of the Employer’s work was close to the Wacol depot the change would be more efficient for the Employer. However, a significant proportion of the savings for the Employer would be at the expense of the Applicant.

The absence of the Applicant from 15 to 24 February 2010.

[24] The Applicant rang two of the managers of the company shortly following receipt of the notice. The managers did not respond to his calls. I am satisfied given the obvious negative effect of the change of location on the Applicant that the managers would have known why the Applicant was calling.

[25] On Monday 15 February the Applicant spoke on the phone to Mr Twidale, his immediate supervisor, and advised him that he was ill due to a sore shoulder and unable to attend work and also that he was unhappy about the proposed change of location. The Applicant then attended his doctor on Monday 15 February and provided the Respondent with a copy of the medical certificate advising that he was not fit for duties from 15 to 20 February inclusive. The Applicant says that he provided this medical certificate to the Employer by fax on the evening of 15 February whilst the Employer says it was received early on the morning of 16 February. I am satisfied that this was acceptable advice at the earliest possible opportunity to the employer of inability to attend work due to ill health for the period 15 to 19 February inclusive and met the requirements of the Award, the National Employment Standards and his contract of employment. Furthermore the Applicant provided acceptable evidence in the form of a medical certificate within reasonable time and satisfied the provisions of the NES, the Award and his contract of employment in this regard. There is no suggestion that the Applicant had previously taken excessive personal leave and the Applicant was paid for some of the period of leave.

[26] The Award does not provide any supplementary terms in respect of personal leave and provides that personal leave is regulated by the NES.

[27] The Contract of employment at Clause 6.3 provided that “the company may require you to provide a medical certificate from a registered health practitioner or a statutory declaration evidencing the reason for that personal/carer’s leave. A medical certificate or statutory declaration must be provided for all personal/carers leave absences of more than 1 day.” 12

[28] The NES provides in Section 107 of the Fair Work Act that:

“107 Notice and evidence requirements

Notice

(1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.

(2) The notice:

(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and

(b) must advise the employer of the period, or expected period, of the leave.

Evidence

(3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:

(a) if it is paid personal/carer’s leave—the leave is taken for a reason specified in section 97; or

(b) if it is unpaid carer’s leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or

(c) if it is compassionate leave—the leave is taken for a permissible occasion in circumstances specified in subsection 105(1).

Compliance

(4) An employee is not entitled to take leave under this Division unless the employee complies with this section.

Modern awards and enterprise agreements may include evidence requirements

(5) A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer’s leave, unpaid carer’s leave or compassionate leave.

Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.”

[29] The common law contract of employment document cannot further regulate the types of evidence an employee must provide (the NES provides that this is regulated by awards or enterprise agreements). However, the contract could be taken to be a general request for evidence to be provided in the event that absence exceeds one day. I am satisfied that the medical certificate provided by the Applicant in respect of the absence from 15 to 19 February and then again from 22 to 24 February satisfied this requirement.

[30] On Friday 19 February it is the evidence of the Applicant and Mr Twidale his immediate supervisor 13 that the Applicant spoke on the phone to Mr Twidale and advised him that he was still sick. Mr Twidale gave evidence of a conversation on Monday 22 February with the Applicant in which Mr Twidale claims the Applicant said he was better. The Applicant denies he ever said that he was better. Given that this is inconsistent with what we know happened in the conversation on 19 February and the subsequent evidence I prefer the evidence of the Applicant on this point.

[31] In the conversation between Mr Cooper and the Applicant by telephone on 22 February Mr Cooper says that the Applicant said that “I’ve been better” in response to an enquiry about the Applicant’s health. 14 The Applicant agrees with this aspect of the conversation.15 I am satisfied that Mr Cooper understood that the Applicant was continuing on sick leave as a result of this conversation.

[32] The Applicant provided a time sheet showing that he was continuing on sick leave by Fax. The Applicant says he sent this on 23 February and Mr Cooper says that it was not received until early on the morning of 24 February. The Applicant says that he could not get an appointment with his doctor until Wednesday 24 February. He forwarded the medical certificate to the Employer at 1.09pm on Wednesday 24 February. The Employer dismissed the Applicant by email letter a couple of hours later. The Employer acknowledges that it was in receipt of both the medical certificate and the time sheet prior to making this decision.

[33] The Applicant probably should have rung the employer again on Monday 22 February to more clearly provide advice of the expected duration of his continuing illness rather than just relying on the conversation with the supervisor on Friday 19 February and the truncated conversation with the managing director on 22 February. This failure to make a further phone call to the employer might have justified some form of counselling. However, despite this I am satisfied that the Applicant has complied with the requirements under the Award, the NES and contract of employment in respect of providing the evidence required for his absence from Monday 22 February until Wednesday 24 February 2010. I am satisfied that the Applicant met the NES requirement to notify the employer of the absence, although, it was reasonable for the employer to have expected greater diligence in respect to the timeliness of the notification. However, this was not misconduct which could provide a valid reason for dismissal.

[34] The Employer did make a demand for additional procedure and evidence in respect of sick leave. However, this demand was in the form of a letter dated 17 February but which was received by the Applicant together with a pay slip on 23 February. This evidence was not challenged. Given that the dismissal took place on 24 February I cannot have any regard for failure to comply with that notice.

[35] There was no suggestion that the Applicant had a poor attendance record and the Applicant was entitled to personal leave for the duration of his absence and was in fact paid personal leave for some of the duration of his absence.

[36] The leave of the Applicant from 15 February until the time of his dismissal on 24 February does not provide a valid reason for dismissal. The Employer argued that I should find that the Applicant was not genuinely incapacitated and that he was simply refusing to work at the new location. The Employer argued that I should find the failure of the Applicant to call the doctor as a witness was evidence of the lack of genuineness of the claimed illness. The Employer also argued that the Applicant was not genuinely incapacitated because he was able to ring his union representative and talk to the employer about his unhappiness with the changed location during this period. I do not accept these arguments. I am entitled pursuant to Section 107 of the Act to rely on the provision of a medical certificate as sufficient evidence in the absence of any clear evidence to the contrary. I do not find it unusual that a person can talk to their union representative and defend their interests even if they are not well enough to attend work.

Was there a refusal to follow the direction of the employer to relocate to Wacol?

[37] The Employer argues that I should find that there was a valid reason for the dismissal of the Applicant in that he refused a lawful direction to work from the new location at Wacol. On this matter the evidence is clear.

[38] The Applicant objected to the proposed new location when he was first told about it by Mr Twidale on 12 February. He further objected on 15 and 19 February in conversations with Mr Twidale and again in the conversation with Mr Cooper on 22 February.

[39] There was a conversation between Mr Cooper and the Applicant’s union representative Mr Huggers from the TWU on 15 February and again on 17 February. In the conversation on 15 February Mr Cooper offered to compensate the Applicant for travel between Narangba and Wacol but not from his home in Caloundra. Mr Cooper said that the union representative undertook to consult the Applicant about this proposal. However, Mr Cooper did not recall the details of any response back to this proposal in the conversation he had with the union representative on 17 February. 16 Mr Cooper repeated his offer in a brief conversation he had with the Applicant on 22 February. However, Mr Cooper says that the Applicant did not have the opportunity to respond or did not respond due to Mr Cooper terminating the conversation because the call was being recorded.17 Mr Cooper had a final conversation with the union representative on 24 February shortly before he dismissed the Applicant. Again Mr Cooper does not recall any further discussion about the proposed compensation for the relocation. Mr Cooper says that the conversation took place before he was aware that the medical certificate for the period February 22 to February 28 had been received. Mr Cooper says he told the union representative that he had not heard from the Applicant and that there was no medical certificate and Mr Cooper says that the union representative said that it sounded like the Applicant “had abandoned his workplace’ and that “you’ve got to do what you’ve got to do.”18

[40] There is no evidence about the nature or adequacy of the compensation offered. Mr Cooper understood that the Applicant had rejected this offer but it is not clear how he came to this conclusion. The Applicant told the union representative on 15 February that he did not accept the offer of Mr Cooper.

[41] The Applicant was cross examined about his attitude at the time he was told by the union representative about Mr Cooper’s offer.

“Listen to my question please. You have accepted this, that Mr Huggins has called you later on the 15th?---Yes.

And said Mr Cooper will compensate you for the additional travel from Narangba to Wacol, correct?---Yes.

You've rejected that offer, correct?---Yes.

You didn't say to Mr Huggins, "Go back with this counter-offer, see if you can get this for me," some other proposal, did you?---No.

Because from your perspective there were no negotiations that you instructed Mr Huggins to commence on that afternoon about this direction?---Not on that afternoon, no.

Because from your perspective it was either I park the truck at Sippy Downs or not at all?---Well, that was my agreement that I was to work from the Sunshine Coast.

If you couldn’t work from the Sunshine Coast then you weren't going to work for my client at all?---Well, Wacol's a long way to travel.

Listen to my question please. If you couldn’t park the truck from Sippy Downs you weren't going to work for my client at all, isn't that correct?---Well, yes.” 19

[42] The Applicant failed to mention his conversation with Mr Cooper by telephone on 22 February in his statement, presumably because he improperly recorded the conversation. In cross examination the Applicant answered questions concerning the taping of the conversation as follows:

“You wanted to get some sort of evidence that you could use that my client in your mind had breached your contract?---Yes.

It was the case wasn't it, Mr Miatke, that you were never going to go back to work with my client, were you, whilst the direction to work from Wacol was in place?

---It was simply too far for me to travel, so yes.

So the answer to my question is "yes", you were never going to go and continue working for my client whilst the direction to work at Wacol was in place?---Yes.

The purpose of you taping the conversation was to try to get some damning evidence against my client?---I wouldn’t say damning evidence but I just wanted proof of what was being said.

Evidence that would get my client into trouble about the alleged breach of your contract, is that correct?---Well, yes, yes”. 20

[43] There is no great difference between Mr Cooper’s account of this conversation and the account given by the Applicant under cross examination. The only difference relates to the final sentence of the conversation. Mr Cooper says he just hung up whilst the Applicant says that Mr Cooper said that “this conversation ends now.”

[44] The union organiser was not called to give evidence. I infer from this that he would be likely to confirm that the Applicant told him on 15 February that he was not prepared to accept the move to Wacol.

[45] In my view it was open to the Applicant to refuse to accept the changed location given that it was contrary to his contract of employment. The Applicant also had a right to consultation about this major change in accordance with the Award clause. I am not satisfied that the consultation process had been adequately concluded. There was no discussion of substance between Mr Cooper and the Applicant concerning the change and measures to mitigate its impact. I am not satisfied that the discussion between Mr Cooper and the TWU organiser was sufficiently detailed or conclusive to constitute adequate consultation concerning the change. I therefore cannot find that the Applicant refused a lawful instruction from the employer in refusing to move to Wacol even if I were to accept that Mr Cooper was right in assuming that the Applicant had rejected his offer of compensation.

[46] The conversation between Mr Cooper and the Applicant was so brief and emotionally charged that it could not be regarded as adequate consultation or concluding the consultation. It is common for parties to have strongly held positions that appear fixed when dealing with workplace change issues. It is also common for those fixed positions to change with the provision of further information and/or further negotiation. It would have been reasonable to have a further meeting to see if an acceptable arrangement could be arrived at for both parties. The provision of further information to the Applicant about the operational reasons for the change might also have been helpful and the Applicant was entitled to this under the Award clause.

[47] The Applicant said that “it was simply too far for me to travel”. 21 However, he also gave evidence under cross examination that this was precisely the trip he did in the work truck almost every day since the Applicant and the Respondent agreed that the great majority of the work was in the South Brisbane area close to the Wacol depot. Also he had to go to the Wacol depot to unload the waste oil on at least two days a week. So clearly the problem was not that it was too far to travel. He already made this trip at the start and the finish of most days. Rather the problem was that the travel would now be in his private time and at his private expense. Hence I conclude that it is likely that the matter could have been resolved by an enhanced offer of compensation and the problem from the Applicant’s perspective was that the offer made was in his view inadequate. Of course the Respondent was not obliged to make an enhanced offer of compensation but the Respondent was under an obligation to discuss and consider such matters as part of consultation about the major change.

[48] The evidence of the nature of the offer given through the union representative does not contain sufficient detail to satisfy me that it would mean that the changed location would occur without unreasonable hardship to the Applicant. In other words there is insufficient evidence to satisfy me that the offer overcame the prohibition on changing location which would cause unreasonable hardship contained in the employment contract.

[49] I do not have sufficient evidence to be able to conclude that if the dismissal had not occurred that a negotiated arrangement which would have satisfied the Applicant and the Employer would not have been reached. I think it quite possible that such a negotiated arrangement may not have been reached given the failure of the Applicant to call the union representative to give evidence and the clear statements of the Applicant in these proceedings. However, given that the consultation process was not properly completed and that there was still the possibility of a negotiated settlement a valid reason for termination did not exist on 24 February 2010.

[50] This is the case even if I was to accept, which I do not, that Narangba is the location from which change must be measured given that the travelling time required from Narangba to Wacol is still very long.

[51] The Respondent advised the Applicant on 12 February that the work location would move from the Sunshine Coast to Wacol from 22 February. The Applicant had not accepted this change prior to his dismissal on 24 February 2010. I have found that in all the circumstances this did not constitute a refusal to obey a lawful instruction and hence did not constitute a valid reason for his dismissal.

Other Submissions.

[52] There were strong submissions from the Respondent concerning the reliability of the Applicant’s evidence and similarly strong submissions from the Applicant concerning the reliability of the Respondent’s evidence. I have carefully considered all the matters raised by both parties.

[53] The Respondent pointed to the failure of the Applicant to understand the term “fundamental term” which was contained in his statement. 22 I am satisfied that this turn of phrase was inserted by the Applicant’s representative but it was a fair representation of the instructions of the Applicant that he believed that when he was hired it was on the understanding that he would be working from the Sunshine Coast.

[54] The Respondent also pointed to the statement that “I would be required to drive as far north as Bundaberg, west to Kingaroy and south to Slacks Creek.” 23 The Respondent is correct in pointing out that the Applicant’s statement focused on the fact that his work was geographically widely spread but failed to acknowledge that in fact the large majority of the work was in fact centred around Slacks Creek and Wacol in the south of Brisbane. This created a misleading impression. The Applicant also conceded that he had not yet been required to travel as far north as Bundaberg and I am satisfied with the evidence of Mr Cooper that it was too early in the process of building the business to spread the work that far. However, it is clear that a move to Bundaberg at some time in the future was regarded as possible.

[55] The Respondent was also critical of the failure of the Applicant to refer in his statement to the conversation with Mr Cooper which the Applicant recorded on 22 February 2010.

[56] I found the evidence of Mr Twidale in respect to the allegations that the Applicant had left work early on a number of occasions and that the Applicant had told him on 19 January 2010 that he was unhappy with the job unconvincing. Mr Twidale was insistent that these and all other significant matters in his statement were diarised. However, he did not produce that diary evidence.

[57] I found the evidence of Mr Cooper and Mr Twidale about the temporary nature of the move to the Sunshine Coast unconvincing. I found Mr Cooper’s evidence concerning the understandings about the location of the Applicant’s employment generally unconvincing.

[58] In general the points where I found the evidence of the witnesses unconvincing were in my view a consequence of them putting the best spin they could on the story as they saw it. Overall the witnesses were helpful and credible.

[59] I have considered all the submissions and authorities raised by the parties.

Valid reason.

[60] The Respondent submitted that there were two valid reasons for summary termination. Firstly, the failure to obey the instruction to shift to the Wacol depot and secondly the failure to adequately notify concerning his absence from 22 to 24 February. I have found that these were not valid reasons for dismissal let alone summary dismissal. I cannot find any other valid reason for the dismissal.

[61] The Applicant was terminated at the initiative of the employer consistent with Section 386(1)(a) of the Act.

Requirements of Section 387 of the Act.

[62] The Applicant was not notified of the reason for his dismissal. The notification he received related purely to the alleged abandonment of his employment. The allegation of abandonment of employment was not pursued by the Respondent in these proceedings. The Applicant was notified that the Employer was dissatisfied with the way he advised about absence due to illness by a memo of 17 February 2010 which was received with a pay slip by the Applicant on 23 February 2010. There was no suggestion in this memo that the Applicant’s employment was at risk. The Applicant was advised of the change of depot location on 12 February 2010 effective 22 February 2010. There was no suggestion in this advice that the Applicant’s employment was at risk.

[63] The Applicant was not given any opportunity to respond to the reasons for dismissal. The reasons for dismissal clearly relate to the conduct of the Applicant.

[64] The Applicant was not given any opportunity to have a support person present to assist at any discussions relating to the dismissal. There were no discussions apart from the alleged phone conversation between the union representative and Mr Cooper. However, Mr Cooper acknowledges that he told the union representative in that conversation that a medical certificate had not been provided for the current period of absence when in fact Mr Cooper acknowledged that a medical certificate had been received and Mr Cooper became aware of that shortly after the conversation he had with the union representative. In the circumstances of this case I regard this as effectively a refusal to allow a support person to be present at discussions given that the union representative was in contact with the Respondent and the Applicant about the issue in dispute which led to the dismissal, namely the change of work location. Furthermore there was an obligation under the Award and the contract of employment for further consultation and consideration of alternatives in respect to this matter.

[65] There was no prior warning about the unsatisfactory performance. In particular the memo of 17 February 2010 concerning notification about absence due to illness was received by the Applicant too late to influence any of the behaviour of the Applicant prior to his dismissal. There was also no warning that the Applicant would be dismissed if he did not accept the change of depot location.

[66] The size of the Respondent employer does not in my view impact on the procedures which were followed in this situation.

[67] I note that the Respondent does not have a dedicated human resources manager but in the circumstances of this case it is my view that the breaches of fair process should have been apparent to any employer regardless of the absence of specialised human resource management.

[68] Taking into account the absence of a valid reason for dismissal and the other factors regarding the process of the dismissal referred to above I find that the termination of the Applicant was harsh, unjust and unfair.

Remedy.

[69] Neither the Applicant nor the Respondent seek reinstatement as a remedy. In all of the circumstances I find reinstatement to be inappropriate. The relationship of trust is not able to be restored. In all of the circumstances I find that an order for compensation is appropriate.

[70] The factors I take into consideration in determining compensation are:

• The Applicant was only employed for a short period of 7 months.



• The fact that the Applicant did not receive one week’s notice to which he was entitled given that there was no proper basis for summary dismissal.



• The fact that the Applicant has made satisfactory efforts to mitigate his loss and has been active in seeking and obtaining employment since the dismissal.



• The uncontested evidence that the Applicant would have earned $28,659 during the period since his dismissal had he remained in employment with the Respondent but has only earned $11,034 during the period since his dismissal. Further the current employment of the Applicant is less secure than his previous employment in that he is still on probation with the new employer.

• There would be no effect on the viability of the Respondent as a result of any order I might make in these proceedings. There was no evidence presented by the Respondent which could lead me to a conclusion that the viability of the enterprise would be affected by my order.



• The Applicant is now in employment so there is not likely to be any significant loss between the period of my order and the payment of compensation.



• I do not find any misconduct on the part of the Applicant which I should take into account in determining compensation. The Applicant’s manner of notification of his absence and his failure to make adequate efforts to engage in consultation around the issue of changed work location are significant. However, the Respondent’s failure to properly initiate consultation about the changed work location and the unreasonableness of the direction given concerning changed work location mean that I do not find it necessary to discount compensation due to the Applicant’s conduct.

[71] I found it difficult to determine the likely duration of the employment of the Applicant in the event that the dismissal had not occurred. The reason why this is important in this case is that I have found that the employer had legitimate operational reasons to shift the work location to Wacol. The Applicant objected to this relocation. Proper consultation consistent with the Award requirement could have resulted in an agreement which would have meant the employment relationship continued in which case there is no reason to believe that it would not have continued for many years. However, it is also possible that no agreement would have been reached and in that case the Applicant would have been entitled to be made redundant given the distance between the Sunshine Coast and Wacol. However, he would not have been entitled to any redundancy payment in that he had less than one year of service and would still have had less than one year of service at the time the redundancy would have occurred. He would have been entitled to one week’s notice.

[72] I think it is reasonable to allow two weeks for the proper process of consultation concerning the work location to be concluded. Hence the likely duration of further employment with the Respondent ranges from three weeks in the event that no agreement was reached on the relocation after consultation to several years in the event that agreement was able to be reached. In all the circumstances I found that it was more likely than not that agreement would not be reached but I am uncomfortable about finalising compensation on the assumption that agreement would not have been reached given that the Applicant had a workplace right to consultation about the relocation and the outcome of that process is by no means certain.

[73] The Applicant provided evidence that he had only been paid 3.28 hours of sick leave during the period from 15 February to 24 February 2010. However, there was no evidence before me as to what the Applicant’s paid sick leave entitlement was. I do not know exactly how much paid sick leave the Applicant had previously received during his employment. I would expect that the Respondent, in response to my finding that adequate evidence was provided in respect to the absence from 15 February to 24 February, and in addition to the compensation which I order, will pay to the Applicant any paid sick leave for the period to which he is entitled and which he has not so far been paid.

[74] Taking these factors into consideration and the principle of a fair go all round I order a payment of four weeks compensation at the rate of his average weekly earnings during his period of employment. This amounts to $4,409.08 gross. The amount should be paid within two weeks of this decision. The Respondent is at liberty to apply for a variation to this time period.

COMMISSIONER

Appearances:

Mr J Fuhrman-Luck for the Applicant

Mr J E Merrell for the Respondent

Hearing details:

2010

Brisbane

October 22

 1   Exhibit Triple R 2, Annexure 7.

 2   See for example J Searle v Moly Minez Limited Full Bench Guidice J, OCallaghan SDP, Cribb C, 29 July 2008 Print 982301.

 3   Exhibit Triple R 3.

 4   Exhibit Triple R 2, Annexure 1.

 5   Exhibit Triple R 2, Annexure 2.

 6   Exhibit Triple R 2, Annexure 2.

 7   PN684.

 8   PN972.

 9   PN723.

 10   PN964 to PN965.

 11   Exhibit M 1, Paragraph 18.

 12   Exhibit Triple R 2, Annexure 1.

 13   PN433 to PN434 and PN1008 to PN1013.

 14   Exhibit Triple R 2, Paragraph 23.

 15   PN529.

 16   Exhibit Triple R 2, Paragraph 21.

 17   Exhibit Triple R 2 Paragraph 23.

 18   Exhibit Triple R 2 Paragraph 27.

 19   PN402 to PN409.

 20   PN542 to PN546.

 21   PN543 quoted above.

 22   Exhibit M 1, Paragraph 28 and 32.

 23   Exhibit M 1, Paragraph 18.

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