Mr David Vieritz v Yeo & Co. Pty Ltd

Case •

[2016] FWC 4907

•

25 JULY 2016

No judgment structure available for this case.
[2016] FWC 4907
FAIR WORK COMMISSION

DECISION


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

Mr David Vieritz
v
YEO & CO. PTY LTD
(U2016/504)

COMMISSIONER HUNT

BRISBANE, 25 JULY 2016

Application for relief from unfair dismissal.

Introduction

[1] Mr Vieritz applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by YEO & CO. Pty Ltd (Yeo & Co). Yeo & Co is a business located in Goondiwindi and is engaged in earthmoving and truck hire.

[2] Mr Vieritz commenced employment with Yeo & Co as a casual employee on 1 October 2013. His employment was made permanent on 30 December 2013. He was summarily dismissed from his employment on 26 January 2016.

Small Business Employer

[3] Section 23 of the Act describes a small business employer as one who, at a particular time employs fewer than 15 employees.

[4] In the material before the Fair Work Commission (the Commission), it is asserted by Yeo & Co that at the time of Mr Vieritz’s dismissal, it employed 14 employees. This is not disputed by Mr Vieritz.

[5] I find that Yeo & Co is a small business employer pursuant to s.23 of the Act. Accordingly, it is necessary to determine if Mr Vieritz’s dismissal was consistent with the Small Business Fair Dismissal Code. A consideration will be made below.

Yeo & Co under administration

[6] After a number of hearing dates were set and unable to be met for various reasons, the matter was ultimately listed for hearing by telephone on 1 July 2016.

[7] On 16 June 2016, my chambers received the following correspondence:

    “Dear Sirs,
    RE: YEO & CO. PTY LTD

    (ADMINISTRATORS APPOINTED)

    A.B.N.: 72 071 325 427

    (“THE COMPANY”)

    YOUR REFERENCE: MATTER NUMBER – U2016/504

    We refer to your Notice of Listing for matter U2016/504 in respect of the Company and advise that we, Andrew John Spring and Amanda Young of Jirsch Sutherland, were appointed as Joint & Several Administrators of the Company on 30 May 2016.

    Please be advised that during the administration of the company, pursuant to Section 440D of the Corporation Act 2001, any proceedings against the company or in relation to any of its property cannot be begun or proceeded with, expect with the administrator’s written consent or leave of the court. Accordingly, these proceedings will be stayed until the administration has concluded.

    Should you require any further information, please contact [name] of this office on [number].

    Yours faithfully,
    YEO & CO. PTY LTD

    AMANDA YOUNG
    Joint and Several Administrator”

[8] On 21 June 2016, my Associate sent the following email to Ms Young:

    “Commissioner Hunt advises that the Fair Work Commission has previously considered circumstances where respondents have moved into voluntary administration and specifically whether as a consequence  s.440D  of the Corporations Act represents a bar to unfair dismissal remedy applications. Those decisions have concluded that the Corporations Act does not prevent the Commission from proceeding to hear and determine an unfair dismissal remedy application. Examples of such decisions are reported at Clifford v S & N Civil Constructions Pty Ltd  [2013] FWC 235 and Letizia v Australian Music Group T/A Allans Billy Hyde Music [2012] FWA 9609.”

[9] The email further directed Yeo & Co to file submissions addressing the above issue. The correspondence concluded that if no submissions were filed, the matter would proceed to be heard and determined.

[10] By email correspondence, the administrator advised that on behalf of Yeo & Co, it sought to rely on material that had earlier been filed by the respondent, and included the following:

    1. Employer response (Form F3);
    2. QLD Police Statement;
    3. Statement of Mr Peter Cassidy;
    4. Statement of Mr Peter Nemeth; and
    5. Statement of Mr Ken Beutel.

[11] On 29 June 2016, Mr Heffernan, a paid agent on behalf of Mr Vieritz corresponded with my Chambers to advise that both Mr Vieritz and the administrator acting for Yeo & Co consented to the application being decided by me ‘on the papers’ without the requirement for a hearing. Accordingly, the hearing date of 1 July 2016 was vacated.

Consideration of the application

[12] The decision by the parties to have the application determined on the papers without the requirement for a hearing necessarily results in the Commission having to determine the various accounts before it in order to find either for Mr Vieritz, or to dismiss the application.

[13] In determining the application in this way, it is necessary for me to review all of the information before me to determine if the dismissal was in accordance with the Small Business Fair Dismissal Code.

[14] Surprisingly, the owner of Yeo & Co, Mr Danny Yeo did not provide a statement to the Commission for consideration. Nor did Mr Guillermo Alonzo, submitted by Mr Vieritz to also be an owner of Yeo & Co, and the person who terminated his employment.

[15] The Form F3 – Employer Response is the only direct material of Yeo & Co submitted by the respondent.

[16] Witness statements were provided by the following individuals:

  • Mr Cassidy, Casco Civil Construction Pty Ltd (unsigned, on letterhead);


  • Mr Peter Nemeth, Site Supervisor of unnamed company (unsigned); and


  • Mr Kenneth Beutel, Director – Inline Communication Constructions trading as Inline Crushing and Screening (email from Mr Beutel to Mr Yeo dated 1 March 2016).


[17] A copy of two infringement notices issued to Mr Vieritz on 27 November 2015, together with a copy of a letter dated 4 December 2015 from Senior Constable Ashton of Baralaba Police Station was filed.

[18] Mr Vieritz provided an unsigned witness statement of 11 paragraphs. Detailed written submissions were included in Mr Vieritz’s material for consideration.

[19] Where below I discuss the evidence of each person, I refer only to their unsigned statement, noting that the parties have not sought an opportunity to cross-examine the other party’s witness, or contest the statement(s) provided by the other party.

Evidence of Mr Vieritz

[20] Mr Vieritz’s statement is reproduced below:

    1. I commenced fulltime with Yeo & Co. Pty Ltd work as a truck driver on 30 December 2013.
    2. From 1 October 2013 to 29 December 2013 I had been engaged by Yeo & Co. Pty Ltd on a casual basis.
    3. As part of my duties I drove a Kenworth T658 primemover.
    4. I am not now nor have I ever been a qualified mechanic.
    5. The differential on this vehicle was in poor condition as it had a leaking pinion seal.
    6. On or around 11- 12 January I informed by Danny Yeoh of the problem with the pinion seal of the truck.
    7. Danny Yeoh informed me that he would acquire a new pinion seal, but this was never done. Had the pinion seal been obtained I could have performed the relevant fix.
    8. Despite the vehicle being the property of my employer, my employer insisted that maintenance of the vehicle was my responsibility.
    9. In order to maintain the vehicle I needed the relevant parts, which I had been told would be provided. The parts were never provided and I was therefore unable to perform the relevant repair.
    10. Throughout the time of my employment I performed all necessary routine maintenance of the truck, including oil, grease and coolant.
    11. As a result of the pinion seal failing, I was dismissed on 26 January 2016 for failing to maintain the vehicle. The pinion seal would not have failed had I been provided with a replacement seal which I could then install.

[21] In the application for unfair dismissal, the Form F2 completed by Mr Heffernan on behalf of Mr Vieritz, the following is claimed:

    1. The Applicant was mainly employed as a truck driver.
    2. The Applicant was initially employed as a casual with predictable hours between 10 and 14 hours per day.
    3. The Applicant converted to full-time on 23 October 2013.
    4. The Applicant has never been warned.
    5. The Applicant was required to drive a Kenworth T658, prime-mover that’s differential was in poor condition as it had a leaking pinion seal.
    6. The Applicant made repeated requests to have the truck repaired that were ignored.
    7. Somewhere between 24 and 26 January 2016, the pinion bearing let go and the Applicant was left stranded at Wandoan in regional Queensland.
    8. This angered the Respondent who dismissed the Applicant on 26 January 2016.
    9. The Applicant was not paid notice, payment in lieu or any severance.
    10. There was no valid reason to terminate the employment as the Respondent had failed to maintain and repair its plant and equipment in sound working order.
    11. The Small Business Fair Dismissal Code was not followed.

[22] Mr Vieritz did not include in his statement, nor did he include in the Form F2 how he says the dismissal came about.

[23] The written submissions of Mr Heffernan, on behalf of Mr Vieritz have been completed on a form which makes the reading of the submissions rather unhelpful. It appears that Mr Heffernan regularly files (in this Commission) written submissions on behalf of applicants in this manner. There are large sections of the form that are not completed because they are not relevant, and it is therefore necessary to turn page after page to come across what has been completed and considered relevant.

[24] As I understand it, the forms used by Mr Heffernan are a guide for self-represented applicants in framing their evidence. Mr Heffernan frequently represents clients before the Commission, and he might wish to consider (in future matters) presenting his clients’ material in a manner that is more coherent and user-friendly.

[25] In Mr Vieritz’s written submissions, relevant statements are made. In determining how Mr Vieritz’s dismissal occurred, I have emphasised the relevant submission below:

    “3e. Do you agree that the respondent (the employer) complied with the Small Business Fair Dismissal Code?

    1. The Small Business Fair Dismissal Code (Summary Dismissal) was not followed in the following fashion:

    a. The Respondent objects on the grounds of negligence by the Applicant;
    b. The Respondent has not alleged that the Applicant breached health and safety procedures, or that the Applicant had committed any act of theft, fraud or violence;
    c. Consequently any dismissal of the Applicant under the Small Business Fair Dismissal Code should have been undertaken under the ‘Other Dismissal’ part of that Code;
    d. The Applicant was dismissed summarily by telephone as such the ‘Other Dismissal’ part of the Code was not followed; and as such (emphasis added)
    e. The Small Business Fair Dismissal Code was not followed in totum.”

[26] At Section 5 of the form prepared by Mr Heffernan, constituting the submissions of Mr Vieritz, the following is asked and answered:

    “5d. Why do you say you were dismissed?

    1. The owner/director of the Respondent employer, Mr Guillermo Alonzo, told the Applicant “Fuck off, you’re finished, get out of here”.
    2. The Applicant reasonably construed this to mean that his employment was terminated, as:

    a. The expression “Fuck off” can be reasonably construed as a direction to leave the workplace (Reid v itac2 Pty Ltd t/as itac2 [2014] FWC 5749 (unreported, Sams DP, 22 August 2014) at [92]); and
    b. The words “you’re finished” said by an employer on any objective construction constitute a statement that the employee’s employment is terminated; and
    c. Given the conduct engaged in by his employer, it was not reasonable for the Applicant to simply turn up to work as if nothing had happened (Claypole v Australian Native Landscapes Pty Ltd [2007] AIRC 683 (unreported, Hamberger SDP, 6 September 2007) at [79]).

    3. In the alternate, the conduct of Mr Alonzo constituted a constructive dismissal of the Applicant (Reid v itac2 Pty Ltd t/as itac2 [2014] FWC 5749 (unreported, Sams DP, 22 August 2014)).”

[27] The above is the only material before me in relation to how the dismissal occurred. Disappointingly, it is not in the statement made by Mr Vieritz; rather it is in the submissions filed in these proceedings. Of further frustration is the fact that Yeo & Co has not addressed in any of its material how Mr Vieritz’s employment was terminated.

[28] The only slightly relevant statement made by the respondent in the Form F3 – Employer Response is the following:

    “3.2 The Applicant was picked up by one of the 16 other quarry trucks and returned to the quarry. At no time was the applicant left stranded. Although Wandoan is in Regional Queensland, the road in question is heavily trafficked with approximately 400 vehicles per day.”

[29] It can be assumed that Mr Vieritz left the malfunctioning vehicle and obtained a lift with another truck driver (a quarry truck driver). There is no information before me that Mr Vieritz had any further conversation or in-person meeting with the respondent, other than to be informed that he was “finished”.

Respondent’s Form F3 – Employer Response

[30] The Form F3 – Employer Response completed by Yeo & Co provides the following reasons for the dismissal:

    “ The applicant failed to carry out his employment obligations with maintaining, and minor repairs of plant and equipment,

  • The applicant failed to improve on his lax attitude towards maintenance issues when verbally approached,


  • The applicant failed to follow instructions given to him by his employer”


[31] The Form F3 – Employer Response is completed in the following way in ‘Response to the Applicant’s contentions in the Form F2’ completed by Mr Vieritz:

    “ As part of the applicants work duties was the maintenance and minor repairs of plant/equipment.

  • Prior to commencement of work at the Juandah Project in January 2016, the applicant was verbally informed by Danny Yeo that his lax maintenance attitude had to improve or disciplinary action would follow.


  • On numerous occasions the applicant has been verbally spoken to about his lax attitude towards maintenance issues and work ethics.


  • The Kenworth T658 was assessed on site, and that with monitoring the oil level and looking for excess heat, the differential was not in any danger or failure.


  • The applicant was told where to obtain the diff oil on site. The applicant had access to the correct tools to check the oil and to top up if needed.


  • Although the pinion seal was leaking, the monitoring of the oil level, topping up as necessary and not allowing the diff to overheat through low oil level kept the truck serviceable and in working order with no safety concerns.


  • The applicant was picked up by one of the 16 other quarry trucks and returned to the quarry. At no time was the applicant left stranded. Although Wandoan is in Regional Queensland, the road in question is heavily trafficked with approximately 400 vehicles per day.”


Evidence of Mr Peter Cassidy

[32] Mr Cassidy’s unsigned statement of 13 March 2016, on letterhead of Casco Civil Construction Pty Ltd provides Mr Cassidy’s views of Mr Vieritz’s performance working for Yeo & Co. I have summarised Mr Cassidy’s evidence:

    Yeo & Co and Casco have recently provided transport services on projects and worked closely together;

  • Mr Cassidy has commented to ‘Dan’ (presumably Danny Yeo) about the condition of the prime mover that Mr Vieritz was operating;


  • Mr Cassidy considers that Mr Vieritz has neglected the vehicle. On a scale of 1-10, Mr Cassidy would rate the truck a 2.


  • The value of the truck Mr Vieritz was operating was approximately $200,000. Mr Cassidy considers the neglect of the vehicle by Mr Vieritz would lower the value of the vehicle to less than $50,000.


  • Mr Vieritz was obviously not interested in his employment as he had no respect for the equipment that he was supplied. Mr Cassidy supports the decision to terminate Mr Vieritz’s employment.


  • Mr Cassidy estimates that since Mr Vieritz’s termination of employment, Yeo & Co “would have” spent a minimum of $25,000 to $30,000 in repairing the vehicle driven by Mr Vieritz. At least 80% of this could have been avoided had the problems been rectified at the time and not driven until major mechanical failures developed.


Evidence of Mr Peter Nemeth

[33] Mr Nemeth’s unsigned statement of 11 March 2016, provides Mr Nemeth’s views of Mr Vieritz’s performance working for Yeo & Co. It is not clear who Mr Nemeth works for. His title is Site Supervisor. Mr Nemeth’s statement says:

    “In the time that David Vieritz worked on the Juandah Quarries Project 2016, I witnessed on numerous occasions Danny Yeo asking Dave to keep maintenance on truck and trailers to a better standard than he had on previous occasions. I was present when he was instructed to top up the diff and monitor the oil level. On no occasion was Dave left stranded on the side of the road. All truck drivers are expected to do own maintenance and minor repairs. This is explained to every employee on commencement of work. It is also advised that a light level of personal work ethics is held in high regard.”

Evidence of Mr Kenneth Beutel

[34] Mr Beutel’s email to Mr Yeo of 1 March 2016 forms Mr Beutel’s statement. Mr Beutel is a Director and owner of Inline Crushing and Screening (ICS).

[35] Mr Beutel’s evidence relates to an incident involving Mr Vieritz driving a vehicle in November 2015. Mr Beutel nominates the date as 20 November 2015, however I accept that the event is likely to be the event on 27 November 2015, resulting in the issuing by Senior Constable Ashton of two traffic infringement notices to Mr Vieritz.

[36] Mr Beutel’s evidence is below. I have made minor typographical or grammatical changes for ease of reading:

    “This statement is made regarding the unsatisfactory actions of the driver of an over size load, C1550 cone crusher from Moranbah to Guluguba on or about 20 November 2015.

    The above crushing plant owned by ICS requires the escort by a company employee when moved on main roads for safety reasons. This plant with a total weight of 65 tonnes and the float being extended to 2.6 metres wide. I am a holder of Queensland Government Industry Authority Card. This authorises me to escort oversize loads on Australian roads.

    When the truck arrived at Moranbah I introduced myself as the owner and that I will be escorting the oversize load to Guluguba. We loaded and moved out the next morning.

    On one of our rest stops before Dingo on the Capricorn Hwy, David Vieritz had said that he will need fuel. But made no mention of how much or when. In transit we passed Caltex at Dingo and were pulled over by a Queensland Police Officer at the BP in Duaringa for a road check, then passed a fuel stop at Banana. As these trucks have a long range fuel tank I then thought that Caltex at Taroom would be his intended fuel stop.

    As we approached the top of the Isis Range, David called me on the radio and said he had an issue with his truck. I then made cover to ensure the road was clear for his over size truck to move on to the other side of the road where he could park safely. Had he run out of fuel 100 metres early, there would have been a whole different issue – “a very dangerous one on an uphill grade of a range at sunset.

    In all the years I have been escorting oversize plant I have never had this happen. After refuelling the truck and four hours on the side of the road I could only think how dangerous and incompetent this driver was to other road users.”

Queensland Police – letter issued to Mr Vieritz

[37] A copy of a letter dated 4 December 2015 from Senior Constable Ashton has been included in the material filed by Yeo & Co. Mr Vieritz did not provide any material (whether in a witness statement or submissions) to dispute the event of 27 November 2015.

[38] Senior Constable Ashton’s letter is reproduced below:

    “4 December 2015

      TO: David VIERITZ

FROM: OIC Baralaba Police

SUBJECT: Traffic incident/hazard

    1. On Friday the 27th of November 2015, at approximately 8.30pm police were called to attend to a heavy vehicle reported as broken down on the Leichhardt Highway, Woolien, via Baralaba.
    2. Upon police arrival at the scene, the 3 (three) portable warning signs were laying flat on the roadway and under the right side of the trailer, the vehicle lights were not illuminated and the vehicle was not secured. Police located, turned on the vehicle battery isolation switch and activated the vehicles hazard and park lights. Police attempted to contact the owner of the truck Yeo Company Earthmoving on the mobile phone number [number], which was located on the door of the truck, there was no answer.


    3. Police then conducted checks of the vehicle cabin, which was unlocked and surrounding areas, fearing that the driver may have been struck and injured by another vehicle whilst attending to the vehicle. Nil person/s were located.
    4. After checking the cabin a National Heavy Vehicle Driver Work Diary was located on the dashboard, and your details were located inside this Work Diary. Contact was made with you by police communications centre staff regarding the vehicle. You provided information that the vehicle was broken down, a tow had been arranged and that you were in Banana and not willing to return to the vehicle.
    5. When questioned on Saturday the 28th of November 2015, you stated that, at the time of the incident you were the driver of a white Kenworth Prime Mover bearing Queensland registration [registration] towing a loaded float trailer bearing Queensland registration [registration].
    6. As the driver of a heavy vehicle which has broken down on a highway, you have a responsibility to ensure that all possible means available to you for providing a warning to other road users of a hazard are carried out. This includes activating the vehicle hazard lights, correctly deploying portable warning signs and having the vehicle clearance and side lights operating at night.
    7. Police have concluded inquiries in relation to this incident. As a result of these inquiries, the issues relating to the safety of other road users that were identified in chapter 6 of this letter had not been carried out by yourself.
    8. Please find attached Infringement Notices numbered [number], [number] and [number] issued to you as the driver in regards to this matter.
    9. The instruction as to how to finalise this matter are explained on the inside of the Infringement Notices.
    10. Forwarded to you for your information and attention.”

[39] A copy of two infringement notices was provided by Yeo & Co in its material. The third infringement notice, referred to by Senior Constable Ashton was not supplied. I find that Senior Constable Ashton issued to Mr Vieritz three infringement notices as stated in the above letter.

Consideration

[40] The Small Business Fair Dismissal Code (the Code) is reproduced below:

    “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.

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.

    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.”

[41] It is assumed that Mr Vieritz had telephone contact with his employer on 26 January 2016. It is submitted on behalf of Mr Vieritz that he was telephoned by Mr Alonzo and told, “Fuck off, you’re finished, get out of here.” The parties have not provided any detail greater than this.

[42] I find that there was a dismissal at the initiative of Yeo & Co in accordance with s.386(1)(a) of the Act. The statement attributed to Mr Alonzo is a clear indication of the termination of Mr Vieritz’s employment. It is not disputed by Yeo & Co that the termination of Mr Vieritz’s employment was on the respondent’s initiative.

[43] It appears that Mr Vieritz’s dismissal was a summary dismissal. He was not paid any notice on termination.

[44] If it is the contention of Yeo & Co that Mr Vieritz’s conduct warranted the termination of the employment as a summary dismissal, I must be satisfied that Yeo & Co had a belief, based on reasonable grounds, that Mr Vieritz’s conduct was sufficiently serious to justify immediate dismissal.

[45] The Code describes what constitutes serious misconduct; theft, fraud, violence and serious breaches of occupational health and safety procedures.

[46] It cannot be asserted that the dismissal was due to theft, fraud or violence.

[47] It is not necessary that Yeo & Co establishes misconduct on the part of Mr Vieritz as the code does not require this. In Pinawin t/a Rose Vi. Hair. Face. Body v Domingo 1 a Full Bench of the Commission stated:

    “[29] …. There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Codeis satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.
    [30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.”

[48] It is necessary for me to consider whether Mr Alonzo believed on reasonable grounds that Mr Vieritz’s conduct was sufficiently serious to justify immediate dismissal. If I am not satisfied to this standard, or that the other requirements of the Code have been met with respect to ‘Other Dismissal’, the dismissal is not consistent with the Code and the Commission is then required to consider whether it was harsh, unjust or unreasonable on the basis of the criteria in s.387 of the Act.

[49] There is no direct evidence of any director, officer or employee of Yeo & Co in this matter. Mr Alonzo or Mr Yeo did not seek to provide evidence to the Commission, other than the Form F3 – Employer Response completed. Accordingly, I am limited to the material in the Form F3 – Employer Response in determining whether Mr Alonzo held a belief on reasonable grounds that Mr Vieritz’s conduct was sufficiently serious to justify immediate dismissal.

[50] I may have regard to the additional statements provided by Yeo & Co in determining the complete application, however in determining if Mr Alonzo believed on reasonable grounds that Mr Vieritz’s conduct was sufficiently serious to justify immediate dismissal, the views of Messers Cassidy, Nemeth and Beutel are less relevant.

[51] After removing theft, fraud and violence from the reasons for the dismissal, what remains available for Yeo & Co to submit is that Mr Vieritz’s employment was terminated for serious breaches of occupational health and safety procedures.

[52] On the evidence before me, I accept that Mr Vieritz was informed on multiple occasions that he was driving a vehicle requiring vigilant checking of its oil and temperature to prevent it from overheating. I accept that Mr Vieritz is not a mechanic; however it is within his skill and ability to have undertaken the tasks required of him by Yeo & Co to keep the vehicle safely running.

[53] In light of the uncontested evidence of Mr Cassidy and Mr Nemeth, and the expectations that employers have of their employees who are operating a single vehicle for the large part of their work week, I do find that Mr Vieritz did not follow the reasonable and lawful directions of his employer to properly maintain the vehicle.

[54] On this occasion, while I do not have an extensive amount of material before me, I find that Mr Vieritz did not apply his full attention to the vehicle to prevent it from overheating. He was neglectful in the duties reasonably expected of him by his employer.

[55] This conduct, however, does not equate to a finding that Mr Vieritz’s conduct constitutes a serious breach of occupational health and safety procedures. There is no evidence before me that on this occasion, the conduct of Mr Vieritz breached any occupational health and safety procedures of Yeo & Co, or any other organisation where the work was being performed. There is no assertion, for example, that on this occasion, the vehicle ceased operating in the middle of the road, which could constitute a serious safety breach.

[56] While I appreciate that Mr Vieritz’s minimal regard for the maintenance and operation of the vehicle would be incredibly frustrating for his employer, and it not being the first time the issue of truck maintenance had been raised with him, it does not warrant the summary dismissal of his employment. The incident was not a serious breach of occupational health and safety procedures.

[57] Accordingly, I do not find that Mr Alonzo believed on reasonable grounds that Mr Vieritz’s conduct was sufficiently serious to justify immediate dismissal in compliance with the Code.

[58] I now turn to a consideration of ‘Other Dismissal’ in accordance with the Code.

[59] In order for the dismissal to be in compliance with the Code under the heading of ‘Other Dismissal’, it is necessary for me to find that Mr Vieritz had been warned by Yeo & Co that he was at risk of being dismissed if there was no improvement in his performance or conduct.

[60] The Code requires that an employee must be warned verbally, or preferably in writing. The Form F3 – Employer Response details the extent of the verbal warnings said to have been given to Mr Vieritz:

    “ Prior to commencement of work at the Juandah Project in January 2016, the applicant was verbally informed by Danny Yeo that his lax maintenance attitude had to improve or disciplinary action would follow

  • On numerous occasions the applicant has been verbally spoken to about his lax attitude towards maintenance issues and work ethics”


[61] The Code requires that an employer must give an employee a reason why his or her job is at risk of being dismissed, and the reason must be a valid reason based on the employee’s conduct or capacity to do the job.

[62] I do find, in this case, that Mr Vieritz’s poor attitude to basic vehicle maintenance constituted a valid reason for him to have been warned. On the material before me, Mr Vieritz was verbally warned about this issue on a number of occasions.

[63] On the material before me, I am satisfied that Mr Yeo informed Mr Vieritz that he needed to improve his attitude towards maintenance of the vehicle he was driving, “or disciplinary action would follow.” There is nothing before me that suggests, in accordance with the Code, that Mr Vieritz was warned that if he did not improve, he was at risk of being dismissed.

[64] The Code requires that where dismissal is possible, an employee can have another person present to assist in discussions with the employer. On the material before me, Mr Vieritz had a telephone conversation and was dismissed summarily over the phone.

[65] For the above reasons, I find that the dismissal was not in accordance with the Code.

Consideration of s.387 of the Act – Unfair Dismissal

[66] In deciding whether a dismissal is harsh, unjust or unreasonable, the Commission must take into account procedural and substantive matters set out in s.387 of the Act 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.”

[67] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

    “.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[68] I am under a duty to consider each of these criteria in reaching my conclusion. 2

[69] I will now consider each of the criteria at s.387 of the Act separately.

Valid reason - s.387(a)

[70] Yeo & Co must have a valid reason for the dismissal of Mr Vieritz, although it need not be the reason given to the applicant at the time of the dismissal.3 The reasons should be “sound, defensible and well founded”4 and should not be “capricious, fanciful, spiteful or prejudiced.”5

[71] In [57] above, I determined that Mr Vieritz’s conduct, while incredibly frustrating for Yeo & Co, did not warrant summary dismissal (in accordance with the Code). As described above, the test for compliance with the Code is narrow and limited to a number of serious misconduct issues including theft, violence, and serious safety breaches.

[72] In determining whether there was a valid reason for Mr Vieritz’s dismissal, I have had regard to the material filed by Yeo & Co, including the statements of the three gentlemen unrelated to the respondent. I have also had regard to Senior Constable Ashton’s letter to Mr Vieritz and the three infringement notices issued.

[73] On the material before me, Mr Vieritz had very little regard for the basic maintenance and general (non-mechanical) upkeep of the vehicle he was driving for Yeo & Co. I do not accept the evidence of Mr Cassidy that the vehicle should be valued at approximately $200,000, and due to Mr Vieritz’s negligence, is now only valued at less than $50,000. I do, however, accept that Mr Vieritz had very little regard for the sizeable capital investment of Yeo & Co that he was largely responsible for while at work.

[74] The incident of 27 November 2015, where Mr Vieritz left unattended the over-sized vehicle which had run out of fuel, demonstrates extremely poor judgment on his behalf. It is frightening that he thought to leave the vehicle near a highway without satisfactory warning to travellers. The vehicle was not lit and the cabin not locked. When contacted by a police officer, he informed the officer that he had no intention of returning to the vehicle.

[75] This incident doesn’t directly relate to the reason for the dismissal; however it does demonstrate Mr Vieritz’s history of poor performance.

[76] Despite Mr Vieritz’s evidence that “throughout the time of my employment I performed all necessary routine maintenance of the truck, including oil, grease and coolant”, I find that he did not. In the incident relating to his dismissal, I find that it was in Mr Vieritz’s skill and ability to ensure the vehicle did not overheat while responsible for it.

[77] I find there was a valid reason for the dismissal of Mr Vieritz relating to his conduct. While I do not find that the reason for the dismissal was eloquently put to Mr Vieritz by Alonzo during the telephone conversation, I do find that the employer was not prepared to allow Mr Vieritz to cause any further damage to its vehicle. The task that Mr Vieritz was responsible for, ensuring the vehicle was adequately monitored and water topped up (if necessary), was not an onerous obligation on a truck driver.

[78] Despite the relevant repair being promised and not being immediately undertaken, it was not a significant requirement to ensure that the vehicle did not overheat, and Mr Vieritz failed to adequately discharge the reasonable responsibilities the employer required of him.

[79] If it had been the very first instance where Mr Vieritz had been required to properly monitor the vehicle he was driving to ensure it did not overheat, and he did not do so, I would not find that there was a valid reason for the dismissal. Mr Vieritz had demonstrated little regard for the basic maintenance of the vehicle entrusted to him, and for this reason I do find that there was a valid reason for the dismissal.

Notification of the valid reason - s.387(b)

[80] There is no evidence before me that Mr Vieritz was notified of the reason he was dismissed during the telephone call of 26 January 2016.

[81] In the material filed by Mr Vieritz, he has linked his dismissal to an incident between 24 and 26 January 2016 involving the vehicle and overheating. I expect that along with what Mr Alonzo said to Mr Vieritz during the telephone call of 26 January 2016, there is likely to have been some discussion about this event.

[82] On the basis that Mr Vieritz has nominated the event as the reason for the dismissal, I find that Mr Vieritz was notified of that reason when he was dismissed over the telephone on 26 January 2016.

Opportunity to respond - s.387(c)

[83] On the material before me, Mr Vieritz participated in a telephone call on 26 January 2016 and was informed (to the effect) that he was dismissed. I do not find that Mr Vieritz was given an opportunity to respond to the reason related to his conduct.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[84] The dismissal was conducted over the telephone. There is no material before me suggesting that Mr Vieritz had requested a support person and was unreasonably refused that request.

[85] It is unlikely that Mr Vieritz was aware when he spoke with Mr Alonzo over the telephone that he was going to be dismissed.

[86] I find that there was not an unreasonable refusal by Yeo & Co to allow a support person.

Warnings regarding unsatisfactory performance - s.387(e)

[87] I am satisfied that Mr Vieritz was verbally informed on a number of occasions that the way he looked after the vehicle that he was driving was unsatisfactory. He was informed that his ‘lax attitude’ to maintenance was not satisfactory, and if it didn’t improve, he would be subject to disciplinary action.

[88] He was not, however, informed that disciplinary action might include termination of his employment.

[89] While there is no legislative obligation to provide a written warning to an employee subject to disciplinary action, in my view, written warnings are often proven to be invaluable. A valid written warning assists to put beyond doubt what an employee needs to address to improve their performance, and the consequences of a failure to improve. There is no evidence of written warnings having been issued to Mr Vieritz.

Impact of the size of the Respondent on procedures followed - s.387(f)

[90] Yeo & Co is a small business, which means that the employer may find it difficult to follow proper procedures and to deal with the legal requirements relating to dismissal. I have taken this into account.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[91] It appears there was an absence of dedicated human resource management specialists within the business. I have taken this into account.

Other relevant matters - s.387(h)

[92] It was put by Mr Vieritz that he was left stranded when the vehicle stopped operating due to having become overheated. Mr Vieritz had to find his own way back from a regional area. The evidence of Yeo & Co is that he was not left stranded, and a fellow driver picked him up and returned him to the quarry. Presumably, Mr Vieritz’s personal vehicle was at the quarry to allow him to return home.

[93] It is not clear when this occurred relevant to the telephone call to dismiss Mr Vieritz’s employment. In any event, I am not satisfied that Mr Vieritz was left ‘stranded’. He was returned safely to the quarry.

[94] I do have consideration for the manner in which Mr Vieritz was informed of his dismissal. The evidence is that Mr Lorenzo said to Mr Vieritz by telephone, “Fuck off, you’re finished, get out of here.”

[95] The words attributed to Mr Lorenzo, in the context of informing an employee of two years’ service that his employment is terminated are crude, brash and unacceptable. Looking purely at the words, one could imagine they were being uttered to a dog that had become a nuisance; and not to a man.

Conclusion

[96] Having regard to all of the requirements in s.387, while I do find that there was a valid reason for the dismissal, I find that the dismissal was harsh, unjust and unreasonable in all of the circumstances.

Remedy

[97] Because of the breakdown of the relationship between Mr Vieritz and Yeo & Co, and because of Mr Vieritz’s disregard for the vehicle required to be operated by him, I am satisfied that reinstatement is not appropriate. I will now consider an Order for compensation. It is noted that Yeo & Co have not made any submissions in relation to the remedy available to Mr Vieritz.

[98] Section 392 of the Act provides:

    “392 Remedy—compensation

    Compensation

    (1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

    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.

    Misconduct reduces amount

    (3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

    Shock, distress etc. disregarded

    (4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

    Compensation cap

    (5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

      (a) the amount worked out under subsection (6); and

      (b) half the amount of the high income threshold immediately before the dismissal.

    (6) The amount is the total of the following amounts:

      (a) the total amount of remuneration:

        (i) received by the person; or

        (ii) to which the person was entitled;

      (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

      (b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

Authorities

[99] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket 6. That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey7; Jetstar Airways Pty Ltd v Neeteson-Lemkes8and McCulloch v Calvary Health Care9(McCulloch).

[100] I have had regard to the above authorities.

The effect of the order on the viability of Yeo & Co

[101] Yeo & Co is currently under Administration. There is no other evidence available to me on the effect an order of compensation might have on the viability of Yeo & Co.

The length of Mr Vieritz’s service

[102] Mr Vieritz had been employed as a permanent employee for just in excess of two years. In addition, he had a further two months’ service as a casual employee prior to the permanent employment commencing.

The remuneration that Mr Vieritz would have received, or would have been likely to receive, if he had not been dismissed

[103] I am of the view that Mr Vieritz’s employment would not have continued for an extended period of time. Mr Vieritz had not improved his performance from the serious police incident in November 2015 to the overheating vehicle matter in January 2016.

[104] Even if he had been performance counselled in relation to the January 2016 overheated vehicle incident, I am not satisfied that he would have improved his performance to a satisfactory standard to have continued for a moderate or lengthy period of time in the employment.

[105] I have no doubt that the relationship between the parties would not have subsisted for much longer. For this reason, I conclude that Mr Vieritz’s employment would have been terminated within four weeks of the actual dismissal.

The efforts of Mr Vieritz (if any) to mitigate the loss suffered because of the dismissal

[106] Mr Vieritz did not give evidence about attempts to mitigate the loss of his employment.

[107] It was submitted on behalf of Mr Vieritz that he had obtained casual work across multiple employers since the dismissal. It was suggested that further information of his earnings would be provided at hearing, however when the parties informed the Commission that they wished for the application to be dealt with on the papers, no further information was provided.

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

[108] No information was provided by Mr Vieritz relevant to this consideration, other than a concession that Mr Vieritz has obtained casual work across multiple employers.

The amount of any income reasonably likely to be so earned by Mr Vieritz during the period between the making of the order for compensation and the actual compensation

[109] This factor is not relevant in the circumstances of this matter.

Other relevant matters

[110] It was submitted on behalf of Mr Vieritz that he earned $31.00 per hour in his employment with Yeo & Co. This is confirmed by the material filed by the employer in the Form F3 – Employer Response.

[111] The submission filed on behalf of Mr Vieritz’s suggests that his weekly hours should be 38 hours per week as the hours that he worked varied. I conclude that Mr Vieritz’s weekly wage was $1,178.00.

Misconduct reduces amount

[112] Section 392(3) requires that if the Commission is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct. While I have not found that Mr Vieritz’s conduct was serious misconduct, it is capable of being found as misconduct.

[113] The section requires that consideration be given by the Commission to whether misconduct contributed to the decision to dismiss an employee even where it has been found there was no valid reason for the termination. 10  The absence of a valid reason may be relevant to the appropriate amount by which compensation should be reduced.11

[114] I have earlier found at [77] that there was a valid reason for the dismissal having regard to Mr Vieritz’s conduct. I determine that Mr Vieritz’s poor or negligent attitude to basic vehicle maintenance on around 26 January 2016 was misconduct, but not serious misconduct that warranted summary dismissal. As a result, I must reduce the amount of compensation by an appropriate amount.

[115] Having regard to the material before me, I consider it appropriate to make a reduction of 25% to the amount of compensation I would otherwise order on account of Mr Vieritz’s misconduct.

Shock, distress etc. disregarded

[116] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Mr Vieritz by the manner of the dismissal.

Compensation Cap

[117] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.

[118] The high income threshold immediately prior to the dismissal was $136,700. Mr Vieritz earned less than the high income threshold.

[119] The amount Mr Vieritz would have earned, or to which Mr Vieritz was entitled, for the 26 week period immediately prior to the dismissal was $1,178.00 x 26 = $30,628.00.

[120] The amount of compensation the Commission will order does not exceed the compensation cap.

Payment by instalments

[121] No submission was made that it would be necessary for Yeo & Co to pay the amount of compensation by way of instalments. Consequently, Yeo & Co is to pay the amount of compensation within 14 days of the date of this decision.

Order of compensation

[122] I have determined that Yeo & Co pay to Mr Vieritz the amount of $3,534.00 being three weeks’ wages at his base salary less tax as required by law.

[123] An Order [PR583284] to that effect will be issued with this decision.

Payment of wages in lieu of notice

[124] As a postscript I note that Yeo & Co has not paid to Mr Vieritz any notice on termination, on the basis that it was asserted that the respondent was entitled to summarily dismiss Mr Vieritz.

[125] Having found that Mr Vieritz’s misconduct did not warrant summary dismissal, Mr Vieritz is entitled to three weeks’ wages as payment in lieu of notice. This right arises in accordance with the National Employment Standards within the Act.

[126] Although the ordering of the payment of notice is not within the Commission’s jurisdiction to determine, Yeo & Co is strongly encouraged, as a result of this decision, to make a further payment of $3,534.00 subject to taxation to Mr Vieritz to satisfy the entitlement owing to him on termination.

COMMISSIONER

 1   [2012] FWAFB 1359

 2   Sayer v Melsteel[2011] FWAFB 7498 at [20]

3 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

4 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373

5 Ibid

 6 (1998) 88 IR 21.

 7   [2013] FWCFB 431.

 8   [2014] FWCFB 8683.

 9   [2015] FWCFB 2267.

 10   Read v Gordon Square Child Care Centre Inc.[2013] FWCFB 762 [83].

 11   Ibid.

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