Mr Desmond Smith v Pedro Kayias Pty Ltd T/A Pete's Vehicle Transport

[2014] FWC 8798

[2014] FWC 8798 [Note: An appeal pursuant to s.604 (C2015/1885) was lodged against this decision - refer to Full Bench decision dated 18 March 2015 [[2015] FWCFB 1519] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Desmond Smith
v
Pedro Kayias Pty Ltd T/A Pete’s Vehicle Transport
(U2014/5959)

DEPUTY PRESIDENT BARTEL ADELAIDE, 5 DECEMBER 2014

Termination of employment

[1] On 6 March 2014, Desmond Smith (the applicant) was dismissed from his employment as a truck driver with Pedro Kayias Pty Ltd T/A Pete’s Vehicle Transport (the respondent or the employer). On 26 March 2014, the applicant made an application to the Fair Work Commission (the Commission) seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] The application was initially listed for hearing on 20 and 21 August 2014. The parties had indicated a willingness to participate in conciliation before a member of the Commission and this occurred on 24 July 2014. Terms of agreement were reached between the parties and the trial dates were vacated. However advice was then received that the respondent had failed to execute the deed of agreement and the matter was referred back to me for further directions.

[3] A new trial date of 25 and 26 November 2014 was set. The applicant, through his representative Mr Lawrie of the Transport Workers Union of Australia, SA/NT Branch, filed his documents as directed by 10 October 2014. Mr Peter Kayias, the proprietor of the respondent, was to file his documents and witness statements by 14 November 2014, but failed to do so. He was contacted by my Chambers on 19 November 2014 and requested to file his documents as a matter of urgency. 1 Nothing was received. My Chambers then contacted him by phone on 21 November 2014, wherein Mr Kayias advised that his documents were on the computer of a person who was overseas and if that person did not return by 24 2014 November he will seek an adjournment. He was advised that he should not assume that an adjournment would be granted or that late documents would be admitted.

[4] On 24 November 2014 the respondent sent an email attachment formally requesting an adjournment as the Corporate Services Manager was unable to return to Adelaide from abroad until 26 November 2014. My Chambers emailed Mr Kayias, confirming receipt of his email and advising him to attend the hearing the following day to put his case for an adjournment. He did not attend. When contacted by phone he advised that he had not read the email sent from Chambers the previous day; that he was busy; and that he would not be attending the proceedings.

[5] I was satisfied that the respondent’s actions and inactions had already delayed this matter for some 3 months and that despite the significant amount of time within which to file his documents, he had failed to comply. In his correspondence requesting an adjournment Mr Kayias requested that he be advised in relation to the matter but then failed to read the advice provided. Mr Kayias has not demonstrated an appropriate level of diligence in relation to this matter over a long period of time and I decided that in all the circumstances it would be unfair to the applicant to further adjourn the proceedings. Accordingly, the application was heard in the employer’s absence.

The dismissal

[6] On 5 March 2014 at 3.05pm the applicant sent the following text message to his supervisor, Alex Kayias (Alex): “My back is killing me I have to go to workcover clinic after this load.” 2 At around this time Mr Kayias rang the applicant to enquire what was happening. According to the applicant Mr Kayias was agitated and angry and said words to the effect that the applicant was too hard to work with and that they will have to “part ways”.3

[7] At 3.30pm the applicant received a text message from Mr Kayias telling him there was not much work on the following day and that he is not required. 4

[8] The applicant said he went to the doctor on the morning of 6 March 2014 as his back was still sore. While waiting for his appointment he received a text message from Mr Kayias to the effect that the applicant was entitled to two weeks’ notice and that the money would be paid into his account. 5

[9] The applicant then rang Mr Kayias to clarify the message he had received. The applicant stated that Mr Kayias raised a number of complaints against him, which the applicant disputed. The conversation ended with Mr Kayias saying that he had two weeks to find another job. The applicant concluded that he had been dismissed. The employer accepts that the applicant was dismissed on this day. Form F3 Employer Response

[10] The only available information from the employer concerning the reasons for dismissal is contained in the Form F3 Employer Response. An attachment to the Form F3 sets out a series of events between 28 February and 3 March 2014, which can be summarised as follows:

● On Friday 28 February 2014 the applicant defied Mr Kayias’ instruction to him to cease working after he had advised Mr Kayias that he was suffering an irregular heartbeat. Mr Kayias spoke to the applicant later that afternoon and expressed his concern at the applicant’s defiance and that he took it very seriously as it placed the applicant and the public at risk;

● On Monday 3 March 2014 the applicant advised that he had spent Friday night and Saturday at the Lyell McEwin Hospital (LMH) but that they could find nothing wrong with his heart. The applicant said that the doctors thought it might be stress related and had suggested that he have a few days off or undertake light duties for the week. The applicant queried whether he could work 7.00am to 3.00pm for the week; and

● Mr Kayias requested that the applicant provide a medical clearance from the LMH, but “[the applicant] could not or would not supply me this certificate clearance”.

[11] The attachment to the Form F3 records that Mr Kayias was of the view that he could not allow the applicant to keep driving without receipt of the clearance and this was the trigger for the dismissal. It also sets out allegations that the applicant:

● Would not comply with the required hours of work and was not a team player;
● Refused to comply with the Transport Co-ordinator’s directions;
● In December 2013 refused a request to undertake a load for a client and on a separate occasion was rude to personnel engaged at North Point Toyota;
● Took time off without pay even when the applicant’s request for time off was refused.

[12] The applicant denies these allegations or that that they were raised with him, save that in the phone conversation on 6 March 2014 with Mr Kayias, he was accused of refusing to work on Saturdays and not being a team player. The applicant says he told Mr Kayias that this was false as he was only requested to work on one Saturday, which he did. 6

[13] He agrees that he spent Friday night (1 March 2014) and part of Saturday (2 March 2014) at the LMH after suffering chest pains, and that he raised the issue of finishing at 3.00pm with Mr Kayias. He denies that Mr Kayias requested that he provide a medical clearance and referred to the print out of text messages from Alex. The messages record that work was allocated to the applicant on the 3rd, 4th and 5th of March 2014 and that there was no mention of, or request for a medical clearance.

Consideration

The statutory requirements

[14] The application was filed within the statutory 21-day time period. The applicant is a person protected from unfair dismissal within the meaning of s.382 of the Act. The employer is a small business employer 7 and the applicant had completed the required minimum employment period of 12 months at the time of dismissal. He was covered by a modern award.

[15] Section 385 of the Act sets out the criteria to be met in order for a person to be unfairly dismissed, as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[16] The requirements for a person to be deemed to have been unfairly dismissed as set out in paragraphs (a) to (d) above are conjunctive, so that all of these requirements must be met. In this case I am satisfied, and there is no dispute that the applicant was dismissed at the initiative of the employer and that his dismissal was not a case of genuine redundancy.

Was the dismissal consistent with the Small Business Fair Dismissal Code (the Code)?

[17] The Code is in the following terms:

“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.”

[18] I have noted earlier that the applicant denies the allegations made by the respondent as set out in the Form F3. On the basis of the evidence before the Commission I am not satisfied that the allegations have been made out.

[19] Even on the employer’s version of events as set out in the Form F3, the alleged failure of the applicant to provide a medical clearance was not regarded as sufficiently serious so as to warrant summary dismissal. Despite the employer’s statements in the attachment to the Form F3 concerning public safety, the applicant continued to be allocated work by his Supervisor.

[20] There is no evidence or information before the Commission that the applicant had been warned that he was at risk of being dismissed if he failed to provide a medical clearance, or that the performance based allegations cited by the employer in the Form F3 resulted in a warning/s issued to the applicant. It follows that, even if the allegations made by the employer had been made out, the applicant was not given an opportunity to improve his performance.

[21] The fact that the applicant was dismissed by text message denied him the opportunity to plead his case or have a support person present. I note the applicant’s evidence that at least some of the performance based allegations were put to him in the phone conversation with Mr Kayias after he received the text message, but as this was post-dismissal it cannot be categorised as providing procedural fairness to the applicant in the decision to dismiss.

[22] I conclude that the dismissal is not consistent with the Code.

Was the dismissal harsh, unjust or unreasonable?

[23] The final issue to consider in determining whether the applicant has been unfairly dismissed is whether the dismissal was harsh, unjust or unreasonable. Paragraphs 387(a) to (h) in s.387 of the Act identify eight criteria that the Commission must take into account in considering whether a dismissal is harsh, unjust or unreasonable:

“(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.”

s.387(a) of the Act

[24] In determining whether there was a valid reason for the dismissal, the Commission must determine whether there was a “sound, defensible or well-founded” reason for dismissal 8 based on an objective analysis of the relevant facts. The employer’s belief that the termination was for a valid reason is not sufficient.9

[25] I have determined that the allegations cited by the employer as the reasons for dismissal have not been substantiated on the evidence and information before the Commission. Accordingly, they do not provide a valid reason for dismissal.

ss.387(b), (c), (d) and (e) of the Act

[26] I have also determined that the applicant was not notified of the reasons for dismissal. Such notification must occur prior to the dismissal. 10 Accordingly, the applicant was not given an opportunity to respond to the reasons for dismissal and therefore was denied the opportunity to have a support person present.

[27] I have held that the applicant was not warned in relation to any alleged performance concerns.

ss.387(f) and (g) of the Act

[28] The employer is a small business employer so this is a relevant matter to take into account in considering any procedural defects in the process leading up to and including the decision to dismiss. However, as the Code makes clear, certain basic requirements are expected to be complied with. A lack of human resources expertise or advice is not a defence to denying employees the fundamental right to plead their case where allegations are in dispute.

s.387(h) of the Act

[29] There are no additional matters to be taken into account.

[30] I conclude that the dismissal of the applicant was harsh unjust or unreasonable.

Remedy

[31] The applicant secured alternative employment on 26 June 2014 and is now engaged in full time work. He does not seek reinstatement. In addition, the employer’s conduct since the application for an unfair dismissal remedy was lodged has not engendered any confidence that a productive relationship between the parties could be restored in any event. I am satisfied that it would be inappropriate to order reinstatement in these circumstances.

[32] The criteria for determining the amount of compensation is set out in s.392 of the Act:

“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.”

[33] There is no information before the Commission on the effect of any order for compensation on the viability of the employer’s enterprise. The applicant had 13 months service as at the date of dismissal, which is not a lengthy period of service but neither is it sufficiently short to warrant any deduction in the compensation that may be awarded. I consider that 9 months is an appropriate estimate of the anticipated period of employment, absent the dismissal.

[34] There is no evidence concerning the circumstances of the applicant or of the employer that warrant any deduction for contingencies.

[35] Wages information supplied by the applicant show that he was receiving on average $1200 per week (gross) in the months leading to his dismissal, so that earnings over the anticipated period of employment would be $46,800.

[36] The applicant was on workers compensation income maintenance payments for a period of approximately 3.5 months post dismissal, during which time he received $14,160. I am satisfied that he then took reasonable steps to mitigate his loss and in fact he obtained employment at the end of June 2014. The applicant’s earnings in the new employment are approximately $1,000 per week. In addition, he received 1 weeks pay in lieu of notice on termination of employment. The remuneration received by the applicant during the period from dismissal up to the end of the anticipated period of employment is approximately $38,360.

[37] Deducting these earnings from the remuneration the applicant would have received during the anticipated period of employment with the employer, leaves an amount of $8,440. In all the circumstances I consider that this is reasonable and fair amount of compensation, and an order that the employer pay this amount within a period of 21 days, is attached to this decision.

DEPUTY PRESIDENT

Appearances:

Edward Lawrie of the Transport Workers Union of Australia SA/NT Branch for the Applicant

No Appearance for the Respondent

Hearing details:

2014

Adelaide

November 25

Further written submissions on Remedy:

2 December 2014

 1   Email dated 19 November 2014, on file.

 2   Ex A4

 3   Ex A1 at paragraph 25

 4   Ex A3

 5   Ex A1 at paragraph 29

 6   Ex A1 at paragraph 30

 7   Within the meaning of s.23 of the Act

 8   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

 9   Rode v Burwood Mitsubishi (Unreported, AIRCFB, Ross VP, Polities SDP, Foggo C, 11 May 1999) Print R4471 at [19]

 10   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 paras[70] ‒ [73]

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