Mr Devender Kharb v Eastfield Pty Ltd T/A BP Duaringa

[2013] FWC 6403

[2013] FWC 6403

FAIR WORK COMMISSION

DECISION

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

Mr Devender Kharb
v
Eastfield Pty Ltd T/A BP Duaringa
(U2013/3541)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 9 SEPTEMBER 2013

Summary: whether audio recording secretly recorded is admissible - failure to follow reasonable directions regarding hours of work.

[1] This application under s.394 of the Fair Work Act 2009 (“the Act”) concerning an unfair dismissal remedy was made by Mr Devender Kharb (“the Applicant”). The Respondent was Eastfield Pty Ltd T/A BP Duaringa. The Respondent’s owner operator was Mr Jan Kazimierz Steindl (referred to below intermittently in the evidence as “Kaz”).

[2] The Respondent operates a 24 hour service station. In early 2012 the Respondent advertised for the purposes of recruiting a qualified mechanic to take over the work in the mechanical workshop.

[3] The Applicant was subsequently interviewed and was said to have represented himself as a qualified mechanic.

[4] Shortly after commencing work the Applicant sought the consent of the Respondent to sponsor him as he was an overseas student and needed a sponsor in order to stay in Australia. The Respondent acceded to this request.

[5] The Respondent’s evidence was that in a very short period of time it became obvious that the Applicant was not a capable mechanic for the purposes for which the Respondent had recruited him. The Respondent stated that he did not know how to even change a car tyre and was said to have damaged tools in the workshop (though the Applicant denied this).

[6] After approximately one month, the Applicant was demoted to the position of assistant mechanic and was made to work subject to the supervision of a newly recruited and qualified mechanic. The Respondent claimed that the Applicant accepted this new position and the rate of pay associated with that.

[7] The Applicant was also provided with accommodation on property owned by the Respondent at no cost, although he was required to contribute to the electricity charges.

[8] Some short time later, the Applicant’s position was changed once more, this time to the position of a casual roadhouse attendant (or driveway attendant). It appears the role of driveway attendant and assistant mechanic were intended to be one and the same - the duties appear to reflect the classification under the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (“the Award”), specifically of a Vehicle industry RS&R—employee—Level 2 R2.

[9] There appears to have been some interventions by the Fair Work Ombudsman in relation to the contractual changes. At a point it appears the Respondent was required to pay to the Applicant one week’s pay in lieu of notice. This appears to have been because the change in role from mechanic to driveway attendant was taken to have been a dismissal.

[10] Irrespective, at the time this application was made the Applicant had continued to perform the role as a casual driveway attendant under the Award for less than 12 months.

[11] The difficulties that arose in the relationship in the period immediately preceding the termination concerned an allegation that the Applicant persisted in working overtime contrary to the express directions of the Respondent. That is, despite the alleged request by the Respondent directly to the Applicant - on multiple occasions - that the Applicant was not to work any overtime and was to abide by the hours set down in his weekly roster, the Applicant had persisted in doing the contrary.

[12] The Respondent also alleged that the Applicant was informed on no less than four other occasions that his performance and attitude to work were deficient, and that he appeared not to be prepared to learn new skills or adapt to the working environment. The Applicant’s attitude towards other staff was also said to be a problem.

[13] Regarding the former issue, the Respondent contends that in late December 2012 or early January 2013 the Applicant had been claiming for overtime for which he had not performed any duties or else had not been directed to perform. The Respondent claimed that a discussion was had with the Applicant about this matter and he was informed that he had to be 100% honest in his dealings with his employer.

[14] In the week prior to 19 February 2013, the Applicant was said to have again lodged a timesheet with a claim for overtime. He was again reminded, so the Respondent said, of the discussions that had taken place in the past about overtime.

[15] The Respondent said that he had undertaken investigations including interviewing other senior staff and that they had been emphatic that the Applicant had not worked the overtime he was claiming, and had been challenged (or noticed) on two occasions by staff for being on the premises without reason. The Applicant was also allegedly working unauthorised overtime without adequate supervision.

[16] The Respondent claims that he subsequently indicated to the Applicant that he should seek another job as his position was being terminated.

[17] The Respondent did not require the Applicant to vacate immediately his accommodation. Instead, the Respondent permitted the Applicant to stay in the accommodation provided to him. The Applicant subsequently vacated the premises after some two weeks or so. The Applicant was eventually paid his notice period and outstanding entitlements after these had been formally determined.

[18] The Applicant did not provide any written materials in support of his claim other than to provide a recording of a conversation he had had with the Respondent. That conversation was recorded on a mobile phone. That conversation is transcribed as follows:

Kharb: Hi Kaz.

Kaz: What is this bullshit overtime, why you get overtime.

Kharb: Last week I got...

Kaz: But you had Wednesday off.

Kharb: Because I had total 48 hours.

Kaz: You have some brains. Can you justify your existence here, because I can’t. So what I call you for is to say find yourself new job because you don’t have one here because it’s always what’s her name, you not a Mechanic for start, I can’t put you on any job and I tried to keep you here for as long as I can, but now I can’t sorry, you better find yourself a new job. I can’t hold out any longer. You’re getting too greedy for start, you were sitting all day, like last night, what did you do last night, sweep the floor and then you charge me overtime [...] [inaudible]

Kaz: Sorry.

Kharb: I understand if you [ inaudible].

Kaz: When you applied for the job you said you were a qualified mechanic, you said you were working. There are too many things on my mind, the contract I don’t give a damn because it doesn’t exist, find yourself somebody else to work with.

Kharb: That’s fine Kaz. I have some overtime with you, like from last time. So what are you going to do about that.

Kaz: Don’t push your luck. Just pack up and go alright.

Kharb: So we can’t do anything with that.

Kaz: No, we can’t because I can’t justify to pay you what I pay you because you not mechanic. Do whatever you want to do, I don’t give a shit. Simple.

[inaudible]

Kaz: So how can you justify overtime, how can you justify when you are sitting on your arse for hours and hours every second day and doing nothing. Some day you get job and do the job. If I show you what your income and wages that you’ve taken, you never cover up your wages.

Kharb: Most of the time [inaudible].

Kaz: You cost me money. I can’t justify it. You suppose to make money for me. Do you think you’re making money for me? RACQ pays for your truck, wages and there still be none left for me. I don’t employ because you are good looking, I employ you because I want you to make money for me.

Kharb: Yeah that’s right Kaz.

Kaz: Obviously you’re not. Just find yourself job.

Kharb: [inaudible]

Kaz: You probably first year apprentice, this is what your wages is supposed to be. I am not trying to be nasty but the fact is you do not know the job, you know. I have this garage book put together, I never give you because I was too scared to give to you. I can’t give customer card for saving because you have no knowledge and this is my fault. When I employed you, you told me you were a qualified mechanic and you’re not, like I said. You probably be pushing to get first year apprentice, knowledge of first year apprentice.

Kharb: [inaudible]

Kaz: I see how you started working on my fuel truck, this was enough for me. I give you plenty chance, if you weren’t so greedy you would probably have job for little bit longer, but you just getting too greedy and I have just had enough, simple. You can stay in the house until you find a job, doesn’t bother me.

Kharb: No worries. Thanks Kaz.

[19] While both parties provided their own (slightly different) transcriptions of the voice recording, both parties generally agreed that this truncated transcription represented the content of the voice recording.

[20] Before turning to discuss his evidence I need to determine whether it is permissible to deal with such material as evidence, given that it was recorded without the consent of the Respondent.

[21] Recordings of this nature are the subject of the Invasion of Privacy Act 1971 (Qld) (“the IP Act”). Section 43 of the IP Act provides as follows:

43 Prohibition on use of listening devices

(1) A person is guilty of an offence against this Act if the person uses a listening device to overhear, record, monitor or listen to a private conversation and is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for 2 years.

(2) Subsection (1) does not apply--

(a) where the person using the listening device is a party to the private conversation;

[...].

[22] It appears to me that it was lawful for the Applicant to record the conversation with a listening device as he was a party to that conversation. Another question follows, that is, is the Applicant able to publish or otherwise communicate such a recording for current purposes? This matter is dealt with elsewhere in the IP Act:

45 Prohibition on communication or publication of private conversations by parties thereto

(1) A person who, having been a party to a private conversation and having used a listening device to overhear, record, monitor or listen to that conversation, subsequently communicates or publishes to any other person any record of the conversation made, directly or indirectly, by the use of the listening device or any statement prepared from such a record is guilty of an offence against this Act and is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for 2 years.

(2) Subsection (1) does not apply where the communication or publication—

[...]

(b) is made in the course of legal proceedings;

[...]

legal proceedings includes—

(a) proceedings (whether civil or criminal) in or before any court; and

(b) proceedings before justices; and

(c) proceedings before any court, tribunal or person (including any inquiry, examination or arbitration) in which evidence is or may be given; and

(d) any part of legal proceedings. [My emphasis]

[23] It appears to me that the Applicant has made use of the recording as transcribed for the purposes of a civil proceeding in this tribunal. It is therefore permissible to consider the content of the recording as transcribed. The Respondent did not object to the transcript being relied upon for the purposes of the Applicant’s evidence. Whether such evidence has probative value is another question. So far as one party is placed in a position of knowledge (of the recording) and the other party is unaware of the situation, issues may arise as to how the knowing party constructs the conversation and manufactures his/her responses. Some care, therefore, is required in the approach to materials such as the transcript now before me.

[24] Another preliminary point is that the Respondent is likely to be a small business for the purposes of s.23 of the Act. I was not in receipt of any detailed submissions in this respect from the parties and the evidence was unclear. Neither party sought to adduce any material (let alone argument) that confirmed the Respondent’s status. It was not contested between the parties that the Respondent employed only some four or so full-time employees and a larger number of around 20 or so casual employees, some of whom appear to be backpackers. In this respect it must be remembered that the Respondent’s enterprise is a 24-hour operation.

[25] In any event, this was not a case in which the Respondent applied the Small Business Fair Dismissal Code (“the Code”) for the purposes of effecting the dismissal on a summary basis: the Applicant was ultimately dismissed on basis of notice paid in lieu. The Respondent agreed with this summation.

[26] The Respondent did not consider that the Code had any particular application in the circumstances and submitted that I should simply apply the provisions of s.387 of the Act to determine the matter. There is also a short discussion about other jurisdictional aspects of this matter at the conclusion of this decision.

Whether there was a valid reason for the dismissal

[27] The Applicant’s central claim became evident at the hearing. The claim was that he believed himself to have been unfairly dismissed because he requested payment of overtime owed to him by the Respondent.

[28] The circumstances of the matter are not quite so straightforward.

[29] As stated above, the Respondent’s evidence was that the Applicant had been given repeated warnings not to work overtime unless directed. This evidence was not seriously challenged under examination by the Applicant. The Respondent, on the evidence I have heard, made it clear on repeated occasions that the Applicant could not unilaterally decide to work (unauthorised) overtime and then seek to make a claim for such. This evidence is not expressly referred to in the discussion between the parties in the above transcribed recording, but it was nonetheless proven as part of the Respondent’s evidentiary case. That is, that Mr Steindl had warned the Applicant on multiple occasions not to work overtime.

[30] The Applicant agreed that he had been warned not to work overtime. His argument appeared to be that working overtime had been unavoidable, but this was difficult to make out on the evidence. Indeed, the Applicant contended that the claim for overtime in the last week of his employment had been expressly endorsed by Mr Steindl in a meeting. It was this quantum of overtime that had been at the centre of the dispute between the parties as recorded in the conversation above.

[31] But I find this claim by the Applicant not to be sustainable on the evidence.

[32] Mr Steindl claimed there had been no such meeting, and no consent had been given to the working of overtime that week.

[33] I accept this evidence, for the following reasons.

[34] If Mr Steindl had expressly consented (some few days earlier) to the overtime which led to the discussion above, it reasonably would be expected that the Applicant would have said as much in the course of that discussion, and quite early on when he was questioned about the basis for his overtime claim. But in his evidence, the Applicant stated that he made no reference in the discussion to Mr Steindl’s prior consent whatsoever even when it was central to the dismissal. This is not creditable.

[35] Further, the Applicant said that he came to the meeting with Mr Steindl (as recorded above) believing that Mr Steindl would raise the overtime claim for that week with him. This is why he activated his recording device as he approached Mr Steindl. But if Mr Steindl had approved the overtime expressly in a meeting only a few days earlier, as the Applicant had claimed, why would the Applicant have anticipated Mr Steindl’s adverse reaction to his claim for payment of overtime for that week?

[36] I do not consider the Applicant to be a creditable witness at all in relation to his claims.

[37] The Applicant also made a generalised claim about having to work long hours driving a truck to pick up spare parts or drop vehicles off at depots. But Mr Steindl explained that such trips were not regular, the Applicant was remunerated accordingly, and not expected to work excess hours. Mr Steindl appeared to have a stronger grasp of the detail of these matters than the Applicant.

[38] Further, there does not appear to be any evidence of any systemic failure on the part of the Respondent to remunerate the Applicant, in any event. As a casual driveway attendant, the Applicant earned in excess of $50,000 in the 52 week period he was employed with the Respondent. The Applicant agreed that this was his remuneration for the previous 12 months. This was also an amount well in excess of the $36,000 per annum salary he was to have earned as a mechanic under his initial contract of employment.

[39] The Applicant’s hours of work were also subject to a roster. He did not complain that he was unaware of his rostered hours, or never had access to his roster. This was not a situation is which there were vagaries as to the expected hours of work.

[40] It appears to me in such circumstances where an employee disobeys a direct, reasonable and lawful instruction, and the substance of the instruction is of some substance for the employment relationship, an employer will have a valid reason for the dismissal of the employee. That is the case here. The matter of the overtime claims had been made clear to the Applicant but he would not conform to the Respondent’s expectations in relation to his hours of work. This had not been a once-off issue. It had a history. Mr Steindl could have no confidence that the Applicant would respond positively to his directions in the future. There was, consequently, a valid reason for the dismissal.

[41] There were, of course, other reasons for the dismissal. Mr Steindl had other concerns about the Applicant’s performance of his duties, but these do not appear to be central to his primary concerns. Central to Mr Steindl’s concerns was the persistent failure of the Applicant to respond to his reasonable directions.

Whether notice of reasons for dismissal provided

[42] The exchange between the parties as transcribed above shows that the Applicant was not notified of the reasons for the dismissal prior to the decision being communicated to him directly by Mr Steindl. Clearly, by the mere fact that the Applicant brought along to the interview a recording device in anticipation of his employer’s reaction, the Applicant was well-positioned to suspect his employment was in jeopardy. But regardless of that, the statutory requirement to provide notice of the reasons for the dismissal was not given effect on this occasion.

Whether the person was given an opportunity to respond to any reasons relating to his capacity or conduct

[43] The Applicant was dismissed at the time of the interview transcribed above and as is evident, despite the various exchanges between the parties, he was not given an opportunity to respond to the reasons for the dismissal until after such time as the dismissal had taken effect.

Any unreasonable refusal by the employer to allow the person to have a person present to assist at any discussions relating to the dismissal

[44] The circumstances of the dismissal did not lend themselves to a consideration of representation or support.

If the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before dismissal

[45] There were unsatisfactory performance issues that had dogged the Applicant since the commencement of his employment. The Respondent stated that the Applicant was effectively incompetent as a mechanic and could not be trusted to carry out any work unsupervised. It had been these circumstances that led to the Applicant being dismissed with notice and reemployed as a driveway attendant, performing generic duties across the site and elsewhere.

[46] Clearly, Mr Steindl had not put out of his mind his continuing disappointment with the Applicant’s skill level as a mechanic. But ultimately these were not the reasons for the dismissal. The reasons for the dismissal were as I have set out above.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[47] The employer’s enterprise is a smaller business, comprising about 20 or so casual employees and some four full-time employees. Mr Steindl is exclusively responsible for all decision-making regarding human resource-related issues. This was not a business that had many non-income generating positions for the purposes of administering staff issues. Demonstrably, given what I have learned about the operation of the business, the size of the enterprise likely impacted on the procedures followed in effecting the Applicant’s dismissal.

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

[48] The observations in this respect are as set out immediately above.

Other matters

[49] Putting aside the departures from the statutory expectations regarding procedural fairness considered above, the Applicant was not treated harshly by the Respondent, though their exchange (as evidenced in transcript reproduced above) gives the impression that the various exchanges were less than cordial. The audio-file itself actually provides a much more subdued and civil tone than the transcript might suggest. This is perhaps demonstrated in the concluding comments of Mr Steindl, in which he invited the Applicant to remain in the free accommodation he had provided for him since he had been employed until he obtained a new job.

[50] The Applicant took advantage of that opportunity, incidentally. And he did find a position in a few weeks, which is a permanent position paying $30.00 per hour and including paid overtime (with which the Applicant expressed very considerable satisfaction).

[51] Mr Steindl claimed that it had only been a charitable reaction to the Applicant’s circumstances (he was on a s.857 visa) that had caused him to maintain the Applicant in employment after the first month or so, when he could have easily rid himself of an unsatisfactory employee. The Applicant was provided free accommodation and placed on a remuneration arrangement which yielded the income set out above.

[52] Arguably the loss of employment may have caused the Applicant difficulties as he had lost his sponsoring employer, at least in the short term. But equally, a potential inconvenience (of particularly short duration) to the Applicant of this kind cannot shield him from the valid, substantive reasons for the dismissal.

Conclusion

[53] The Applicant was not afforded procedural fairness as provided for under the Act. He was not notified of the reason for his dismissal prior to that reason being indicated to him, nor was he therefore provided an opportunity to respond to the reason for the dismissal. The Applicant may well have had a very good reason for recognising that his employment was in jeopardy (which caused him to record the conversation), but that does not save the employer from failing to comply with the relevant statutory requirements.

[54] That said, the departures from procedural fairness are explicable to some degree due to the size of the small business and the absence of any dedicated human resource management specialists.

[55] Moreover, the procedural deficiencies give me no cause to set aside the substantive reasons for the dismissal, as I have set out above. On the evidence that I have heard, the Applicant had little material of any persuasive value to cause Mr Steindl to change his mind, in any event.

[56] When all the circumstances of this case are considered, and having an eye to balancing the interests of both the employer and the employee (in the context of s.381(2) of the Act), I do not consider that the dismissal was harsh unjust or unreasonable, though I consider that there has been an element of harshness in the process effecting the dismissal.

[57] The application under s.394 of the Act is therefore dismissed.

[58] I make one further and final observation about this matter.

[59] In the course of the hearing it appeared to me that the circumstances of this case suggested that the Applicant may not be a person who is protected from unfair dismissal for the purposes of s.382 of the Act. I say this because s.382(a) of the Act requires that the employee must have completed a period of employment with his or her employer of at least the minimum period of employment.

[60] The minimum period of employment is defined at s.383 of the Act, for a small business employer (should the Respondent the capable of being so characterised on the facts), it is 12 months. If it is established that the Applicant was dismissed from his in employment as a mechanic (with notice being paid) - as is claimed- and then reemployed as a driveway attendant, the issue as to whether or not there had been compliance with s.382(a) of the Act will emerge.

[61] This is because the Applicant was not employed as a driveway attendant for a period of 12 months. The period of employment for the purposes of the minimum employment period is defined at s.384(1) of the Act as a period of employment with an employer at a particular time that is a period of continuous service that the employee has completed with that employer at that time as an employee. This assumes that the Applicant as a casual employee can be taken to be an employee nonetheless (having regard to s.384(2) of the Act).

[62] I was not successful in ascertaining any evidence of sufficient value in the hearing to determine this matter, nor was I prepared in the circumstances (where the Respondent sought me to determine the matter rather than to cause delay) to adjourn the proceedings to resolve the question to finality, at least at this juncture.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr D. Kharb, Applicant

Mr K. Bressington, solicitor, for the Respondent

Hearing details:

By telephone

2013

29 August

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