Mr Edgardo B. Umerez v Flanders Electric of Australia Pty Ltd T/A Flanders of Australia
[2021] FWC 1217
•5 MARCH 2021
| [2021] FWC 1217 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Edgardo B. Umerez
v
Flanders Electric of Australia Pty Ltd T/A Flanders of Australia
(U2020/6874)
COMMISSIONER HUNT | BRISBANE, 5 MARCH 2021 |
Application for an unfair dismissal remedy – determination of effective date of dismissal - application made within time – applicant attended work late without explanation – other reasons for dismissal cannot be relied upon as valid reason as they predate warning letter issued one month prior – dismissal not harsh, unjust or unreasonable – application dismissed
[1] On 18 May 2020, Mr Edgardo Umerez applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Flanders Electric of Australia Pty Ltd T/A Flanders of Australia (Flanders).
[2] This is my second decision in relation to Mr Umerez’s application. On 13 August 2020, in decision [2020] FWC 4244, I dismissed a s.399A application made by Flanders on the basis of Mr Umerez’s rudimentary attempts to prosecute his application.
[3] Following my decision, an email was sent from my chambers to the parties as follows:
“The hearing of this matter will be relisted to an in person hearing commencing at 10:00am Monday, 7 September 2020.” (emphasis in original)
[4] A notice of listing was also issued to the parties.
[5] Mr Umerez did not initially appear at the hearing on 7 September 2020. It was necessary at the commencement of the hearing to contact Mr Umerez by phone and remind him of the in-person hearing at the Commission’s Brisbane offices. While on the record, Mr Umerez agreed to attend the hearing in-person. Approximately one hour later Mr Umerez attended, supported by his wife, Mrs Umerez.
[6] Mr Goran Dahlgren, General Manager appeared for Flanders. He was accompanied by Mr Alex Sullivan, Operations Manager, and Mr Craig Shepherd, AC/DC Coordinator. Mr Dahlgren, Mr Sullivan and Mr Shepherd had made witness statements.
[7] Disappointingly, Mr Umerez attended the hearing without having read the earlier decision or the witness statements of the Flanders witnesses. Mr Dahlgren submitted that this was an example of the behaviour that Flanders had to deal with in managing Mr Umerez in his employment with Flanders. Mr Dahlgren submitted that Flanders was prejudiced by the continual failure of Mr Umerez to prosecute his claim. He submitted that the matter needed to come to an end.
[8] Once again, I adjourned the hearing to permit Mr Umerez a further opportunity to prepare himself to present his case. He was afforded an appropriate amount of time to read the witness statements and submissions.
[9] On resumption of the hearing Mr Umerez gave oral evidence and was cross-examined. Mr Sullivan and Mr Shepherd also gave oral evidence and were cross-examined. Following the hearing I issued a final set of directions to both Mr Umerez and Flanders to file their remaining material.
Jurisdictional issue – is the application made out of time?
[10] Section 396 of the Act requires the Commission to decide certain matters before considering whether a dismissal was unfair. One of those matters is whether the application was made within the period required under the Act. On the face of the materials as they stood at the commencement of the hearing it was not in dispute that the application was made within the period required. However, during the hearing a question arose as to whether this was in fact correct.
[11] It is not in dispute that Mr Umerez was notified of his dismissal on 8 April 2020. It is also not in dispute that Flanders gave Mr Umerez three weeks’ notice of dismissal and required Mr Umerez to work his notice period. Consequently, Mr Umerez’s dismissal was to take effect on 29 April 2020.
[12] However, it was not clear on the evidence whether Mr Umerez had worked part of his notice period or not. Mr Umerez gave evidence that the last day he presented himself for work was probably 8 or 9 April, although he could not recall. The evidence of Flanders at the hearing did not clarify matters.
[13] Mr Umerez made his application to the Commission on 18 May 2020. Mr Umerez stated that he was notified of his dismissal on 8 April 2020 and the dismissal took effect on 29 April 2020. In response to the question “Are you making this application within 21 calendar days of your dismissal taking effect?” Mr Umerez has ticked “Yes” and then said:
“POSSIBLY IT WILL GET DELAYED FOR THE REASON THAT I WROTE THE MANAGER OF MY WORK EXPECTING HIM TO PUT ATTEND TO THIS MATTER. NEVER HAD RESPONSE UNTIL DESPITE OF FOLLOW UP MESSAGE I SENT THRU EMAIL. I AM THINKING THE MANAGER IS TRYING TO IGNOR THE PROBLEM I AM ENCOUNTERRING. THIS SHOULD BE THE FIRST APPROACH THAT BE IN PLACE REGARDING MY UNJUST DISMISSAL FROM WORK --- EDGARDO UMEREZ” (errors and formatting in original)
[14] I consider that Mr Umerez had some appreciation that the application made by him might not have been made within 21 days after the termination.
[15] The Form F3 completed by Flanders nominated the date of notification of dismissal as 8 April 2020. Flanders nominated the date the dismissal took effect as 29 April 2020. Flanders did not nominate a jurisdictional objection that the application was made out of time.
[16] The termination letter, reproduced below makes it clear that Flanders gave to Mr Umerez three weeks’ notice of termination, contemplating that his last day of work will be 29 April 2020:
“I am writing to you about the termination of your employment with Flanders Electric Of Australia Pty Ltd.
On 10th February 2020 you met with Craig Shephard, Workshop Supervisor, and David Green, Workshop Leading Hand to discuss your poor attendance record and performance issues. Following this meeting a letter was produced to you which was signed and acknowledged by you. In that meeting, the following breaches of acceptable behaviour was discussed;
• Your decision to recently take 3 days sick leave, simply due to you not being “happy” to be asked to work in a different work area/space is not acceptable
• During this meeting you also admitted to taking prior sick leave simply due to the fact you did not agree with management’s decision in how they allocate workspaces or make internal decisions and again you were informed this is not acceptable.
• You acknowledged that David Green had on numerous occasions raised various breaches of blatant safety breaches in the workshop, and this is not acceptable.
• You acknowledge that you have had several verbal warning about arriving late for work shifts without giving due notice and this is not acceptable.
During February 2019, you were given a written warning for displaying aggressive behaviour in the workplace towards a fellow worker and you were advised that any form of aggressive behaviour or bullying towards coworkers is not acceptable in any workplace.
At this meeting it was also pointed out that you had previously been given verbal warnings for the same reason.
On the 10th of February 2020, you had a second meeting with Craig Shephard and David Green, regarding your continued aggressive behaviour in the workplace towards coworkers. During this meeting you were advised that your continued poor work attendance, continued safety breaches as well as aggressive behaviours in the workplace is not tolerated. At the conclusion of the meeting you were issues with a second letter signed and acknowledged by you.
On the 10th March 2020, you were issued with a written warning for poor attendance, turning up late for your shift and consequently missing the mornings safety meetings.
These morning meetings are very important as they convey daily interactions along with other safety aspects in order to provide a safe working environment.
Subsequent to the many verbal warnings, meetings and performance letters it is clear to Flanders, that you have not shown any attempt to improve your poor work performance, poor attendance record, continued aggressive behaviour toward coworker and continued breaches of safety. As such, we have decided to terminate your employment for the following reasons:
• Poor Attendance
• Aggressive behaviour in workplace toward co-workers
• Breaches of safety practices
In accordance with your contract you were given three weeks’ notice with your last day being the 29th April 2020.
You will also be paid your any accrued entitlements and any outstanding pay, up to and including your last day of employment. If you have been paid annual leave in advance, any amount of annual leave still owing will be deducted from your final pay.
Some termination payments may give rise to waiting periods for any applicable Centrelink payments. If you need to lodge a claim for payment you should contact Centrelink immediately to find out if there is a waiting period.” (errors and formatting in original)
[17] During the hearing it was unclear if Mr Umerez attended work on 9 April 2020. He could not recall, and Flanders did not produce records until following the hearing. The records later produced by Flanders indicate that Mr Umerez did attend for work on 9 April 2020, working for a period of eight hours. This followed notification one day earlier of the termination of his employment with three weeks’ notice.
[18] The records demonstrate that Mr Umerez worked the following days and hours; the notation from Flanders provides:
Monday, 6 April 2020: Tuesday, 7 April 2020: Wednesday, 8 April 2020: Thursday, 9 April 2020 | 8 hours 6.5 hours (arrived 8.22am no offer as to why late) 8 hours (termination meeting) 8 hours (last working day) |
[19] The pay slip for Mr Umerez for the pay period ending 19 April 2020, demonstrates that he was paid 30.5 hours for the work performed on the above days. Further, he was paid for two public holidays, Good Friday on 10 April 2020, and Easter Monday on 13 April 2020.
[20] The pay slip nominates the pay date as 9 May 2020, however that does appear to me to be a lengthy period of time from when the pay period ended on 19 April 2020 and when it was paid. Nevertheless, it demonstrates that Flanders at least as at 19 April 2020 considered that Mr Umerez was an employee and entitled to payment for public holidays not worked.
[21] The only time Flanders contended that the termination had taken effect as at 8 or 9 April 2020, following Mr Umerez’s refusal to attend for work was at the hearing and in submissions following the hearing. The working days 14 April 2020 to 29 April 2020 were recorded by Flanders as “Unpaid Leave” or “SNP” which I understand to mean “sick leave no pay”. It was recorded in this manner both in Flanders’ time records and on the pay slip issued to Mr Umerez.
[22] It is necessary to state the evidence given by the parties at the hearing. Mr Umerez stated that following his last worked shift on 9 April 2020, he intended never to return to work at Flanders. He did not wish to work in the “dirty room”. He did not inform Flanders of this fact. Mr Shepherd’s evidence at the hearing is that when Mr Umerez failed to attend for work on 14 April 2020 following the Easter break, Mr Shepherd did not do anything. He stated that he did not follow it up, and “sort of expected it”.
[23] Mr Umerez contended that following his dismissal he sent an email to Mr Sullivan. In the Form F2 he stated that he sent this to Mr Sullivan on 27 April 2020, however he considered that it had been ignored by Mr Sullivan. He attached the letter to the Form F2. It is reproduced below:
“To Alex Sullivan (Manager of Flanders),
My termination from work was beyond my expectation. It took much time for me to think whether I write you to defend myself, but most is to inform you about behind reasons of the terminations of my employment.
I accept sometimes I am late and missing out every morning safety meeting. What I did after reported to Craig and he update me what is the meeting all about.
Poor attendance – to tell you Alex honestly my motivation of getting to work get low because of discrimination issues and unfair treatment on the floor while I am working. I personally came to your office with my wife Mylene because she is the best person that knew how I suffered physically, emotional and mental while working until time Mylene recommend me to resign I didn’t listen because I’m expecting Craig will do his part about the issues on the floor. I took absences with out pay for Craig to know how I got affected but at the end no action taken. The reason why I came to your office to complain because of Jeffrey B. he discriminates and unfairly treated me while working. What my thought it was a plan to do. Craig knows what happened between us but never able to make action about it. Jeffrey is the one that Craig brought to work in Flanders, and they are neighbour friends and Craig saying Jeffrey is doing adult apprenticeship that I don’t know if it is true. Do you think is fair enough not dealing about the issue. Craig is a bully in a way why I said that he’s coming to me often saying to me “I can take you off from work and replace you anytime.” Is it supposed to be the words of being a supervisor? Frequent he come to me while working to say, “you’re working but it’s not a priority”. It hurts me because what I felt I am working but I don’t know what I’m doing. These words destruct my focus while working. Craig never understand it was David Green given me job order at the start of the shift. Even I work so hard to the best of my ability it is nothing and will not be recognized because Craig taking such mistakes accusing me at the end. If you are in my position what would you feel Alex? Craig is a supervisor he needs to open his eyes not only with what I’m doing but to everyone. Craig is a biased.
Turning up late – was not happened consequently as what he said. My wife Mylene following her routine to drop me off for work because my wife must follow my son to drop to Richland train station @ 7:10 in the morning. It was my wife dropping me off and picking me up after work. But in case it happened I got late I extend my time at the end of the shift.
Breaches of Safety Practice – Its bad if I do not protect myself by not doing safety practice. It happened sometimes to most everyone on the floor in a situation we are so busy and require finishing the job on time. I forgot I accept but it is not intentional. Craig as a supervisor did not do anything to control or to avoid harassment on the floor instead ignore. I can strongly say I’m a victim of discrimination and unfairly treated working on the floor. Craig acknowledge such circumstances but never make any action about it. If I got mistakes while working correct me I accept because working is a learning.
I am working for so many years with my electrical license. But working for more than a year in Flanders I never had a chance to learn in connection with my license instead Craig put me in a kind of work that will not help to enhance my skill.
Aggressive behaviour toward co-workers
Arafat and David Poole – I accept I argue with them because they unfairly treated me on the floor. No one can protect toward how they treated me I said what I want to say because I can’t expect anyone help. I am so sorry by doing that I have still my own obligation to myself.
But the case against Gefrey B. I never say anything because Craig knows about it but he didn’t make any action about the problem. I never got any help to protect myself. Ground of termination are not strong enough because there is a part of negligence with Craig position as a supervisor. This situation put so much time to think if I will not reply you will not understand. I’m sorry for taking your time to read my response letter I knew you are so much occupied and busy, but I want you to know how I am discriminated and unfairly treated as a worker. Craig is so much harsh putting me out of the job in this country’s economic situation
Finally, I want to thank you Alex for giving me a chance to work in the company. Whatever financial earning I had from working helped my whole family for a living. I am happy knowing your personal response if you are happy talking to me in person. Thank you very much!” (errors and formatting in original)
[24] In the covering letter to his Form F2, addressed to the Commission, Mr Umerez wrote the following:
“To whom it may concern,
First that I did prior to effectivity of unfair dismissal I wrote a letter addressed to the Mgr. of Flanders to inform exactly how work going on the floor. He never made a response to my letter and I made a follow message sent through to the Mgr. email but still nothing happened at the end. For anyone who will take my case it is against to the supervisor who unfairly treated me at work. I want to acquire and practice my privileges as a worker and my rights to protect.
I knew any working institution is govern by laws, laws that should be applied equally and fairly to everyone. At work we are handling different positions but we have all equal rights and privileges to protect.
I am putting up my case to your good office to get help in some ways from unjust dismissal. I believed I have unfairly dismissed. Attached is my dismissal application form.
Thank you very much and I am hoping for your kind consideration regarding this matter.” (errors and formatting in original)
[25] In written and oral evidence, Mr Sullivan denied having received an email from Mr Umerez on 27 April 2020, nor the “follow message” referred to by Mr Umerez in his cover letter to the Commission. In oral evidence given at the hearing, Mr Umerez said that his 21 year old son was the person within his family to have sent the email to Mr Sullivan on his behalf.
[26] Noting that perhaps the email had not been correctly sent to Mr Sullivan, I directed Mr Umerez to, following the hearing, forward to my chambers the emails purportedly sent on his behalf on 27 April 2020 and on another occasion. On 8 September 2020, Mr Umerez sent the following email to my chambers, failing to forward any purported email that had been sent on 27 April 2020:
“Good Morning,
Sending you this letter as per request. I've emailed Alex Sullivan this letter twice, once on the 27/04/2020 and the 18/05/2020.
Thanks
Edgardo Umerez”
[27] Mr Umerez attached a word document titled “termination letter”. The contents of that document match the text at [23]. The metadata demonstrates the word document was created on 27 April 2020 at 9:51am and last modified on 27 April 2020 at 3:35pm.
[28] Following receipt of Mr Umerez’s email to my chambers on 8 September 2020, the following email was sent to the parties from my chambers:
“Dear parties,
Reference is made to the below correspondence received from the Applicant, which did not copy in the Respondent.
The Commissioner confirms per her directions at the hearing yesterday that she seeks copies or evidence of the emails supposedly sent to the Respondent attaching the letter. The below email does not demonstrate that efforts were made to contest the dismissal on 27 April 2020 and 18 May 2020. The Commissioner asks the Applicant to go back to those emails and forward them to the Commission, copying in the Respondent.
The Applicant is granted until 4:00pm today to produce the above materials.
Chambers also awaits the materials to be produced by the Respondent by 4:00pm today.” (emphasis in original)
[29] On 9 September 2020, having received time records from Flanders, the following email was sent to the parties:
“……………….It is noted that the Applicant, Mr Umerez, has been directed to forward to Chambers and to the Respondent the email(s) purportedly sent by him or on behalf of him to the Respondent contesting the dismissal. The email attaching the purported document sent yesterday by the Applicant is not sufficient. If the Applicant does not forward the email(s) as directed at the hearing, in yesterday’s email and in this email, the Commissioner may conclude that it was not sent by the Applicant at all. The Applicant is directed to forward the email(s) by no later than 4:00pm Thursday, 10 September 2020.
………
………” (emphasis in original)
[30] On 10 September 2020, Mr Umerez again sent a new email, not forwarding the purported email he said was sent to Mr Sullivan. He attached the word document titled “termination letter”. His email to my chambers is reproduced:
“Good afternoon,
Attached is the letter you requested. I have emailed Alex Sullivan on the 27/04/2020 and the 18/05/2020..
Thanks
Edgardo Umerez”
[31] On 10 September 2020, the following email was sent to the parties from my chambers, directed at Mr Umerez:
“Mr Umerez,
You have been directed by the Commissioner to forward the actual emails that you say were sent. Not the attachment. The actual emails of 27 April 2020 and 18 May 2020.
Go to each of those emails, press forward and send the emails to this chamber’s email address.
The Commissioner advises that if you do not do this she is likely to conclude that you did not forward it to Mr Sullivan.
The Commissioner notes that it appears the word document was created on 27 April 2020 (having reviewed the properties of the document), but there is nothing difficult at all with requiring you to forward the actual email.” (emphasis in original)
[32] Mr Umerez did not reply to the email, nor forward the purported emails, as requested.
[33] In written submissions relevant to whether the application has been made out of time, Flanders submitted the following:
“Following the hearing on Monday 7th September held at FWC premises we attach the correspondence as requesting during the hearing. Please note that during this period a number of staff worked remotely during this period as a result of the COVID-19 Pandemic which has resulted in the scanning quality not being up to the usual standard by our payroll department and our payroll contractor (ADP). However, the documents attached are available in hard copies.
We make the following points for consideration:
• Pursuant to section 394(2), the application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.
• Flanders Electric of Australia issued a termination notice on 8th April 2020, with a 3 week notice period, which the employee was advised had to be worked, effectively ending the employment on 29th April 2020.
• Mr Umerez attended his usual work shift on the day after the termination, being Thursday, 9th April 2020 and this was the last day Mr Umerez was heard from and never made contact again with the company.
• Mr Umerez stated during the hearing on 7th September, whilst in the witness box, that he “had no intention to return to work after that day” (9th April 2020), effectively admitting that he ended his employment on the 9th April 2020.
• Mr Umerez filed a s394 Application for unfair dismissal on the 18th May 2020
• Effectively, Mr Umerez did not file his application s394 within the timeframe allowed for”
[34] During the hearing I put to Flanders that Mr Umerez had not been on “gardening leave” for the period of his non-attendance during the notice period. Mr Dahlgren agreed that Mr Umerez was not on gardening leave.
Consideration of jurisdictional objection
[35] It is necessary to determine the date of termination, whether it is a matter raised by Flanders or not. It is a strict requirement for an application to have been made within 21 days after dismissal of an employee, unless the Commission grants an extension of time.
[36] On the evidence before me, I find as follows:
• Mr Umerez was notified of his dismissal on 8 April 2020 and was given three weeks’ notice, with his last date of work to be 29 April 2020;
• Mr Umerez worked his shift on 8 April 2020;
• Mr Umerez worked his shift on 9 April 2020;
• Mr Umerez was paid for the public holidays on 10 and 13 April 2020;
• Mr Umerez did not attend for his next shift, which would have been 14 April 2020;
• Mr Umerez did not attend for work at Flanders on any day after 9 April 2020;
• Mr Umerez did not intend to perform work at Flanders on any day after 9 April 2020;
• Mr Umerez did not tell anyone at Flanders that he did not intend to perform work following his last day of 9 April 2020;
• Flanders did not inquire about Mr Umerez’s absence, or ask whether he intended to work out his notice period;
• Flanders recorded the time from 14 April 2020 to 29 April 2020 as sick leave with no pay;
• From 19 April 2020 or thereafter, Flanders made payment to Mr Umerez for days worked 6-9 April 2020, and the two public holidays.
[37] It is not in dispute that notice of termination was given on 8 April 2020. That notice stipulated that the dismissal would take effect on 29 April 2020. It has previously been said that:
“The giving of notice of termination of a contract, in accordance with the terms of that contract, is a unilateral right. Its exercise does not depend in any way on the acceptance or rejection of the notice by the other party to the contract. The giving of such a notice operates to determine the contract by effluxion of the period of notice.” 1 (underlining added)
[38] It is well established that notice of termination can be subject to a condition, for example that a future date pass. The notice of termination will be valid and take effect if the notice clearly expresses the condition (i.e. the date), the condition is satisfied (i.e. the date passes) and the employee is in a position to know that the condition has been satisfied (ie the employee knows the dismissal will take effect after the particular date). 2
[39] The letter of dismissal is in evidence and there is no dispute as to its effect. There is no evidence to the effect that, and neither party submits that, notice of termination was withdrawn, varied or waived by consent or otherwise.
[40] As at 9 April 2020, the last day on which Mr Umerez presented for work, the contract of employment and/or employment had not yet been terminated. The precondition, that the date had passed, had not been satisfied.
[41] There is no evidence before me that Mr Umerez clearly and unambiguously 3 resigned his employment. However, I have determined that Mr Umerez intended not to attend for work after 9 April 2020. He did not communicate this intention to Flanders other than by his non-attendance.
[42] Mr Umerez attended for work on 9 April 2020, one day after having been informed of the dismissal with notice. The Easter period then commenced, and it could only have been his non-attendance at work on 14 April 2020 which led Mr Shepherd to conclude that Mr Umerez was not going to return.
[43] However, Flanders treated Mr Umerez’s non-attendance at work as sick leave with no pay. That is how it recorded Mr Umerez’s non-attendance, and it did so for the remaining weeks. No person from Flanders made any attempt to contact Mr Umerez and inquire of him when he would attend for work during the notice period. Payment for the two days of public holidays was made, when it would have been within Flanders’ rights to contend that his last attendance at work on 9 April 2020 was his last day of employment.
[44] Even if Flanders had considered that Mr Umerez had abandoned his employment during the notice period, it did not communicate this presumption with him. In its response to the Commission on completion of the Form F3, it cited 29 April 2020 as the effective date of the dismissal.
[45] Of course, Flanders has been unrepresented during these proceedings, and I have had regard for the fact that it is not necessarily what is put by parties as to the effective date of dismissal; rather, it is for the Commission to determine this issue. I have, however, given significant weight to the actions of Flanders from 14 April 2020 to 29 April 2020, where it treated the employment as being on foot. I further note that Flanders did not pay to Mr Umerez his accrued annual leave and annual leave loading until the pay date ending 3 May 2020.
[46] The terms of the Manufacturing and Associated Industries and Occupations Award 2020 (the Award) as at April 2020 with respect to payment of wages on termination of employment are prescribed below:
“27.3 Payment of wages on termination of employment
On termination of employment, wages due to an employee must be paid on the day of termination or forwarded to the employee by post on the next working day.”
[47] I have had some regard to the fact that no action was taken by Flanders around 14 April 2020, if it considered that the employment had come to an end earlier than 29 April 2020 to pay to Mr Umerez any wages owing to him at around 14 April 2020 in accordance with the Award. I note the Award was varied in September 2020. Relevant to the Award terms in April 2020, I note that there was no Award requirement to immediately pay any entitlements under the NES; these changes did not come into effect until September 2020.
[48] I have determined that the effective date of the dismissal was 29 April 2020, and despite Mr Umerez’s failure to attend for work from 14 April 2020, if Flanders wished for the effective date of the dismissal to be any earlier than 29 April 2020, it was incumbent on it to inform Mr Umerez of the earlier date of the effective date of dismissal.
[49] Having determined the effective date of the dismissal was 29 April 2020, I am satisfied that Mr Umerez commenced his application within 21 days after the date of the dismissal. Accordingly, the jurisdictional objection is dismissed.
When has a person been unfairly dismissed?
[50] Section 387 of the Act details what must be considered in determining if a person has been unfairly dismissed:
“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.”
Mr Umerez’s evidence
[51] As I indicated in my earlier decision, Mr Umerez is self-represented, is particularly unsophisticated, and is from a non-English speaking background. His attempts to comply with directions to file material and prosecute his claim can fairly be described as poor, and Mr Umerez has made the slightest of efforts to provide material to the Commission and to Flanders.
[52] It is my understanding that Mr Umerez relies upon his originating application, accompanying material and witness statement, together with oral evidence given at the hearing.
[53] Mr Umerez’s witness statement is as follows:
“My name is Edgardo B Umerez
May14 2018 up t0 April29 2020
I was employed as a trade assistant. Cleaning spare parts using pressure washer. Painting parts which needs to be paint. 0n January 21, 2020 an employee named Jeff who is a Neighbour and Craig my supervisor help Jeff to hire. I was working on that workstation since 20 of January
It happened 21 of January at 11;35 am Jeff tell me without hesitation to move out,
On January 28 I report to Mr Alex Sullivan what happen he told me he will call a meeting it happen in 3 weeks he call me . Craig and Mr, Alex S, only three of us was on on the meeting I tell to Craig, to them what happen on the floor. After the meeting Craig tell me if there is a problem on the floor tell to him, After that meeting nothing happen until they terminate me , Before that they tell to me that they will call a meeting nothing happen since that that almost every week Craig is going to call me on the floor just to say to me I can terminate you every time ,
April 15 2020 I. Craig and Alex give me my termination paper Alex ask me if I had a question I answer Yes I ask Alex what happen to my complain. Alex ask Craig And he said nothing, Since 21 of January up to 15 April he did not make any action , Before that since I complain Jeff which his friend and neighbour if I have an issue on the floor tell it to him , how can I tell to him he did not make any action,” (errors and formatting in original)
[54] During his oral evidence, Mr Umerez stated that he considered that Mr Shepherd was favouring Jeffrey, his neighbour, and employee whom he had employed at Flanders. As is clear in the document attached to Mr Umerez’s application at [23], he considered that Mr Shepherd bullied him.
[55] Relevant to the insistence that he always wear eye protection in the workshop, Mr Umerez stated that he considered that it was his choice to wear eye protection or not. He felt the supervisor’s instructions to wear eye protection were unreasonable.
[56] Relevant to three days of paid sick leave he took off work, Mr Umerez agreed that he informed Flanders that he was not, in fact, suffering from an illness or injury at that time; rather, he was unhappy with the kind of work that he was being asked to perform and that is why he took three days off work. He agrees he was informed that taking sick leave in such circumstances was unacceptable. Mr Umerez would have preferred that the “dirty” work be shared among employees.
[57] Relevant to his punctuality to work, Mr Umerez stated that he wasn’t always late, but if he was it was generally because he was putting his lunch in the kitchen. He would then make his way to the safety talk, but if it was over, his supervisor would let him know what was discussed. He did not consider being seven or eight minutes late to be of significant concern.
Flanders’ evidence
Evidence of Mr Shepherd
[58] Mr Shepherd is the AC/DC Coordinator of Flanders and provided an account of events in these proceedings. 4 Mr Shepherd states:
“Mr Edgardo Umerez started working at Flanders in May 2018 as a Trades Assistant. His duties were to clean and prepare parts of electric motors during overhald, shut down and repair processes.
We started to notice that Mr Umerez was not able to work together with his fellow workers and when things did not go his way, he was aggressive towards others.
He was given several verbal warnings regarding aggressive confrontation in the workplace. On the 26/09/2019 Mr Umerez was issued a written warning from myself for threatening to hit a fellow trade Assistant with a steel pole. Mr Umerez was given counselling and explained how we expected him to react when he felt aggression towards others.
On the 21/01/2020 Mr Umerez was asked to move to another area to continue with his job to free up some workspace with an available airline for an urgent job that another employee was working on. Mr Umerez objected, and he discussed the matter with his direct supervisor. The supervisor explained the job that the other employee was working was required urgently and the airline was needed.
The incident was reported to me by the supervisor and as far as we were aware a satisfactory agreement was made between the supervisor and Mr Umerez to relocated Mr Umerez to an area more suitable to Mr Umerez.
Mr Umerez became very unreliable especially when we were busy, he would call in sick during shutdowns putting all the pressure on his fellow work mates, he would disappear for long durations during the day and started arriving late for work. Mr Umerez was given several verbal warnings for his attendance and punctuality. He was constantly reminded to use the appropriate safety gear and explained that failure to comply could lead to an injury to himself and others around him.
On the 10/02/2020 Mr Umerez was given a written warning for arriving late for work four days in one week and missing valuable safety meetings.
There was no improvement with Mr Umerez attendance, punctuality with regards to his own safety and the safety of others. Termination was initiated on the 8/04/2020.”
[59] The written warning dated 10 February 2020 and referred to above was included in the material filed by Flanders, attached to the Form F3:
“Meeting to recap the events that occurred on the 21/01/2010. The event was reported to Alex Sullivan on Friday the 31st January.
Present at the meeting was Edgardo Umerez, David Green & Craig Shepherd.
Meeting held at 8.00am on the 10th February 20, 2020.
Edgardo was asked by David Poole to relocate his job to another work bench in the dirty room so that Jeff could use the work space with the air line to conduct an urgent job required from the Dawson Mine shutdown.
Edgardo objected to working in the dirty room because it was a hotter area and went to talk to David Green.
After discussing the concerns with David Green, it was agreed that it was not necessary for Edgardo to work in the dirty room and he could set up in the loading bay.
Both Edgardo and David Green agreed to this and according to David a solution was found, and all parties were satisfied.
Edgardo had been previously informed to avoid confrontation in the workshop if he was not happy with anything to report it to David Green firstly which in this instance he did and if he as not happy with the outcome to report it to me. Which he never.
Edgardo chose to go off sick for three days in the middle of a shutdown because he was not happy with moving to another workspace in the middle of a job. When questioned about going of sick he also stated that he has taken sick leave in the past due to incidences he didn’t agree with.
I explained to Edgardo that although jobs are planned, from time to time it is necessary for us to relocate jobs to other areas or leave a job with a lower priority to work on more urgent jobs due to customer urgency and company demand.
I also explained to Edgardo that booking off sick because he does not agree with a situation is not acceptable and will not be tolerated at Flanders.
We discussed that Edgardo’s sick leave record was unacceptable and was affecting the production and operations of the company.
We also discussed the safety issues and arriving late for the morning safety meetings we have had with Edgardo over the past year. He has been given numerous warnings from both David Green and myself regarding operating air tools without the approved safety glasses. This morning’s safety share was all about wearing PPE specifically ear and eye protection with the use of air tools.
Immediately after the morning Edgardo was using a black wheel without ear protection and without proper eye protection.
Edgardo has also had numerous warnings regarding arriving late and missing the morning safety meetings.
In Summary
Edgardo was reminded of the procedure to report events he does not agree with in the workshop.
First report the incident to David Green, if not satisfied then take it further with me, if still not satisfied make an appointment to see Alex Sullivan to discuss.
It was explained to Edgardo that going off sick when he is not satisfied with a situation is unacceptable and will not be tolerated and his sick leave record was unacceptable.
It was also explained the important of being on time and attending the morning safety shares and obeying the safety rules and regulations for his own protection and defiance of the rules will lead to disciplinary action.” (errors and formatting in original)
[60] The letter appears to have been signed by Mr Umerez. I do not understand Mr Umerez to dispute that he received this document.
[61] While Mr Shepherd’s witness statement to the Commission did not detail a further written warning issued to Mr Umerez on 10 March 2020, it was included in the material filed by Flanders in its Form F3 and is produced below:
“Mr. Edgardo Umerez
This letter is to inform you of a written warning for arriving late for work and missing he morning safety meeting.
You have been given a numerous verbal warning from both David Green and myself for the same reason prior to this written warning.
Information and training shared in the morning safety meetings is available for your safety and the safety of others working ardoun you.
Last week you were late four days out of five. It appears you do not understand the importance or choose not to participate in the safety of our workshop.” (errors in original)
[62] The letter appears to have been signed by Mr Umerez. I do not understand Mr Umerez to dispute that he received this document.
[63] During the hearing I questioned Mr Shepherd as to the reasons for the dismissal. He was unable to provide any specific reason or incident, and largely recounted incidents that had occurred prior to the issuing of the warning letters dated 10 February 2020 and 10 March 2020. In particular, Mr Shepherd cited the use by Mr Umerez of the black wheel. He noted that it circulates at 15,000 revolutions per minute. His concern is that Mr Umerez would not wear eye protection, and if he was not dismissed, Mr Umerez would very likely lose an eye due to the spinning rubber coming from it.
[64] Mr Shepherd was unable in oral evidence to provide a date of such incident, however I consider that it was addressed in the warning letter dated 10 February 2020 at [59], having occurred prior to that date.
[65] Mr Shepherd stated that in the later period of employment, Mr Umerez was often missing while he was meant to be working. At times, he did not know where he was. Mr Shepherd considered Mr Umerez’s absence from the workshop floor to be deliberate.
Evidence of Mr Sullivan
[66] Mr Sullivan is the Operations Manager of Flanders and provided an account of events in these proceedings. 5 Mr Sullivan stated:
“Mr. Edgardo Umerez commenced with Flanders Electric in the role of Trades Assistance in May 2018. Since his commencement I have been advised by his leading hands and supervisors that he is often late to work, thus missing critical “prestart” safety meetings, he has on several occasions behaved in an “aggressive manner” towards his fellow workmates and has been counselled for such actions. He has also been verbally reprimanded for breaching important safety practices.
Mr Umerez was advised to focus on his work, be punctual for his work shifts and work in a safe manner. It was of concern to the company that Mr. Umerez’s Nonadeherence to company protocol may have compromised his safety along with other employees.
Following his written warning on the 10th March 2020 and after further Nonadherence to company protocol it was decided that employment would be terminated.
Termination of Mr Umerez’s employment was initiated on the 8th April 2020 where he was given three weeks’ notice in writing in accordance with his employment contract.”
[67] In answering a question from me during the hearing, Mr Sullivan stated that one of the reasons for the dismissal was an increase of non-attendance.
[68] Relevant to Mr Umerez’s statement that he might be late to safety talks at the commencement of the day due to putting his lunch in the kitchen, Mr Sullivan stated that employees typically bundy on to commence work and then put their lunch in the kitchen, or they might use the change rooms to put their boots on.
Submissions
[69] Flanders put the following as submissions, noting that some of the material falls into the giving of evidence. I have had regard to the fact that Flanders is not represented by a lawyer or paid agent, and the manner in which the material has come before the Commission has been on a best efforts basis:
“On the 21st August (sic: January 2020), Mr Umerez was requested to move to another work area, so that an urgent customer job could be completed in that area. Mr Umerez objected to this and went to see his immediate supervisor. Following a meeting an alternative work area was found for Mr Umerez, which Mr Umerez agreed to. Mr Umerez reported the incident to the Operations Manager, Mr Alex Sullivan some 10 days later, on Friday 31st January 2020.
Following this incident, Mr Umerez called in sick for the next 3 working shifts, and when he returned to work he was questioned about being sick he stated, he had taken sick leave in the past due to incidents he “did not agree with”.
A meeting was held on 10th February 2020 to review this issue and is enclosed as “Attachment A”
At this meeting further issues were raised by Mr Sullivan;
• Mr Sullivan explained to Mr Umerez that the company decides which particular job is required to be completed at what area, depending on urgency
• Mr Umerez was told that taking sick leave just because you do not agree with the way the company runs its business is not acceptable.
• Mr Umerez was advised that his poor sick leave record was unacceptable and was affecting the operations of the company
• Mr Umerez was advised that arriving late for work daily was not acceptable and further he missed many critical start up safety meetings
• Mr Umerez was reminded he has received many verbal directions, reminders and warning regarding operating air tools without using safety glasses
• The morning safety meeting on 10th February was specifically about PPE for eyes and ears when using air tools, and immediately after this safety meeting, Mr Umerez was again observed using an air tool without eye and ear protection, and he was again warned about the consequences.
The next statement/.paragraph by Mr Umerez is incorrect. Mr Umerez states “After that meeting nothing happen until they terminate me . Before that they tell to me that they will cal a meeting nothing happen since that that almost every week Craig is going to call me on the floor just to say to me I can terminate you every time .
The facts are that Mr Umerez was given many more verbal warnings, for failing to wear required PPE, for being aggressive towards workmates, for excessive sick leave and for continually arriving late. Mr Umerez had previously been issued with a written warning on the 26th February 2019 for “Aggressive Confrontation” in the workplace towards workmates. (refer Attachment B) as well as a further warning on 10th March 2020 (refer Attachment C) for being late “4 out of 5 days in a single week” which resulted in missing critical start up safety meetings. Further, Mr Shephard refutes having told Mr Umerez that “He Can terminate him”. Mr Shephard told Mr. Umerez that unless he improves his performance in all aspects, he will have to look for a job elsewhere.
The last statement/paragraph by Mr Umerez is again incorrect as the “issue” on 21st January had been dealt with during the subsequent meeting on 10th February 2020, when Mr Sullivan advised Mr Umerez that it is up to the company to decide work practices, not Mr Umerez.
Mr Umerez attended a meeting on 8th April, 2020, where he was advised verbally and in writing that he was being terminated (refer Attachment C) with 3 weeks notice as per National Employment Standards, and his employment contract. Mr Umerez was advised that he could have another co-worker present during the meeting but Mr Umerez reject this offer.
Mr Umerez was terminated due to
• Poor Attendance
• Aggressive Behaviour in the workplace
• Continued breaches of safety practices
Mr Umerez never returned to work after this day.” (errors in original)
Post-hearing material
[70] As mentioned above, the state of the evidence at the conclusion of the hearing was less than satisfactory. I allowed a further opportunity to file further material in relation to some issues that had arisen during the hearing. In particular, I was interested to learn what had led to the decision by Flanders to dismiss Mr Umerez following the second written warning issued to him on 10 March 2020.
[71] On 8 September 2020, Flanders filed further material under cover letter including submissions. That letter stated:
“………Mr Umerez was required to attend 22 regular work shifts between his last warning on 10th March 2020 and the issuing of his termination on 8th April 2020.
• Attended – 13.5 work shifts as planned
• Did not attend – 3.5 work shifts as planned “due to being “sick” and failed to inform his employment and did not present the company with a Dr Certificate and as such was not paid.
• Did not attend – 3 work shifts as planned “due to being “sick” but failed to inform his employer but did present the company with a Dr Certificate but as Mr Umerez had no “sick” leave available remaining was not paid.
• Did not attend 2 shifts due to being “sick” and failed to inform his employer but did present the company with a Dr Certificate but as Mr Umerez and as Mr Umerez had “sick” leave available remaining was paid
Mr Umerez was also given several additional verbal warnings for continued failure to adhere to safety policies during this period.” (errors and formatting in original)
[72] Attached to that letter was a document headed “E.UMEREZ – PAYROLL SUMMARY 09_03_2020 – 29_04_2020”. I take this to be a summary of the payroll records available for Mr Umerez for the period 9 March to 29 April 2020. Importantly, in relation to 7 April 2020, the day prior to 8 April 2020 when notice of dismissal was provided to Mr Umerez, it is recorded that Mr Umered received 6.5 hours of normal pay and 1.5 hours of unpaid leave. There is a notation next to this that states “ARRIVED 08.22 AM – NO OFFER AS TO WHY LATE”.
[73] The document records the following relevant to days Mr Umerez did not attend for work following the receipt of the second written warning on 10 March 2020:
18 March 2020 19 March 2020 20 March 2020 31 March 2020 1 April 2020 2 April 2020 3 April 2020 7 April 2020 | Sick leave paid Sick leave paid Unpaid leave Sick leave paid Sick leave paid Sick leave paid Unpaid leave 1.5 hrs unpaid leave | Dr cert supplied – Yes Dr cert supplied – Yes Dr cert supplied – No Dr cert supplied – Yes Dr cert supplied – Yes Dr cert supplied – Yes Dr cert supplied – No Arrived 8:22am. No offer as to why late. |
[74] Relevant to the absence 18-20 March 2020 inclusive, a medical certificate was filed by Flanders, demonstrating that Mr Umerez was examined by a GP on 19 March 2020. The Doctor declared Mr Umerez unfit to work on 18 and 19 March 2020 on account of having a respiratory tract infection.
[75] Relevant to the absence 31 March – 3 April 2020 inclusive, a medical certificate was filed by Flanders, demonstrating that Mr Umerez was examined by a GP on 2 April 2020. The Doctor declared Mr Umerez unfit to work 31 March – 2 April 2020 inclusive.
[76] On 6 April 2020, Mr Umerez completed a leave request form for 3 April 2020 seeking unpaid leave and citing, “ABSENT NO CERT”.
[77] The day after receiving the additional records relied upon by Flanders, I caused my Associate to write to the representatives of Flanders, copied to Mr Umerez, as follows:
“Reference is made to the attached bundle of materials (65 pages total) filed by the Respondent following the directions of the Commissioner at the hearing.
The Commissioner notes at the top right corner of each day’s time records there is a bundy clock imprint of the date and time noting commencement and finishing times. Most of these are not easy to read. The Commissioner directs the Respondent provide a witness statement of a person with access to the original documents who has viewed the documents and can accurately record the bundy clock references. The person’s witness statement should state their name, their role, that they have viewed the original documents and then collated an attachment to the witness statement. The attachment should record each date and the commencement and finishing times. The Commissioner requests this statement with the attachment be provided by no later than 4:00pm Thursday, 10 September 2020.
It is noted that the Applicant, Mr Umerez, has been directed to forward to Chambers and to the Respondent the email(s) purportedly sent by him or on behalf of him to the Respondent contesting the dismissal. The email attaching the purported document sent yesterday by the Applicant is not sufficient. If the Applicant does not forward the email(s) as directed at the hearing, in yesterday’s email and in this email, the Commissioner may conclude that it was not sent by the Applicant at all. The Applicant is directed to forward the email(s) by no later than 4:00pm Thursday, 10 September 2020.
In consideration of the materials provided by the Respondent, the Commissioner provides the Applicant, Mr Umerez, an opportunity to make any submissions in reply to those materials. Anything the Applicant wishes to say about the materials in the attached pdf bundle is to be filed to Commissioner Hunt’s chambers, copying in the Respondent, by no later than 4:00pm Monday, 14 September 2020.
As of 4:00pm Monday, 14 September 2020 the Commissioner’s decision will be reserved, and the parties will not be provided a further opportunity to put any submissions or materials to the Commissioner that can be considered in making her decision about the application”
[78] In response to my request, Flanders filed a statement of Ms Bianca Versteegh, Administration Coordinator. Ms Versteegh states that she has viewed the available time records and collated a spreadsheet for my review. That spreadsheet shows that in the period 9 March to 3 May 2020, apart from the dates Mr Umerez was absent, he was on time to work every day, except 7 April 2020. On this occasion, Mr Umerez clocked on to work at 8.22; almost an hour and a half late. Mr Umerez was dismissed the following day.
Consideration
Was the dismissal harsh, unjust or unreasonable?
[79] A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:6
“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.”
[80] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter.7
s.387(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)
[81] When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly.”
[82] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.8
[83] For a reason for termination to be valid it must be defensible or justifiable on an objective analysis of the relevant facts. 9 Where the reason is said to be related to an employee’s conduct the Commission must determine whether the conduct actually occurred.10 The Commission must be satisfied that on the balance of probabilities the employee did or did not do what is alleged.
[84] Throughout proceedings, Flanders has relied upon three reasons for having decided to dismiss Mr Umerez; poor attendance, aggressive behaviour and breaches of safety practices.
[85] Relevant to the reasons cited as aggressive behaviour and breaches of safety practices, none of Flanders’ witnesses were able to nominate a single instance following the issuing of the second written warning on 10 March 2020. Mr Umerez had been appropriately disciplined on 10 February 2020 and 10 March 2020 relevant to serious concerns Flanders held about his conduct. Flanders is not entitled to rely on those issues pre-dating 10 March 2020 to demonstrate a valid reason for the dismissal, communicated on 8 April 2020.
[86] Whilst I am certain that the three decision makers, Mr Dahlgren, Mr Shepherd and Mr Sullivan were somewhat “fed up” with Mr Umerez by 8 April 2020, I consider that the matters contained in the written warning letters cannot be considered when determining s.387(a) of the Act.
[87] Accordingly, the only event or incident that occurred following 10 March 2020 was Mr Umerez’s punctuality and failure to provide medical certificates for all days he was absent. It is noted that he did claim sick leave without pay for 20 March 2020 and 3 April 2020 where he did not provide a medical certificate for these days. I note that these days follow a two and three day absence (respectively) where Mr Umerez had obtained a medical certificate.
[88] It is necessary to say something concerning Flanders’ reliance upon “poor attendance” as a reason for dismissal. It is a breach of the Act for a person to be dismissed because they exercise a workplace right. Workplace rights include an entitlement to the benefit of a workplace law or instrument. This includes, for some employees, the right to take paid personal/carer’s leave in accordance with the National Employment Standards. In short, Flanders is not permitted to dismiss Mr Umerez by reason of, or reasons including, his accessing paid of personal/carer’s leave.
[89] Further, an employer must not dismiss an employee because they are temporarily absent from work because of illness or injury. This protection does not apply if the absence is not ‘temporary’. An absence is not ‘temporary’ if it extends for more than 3 months (there are other requirements not presently relevant). Flanders is not permitted to dismiss Mr Umerez because he is temporarily absent from work.
[90] Having made these comments it must be said that it has been established that these protections do not prevent an employer from dismissing an employee while they are temporarily absent from work. 11 Additionally, an employer can, in appropriate circumstances, validly discipline an employee for failing to comply with policies around notification and evidence of absences. What an employer cannot do is dismiss an employee because they are temporarily absent or access personal leave entitlements.
[91] I consider that the absences on 20 March 2020 and 3 April 2020 are so close in proximity to authorised leave where Mr Umerez had been declared unfit for work that they would be protected. I would not accept that there is a valid reason for Mr Umerez being absent from work on those two days, even where he did not provide a medical certificate to cover those days.
[92] Mr Umerez’s late attendance to work on 7 April 2020 is unexplained. The notation from Flanders is that Mr Umerez did not provide any explanation for his tardiness. He did not cite that he was late for work due to a temporary illness or injury, nor an emergency. Mr Umerez has not provided any explanation for the absence, nor did he complete a leave request form for the period of time.
[93] His failure to attend for work on time on 7 April 2020, absent any acceptable excuse resulted in Mr Umerez continuing to miss the important safety talk held each morning at the commencement of shift. While I consider that the decision makers grouped all of their earlier concerns to form a tripartite reason for the dismissal, I consider that one of the reasons for the dismissal came about as a result of Mr Umerez’s late attendance to work on 7 April 2020. He was dismissed the next day.
[94] I am not satisfied that there was any instances of aggression or particular safety issues to form the reason for the dismissal, notified on 8 April 2020. Any concerns Flanders had on these issues had been addressed in February and March 2020.
[95] I am, however, satisfied, that Mr Umerez’s failure to attend for work on time, at 7:00am on 7 April 2020, resulting in a loss of work of approximately 1.5 hours on a short, six hour day was a valid reason for the dismissal. This is so as Mr Umerez has not claimed that he was unable to attend for work on time due to an illness or injury or some emergency. I am further satisfied that a valid reason for the dismissal existed as his tardiness not only meant that valuable work time was missed, but that Mr Umerez again missed out on the safety talk at the commencement of the shift due to his conduct in attending for work well beyond the ordinary start time.
[96] This consideration weighs against a conclusion the dismissal was harsh, unjust or unreasonable.
s.387(b) - Whether the person was notified of that reason
[97] At [16], the termination letter to Mr Umerez sufficiently details the reason of poor attendance as one of the reasons for the dismissal. Other reasons are stated which I have found do not constitute valid reasons for the dismissal.
[98] I am satisfied that Mr Umerez was informed of that reason for the dismissal, poor attendance, as it is relevant to his tardiness on 7 April 2020.
[99] This consideration weighs against a conclusion the dismissal was harsh, unjust or unreasonable.
s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
[100] Mr Umerez was informed on 8 April 2020 that his employment was being terminated. He was not provided an opportunity to respond to any reason related to his conduct.
[101] I consider this factor weighs in favour of a conclusion the dismissal was harsh, unjust or unreasonable.
s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal
[102] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[103] There is no positive obligation on an employer to offer an employee the opportunity to have a support person. The Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542] states the following:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”
[104] In the circumstances, I find that Flanders did not unreasonably refuse to allow Mr Umerez to have a support person present at discussions relating to the dismissal on 8 April 2020. However, I note that Mr Umerez was not on notice of the meeting’s purpose such that he was not afforded the opportunity to request a support person. This matter is appropriately considered under s.387(h).
s.387(e) - Was there a warning of unsatisfactory work performance before dismissal
[105] Mr Umerez was in receipt of two very recent written warnings in the two months prior to the dismissal. Mr Umerez should have been on heightened awareness to ensure that his attendance at work, except for when he was unwell on account of illness or injury, or due to some emergency, was exemplary.
[106] Whilst I note that the written warning letters did not explain to Mr Umerez that any further instances might result in termination of his employment, I consider it was not necessary to go into such detail, especially around the effects his absences from work, or late arrival at work was having on missing out on safety talks. The written warnings convey the necessary disappointment and consternation to Mr Umerez. On Mr Umerez’s evidence, Mr Shepherd had told him that he could fire him. The submissions given by Flanders which is said to constitute submissions but touches on evidence is that Mr Shepherd warned Mr Umerez that if he did not improve his performance in all aspects, he would have to look elsewhere for work.
[107] This consideration weighs against a conclusion the dismissal was harsh, unjust or unreasonable.
s.387(f) - Whether the respondent’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed
[108] Flanders nominated that it had 96 full-time equivalent employees at the time of the dismissal. This is a reasonable sized employer. There was no evidence before the Commission that Flanders has a dedicated human resource management specialist. I consider that the lack of internal expertise impacted on the procedures followed.
s.387(h) Other matters
[109] I consider that the following matters are relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable.
[110] As noted by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd:12
“Relevantly advanced age and long service can render harsh a termination that would not be harsh in the case of identical conduct by a younger person with relatively short service. Nevertheless, age and length of service simply remain a factor to be taken to account in considering whether the termination was harsh, unjust or unreasonable and in applying the principle of a “fair go all round.”
[111] Mr Umerez had a period of approximately two years’ service. I do not consider this to be a long period of time.
[112] I note that Mr Umerez was aged 57 at the time of the dismissal and English is his second language.
[113] Noting Mr Umerez’s age of 57, and English being a second language, I accept that the loss of employment and the financial impact of the dismissal are matters which are to be weighed in the balance of assessing whether the dismissal was harsh, unjust or unreasonable. Specifically, these matters tend to be relevant in assessing whether the dismissal was harsh.
[114] I consider that by 8 April 2020, the three decision makers had collectively formed a view that Mr Umerez’s employment needed to come to an end. In doing so, they had improper regard for the reasonably large number of absences Mr Umerez had experienced away from the workplace. I do not consider that there was an appreciation of protection afforded to Mr Umerez and his right to access paid personal leave and then unpaid personal leave on account of illness or injury. I consider that unlawful reasons infected the decision to terminate Mr Umerez’s employment.
[115] While I have determined at s.387(c) that Mr Umerez was not provided with an opportunity to respond to the reasons for the dismissal, and at s.387(d) there is no strict requirement to provide the opportunity for a support person during discussions, it would have been appropriate for Flanders to meet with Mr Umerez on 8 April 2020 and put to him its preliminary view that his employment should come to an end. This could have been done at any time of the day, and Mr Umerez afforded an opportunity to influence the decision, perhaps then with a break before Flanders made a decision. Noting that Mr Umerez worked all of 8 April 2020 and then again 9 April 2020, there appears to me to be no cogent reason why this was not done.
Is the Commission satisfied that the dismissal of Mr Umerez was harsh, unjust or unreasonable?
[116] I have made findings in relation to each matter specified in s.387 as relevant.
[117] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.13
[118] The matters for consideration in s.387(h) which might weigh in favour of a finding that the dismissal was harsh are, however, to be balanced against the valid reason for the dismissal, Mr Umerez’s casual regard for his prompt attendance at work on time, and the resulting failure to attend for important safety talks. Mr Umerez appeared to me to be cavalier relevant to the wearing of appropriate safety eyewear, stating that he considered it to be his choice to wear eye protection or not.
[119] Where I have concluded that some of the reasons for the dismissal have been infected by unlawful reasons, including the view by Flanders that Mr Umerez had taken excessive absences from work, the fact remains that Mr Umerez attended on 7 April 2020 well past his commencement time and provided no explanation for doing so. This behaviour would, in my view, be repeated by Mr Umerez on further occasions, and it was conduct which could not be tolerated.
[120] Though it is doubtless the case that the matters set out above will have some harsh impact on Mr Umerez, they do not weigh so heavily when account is taken of the seriousness of the valid reason and the other matters that either weigh against a conclusion that the dismissal was unfair or are neutral, as to militate against a conclusion that the dismissal was not harsh. I am not satisfied that the dismissal was unjust, nor was the dismissal disproportionate or otherwise unreasonable considering the two recent warnings issued to Mr Umerez. The dismissal was not unreasonable.
[121] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of Mr Umerez was not harsh, unjust or unreasonable.
Conclusion
[122] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Umerez was unfairly dismissed within the meaning of s.385 of the Act. The application is therefore dismissed.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR727545>
1 Re Rodney Birrell v Australian National Airlines Commission (1984) 9 IR 101.
2 Ayub v NSW Trains [2016] FWCFB 5500 at 17.
3 See Ngo v Link Printing Pty Ltd, Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) [(1999) 94 IR 375] at 12.
4 Exhibit R2.
5 Exhibit R1.
6 (1995) 185 CLR 410, [465].
7 Sayer v Melsteel[2011] FWAFB 7498 at [20].
8 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
9 Rode v Burwood Mitsubishi, Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999) at para. 19.
10 Edwards v Justice Giudice [1999] FCA 1836 (23 December 1999) at paras 6–7, [(1999) 94 FCR 561]. See also Rail Corporation New South Wales v Vrettos [2008] AIRCFB 747 (Kaufman SDP, McCarthy DP, Blair C, 8 October 2008) at para. 27, [(2008) 176 IR 129]; Container Terminals Australia Limited v Toby, Print S8434 (AIRCFB, Boulton J, Marsh SDP, Jones C, 24 July 2000) at para. 13.
11 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 [26]; affirming original decision (2010) 199 IR 281.
12 (2003) unreported, PR931440 at [30].
13 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
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