Mr Glen Fletcher v OSS World Wide Movers (Vic) Pty Ltd
[2010] FWA 1946
•12 MARCH 2010
[2010] FWA 1946 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
OSS World Wide Movers (VIC) Pty Ltd
(U2009/10436)
COMMISSIONER CRIBB | MELBOURNE, 12 MARCH 2010 |
Application for unfair dismissal remedy - alleged harsh, unjust or unreasonable termination of employment – valid reason for termination.
[1] This decision concerns an application by Mr Glen Fletcher (the applicant) under section 394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by OSS World Wide Movers (Vic) Pty Ltd (the respondent) was harsh, unjust and unreasonable. The applicant is seeking a remedy in respect of his dismissal.
[2] The matter was subject to telephone conciliation but was not settled. The applicant elected to have the matter arbitrated. The hearing took place on Friday 13 November 2009.
[3] The applicant was represented by Mr G Dircks, consultant and the respondent by Mr A Sorrell, from the Company.
BACKGROUND
- July 2005 – the applicant commenced with the respondent as a furniture removalist/driver.
- 2008 – the applicant and another employee witnessed an accident where a truck ran into the back of their truck. The driver died a short time later.
- 12 March 2009 – the applicant was issued with a first written warning regarding lateness for work, going home during working hours without permission, complaints about his driving and not wearing his uniform. The warning stated that a continuation of any of these behaviours would result in another warning. Failure to comply with the instructions would result in the termination of his employment. The applicant disputed the warning.
- 19 June 2009 – the applicant received a second written warning regarding sending a text message to notify that he would be absent from work that day. The warning was also with respect to the applicant going home again during working hours without prior approval on 18 June 2009.
- 30 June 2009 – the applicant did not attend work due to his wife being ill and a family emergency regarding his mother-in-law. The applicant tried to ring Mr Woods but was unable to get through – possibly a problem with his phone.
- 1 July 2009 – the applicant came to work at the usual time but did not stay to speak to Mr Woods, instead he left. He contacted Mr Woods by text message at 2.00pm that day advising him of a family emergency.
- 2 July 2009 – there was a meeting between the applicant and Mr Woods, with Mr Timms as observer. Discussion concerned whether the applicant was being sacked or whether he had abandoned his employment. Mr Woods said that he would get all the paperwork organised and he and the applicant talked about payment of three weeks pay in lieu of notice, amongst other things.
THE EVIDENCE
APPLICANT
[4] The applicant gave oral evidence together with a written statement. 1
Tuesday 30 June 2009
[5] It was the applicant’s evidence that, on Tuesday 30 June 2009, his wife woke up ill and the applicant was therefore required to look after their three children. His wife also needed the car so she could go to the doctor. 2 Mr Fletcher stated that he had tried to ring Mr Woods, his manager, but had been unable to make contact with him. He thought it may have been a problem with his phone.3
[6] The applicant’s wife (Emily) saw the doctor at the Casey Medical Centre at 1.20pm on that day. 4It was recounted that Emily also spoke to her mother that day, who was sick, and whose doctor had told her that she needed to go to the hospital because she might have a heart problem. The applicant’s wife went to her mother’s place after she (Emily) had been to her doctor and had taken her mother to the Monash Medical Centre at Clayton.5 Emily was said to have stayed with her mother in hospital until approximately 11.00pm.
Wednesday 1 July 2009
[7] Mr Fletcher gave evidence that he went to work the next at the normal starting time. He stated that after he had clocked on, he checked the run sheets and found that his name was not there. He went and asked Mr Timms, the foreman, who told him that he had to wait for Mr Woods to come in. The applicant recalled asking Mr Timms whether he was being sacked. Mr Timms’ response was said to be that he did not know whether the applicant had a job and that he was to wait for Mr Woods. When asked how long that would be, Mr Timms’ response was said to have been that he did not know but perhaps half an hour or an hour. 6 The applicant recounted that he had then said:
“I've got better things to do and Anne's mum's in the hospital, I've got a family emergency to deal with, so I'm not going to hang around here waiting, I'll come back and I'll speak to Mike later”. 7
[8] The applicant stated that he then went into the smoko room, got his keys and walked straight out to his car. It was his evidence that Mr Woods was definitely not at work at that time and also that Mr Woods’ car was not parked in his normal spot. 8
[9] It was recalled by the applicant that he sent a text message to Mr Woods asking if he could postpone his meeting with him to the next day due to a family emergency. Mr Woods had rung back and said that the meeting the next day was fine. He had also offered his condolences about his mother-in-law’s illness. 9
Meeting on Thursday 2 July 2009
[10] With respect to the meeting between the applicant and Mr Woods and Mr Timms on Thursday 2 July 2009, it was the applicant’s evidence that Mr Woods had said that things had not been good lately – to which he had responded – “Things around here haven’t been going good since you gave me that first bullshit warning letter”. 10 The applicant went on to explain that his work performance was still 100% but rather it was the relationship between management and himself. He denied that Mr Woods had said anything about the applicant’s work ethic or that he had said that it may be best for everyone if he left and found a new job where he could be happy. Rather, it was the applicant’s evidence that Mr Woods had said that he was better of leaving and finding a job in a big company where it would not matter if he took time off. The company struggled if people had time off.11
[11] The applicant stated that Mr Woods had then said that the paperwork could be signed; that the applicant could say that he had quit and that they would help him out. Mr Woods had then calculated his final pay but would not include payment in lieu of notice of three weeks pay. The applicant said that he was not quitting and that it was the respondent who was sacking him. It was recalled that Mr Woods had then said that he had abandoned his employment the day before when he went home. The applicant’s response was that Mr Woods knew that it was a family emergency. Mr Woods had then said that, with respect to the pay in lieu of notice, he would have to wait until Mr Sorrell returned in a few weeks. 12
[12] The applicant also recalled Mr Woods saying that, if he continued to work, he would have to worry about him (the applicant) walking around wondering who was talking about him. If somebody made a joke about it, you (the applicant) would probably punch them. 13
[13] With respect to alleged complaint about his driving, it was denied by the applicant that there had been any. 14
Statement by six employees
[14] The applicant was questioned about a statement, dated October 2009 and signed by six employees of the respondent, stating that the applicant’s driving attitude was poor which reflected badly on the company and that they requested that they not be rostered on the same jobs as the applicant. 15
Statements re applicant
[15] With respect to the list of statements/comments provided by the respondent, 16 it was the applicant’s evidence that:
- Continually going home during work hours leaving other employees waiting in the truck – the applicant indicated that he had gone home but not continuously. He recalled that Mr Woods had told him that once he had finished a job, he could do errands etc as long as he was contactable. Mr Fletcher said that, after a job had been finished and if they were going past his home, he would stop and quickly get his lunch. He stated that he always asked the other employee if it was ok. That person would wait in the truck and make phone calls or read the paper. 17
- Verbally abusing other motorists and intimidating them by tailgating, cutting off – the applicant stated that he had never deliberately run anybody off the road or tailgated as it was dangerous. He explained that, when he got his licence, he was taught that, once he started to move into a lane, he was then committed to being in that lane. He could not swerve back into the other lane. 18
- Abusing other motorists verbally – the applicant stated that he did not get involved in road rage. He recalled that, after a complaint was made and Mr Woods asked him about it, he told him to ask the jockey “because I’m sick of answering these questions because I haven’t done anything wrong.” 19 The applicant recounted that it was other motorists who had cut him off and so he would honk the horn and flash the lights. Further, he said that:
“And, you know, I've yelled at them, but I haven't hung out the window and got out to fight anybody.” 20
The applicant also said that there had not been a complaint about his driving for about two years because he did not bother to abuse them anymore because it was creating too many hassles at work. 21
- Abused bike rider on Beach Road, Port Melbourne then struck him with the OSS truck. Witness Chris – the applicant stated that Chris did not see the incident but rather it was Clint. He explained that, when he drove past the bike rider, he had moved partly but not completely into the next lane. He said that the bike rider “got spooked” when his truck passed him and he started wobbling but was still on his bike. When the truck was at least 50 metres past the bike rider, the bike rider had touched the wheel of the blue falcon that was a few car lengths behind the truck, and had then fallen off his bike. Looking in his rear vision mirror after he went past the bike rider, the applicant recalled saying to Clint that the bike rider was going to fall. The applicant stated that Chris had not seen the bike rider fall off his bike and that it was a blatant lie that the applicant had abused him and struck him with the truck. He indicated that this had happened two years ago. 22
- Smoking marijuana during work hours in OSS trucks and at home – the applicant was emphatic that he did not smoke marijuana during working hours.
- Racially abusing taxi driver in Albert Park after cutting him off – the applicant explained that he had stopped on the road, with his hazard lights on, in reverse gear, so he could do a U turn as he had realised that the bridge was too low for the truck to fit under. A taxi had pulled up behind him and started honking his horn and abusing him when he could have gone into the other lane and around him. The applicant said that he had yelled out to him and told him where to go. He had not racially abused him. 23
- Tailgating cars on Monash Freeway. Speeding in the right-hand lane constantly – the applicant denied tailgating and said that the trucks had a speed limiter on them to 100 km/hr. 24
First written warning
[16] With respect to the first written warning of 12 March 2009, the applicant stated that the warning was not valid. He said that he had been late in the first few weeks after their baby had been born. Further, Mr Fletcher explained that, only after the job had been done and he was nearby, would he drop in at home and make sandwiches for lunch. He indicated that there had been no justifiable complaints about his driving. The applicant acknowledged that he had honked at drivers who had cut him off. With respect to the issue about the uniform, the applicant did not understand what the problem was. He said that, in the depot, employees were allowed to wear singlets instead of shirts. On very hot days, he wore a black instead of a blue singlet as the blue one was in the wash. These were his own singlets as the company did not provide any. 25
Second written warning
[17] In terms of the second written warning on 19 June 2009, Mr Fletcher explained the circumstances regarding the texting issue. He confirmed that he had sent a text message to Mr Woods notifying that he would be absent because he had been terminated over the phone previously by Mr Woods for calling in sick. The applicant said that he had then sent text messages and there had not been a problem. He recalled that he did try and also ring but that Mr Woods would not answer his phone. On the particular occasion in question, the applicant stated that he had received a text message reply from Mr Woods requesting a doctor’s certificate. 26
[18] In terms of the second issue raised in the second written warning, it was the applicant’s evidence that he had not gone home on that occasion but to a McDonald’s for lunch. His recollection of his conversation with Mr Woods about this was that Mr Woods had said that he did not think that he had done it but that he was getting pressure from senior management and so had to issue the warning. It was said that Mr Woods had indicated that the applicant had not been seen parking the truck at home. 27
[19] It was recalled by Mr Fletcher that Mr Woods had given him his payslip and an envelope on Friday 21 June 2009. The applicant said that Mr Woods had not told him that it was a warning but that it was something for him to read over the weekend and that it was “all good.” 28 It was recalled by the applicant that he had waited to speak to Mr Woods until the following Wednesday as “it was eating me up.”29 Mr Fletcher said that, when he came into work on the Monday, Mr Woods had put on his run sheet that he was to pick up a ladder from his (Mr Woods’) home. The applicant did not do it as he thought it a bit cheeky in light of giving him a warning for using the truck for personal use. At the end of his conversation about the warning on the Wednesday, the applicant recounted that he had screwed the letter up and had thrown it on the ground and had then walked off.30
[20] During cross examination, it was confirmed by the applicant that the company had a bonus scheme for good driving and that, as at 30 June 2009, he had lost 200 points whilst other employees had gained lots of points. 31 The applicant also confirmed that he had now received three weeks pay in lieu of notice and his annual leave entitlements.32
MR WOODS
[21] Mr Woods provided a written witness statement. 33
[22] It was Mr Woods’ oral evidence that the quality of the applicant’s work seemed to have slipped from about six to eight months ago. It was said that the applicant seemed to have had enough and he was not conforming to the rules eg uniform. He recalled speaking to the applicant about not wearing the high viz shirt and wearing a black t-shirt instead. 34
I July 2009
[23] Mr Woods recounted that, on 1 July 2009, when he arrived at work, Mr Timms had told him that the applicant had turned up for work and that he had asked the applicant to wait to speak to him (Mr Woods), as requested by Mr Woods. He recalled that Mr Timms had told him that the applicant had responded by saying that he was not going to wait around and see if he still had a job. Mr Woods stated that, when he had arrived at work, he had seen the applicant waiting for him. He had had a few things to do first to get everything started for the day which was why he had not gone out straight away to see the applicant. He recalled that Mr Timms had come into his office soon after and told him that the applicant had left. 35 Mr Woods confirmed that he had parked his car in his normal spot which could be seen from the lunchroom window. He said that he had not rung the applicant immediately after he had left because he did not want to aggravate the situation.36
First Written Warning
It was Mr Woods’ evidence that the first warning was for uniform issues and driving complaints. Mr Woods said that the applicant was always wearing a black singlet or an odd coloured beanie. He stated that all of the drivers were asked to sign a letter which specified what the uniform was and that they would wear it, including the applicant – who did sign it. 37
[24] In terms of the driving complaints, it was explained that even though it may have been about three or four, they were not tolerated and therefore the written warning was issued. He said that he had received a complaint about the applicant’s driving in the last 12 months. Mr Woods acknowledged that towards the end, the applicant’s driving did improve. He stated, however, that the applicant was a very aggressive driver. Mr Woods indicated that he had spoken to the applicant about the driving complaints prior to issuing the warning. 38
Second written warning
[25] With respect to the text messaging aspect of the warning, Mr Woods gave evidence that the drivers had signed paperwork stating that a text message was not sufficient notification of an absence and that a telephone call was required. 39
[26] It was Mr Woods’ evidence that, on Thursday 18 June 2009, he had received a telephone call from another driver who was in another truck on their way back to the depot, saying that the applicant was on his way home again. This has been said because the applicant’s jobs had been on the other side of town and he had therefore driven past the depot to go to his home. Mr Woods indicated that the applicant had not had a jockey with him that day. Mr Woods stated that no-one had driven to the applicant’s home that day to see if he was there or not. 40 It was explained by Mr Woods that, except on 18 June 2009, other employees had been with the applicant when he went home and had his lunch. He said that the employees concerned had complained to him that they were left to wait in the truck for up to an hour or more whilst the applicant had his lunch.41
[27] Mr Woods confirmed that the applicant had received two warnings in four years with the most recent one on 19 June 2009. It was stated that this warning had covered the main issues that he had already spoken to the applicant about several times. He indicated that it had not included reference to the applicant being late three to four days a week or his breakfast routine as he was fair and his approach was to talk to people rather than do a letter on every single thing. Mr Woods said the he did not make a habit of issuing warnings. 42
[28] Mr Woods did not recall saying to the applicant that it was okay to go home/do errands after a job if it was on his way back to the depot. He stated that he would not have said it to the applicant as he had not said it to anyone else and no other employee did this – “So it was only Glen, because Glen lives so close I suppose it was just convenient for him to be able to go home…” 43 Mr Woods indicated that a stop needed to be put to the applicant going home as it involved the other employee(s) who were also in the truck and it was aggravating them (he had had several employees complaining about it). He said that this was the reason for the second written warning.44
[29] With respect to the list of statements regarding the applicant’s work performance, 45 Mr Woods explained that these were unsolicited comments by other employees regarding the applicant. He indicated that some of the statements with no witness names attached were general comments made by employees eg chased a female driver through a roundabout. Others were said to have been witnessed personally by Mr Woods eg refusing to wear a uniform, arriving late most mornings and then cooking his breakfast, having coffee then going to the toilet. Mr Woods stated that he had heard the applicant tell the other employees about his fights at the pub the previous night. He said that he had witnessed the applicant acting aggressively in the workplace such that the other crew members did not want to work with him.46
[30] Mr Woods stated that there was a combination and build-up of a number of reasons for terminating the applicant – his absenteeism, his behaviour, his disregard for management’s authority and its regulations, his aggressive attitude towards the general public and other employees, his text messaging and his going home. 47 He indicated that a further reason, which was the last straw, was when the applicant came into work on 2 July 2009 and then left without waiting for him and without giving a reason. Mr Woods stated that he had planned for the applicant to go on a job that day even though no jobs had been allocated to him the night before. This was said to be because he had no notification of when the applicant would be back.48
[31] It was confirmed by Mr Woods that he had not believed the applicant’s excuse about a family emergency on the afternoon of 1 July 2009. He said that the applicant had seen him arrive at work but had then said to Mr Timms that he was not going to wait around and had left. Mr Woods had not heard anything from the applicant until 2.00pm that afternoon when he received a text message saying family emergency. 49
[32] The next morning (2 July 2009), during the meeting between the applicant, Mr Woods and Mr Timms, Mr Woods recalled that the applicant kept on asking whether he was being sacked. He had responded that the applicant had abandoned his employment by leaving without notice and with no contact until a text message was received at 2.00pm in the afternoon. It was stated by Mr Woods that he had not decided to terminate the applicant’s employment prior to the meeting. He said that he wanted to hear the applicant’s story. He indicated that Mr Timms’ had been present as an impartial witness and that the applicant had not asked for a support person. 50 Mr Woods confirmed the majority of the applicant’s version of the conversation except for denying that the applicant had said that he had only gone home because he had been told that he was not allowed to start. Also, Mr Woods recalled the applicant saying that he would like “to start work the next day” instead of that he’d like “to start work again the next day.”51
[33] Mr Woods stated that he did not have access to advice about employment matters but presumed the company would have. He indicated that, prior to the meeting with the applicant on 2 July 2009, he had not checked the relevant procedures in the company’s handbook. 52
[34] With respect to the statement signed by the six employees, 53 Mr Woods explained that Mr Sorrell had prepared the document and that he had asked the employees whether they wanted to sign it. He stated that employees did not have to sign it. He explained that those who did sign it had told him that they did not want to work with the applicant. He confirmed that the applicant was not popular with the other staff.54
[35] In terms of the applicant’s lateness, Mr Woods indicated that the applicant’s lateness had improved slightly in the period after the new baby but that the issue was more about what the applicant did after he arrived at work. He explained that he had had several discussions with the applicant about the breakfast/toilet etc. Mr Woods stated that:
“I have talked with Glen, I talk with everyone. We’re not a strict company as Glen knows, it’s a great place to work and we’re fair and we talk to people rather than lay down the rules and the law. It’s a silly waste of work in a company that has such few employees.” 55
SUBMISSIONS
APPLICANT
[36] It was argued by Mr Dircks, on behalf of the applicant, that there was not a valid reason for the termination of the applicant’s employment. He said that the reason for the dismissal appeared to be a “three strikes and you’re out” policy. If the issues covered by the warnings were addressed, it was contended that, the fact that there were warnings in the past, did not provide the basis for the termination of the applicant’s employment. Therefore, there was not a valid reason for the dismissal of the applicant. 56
[37] With respect to the procedural aspects of the termination, it was stated that the decision to terminate the applicant’s employment seemed to have been an “off the cuff sort of decision” by Mr Woods, hence there was no indication to the applicant that the meeting was a dismissal meeting.
[38] In terms of the requirements of section 387(e) of the Act, it was argued that the warnings the applicant received were not warranted and that there had been no repeat of the issues in the warnings. The dismissal was said to have been based on the applicant’s two day absence, which was for legitimate reasons, together with the previous warnings. 57
[39] Mr Dircks submitted that the size of the employer’s enterprise had nothing to do with the procedures as they were detailed and comprehensive and covered the areas of counselling and discipline as well as dismissal. Further, it was contended that there was no evidence that the employer did not have access to the requisite expertise. The fact of the enterprise agreement and the employment and safety handbook were said to be evidence of this. It was said that there was no evidence which would support the employer getting special treatment because of a lack of such expertise. Two authorities were referred to in support of this submission. 58
[40] It was further argued that the termination was harsh because the applicant was not paid his notice or his proper holiday pay. As well, there were unwarranted deductions. It was also harsh in terms of the effect on his family with a financial loss of approximately $15,000 per annum. All in all, it was submitted that the termination was harsh, unjust or unreasonable. 59
[41] Mr Dircks stated that, in terms of remedy, reinstatement was not a realistic option in this matter and that compensation was the appropriate remedy. With respect to the criteria set out in section 392 of the Act, Mr Dircks indicated that there was no evidence about the effect of an order on the viability of the employer’s business. The applicant’s length of service was four years and it was stated that he would have continued for at least a year ($50,414). The applicant had mitigated his loss by quickly obtaining a new job but the rate of pay was significantly lower ($50,000 per annum vs $35,000 per annum). He had earned $10,651.50 in his new position. 60 It was contended that the maximum amount of 26 weeks should be paid.61
RESPONDENT
[42] Mr Sorrell, on behalf of the respondent, argued that, whilst the applicant was a good employee early on in his employment, his work performance had reduced in quality. It was contended that he had been given adequate warnings. Mr Sorrell explained that it was a small business with 25 employees in a tough economic time and that the company had to ensure that it had the best possible employees with the best qualifications. 62
[43] It was submitted that the valid reasons for the termination of the applicant’s employment was his poor work performance, aggressive driving and requests from his fellow employees not to work with him The company had tried to help the applicant improve and he had to a certain extent but not fully – hence the two written warnings. 63
[44] Mr Sorrell stated that the dismissal of Mr Fletcher was not unreasonable given that the company was a good employer and was fighting for its economic survival. He said that the applicant had been helped out with extra sick pay and other things. However, it was stated that the company’s patience only went so far and he had to consider the other employees. 64
CONCLUSIONS
[45] Section 396 of the Act sets out four matters which must be decided in applications of this kind before the merits are considered. These matters are:
“(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[46] The application was made fourteen days after the termination which is within the period required in subsection 394(2). There is no direct evidence before me regarding the requirements of s.396(b). However, it would appear from the material, that the applicant was covered by an employee collective agreement. 65 Therefore, the applicant was protected from unfair dismissal within the meaning of s.382 of the Act. Sections 396(c) and (d) have no relevance in this matter.
[47] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia (FWA) is satisfied that:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[48] Section 385(a) has been met and s.385(c) and (d) have no relevance in this matter.
[49] In order to declare whether the termination of the applicant’s employment was harsh, unjust or unreasonable, FWA is required to take into account the factors set out in s.387 of the Act. Those factors are as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
[50] I will deal with each of these in turn.
Valid reason – s.387(a)
[51] There were a number and combination of reasons given, by the respondent, for the termination of the applicant. In the respondent’s written material, the reasons for the applicant’s dismissal were listed as:
- Poor attendance and attitude for some time.
- Two written warnings – on 12 March 2009 and 19 June 2009 – which were discussed with the applicant. (The warnings were for arriving late, going home during working hours, complaints from the public and other employees about his driving, not wearing the company uniform and text messaging to notify of absence from work). 66
- When the applicant was given the second warning letter, he screwed it up and threw it away in front of the Operations Manager showing his total disregard and appreciation for his employment with the respondent. He also spoke rudely and aggressively to the Operations Manager at the time.
- The applicant did not appear at work on 30 June 2009 and did not contact the company that day.
- The applicant arrived at work the next day and, although asked to wait until Mr Woods arrived, he did not. 67
[52] In addition, it was Mr Woods’ oral evidence that the last straw for the respondent was the applicant coming in to work on 2 July 2009 but then leaving with no explanation. 68 Further, Mr Woods had not believed the applicant when he told him that the reason he did not stay was that he had a family emergency. He stated that the main reasons were the applicant’s aggressive attitude to the public and other employee’s, text messaging, his lateness and going home during business hours.
[53] On behalf of the applicant, it was argued that his absences on 30 June 2009 and 1 July 2009 were for legitimate family reasons. It was said that the behaviours complained about in the warning letters had been rectified. Further, it was said that the applicant had not been warned about some of the reasons he was dismissed eg being late leaving the depot in the morning due to his breakfast/coffee/toilet routine. Therefore, there could be no valid reason for the applicant’s dismissal.
[54] It is not disputed by the applicant that he did not attend at work on 30 June 2009 and that he was unsuccessful in his attempts to contact Mr Woods to explain the reason for his absence. It was also not disputed by the applicant that he had left the depot on 1 July 2009 before having spoken to Mr Woods about his absence the previous day. Further, it was common ground that he did not make contact with Mr Woods until 2.00pm that day when he sent him a text message. It was undisputed that it was Mr Woods who had then telephoned the applicant.
[55] These events have occurred against a background of other conduct and performance issues, some of which were the subject of written warnings. The first warning given to the applicant on 12 March 2009 concerned four issues – arriving late for work, going home without permission during working hours, complaints regarding his driving and failure to wear his uniform. It was Mr Woods’ evidence that, at the time of his dismissal, the applicant’s lateness had improved but not sufficiently. The applicant had stated that he would sound the horn whenever another driver cut in front of his truck but that he had not done so lately. He also said that he wore a black singlet instead of a blue one on very hot days. It was unchallenged when Mr Woods indicated that the applicant, as well as the other drivers, had signed a letter regarding adhering to the uniform requirements.
[56] The second warning given to the applicant on 19 June 2009 addressed two issues – text messaging notifying of absence from work was not sufficient and being seen driving towards his home on 18 June 2009 during working hours.
[57] In addition, there were other issues which had been discussed with the applicant but which were not the subject of written warnings. They included leaving late from the depot due to breakfasting and other activities; an aggressive attitude to the public and to his fellow employees and telling other employees about his fights at the pub the previous night. This had led to a signed statement by six drivers regarding the applicant’s poor driving attitude and unprofessional work attitude and which also said that they had requested not to be rostered to work with the applicant. 69
[58] Having considered all of the material before me, at the very least, I find that the applicant had an unauthorised absence from work on 30 June 2009 and 1 July 2009. I also find that the absence was unexplained until 2.00 pm on the second day. At that time, the applicant had sent Mr Woods a text message which, in itself, contravened the second written warning. Although the applicant did attend at work on 1 July 2009, he did not wait until Mr Woods had arrived, despite being specifically instructed by Mr Timms to do so. Instead, he left without explanation and did not make contact with the company until later that day.
[59] On this basis, I am satisfied that there was a valid reason related to the applicant’s conduct for his dismissal.
Notification – s.387(b)
[60] The circumstances surrounding the ending of the applicant’s employment are haphazard given that it was the respondent’s view, at the meeting on 2 July 2009, that the applicant had abandoned his employment. Mr Woods’ evidence that he had not decided, prior to the meeting on 2 July 2009, to dismiss the applicant, is accepted. For these reasons, the applicant was not notified of the reason for his dismissal.
Opportunity to respond – s.387(c)
[61] As indicated above, the respondent believed that the applicant had abandoned his employment. Therefore, there was no opportunity for the applicant to respond to any reason for his dismissal.
Support person – s.387(d)
[62] As outlined above, the purpose of the meeting on 2 July 2009, from the respondent’s perspective, was not to terminate the applicant’s employment.
[63] Therefore, in all of the circumstances of this matter, this factor is not relevant.
Warnings regarding performance – s.387(e)
[64] The applicant was dismissed predominantly for conduct rather than performance issues. He did receive two written warnings regarding conduct and performance concerns.
Size of the employer’s enterprise – s.387(f)
[65] I am unable, on what is before me, to reach a conclusion that the size of the employer’s enterprise had a significant impact upon the procedures followed in effecting the termination of Mr Fletcher’s employment.
Human resource expertise – s.387(g)
[66] I consider that the absence of dedicated human resources specialists or expertise in the enterprise had an impact on the procedures followed in effecting the dismissal, such that it contributed to the absence of a coherent process. It is clear from the evidence that, on 2 July 2009, it was Mr Woods who had authority and responsibility on behalf of the respondent, regarding the outcome of the meeting with respect to the applicant’s employment. Mr Woods gave evidence, during cross examination, that he had not looked at the code of conduct, grievance handling and mediation, disciplinary and counselling or dismissal procedures in the Employment and Safety Handbook, prior to the meeting with the applicant on 2 July 2009. As well, he stated that he, personally, did not have access to advice about employment matters but presumed that the company did.
Other matters – s.387(h)
[67] It was submitted by the applicant that it was harsh that the applicant, at the time of his dismissal, did not receive payment in lieu of notice, his proper holiday pay and that there were certain unwarranted deductions made. The Tribunal was also asked to consider the harsh financial effect on his family.
[68] I have considered these submissions but not in the context of s.387(h). Therefore, there are no other matters I consider relevant.
[69] In all of the circumstances and, having taken account of each of the factors in s.387, I determine that, on balance, the termination of the applicant’s employment was not harsh, unjust or unreasonable. It follows, therefore, that the applicant’s dismissal was not unfair and the application is dismissed.
[70] An order to that effect will be issued separately.
COMMISSIONER
1 Exhibit A1
2 Ibid at paragraphs 35 – 38 and Transcript PN 72
3 Ibid at paragraphs 39 – 45 and Ibid PN 74 - 75
4 Exhibit A2 and Exhibit A1 at paragraphs 47 - 48
5 Exhibit A2
6 Transcript PN 133 and Exhibit A1 at paragraphs 55 - 57
7 Transcript PN 133
8 Ibid PN 136 - 140
9 Ibid PN 141 and Exhibit A1 at paragraphs 60 - 61
10 Transcript PN 149 and Exhibit A1 at paragraph 64
11 Transcript PN 169 - 171
12 Ibid PN 172 – 177 and Exhibit A1 at paragraphs 67 - 75
13 Exhibit A1 at paragraphs 76 - 77
14 Transcript PN 178 - 180
15 Ibid PN 81 – 92 and Exhibit R1 at page 18
16 Exhibit R1 at page 8
17 Transcript PN 93 - 96
18 Ibid PN 100 - 101
19 Ibid PN 105
20 Ibid PN 104
21 Ibid PN 104
22 Ibid PN 106 - 112
23 Ibid PN 118 - 123
24 Ibid PN 124 - 127
25 Exhibit A1 at paragraphs 12 - 21
26 Transcript PN 151 – 162 and Exhibit A1 at paragraph 23
27 Ibid PN 163 – 164 and Ibid at paragraph 24
28 Transcript PN 214
29 Ibid PN 218
30 Ibid PN 218 and 224
31 Ibid PN 225 - 236
32 Ibid PN 246 - 247
33 Exhibit R2
34 Transcript PN 331 - 334
35 Ibid PN 343 – 347, 254 – 358 and 675 - 676
36 Ibid PN 351 – 357 and 678 - 679
37 Ibid PN 394, 396 and 405 - 509
38 Ibid PN 397 – 404 and 524 - 534
39 Ibid PN 411
40 Ibid PN 521 and 657 - 666
41 Ibid PN 411
42 Ibid PN 439 - 455
43 Ibid PN 413
44 Ibid PN 413
45 Exhibit R1 at page 8
46 Transcript PN 425 – 432 and PN 680 - 683
47 Ibid PN 435, 462 – 463 and Exhibit R1 at page 14
48 Transcript PN 465 - 469
49 Ibid PN 471
50 Ibid PN 482 - 489
51 Ibid PN 506 - 507
52 Ibid PN 547 - 551
53 Exhibit R1 at page 15
54 Transcript PN 688 - 722
55 Ibid PN 734
56 Ibid PN 750 - 751
57 Ibid PN 752 - 753
58 Ibid PN 753 - 755
59 Ibid PN 756 - 757
60 Ibid PN 759 and Exhibit A2
61 Ibid PN 761 and Exhibit A3 at paragraph 32
62 Transcript PN 763
63 Ibid PN 764
64 Ibid PN 776 - 778
65 Exhibit R1 at pages 3 - 7
66 Exhibit A1
67 Exhibit R1 at page 14
68 Transcript PN 466
69 Exhibit R1 at page 15
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