Mr Glenn Westblade v Harvey & Dunn Pty Ltd T/A Albury Auto Body Repairs
[2010] FWA 4961
•21 JULY 2010
[2010] FWA 4961 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Glenn Westblade
v
Harvey & Dunn Pty Ltd T/A Albury Auto Body Repairs
(U2010/6398)
COMMISSIONER CAMBRIDGE | SYDNEY, 21 JULY 2010 |
Unfair dismissal - alleged frustration of contract of employment - misconceived basis for dismissal - no proper contemplation of obligation on employee to work reasonable additional hours - harsh, unreasonable and unjust dismissal – compensation Ordered.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 24 February 2010. The application was made by Glenn Westblade, (the applicant) and named the respondent employer as Harvey & Dunn Pty Ltd trading as Albury Auto Body Repairs (the employer).
[2] The application indicated that the date of the applicant’s dismissal was 12 February 2010. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act. Conciliation of the claim was unsuccessful and the matter proceeded to arbitration before Fair Work Australia (FWA) in a Hearing conducted in Albury over two days, 15 and 16 June 2010.
[3] At the Hearing, the applicant was the only witness called to provide evidence in support of the claim. The employer, represented by the Motor Traders Association of New South Wales (MTA), called two witnesses, Mr Andrew Wallace Harvey and Ms Dianne Maree Harvey.
Factual Background
[4] The applicant is a man of some 58 years of age. The applicant had worked for the employer for a little over 10 years. The applicant worked as a Tow Truck Driver. The applicant had worked as a Tow Truck Driver for about 33 years and was employed by the previous owners of the business when the employer took over the enterprise in February 2000. The employer has approximately 19 employees.
[5] The applicant appeared to have a broadly unblemished employment record until 25 January 2010 when he complained to the employer’s Director, Andrew Harvey about difficulties regarding working on an afterhours call-in roster.
[6] The employer (and previous employers) operated a call-in roster for tow truck driving work. The call-in roster involved allocation of at least two individuals to be available to perform tow truck driving work on weeknights and weekends if and when needed. The employer nominated the individuals on the roster by “posting” the roster in advance. If an individual was unable to fulfil their roster duty for any reason, the employer generally required individuals to make arrangements with others on the roster to “swap” a roster engagement.
[7] The applicant had unsuccessfully attempted to swap roster call-in work for the weekend of 30-31 January 2010. On Monday 25 January, the applicant spoke to his employer, Mr Harvey, about the problems that he had encountered with attempts to swap engagements on the call-in roster. Mr Harvey was unsympathetic and a robust debate ensued. The applicant told Mr Harvey that he no longer wanted to participate in the call-in roster. The language used by the two men deteriorated and Ms Harvey intervened and directed the applicant to go home.
[8] Following the Australia Day public holiday the applicant returned to ordinary duty on Wednesday 27 January. The applicant reaffirmed to Mr Harvey that he no longer wanted to participate in the call-in roster. Mr Harvey found this proposition unacceptable and he directed the applicant to take a period of annual leave as a means to further consider his decision to no longer participate in the call-in roster.
[9] On Monday, 8 February 2010 the applicant returned to ordinary duty following his period of enforced annual leave. The applicant and Mr Harvey had a further discussion about the applicant's decision to no longer participate in the call-in roster. The applicant again repeated his decision to no longer participate in the call-in roster. Mr Harvey advised the applicant that he should think about that decision and speak with him again in a further 48 hours.
[10] On Wednesday, 10 February 2010 the applicant told Mr Harvey that he would be prepared to do some weeknight call-in roster work but that he did not want to participate in the weekend call-in roster at all. Mr Harvey told the applicant that he would consider the applicant’s position as now modified to include some weeknight call-in roster work, but that this was generally not sufficient and represented a “frustration” of the applicant’s employment.
[11] On Friday, 12 February 2010 and approximately 4:50 pm Mr Harvey spoke with the applicant and advised him that the applicant's position to participate only in some weeknight call-in roster work was unacceptable. Mr Harvey told the applicant that the applicant's refusal to participate in the weekend call-in roster work constituted a breach of his employment contract that he described as a “frustration of the employment” and he handed the applicant a letter of dismissal.
The Applicant’s Case
[12] Mr E White, counsel for the applicant, submitted that the basis for the applicant's dismissal involved the erroneous assertion by Mr Harvey that the applicant's contract of employment included a provision that the applicant was required to work as and when required including on the weekend call-in roster. Mr White submitted that for various reasons there could not be any valid basis that would establish an obligation on the applicant to participate in the weekend call-in roster.
[13] Mr White referred to provisions of the Modern Award that governed the applicant's employment, that being the Vehicle Manufacturing, Repair, Services and Retail Award 2010 [MA000089] (the Award). Mr White submitted that the provisions of clause 28.9 (c) of the Award established a requirement on the employer to document a mutual agreement that recorded the terms that applied to the applicant and any others who were available outside normal working hours to participate in the call-in roster. Mr White submitted that there was no proper, documented agreement relating to the employer's call-in roster and that the Award provisions established a requirement for there to be mutual agreement. According to Mr White the obligations that the employer sought to impose upon the applicant in respect to the call-in roster were contrary to the Award and therefore the dismissal was unlawfully founded.
[14] Mr White further submitted that the requirement of the employer that the applicant participate in the weekend call-in roster was unreasonable. Mr White provided an analysis of records which showed the number of weekend call-in roster engagements that the applicant had performed since December 2008. Mr White submitted that the applicant had been prepared to compromise and offered to work at least some weeknights on the call-in roster. In contrast Mr White said that Mr Harvey came back with no alternative proposition or discussion about what might have represented a reasonable compromise.
[15] In summary Mr White stated that the dismissal of the applicant was harsh, unreasonable and unjust because the employer sought to impose an obligation on the applicant which was contrary to the Award and therefore unlawful. In addition, the requirement that the applicant work on the weekend call-in roster was unreasonable. Therefore according to Mr White, FWA should find that the applicant had been unfairly dismissed. Mr White urged FWA to provide for compensation to the applicant as appropriate remedy for the unfair dismissal.
The Respondent’s Case
[16] Mr T Vargo, from the MTA, who appeared on behalf of the employer, submitted that the dismissal of the applicant was not harsh, unjust or unreasonable. Mr Vargo submitted that there was valid reason for the dismissal related to the applicant's refusal to work on the weekend call-in roster.
[17] Mr Vargo made submissions which detailed the amount of weeknight and weekend call-in roster work that the applicant had routinely performed over extended periods. Mr Vargo said that the pattern of additional hours worked by the applicant established an implied term to the employment that the employer was entitled to rely upon. In such circumstances, according to the submissions of Mr Vargo, it was not unreasonable for the employer to require the applicant to continue to perform work on the weekend call-in roster. It therefore followed that the applicant's refusal to work on the weekend call-in roster broadly in accordance with the established pattern of work on that roster, represented a valid basis for dismissal.
[18] Mr Vargo made further submissions which stressed the operational needs of the employer's business. In particular Mr Vargo mentioned that the applicant had been the employer's main Tow Truck Driver over many years of employment during which time the incidence of call-in roster work became an integral and well understood component of tow truck driving work.
[19] Mr Vargo also made submissions which challenged the assertion that it was the employer as opposed to the applicant, who was not prepared to compromise. In this regard it was said that the applicant had steadfastly refused to work any weekend call-in roster work and this represented a significant alteration to the pattern of the applicant's employment established over the entire 10 year period since the employer had taken over the business.
[20] Mr Vargo further submitted that FWA should assess the reasonableness or otherwise of the employer’s requirement for the applicant to work the additional hours that arose from the call-in roster by reference to the provisions of subsection 62 (3) of the Act. Mr Vargo said that in determining whether additional hours are reasonable or not, the period of notice to work such additional hours was a relevant factor and in this instance the rosters were posted well in advance. Further, Mr Vargo said that the nature of the industry was based around a 24 hour seven day week requirement and this was an important factor in any assessment of what is a reasonable requirement to work additional hours.
[21] In summary Mr Vargo submitted that there was no basis for FWA to find that the applicant had been unfairly dismissed. The employer was entitled to require the applicant to work on the weekend call-in roster. Therefore Mr Vargo urged that the application for unfair dismissal remedy be dismissed.
Consideration
[22] Section 385 of the Act stipulates that FWA is to be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:
(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.
[23] In this case there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that FWA must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:
(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.
Valid reason for the dismissal related to capacity or conduct
[24] It is relevant to set out the substantive text of the letter of dismissal given to the applicant on 12 February 2010, wherein it stated:
“YOUR REFUSAL TO BE INCLUDED ON THE TOWING ROSTER, WHICH YOU MADE EFFECTIVE IMMEDIATELY OF YOUR DECISION.
YOU BEING INCLUDED ON THE TOWING ROSTER FORMS PART OF YOUR EMPLOYMENT CONTRACT WITH OUR COMPANY.
WE HAVE GIVEN YOU TEN DAYS LEAVE TO HAVE A REST AND RECONSIDER YOUR DECISION. YOU RETURNED TO WORK AND DECIDED TO ADHERE TO YOUR DECISION. WE THEN DISCUSSED THIS MATTER FURTHER AND WE GAVE YOU ANOTHER 48 HOURS TO CONSIDER OUR DISCUSSION.
YOU HAVE OBVIOUSLY CONSIDERED THE LAST DISCUSSION AND YOU MADE A SMALL COMPROMISE BUT UNFORTUNEATLY [sic] WE CONSIDER THAT THIS IS STILL INSUFFICIENT AND THIS IS NOW BEING CLASSED AS THAT YOU HAVE “FRUSTRATED YOUR EMPLOYMENT CONTRACT” WITH OUR COMPANY.
YOUR POSITION WITH OUR COMPANY IS NOW TERMINATED EFFECTIVE IMMEDIATELY.”
[25] The first aspect of consideration of the letter of dismissal involved the suggestion advanced on behalf of the applicant that one aspect of the basis for the decision to dismiss was factually incorrect. Mr White submitted that the applicant did not refuse to be included on the towing roster per se and therefore the factual assertion made at the start of the letter of dismissal was plainly wrong.
[26] The applicant did initially refuse to be included on any part of the call-in roster and he subsequently modified this position to the extent that he was prepared to work a number of weeknights on the call-in roster. This position was adequately acknowledged in the letter of dismissal and referred to as “a small compromise”.
[27] The second aspect of the letter of dismissal that required consideration involved the description of the applicant's conduct to represent a frustration of the contract of employment. This description and the use of the word frustration appeared to have been a misunderstanding that may have developed during the period when the employer was seeking advice immediately preceding the dismissal of the applicant. The circumstances that led to the dismissal of the applicant could not be properly described as a frustration of the contract of employment as would usually be understood by that terminology.
[28] An explanation of the concept of any frustration of the contract of employment can be found in The Law of Employment, Fourth Edition, Law Book Company, Macken, O’Grady & Sappideen at page 231. This text relevantly states “Unlike repudiation frustration puts an end to the contract automatically without action by the parties”.
[29] Consequently the dismissal of the applicant was incorrectly described. Although the employer may have felt frustrated with the applicant's repeated refusal to continue to participate in the weekend call-in roster, the termination of the applicant's employment did not occur as a consequence of the frustration of the contract of employment. Instead, the evidence of the circumstances of the applicant's dismissal revealed a position where the employer has treated the applicant's refusal to participate in the weekend call-in roster as a repudiation of the employment contract.
[30] The subsequent consideration has therefore involved a requirement to determine whether the employer’s decision to treat the actions of the applicant as a repudiation of the employment contract would represent a valid reason for dismissal.
[31] The applicant's decision on 25 January to advise the employer that he would no longer participate in the call-in roster was a significant departure from the established pattern of employment. The employer was understandably aggrieved by the applicant's decision. On balance however, there should have been some recognition that an employee would be entitled, with adequate notice, to alter established work arrangements so as to reduce a considerable number of hours worked in excess of ordinary hours. Unfortunately there was an absence of any calm, balanced or measured consideration of the applicant's desire to improve his work/life balance.
[32] The argument that developed between the applicant and Mr Harvey on 25 January appeared to galvanise the respective positions such that any subsequent compromise was unlikely to be achieved. When the applicant returned to work on 27 January and confirmed his decision to no longer participate in the call-in roster, the employer immediately responded by directing the applicant onto annual leave. This directive would appear to have been in clear contravention of the Award. Clause 29.4 of the Award requires that the employer must give not less than four weeks’ notice when requiring an employee to take annual leave.
[33] The angst that had been evident in the matter from the argument of 25 January appeared to have contributed to hasty and ill considered actions particularly including insufficient regard for the Award requirements relevant to the applicant's circumstances.
[34] An examination of the provisions of clause 28.9 of the Award supported the assertion that the employer was obliged to maintain a record of the terms and conditions of the mutual agreement upon which the call-in roster was established. Clause 28.9 of the Award is in the following terms:
“28.9 Call-back (breakdowns etc.)
(a) An employee in a garage and/or an employee engaged as the driver of a tow and/or repair vehicle and/or the assistant to such a driver recalled outside normal working hours for breakdown, accident or other emergency work will be paid at the rate of double time for the period of time recalled.
(b) The calculation of the period of time of duty will include only the time reasonably occupied in travel or work between the time of the employee’s departure from normal place of residence and the time after the performance of the work provided that:
(i) in the case of the first call-back in any one day an employee will be paid as for at least a period of two hours at the rate of double time; and
(ii) in the case of each subsequent call-back in the same day as for at least a period of one hour at the rate of double time whether occurring within two hours of the first call-back or not.
(c) Notwithstanding clause 28.9(a) where by mutual agreement, evidence of which will be recorded and maintained at the employer’s premises, an employee who is rostered to make themselves available outside normal working hours to be called upon for breakdown, accident or roadside service work will be paid at the rate of double time for the period so recalled provided that in the case of each call-back the employee will be paid for at least a period of one hour at double time.
(d) The calculation of the period of work will include only the time reasonably occupied in travel or work between the time of the employee’s departure from the normal place of residence or other starting point and the time of return to the employee’s residence.
(e) An employee entitled to payment under this clause will make and tender to the employer on their next ordinary working day a record of work performed showing starting and finishing times.
(f) Where the actual time worked is less than three hours for a recall or on each of the recalls, overtime worked in the circumstances specified in this subclause will not be regarded as overtime for the purposes of clause 28.6.”
[35] Although the employer did have a documented agreement signed by the applicant (Exhibit 3), that document did not properly establish the terms and conditions of the mutual agreement as required by clause 28.9 (c) of the Award. Importantly the provisions of clause 28.9 (c) of the Award create a clear requirement for there to be mutual agreement about the terms and conditions of any roster for employees who make themselves available outside normal working hours. Essentially the applicant's decision to no longer participate in the call-in roster represented the withdrawal from of any agreement as contemplated by clause 28.9 (c) of the Award.
[36] Therefore the Award has established that mutual agreement is a fundamental pre-requisite to the establishment of any roster for employees who make themselves available outside normal working hours. In simple terms, the Award requires that an employer obtain, and record, the agreement of any employee who is; “...rostered to make themselves available outside normal working hours to be called upon for breakdown, accident or roadside service work...”. It must follow as a matter of simple logic, that an employee would have, as an Award right, the capacity to not agree to make themselves available for rostered work outside normal working hours.
[37] This Award right essentially allows an employee to generally refuse to make themselves available for rostered work outside normal working hours. However the particular circumstances of the applicant require further consideration. In the case of an employee who had never agreed to make themselves available for work outside normal working hours there may be considerable force to the argument that that person could, as an Award right, refuse a direction to work or be rostered to work additional hours. However the applicant had clearly agreed to make himself available for work outside normal working hours and this had occurred over a period of many years. In the absence of evidence of some compelling necessity, it would seem to be completely unreasonable for the applicant to withdraw, with immediate effect, from the agreement that he had provided over an extended period.
[38] If the applicant’s desire to no longer participate in the call-in roster had been met with a calm, measured and balanced response, the employer may have been entitled to require extended notice before the applicant could legitimately withdraw from the call-in roster. Unfortunately although the tension associated with the exchange of unpleasantness on 25 January had subsided, the employer’s direction given on 27 January for the applicant to take annual leave elevated the matter beyond any prospect for a reasonable outcome.
[39] Regrettably the employer failed to properly communicate any proposition that might have contemplated that the applicant reduce and ultimately withdraw from the weekend call-in roster. Essentially the employer asserted that it could require the applicant to work additional hours which would be determined by the employer’s assessment as to what was reasonable. This assertion adopted by the employer was in breach of the Award and manifestly unreasonable.
[40] Consequently the applicant’s repeated refusal to participate in the weekend call-in roster must be considered in the context of; (a) the employer’s response action involving the direction onto annual leave; (b) the applicant’s subsequent offer of compromise to work some weeknights; and (c) the refusal by the employer to contemplate any phased reductions in the requirement for the applicant to work additional hours. In this context the applicant’s action did not represent a repudiation of the employment contract. Accordingly, there was not a valid reason for dismissal relating to the applicant’s capacity or conduct.
Notification of reason for dismissal
[41] One logical purpose for providing notification of any reason for dismissal would be to provide for an opportunity to make out a defence or offer explanation for the proffered reason for dismissal. In this instance the decision to dismiss the applicant was taken on the afternoon of 11 February. Mr Harvey did not advise the applicant of this decision until approximately 4:50 pm the following day. There was no evidence of any explanation for the delay between the decision to dismiss and the implementation of that decision. It was curious that Mr Harvey should wait until almost 5 pm on the Friday before implementing the decision that he had made the previous afternoon. In the circumstances of this manner of implementation of the decision to dismiss there was no opportunity for the applicant to make out a defence or offer explanation.
[42] Further, in this instance the notified reason for dismissal included the erroneous suggestion of a frustration of the contract of employment.
Opportunity to respond to any reason related to capacity or conduct
[43] Prior to advising the applicant of his dismissal, there was no clearly communicated notification that termination of employment might occur as a consequence of the applicant's repeated insistence upon no longer agreeing to participate in the weekend call-in roster. In terms of the development of the negotiation between the applicant and Mr Harvey, on Wednesday, 10 February Mr Harvey was giving further consideration to the applicant's offer of compromise involving work on some weeknights. Rather than giving the applicant a response to his offer of compromise, Mr Harvey moved straight to dismissal.
[44] In terms of the ongoing negotiation, there was an obligation on Mr Harvey to advise of the rejection of the applicant's compromise offer and at very least, notify the applicant that a failure to agree to work on the weekend call-in roster would be treated as basis for dismissal. The position of the negotiation between the applicant and Mr Harvey as at 10 February, was summarised during the following evidence in chief provided by Mr Harvey:
“48 hours later - that's 10 February - could you describe what happened? There was another meeting?---About 3.30 in the afternoon he came in and leant on the chair in my office as I was sitting at my desk and he said, "I've decided I will do Monday and Tuesday nights but that's it."
PN817
Did he say he would also continue to do the day work, so the Monday and the Tuesdays and what else? That's it?---No, the issue was over his callback time, not his full-time job. It was over his callbacks.
PN818
Only the callbacks. He offered two nights?---He offered to do Monday and Tuesday nights only.
PN819
**** ANDREW WALLACE HARVEY XN MR VARGO
What was your response to that?---I said I would think about it but technically it's really not sufficient.
PN821
Did you indicate to him as to why it is not sufficient?---No, I can't recall exactly.
PN822
Between the time that you said you would need the 48 hours to consider what he proposed to you and the meeting of Friday the 12th, did you seek and advice?
---Yes, I rang the MTA to see where I stand and what I should do.
PN823
In regards to the meeting of the 12th, I've asked you what transpired - the first part of the question - and the next part, without going into specifics, did you follow the advice that you were provided with?---Yes, I told him he had frustrated his employment contract. This is on the Friday, on the termination day that we're talking about.
PN824
Were you advised that by the association?---Yes.
PN825
Any other words exchanged by you with Mr - - -?---Only that he'd frustrated his employment contract. I then said to him, "I don't require your services any more. If you're not going to work when we require you, then it's effective immediately." Then I proceeded to go through his termination statement - what he was entitled to and what, like, pay he was owed.”
[45] Mr Harvey consulted with his association and sought advice following the discussions that occurred on 10 February. However the applicant was not given an opportunity to respond to the prospect that if he persisted with his refusal to participate in the weekend call-in roster, he would be dismissed from his employment. Instead, while the applicant was expecting a reply to his compromise proposition, the considered response of the employer, taken on advice, was dismissal.
Unreasonable refusal to allow a support person to assist
[46] There was no evidence that the applicant was unreasonably refused permission to have a support person to assist. However there was no evidence that there was a support person present at any of the meetings between Mr Harvey and the applicant.
Warning about unsatisfactory performance
[47] This factor has no relevance in this instance.
Size of enterprise likely to impact on procedures
[48] Although the employer had no dedicated employee relations staff, it consulted and obtained advice from an Industry association.
Absence of management specialists or expertise likely to impact on procedures
[49] Although the employer had no dedicated employee relations staff, it consulted and obtained advice from an Industry association.
Other relevant matters
[50] The applicant had worked for the employer for about 10 years. Unfortunately there was no evidence that the employer had regard for the applicant's long service as a positive factor when it was considering the applicant's dismissal. The long service of the applicant, which included working considerable additional hours, operated against him as part of the employer’s consideration of dismissal. In this regard, there was a manifest absence of any balanced consideration by the employer. There was no evidence that the employer recognised the many years that the applicant had been employed and participated in the call-in roster as a factor militating against dismissal.
[51] There was no evidence that the employer contemplated any other measures less severe than dismissal as a means to address the difficulties that had arisen from the applicant’s desire to rebalance his work/life arrangements. In fairness, the employer had provided both the period of enforced leave and subsequent 48 hour periods of consideration as a means to convey the seriousness with which it was treating the matter. However, at no point prior to dismissal did the employer advance any proposition which may have contemplated some readjustment to the terms and conditions or extent of the applicant's call-in work. There could have conceivably been a variety of propositions that might have involved reconfiguration of the applicant's work arrangements, including the previously discussed matter of part-time employment, or alteration of some ordinary hours in conjunction with a redesigned call-in roster. Unfortunately no potential alternatives to dismissal were explored.
[52] The applicant was 58 years of age. There was no evidence that the employer had any regard for the particular impact of dismissal on a person of the applicant's age. The obvious problems with obtaining alternative employment for a person of the applicant's age were compounded by the regional location. However there was no evidence that the employer gave any consideration to these particular impacts of dismissal as part of its contemplation before the decision to dismiss was taken.
[53] It is also relevant to provide further consideration of the particular needs of the employer's enterprise. In many respects the determination of this matter has involved an assessment as to whether the additional hours required of the applicant were reasonable. The National Employment Standards (NES), include reference to factors that are to be taken into account with any assessment as to whether additional hours are reasonable, and those factors are set out in paragraphs (a) to (j) of subsection 62 (3) of the Act.
[54] Paragraphs (c) and (g) of subsection 62 (3) of the Act identify factors that are important considerations for the determination of this matter. In summary, the needs of the employer's enterprise and the usual patterns of work in the industry in which the applicant worked, are factors that would support a finding that in this particular circumstance, there exists a reasonable requirement for the working of additional hours. Although there was no evidence provided about these particular factors, given the nature of tow truck driving work and its connection with accident and emergency situations there would be a generally held expectation that such work would usually involve some amount of work outside of the usual daily and weekly spread of hours.
[55] One difficulty in applying these factors to the circumstances of this case is that there was no clearly established position of the number of additional hours that the employer would seek to have the applicant work and for which the determination of reasonableness could then be made. It appeared that the employer rejected the applicant's compromise position of two or perhaps three weeknights on the call-in roster and that it would require nothing less than the applicant working on the full weekend roster as had broadly been developed over the preceding years. If such a fixed position was indeed that which the employer sought to apply it would seem to be unreasonable at least on the basis that it was incapable of reflecting any of the other factors set out within subsection 62 (3) of the Act. For example such a fixed approach to any requirement to work additional hours would seem to exclude any prospect for the personal circumstances of a particular individual to be taken into account. Relevant to the applicant’s circumstances, it would likely to be held, on any objective assessment, unreasonable to refuse to permit a person of the applicant’s age who had been engaged on the call-in roster for many years, to reduce the amount of additional hours worked compared to say, a younger person who had had less previous exposure to the working of additional hours.
[56] Further, the consideration of the NES factors would logically include reference to the provisions of the relevant Modern Award. As discussed earlier, the Award clearly contemplates that agreement would be required for the working of additional hours such as those that are arranged by way of the call-in roster. The need for agreement is reflected by the retainer payments that are made over and above any Award requirements. The retainer payments and other additional benefits can be identified from Exhibits 2 and 3. Therefore it would appear that the applicant, and any other employees, could accept or reject the retainer payments and other additional benefits offered as inducement to participate in the call-in roster. The retainer payments and other additional benefits represented another variable that could have been included in discussions that may have led to an agreed arrangement by which the applicant would rearrange his work life balance whilst still performing some level of call-in roster work.
Conclusion
[57] The applicant was dismissed because he allegedly “frustrated” his employment contract. This description misstated the actual basis for the dismissal. The employer dismissed the applicant because he withdrew his agreement to participate in a weekend call-in roster.
[58] The employer asserted that the applicant's contract of employment included a requirement that he work additional hours as arranged by way of a weekend call-in roster. In effect the employer treated the applicant's refusal to work on the weekend call-in roster as a repudiation of the employment contract and dismissed him on that basis.
[59] Upon analysis there was no stated or implied condition to the employment that required the applicant to participate in the weekend call-in roster. Further, the Award provided that participation in the weekend call-in roster required agreement and therefore the applicant had, as an Award right, the capacity to refuse to participate in the weekend call-in roster. Consequently the basis for the applicant's dismissal was contrary to the Award and did not constitute valid reason for dismissal. The absence of of valid reason for dismissal means that on a substantive basis the applicant’s dismissal was harsh, unreasonable and unjust.
[60] The process that the employer adopted when dealing with the applicant's retraction of his agreement to work on the call-in roster was unfortunate and deficient. The applicant was directed on to annual leave contrary to the notice requirements of the Award. At no point prior to dismissal was the applicant given clear warning that his refusal to continue to participate in the call-in roster might lead to dismissal. The employer's position in the negotiation with the applicant displayed an absence of compromise and moved to dismissal before the negotiation process had properly completed. Consequently the decision to dismiss the applicant was made by way of manifestly deficient procedure and therefore on a procedural basis the applicant’s dismissal was harsh, unreasonable and unjust.
Remedy
[61] The applicant initially sought reinstatement as an outcome from his application made under section 394 of the Act. During the Hearing the applicant advised FWA that he no longer sought reinstatement but instead compensation as remedy for his unfair dismissal. In the circumstances I am satisfied that reinstatement of the applicant would be inappropriate and that payment of compensation would represent an appropriate remedy for the applicant's unfair dismissal.
[62] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that were established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket 1 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd 2.
[63] Firstly, I confirm that an Order of the payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.
[64] Secondly, in determining the amount of compensation that I Order, I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.
[65] Specifically I note that there was no suggestion that any Order of compensation would have any particular impact on the viability of the employer's enterprise. The applicant had been employed for a period of about 10 years. The applicant had worked in the position of Tow Truck Driver for in excess of 33 years and in all likelihood would have continued in such employment until the nominal retirement age of 65 years. The applicant had made efforts to mitigate his loss and had obtained some alternative part-time employment in late May 2010. I accept the applicant's evidence about the amount of remuneration received in the part-time alternative employment obtained since dismissal.
[66] Thirdly, the question of any misconduct that may have contributed to the employer's decision to dismiss the applicant must be considered. The evidence established that there was an unpleasant exchange between the applicant and Mr Harvey on 25 January 2010. On balance it appeared that both men contributed to the argument. It could be construed that the applicant's withdrawal from the call-in roster without notice represented misconduct. As mentioned earlier, I believe that there was an obligation on the applicant to provide sufficient notice of his withdrawal from the call-in roster. Unfortunately on 27 January the employer directed the applicant onto annual leave without providing notice as required by the Award. In summary therefore each party appears to have “miss-conducted” themselves at various times and therefore I do not intend to reduce the amount of compensation Ordered as a consequence of any misconduct.
[67] Fourthly, the amount Ordered does not include any component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the applicant by the manner of the dismissal.
[68] Fifthly, the amount of compensation Ordered does not exceed the lesser of the total remuneration of the applicant for the period of his employment during the 26 weeks immediately before the dismissal, and half the amount of the high income threshold immediately before the dismissal. In this regard, half the relevant high income threshold is a figure of $54,150.00. By reference to pay slip advice documents filed by the employer, the total remuneration of the applicant in the 26 weeks immediately before dismissal, excluding payments made upon dismissal, is a figure of $23,408.82. Consequently the average gross remuneration of the applicant per week in the 26 weeks immediately before dismissal was $900.34.
[69] Consequently, for the reasons outlined above, I have decided that an amount equal to 25 weeks remuneration should be Ordered as compensation to the applicant. That amount is $22,508.50. Accordingly separate Orders [PR999124] providing for remedy in these terms will be issued.
COMMISSIONER
Appearances:
Counsel for the Applicant: Mr. Eugene P. White.
Solicitor for the Applicant: Mr. Charles Morgan of Nevin Lenne and Gross.
Representative for the Respondent: Mr. Tom Vargo of Motor Traders Association of NSW.
Hearing details:
Tuesday 15 June 2010
Wednesday 16 June 2010
1 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.
2 Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR998961>
0
0
0