Mr Gregorio Garcia v Hitec Welding Pty Ltd

[2014] FWC 9457

[2014] FWC 9457

FAIR WORK COMMISSION

DECISION

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

Mr Gregorio Garcia
v
Hitec Welding Pty Ltd
(U2014/7403)

DEPUTY PRESIDENT ASBURY BRISBANE, 24 DECEMBER 2014

Application for relief from unfair dismissal - Arbitration - Compensation award.

BACKGROUND

[1] Mr Gregorio Garcia applies under s. 396 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Hitec Welding Pty Ltd. Mr Garcia was employed by Hitech as a Mechanical Engineering Technician and his employment was subject to a s. 457 Visa arrangement pursuant to the Migration Regulations 1994.

[2] Mr Garcia was represented by Ms Midson of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU). Hitec sought permission to be represented by Counsel. Notwithstanding the objection on behalf of Mr Garcia, I decided to grant Hitec permission to be legally represented on the grounds that I was satisfied that the Company had previously been represented by Solicitors without objection, and it would enable the matter to be dealt with more efficiently having regard to its complexity.

[3] Mr Garcia was summarily dismissed on 7 May 2014 on the grounds of serious misconduct. The reason given for Mr Garcia’s dismissal as set out in a termination letter of that date was that he had failed to follow a reasonable and lawful direction to cease urinating behind storage containers running parallel to an external wall of Hitec’s main workshop, after being warned in writing and orally about this conduct.

[4] Mr Garcia agrees that he and other workers urinated on the perimeter of the site on occasions when a nearby port-a-loo was occupied, as it would take too long to walk to toilets. Mr Garcia also agrees that following a complaint by a worker from the consumables store workers were told at a tool box meeting in October 2013 to stop this practice. Mr Garcia maintains that he did stop urinating on the perimeter of the site and/or behind containers. After October 2013, Mr Garcia admits that he continued to urinate in scrubland adjacent to a yard he was occasionally required to work in. Mr Garcia said that he did this on only a few occasions. Urinating in this location was never raised with Mr Garcia by management of Hitec.

[5] Mr Garcia contends that he did not receive a written warning in relation to urinating on the perimeter of the site or behind containers and denies that he admitted to having engaged in this conduct after October 2013. Mr Garcia further contends that his dismissal was harsh, unjust and unreasonable on the basis that there was no valid reason for his dismissal, he was not afforded procedural fairness and the impact was particularly severe given his visa status.

[6] Mr Garcia gave evidence on his own behalf. 1 Evidence in support of the application was also given by Mr Danilo Clarito, a former colleague of Mr Garcia’s who was dismissed by Hitec a short time after Mr Garcia was dismissed.2 Evidence on behalf of Hitec was given by:

● Mr Jozef Lewandowski – Managing Director; 3
● Mr Maziar Davani – Consumable Store Manager; 4
● Mr Kenny Stewart – Supervisor; 5 and
● Mr John Hall - Safety Officer. 6

[7] I have had regard to s.396 of the Act and determined that this application was made within the period required by the Act, that Mr Garcia is a person protected from unfair dismissal, that Hitec is not a small business employer and that there is no issue of genuine redundancy.

[8] The application involves contested facts. After considering the matters in s. 399 of the Act and the views of the parties, I considered it appropriate to hold a hearing. Further, this application was heard immediately following the hearing in Danilo Clarito v Hitec Welding Pty Ltd 7on the basis that there were common witnesses and the parties accepted that this was the most appropriate and efficient way to deal with both applications.

CONSIDERATION

The reasons for Mr Garcia’s dismissal

[9] Mr Garcia’s employment was terminated by letter dated 7 May 2014 8. That letter asserts a history of warnings to Mr Garcia about urinating in various locations at the workplace as follows:

● Mr Garcia was issued with a warning notice on 26 March 2014 about the issue of him urinating in the area of the shed and not in the toilet facilities provided;
● That after the installation of a port-a-loo in July 2013 the urination continued but to a lesser extent;
● The issue was raised at a tool box meeting of 28 February 2014;
● Mr Lewandowski questioned Mr Garcia on 21 March 2014 about why he was urinating behind the containers and Mr Garcia told him he had stopped since the toolbox meeting;
● When the issue of Mr Garcia urinating behind containers was raised at a tool box meeting on 5 May 2014 Mr Garcia admitted to Mr Lewandowski that he was engaging in this conduct;
● This admission constitutes serious misconduct with respect to failing to follow a lawful and reasonable direction justifying Mr Garcia’s summary dismissal.

[10] In his statement in these proceedings, 9 Mr Lewandowski said that he was made aware in July 2013 that employees were urinating behind the storage containers running parallel to the external wall of the main workshop. The issue was raised at a tool box meeting on 12 July 2013 where it was made clear that this practice had to stop. As at 10 November 2012, the Company had provided proper toilet facilities consisting of 11 cubicles and a urinal and also placed a port-a-loo on site closer to the main workshop.

[11] On 28 February 2014 Mr Lewandowski gave a direction that the issue of where employees were urinating should be raised again at a tool box meeting and this occurred. Mr Lewandowski said that he was told by Mr Hall that Mr Garcia continued to urinate behind the storage containers after the February 2014 meeting. Mr Lewandowski also said that on 21 March he had a conversation with Mr Garcia and asked him why he was urinating behind the storage containers and Mr Garcia said that he had stopped this practice since the meeting in February. Mr Lewandowski said that after this discussion, he spoke with Mr Hall and told him that Mr Garcia was to be provided with a written warning “as a result of his actions”.

[12] Mr Lewandowski maintained that he again raised this issue at a meeting of employees on 5 May 2014 and spoke directly with Mr Garcia after the meeting. According to Mr Lewandowski, Mr Garcia admitted that he was still urinating behind the containers and said that he would “piss wherever he wanted to piss.” Angered by this response, Mr Lewandowski reviewed Mr Garcia’s file including his previous warning. Mr Lewandowski had another discussion with Mr Garcia on 6 May during which he told Mr Garcia he could not get away with what he had done.

[13] Under cross-examination Mr Lewandowski said that his statement was prepared based on information given to him by Mr Hall. Mr Lewandowski said that he was told that Mr Garcia was urinating behind the containers but did not know whether other employees were also doing this. Mr Lewandowski also said that he had only heard that Mr Garcia was engaging in this behaviour notwithstanding his reference to “people urinating behind the storage containers”. Mr Lewandowski maintained that it was not possible that other employees besides Mr Garcia were urinating in this location because supervisors would have told him if this was the case. Mr Lewandowski also maintained that the port-a-loo was installed only for Mr Garcia because he had been asked to stop urinating behind the containers. Further, Mr Lewandowski maintained that Mr Garcia had admitted urinating in this area because Mr Garcia told Mr Lewandowski that he had stopped this practice.

[14] Mr Lewandowski agreed that he did not attend the toolbox meeting in February 2014 at which he asserts that Mr Hall spoke about employees urinating behind the containers but maintained that Mr Hall told him one or two days later that Mr Garcia was continuing to do this. In relation to the conversation with Mr Garcia on 21 March 2014, Mr Lewandowski said that he told Mr Garcia to stop urinating and Mr Garcia said “yes he be stop”. Mr Lewandowski said that he probably signed the warning letter of 21 March 2014 and that Mr Garcia got that letter because it followed a verbal warning. Mr Lewandowski also said that he did not instruct Mr Hall to write the warning letter and that it was given to Mr Garcia because he did not stop urinating behind the containers.

[15] Mr Lewandowski maintained that during a conversation on 5 May 2014 Mr Garcia stated that he would “piss where he wanted to piss” and that he was furious about this statement. He agreed in response to a question from the Commission that he did not include a reference to that statement in the termination letter.

[16] Mr Davanai said that in October 2013 he complained to Mr Hall that about employees going around the side of the storage sheds and urinating. At some time in October or November 2013 Mr Hall held a toolbox meeting and told employees that this had to cease. In February 2014 another toolbox meeting was held where the same issue was raised by Mr Hall. After that meeting, Mr Davani said that he witnessed Mr Garcia continuing to urinate behind the storage sheds. Mr Davani formed a view that this was occurring because he would see Mr Garcia walk out from the sheds. According to Mr Davani there is nothing behind the sheds that Mr Garcia would be required to collect and there is no other explanation for what he was doing other than that he was urinating. On one occasion Mr Davani asked Mr Garcia what he was doing and Mr Garcia shrugged in response. As a result of this ongoing issue, Mr Davani spoke to Mr Hall again in March 2014.

[17] Mr Davani also agreed that the minutes of the tool box meeting on 5 May 2014 were accurate and that Mr Garcia was warned at that meeting. Under cross-examination, Mr Davani agreed that many workers were urinating in the workplace and lots were doing this around the back of the containers. Mr Davani said that he could smell urine in his office and noticed that someone was urinating on the containers. Further, Mr Davani said that he saw Mr Garcia coming from behind the storage area and fixing the belt and zip on his pants. Mr Davani maintained that it is possible that there is room between the containers for someone to walk into the area behind the containers.

[18] Mr Davani said that he saw this approximately ten months before the hearing and after the October 2013 tool box meeting. In response to the proposition that he assumed that Mr Garcia was doing this, Mr Davani said:

“Yes, because one time I saw him when he walked around from the container. I was maybe 10, 15 metres away. I said to him - not face-to-face because he was too far - I said to him, "Why do it like this? Why are you going there for pissing?" He just shrug his shoulder and then he did like this. That means he wanted to tell me the toilet is far from my office, actually his workplace.”

[19] Mr Davani also maintained that the only person he had seen doing this was Mr Garcia. In response to a question about when he observed this, Mr Davani said that it was a long time ago and he could not say exactly when. Mr Stewart said that the issue of urination behind storage containers has been going on for some time. This matter was discussed at a toolbox meeting on 28 February 2014 and employees were told to stop urinating behind the containers immediately. Mr Stewart said that he had a discussion with Mr Garcia after that meeting and Mr Garcia stated that he knew that Mr Hall was talking about him. Mr Stewart asked Mr Garcia whether he was continuing to urinate behind the storage containers and Mr Garcia said that he was.

[20] The matter was further discussed at a toolbox meeting on 5 May 2014, and Mr Hall observed that Mr Lewandowski who conducted that meeting was “strongly directing the issue towards Mr Garcia”. Mr Lewandowski named Mr Garcia and said that he was making direct eye contact with him. According to Mr Hall, the minutes of that meeting 10 accurately reflect what was discussed.

[21] Under cross-examination Mr Stewart did not agree with the proposition that urinating in the workplace was not an issue that was confined to Mr Garcia but said that he never actually saw anyone urinating behind the containers. However there were many issues raised - including by outside contractors - about the smell of urine in that area. Mr Stewart also disagreed with the proposition that the port-a-loo was installed because many people were urinating around the place and said it was installed because some people thought it was too far to walk from the workshop to the toilets. Further, Mr Stewart rejected the proposition that he was confusing the toolbox meetings in October and February and that the issue was discussed at the former meeting but not the latter.

[22] Mr Stewart maintained that after the toolbox meeting in February 2014, Mr Garcia did admit to him that he was urinating behind the containers. This admission shocked Mr Stewart and caused him to advise management of Hitec. Mr Stewart rejected the proposition that he reduced employees’ overtime if they upset him and said that he had only reduced Mr Garcia’s overtime when he complained of fatigue. In relation to this admission, Mr Stewart said:

“I'll tell you exactly - if I may do - I'll tell you exactly what happened after that meeting. I went and spoke to Greg in a sort of chucky sort of way. I said, "Greg, what's going on? What's that all about?" I said, "Are you still pissing on the containers?" He said, "Yes." I said, "You know that John is directing that towards you," and he said, "Yes," in a smirky, sort of cheeky way and I was a little bit stood back by it, actually, because this has been going on for some time. I really couldn't believe he said it.”

[23] Mr Stewart also said that at the meeting of 5 May 2014, Mr Lewandowski was upset and frustrated.

[24] Mr Hall said that in July 2013 the storage sheds were located in different area than that in which they are currently located. They were located parallel to the store room and there was dirt underneath them. There was a gap of around 70cm between the storage containers and the storeroom and enough space for someone to walk into the containers and storage sheds. There were often boxes and various items sitting outside the front of the containers but it has at all times been possible for someone to walk down the side to the area behind the containers. The distance from the storage containers to the storage sheds is close and the distance to the plumbed toilets is 150 metres. In June/July 2013 Hitec engaged a contractor to concrete areas of the worksite. The contractor advised Mr Hall that he could smell urine between in the area between the storage sheds and the storage containers.

[25] Upon becoming aware of this problem Mr Hall organised that a port-a-loo be installed closer to the store room/storage containers location. Mr Hall spent a number of days disinfecting the area to clear the smell. According to Mr Hall, Mr Garcia was working in the storeroom in July 2013 and ceased working in the office altogether from September 2013. Mr Hall raised this issue with all employees at a toolbox meeting in October 2013. He directed employees that they were to cease urinating anywhere other than the port-a-loo or the plumbed toilets and that further action would be taken if the order was disobeyed. Mr Hall said that he did not name anyone at that meeting but had suspicions that the applicant had been urinating in the area in question.

[26] According to Mr Hall, the issue was again raised by Mr Davani at the February 2014 meeting. At that meeting, Mr Hall raised the issue and made direct eye contact with Mr Garcia and stated “we know who it is and it is unacceptable”. After that meeting, Mr Hall made contact with Mr Lewandowski to advise him of what he had been told and then prepared the warning letter to Mr Garcia dated 26 March 2014. It was intended that this letter be handed to Mr Garcia but it was ultimately sent to him by mail.

[27] The warning letter 11 records that Mr Lewandowski spoke to Mr Garcia late on 21 March and asked him about urinating behind the containers and that Mr Garcia responded by saying that he had stopped after the toolbox meeting. The letter further records that this is unacceptable and that the warning is issued.

[28] Mr Hall was not present at the tool box meeting on 5 May 2014 but was subsequently told by Mr Lewandowski to terminate Mr Garcia’s employment due to his ongoing behaviour and a recent conversation between Mr Lewandowski and Mr Garcia. Mr Hall organised for a termination letter to be prepared. Mr Hall was informed that Mr Garcia did not want to attend a meeting with management of Hitec and when he was made aware of this handed Mr Garcia the letter of termination.

[29] Under cross-examination, Mr Hall agreed that the storage sheds have been moved but disputed the proposition that access has been blocked or that Mr Clarito was instructed to put equipment there which blocked access. Mr Hall agreed that he disinfected areas other than the containers but those areas were in proximity to the containers and included the shed wall. Mr Hall agreed that the port-a-loo was not installed for one worker but generally for the benefit of the workforce to eliminate the practice of employees urinating around the container area. Mr Hall did not inquire about how many people were engaging in this practice and did not know at this point who was doing it.

[30] Mr Hall agreed that he did not personally approach Mr Garcia about this issue in July 2013 and that he did not mention names at the October 2013 toolbox meeting because he did not know who was urinating behind the containers. Mr Hall maintained that Mr Davani raised the issue of urinating behind the containers a few minutes prior to the tool box meeting in February 2014 and made a comment during the meeting about this issue. Mr Hall maintained that he eyeballed Mr Garcia about this issue at the meeting but did not inquire of him as to whether it was true that he was continuing to urinate in the area in question. In relation to the warning letter dated 26 March 2014, Mr Hall said that it was not handed to Mr Garcia because of the lateness of the hour as it was not drafted until around 7.30 pm. It was decided that it would be posted. The delay in preparing the letter was because Mr Hall was undertaking research in relation to the contents. In relation to his evidence that Mr Garcia did not want to attend a meeting with Hitec management prior to the termination of his employment, Mr Hall said that he was informed of this by a supervisor (Mr Stewart) who had been told to go and ask Mr Garcia to attend the meeting. Mr Hall agreed that Mr Stewart told him that Mr Garcia wanted a representative and in response to that request, Mr Hall hand delivered the termination letter.

[31] Mr Garcia’s evidence can be summarised as follows. From the commencement of his employment until April 2013, Mr Garcia worked as a Mechanical Engineering Technician 12 and was based in an office referred to as the “old office”. There was an old toilet cabin that was used by employees working in the old office. In or around April 2013, the office moved to a new office building at the other end of the site and the old toilet cabin was dismantled. The new office building had 12 toilets although six in the back of the building were locked off and not used. Mr Garcia said that he noticed that a lot of workers in the fabrication shop would urinate on the perimeter of the work site and that he would see this occurring at least once each day.

[32] In or around July 2013 a “port-a-loo” was installed near the old toilet cabin. According to Mr Garcia there was only one port-a-loo for some 70 employees in the fabrication shop, electrical assembly area and the stores. The port-a-loo was installed so that workers did not have to walk all the way to the new office building, which takes approximately 10 minutes. In September 2014, Mr Garcia was required to work in the store following a meeting with Mr Lewandowski where he was told that he was making too many mistakes. Mr Garcia said that he is overqualified for this position but performed the role without complaint because he was afraid that he would be dismissed.

[33] Most workers including Mr Garcia would not walk to the new office building because of the distance and Mr Garcia saw many urinate on the perimeter of the work site. Mr Garcia also said that the port-a-loo smelled bad and that he and other workers would urinate on the perimeter of the work site if the port-a-loo was occupied.

[34] Mr Garcia attended a tool box meeting in or around late October or early November 2013. During that meeting a worker from the consumables store complained about other employees urinating near the store and Mr Hall stated that this practice was unhygienic and that workers needed to stop urinating near the containers. Mr Hall said that he could “name names” but did not mention any names in that meeting. Following that meeting, Mr Garcia stopped urinating on the perimeter of the site as did other employees. On a few occasions, Mr Garcia urinated in an area of scrubland away from buildings and workers. He did this because he was required to work in that area and there was no bathroom or toilet facility provided. This was not mentioned to Mr Garcia before his dismissal.

[35] Mr Garcia said that on 21 March 2014, Mr Lewandowski approached him and said that Mr Garcia should “stop pissing on the back containers”. Mr Garcia responded by saying “that was a long time ago” and Mr Lewandowski again said: “Just stop pissing there”. Mr Garcia said that he nodded in response because he did not want to make Mr Lewandowski angry. Mr Garcia also said that he assumed that this comment was in relation to the complaint at a tool box meeting about employees urinating near the container store for consumables.

[36] Mr Garcia also gave evidence about a discussion with Mr Lewandowski on 5 May 2014 during which Mr Lewandowski poked him in the chest and told him that he would get away with “pissing near the container and the incident with Marlon. According to Mr Garcia the incident with Marlon was a disagreement with a work colleague which was resolved amicably.

[37] At a work meeting also on 5 May 2014 Mr Lewandowski addressed employees about a number of matters. According to Mr Garcia, Mr Lewandowski spoke angrily about employees joining the Union and raised the issue about urinating near the back of the containers. Mr Garcia said that Mr Lewandowski was looking at him when he made those comments.

[38] Under cross-examination, Mr Garcia maintained that he did not continue to urinate behind the containers after the October 2013 tool box meeting. Mr Garcia also maintained that there was no discussion about this at the February 2014 tool box meeting and that he did remember talking to Mr Stewart after that meeting. Mr Garcia also said that he would not have admitted to Mr Stewart that he was continuing to urinate behind the containers because Mr Stewart could have cut his overtime.

[39] Mr Garcia said that he could not recall Mr Davani asking him what he was doing behind the storage shed and that he did not shrug his shoulders and refuse to answer that question. Mr Garcia maintained that he did not receive the warning letter and had not seen it until it was provided by Hitec as part of its material in relation to his unfair dismissal application. In relation to the discussion with Mr Lewandowski on 21 March 2014, Mr Garcia maintained that when Mr Lewandowski told him to stop urinating at the back of the containers, he responded by saying: “Sir that was a long time ago”.

[40] Mr Garcia agreed that the minutes of the toolbox meeting of 5 May were an accurate reflection of what was discussed except that the allegation about him bullying other workers was not raised. Mr Garcia said that he did not respond Mr Lewandowski’s comment that he was to cease urinating behind the containers because he was afraid. Mr Garcia also denied that he told Mr Lewandowski that he would “piss wherever I want to piss.” Mr Garcia said that had he received a clear warning to the effect that his employment was in jeopardy in July 2013 he would have immediately stopped urinating on the perimeter of the site as he wanted to remain in employment and was fearful of losing his job.

[41] Mr Clarito said that in November 2012 when new bathrooms were installed at the other end of the site, may workers would urinate on the permitter of the site instead of walking to the toilets. At that time the site was not concreted and there were places for workers to urinate discretely. Mr Clarito urinated on the perimeter of the site because it was too far to walk to the new toilets and he thought he would look lazy if he did so. A toilet was requested by another worker in November 2012 but this was not installed. When the Port-a-loo was installed in July 2013 it was often in use and workers continued to urinate on the perimeter of the site. The stores containers were moved to the corner of the site in October 2013 and the area was concreted. Workers stopped urinating in that area because it was more public.

[42] Mr Clarito said that the toolbox meeting where Mr Davani’s complaint about the issue of employees urinating near the stores containers was discussed took place in November 2013, and by that time employees had stopped urinating in that area. In the third week of January, Mr Clarito blocked access to the containers with empty crates so that no-one could get behind them anymore. Mr Clarito and Mr Garcia would urinate in the second yard which was remote. Mr Clarito was dismissed not long after Mr Garcia’s dismissal.

[43] Under cross-examination Mr Clarito agreed that after January 2014, employees could still access the area behind the containers by accessing it from another direction. Mr Clarito maintained that the area was public because it could be seen from another area known as the hyrdo. In response to a question from the Commission Mr Clarito said that the location of the hydro had not changed in the period under consideration. Mr Clarito also maintained that there was no discussion about employees urinating behind containers in the February 2014 tool box meeting and that this practice had stopped prior to that meeting.

LEGISLATION

[44] It is necessary for me to determine whether or not Mr Garcia’s dismissal was harsh, unjust or unreasonable having regard to the criteria referred to in s.387 of the Act which is set out below:

“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 for followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”

[45] The Commission is obliged to make a finding about whether or not there was a valid reason for dismissal. 13 A valid reason for dismissal is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”14 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts15, and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.16

[46] In matters involving misconduct, the Commission must look at the conduct of the dismissed person and determine on the balance of probabilities what the conduct was and whether it took place. 17 The test is whether the conduct took place, not whether the employer believed on reasonable grounds, after sufficient enquiry, that the conduct took place.18 In determining whether a dismissal is unfair:

“It is not the [Commission’s] function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the [Commission] to assess whether the employer had a valid reason connected with the employee’s capacity or conduct...” 19

[47] The matters in s.387 go to both substantive and procedural and substantive fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:

Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 20

[48] There is a distinction in the provisions of the Act between “serious misconduct” and “misconduct”. The former term is defined and the latter is not. The term “serious misconduct” is defined in s.12 of the Act and Regulation 1.07 as follows:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or
(ii) fraud; or
(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”

[49] Regard may be had to this definition to decide whether there is a valid reason for the dismissal of an employee who is alleged to have engaged in serious misconduct.

CONSIDERATION

Was there a valid reason for Mr Garcia’s dismissal? - s. 387(a)

[50] I accept that generally an employee who urinates in a work area will have engaged in misconduct that could constitute a valid reason for dismissal. This is particularly so when the employee has been warned about the matter and disregards the warning.

[51] In the present case, it is clear that for a period of time there was a practice whereby employees would urinate at the perimeter of the work site following the relocation of toilets to a more distant area. On balance, I am satisfied that Mr Garcia was not the only employee who engaged in this practice. Mr Lewandowski’s explanation of the reference in his witness statement to “people” urinating in the workplace was highly unconvincing and I do not accept it. I am also of the view that Mr Stewart, Mr Hall and to a lesser extent, Mr Davani were not entirely frank in their evidence about the extent to which employees had generally engaged in this practice. It is improbable that Mr Garcia alone could urinate in an area to the extent that complaints about the smell would be generated and Mr Hall would be required to spread several litres of disinfectant to overpower it.

[52] It is also clear that there were works undertaken in or around October 2013 where the areas in which employees were urinating were concreted and a direction was issued to employees that this practice should cease at a toolbox meeting held in October or November 2013.

[53] I accept that the practice did not cease. Mr Davani was adamant that he continued to notice the smell of urine in the area behind the containers into January 2014 and I can see no basis for finding that he was not honest in his evidence on this point. I also accept that it is probable that Mr Garcia continued to urinate behind the containers. He was working in an area close by and there is no evidence that others were working in that area.

[54] Further, I accept that the issue of employees urinating behind the containers was raised at a toolbox meeting in February 2014. Mr Hall’s evidence on this point was clear as was the evidence of Mr Stewart and Mr Davani. On the other hand Mr Garcia said he could not remember the issue being raised. Mr Clarito also did not state that the matter was not raised but said that he could not remember it being raised and that it would not have been raised because the practice ceased. On balance I accept the evidence of the witnesses for Hitec on this point.

[55] However, I am unable to accept that there was a sound or defensible basis for a conclusion to be drawn that Mr Garcia was the culprit and that he was the only employee who urinated in that area or if he did that he was the only employee who engaged in that conduct. Taken at its highest, Mr Davani’s evidence was that he observed Mr Garcia adjusting his clothing while walking out of that area on one occasion. Although Mr Garcia was one of two persons working in that area, there was no real evidence about the numbers of other employees who accessed that area. The evidence about who could access the area and by what route was inconclusive.

[56] Significantly, Hitec has a dedicated health and safety manager. There is no evidence that any investigation was conducted by that manager or by Mr Lewandowski. Rather, it is apparent from the evidence that because Mr Garcia had previously admitted to urinating in that area, a conclusion was reached that he had continued to do so. The lack of proper investigation means that I am unable to be reasonably satisfied that there was a valid reason for Mr Garcia’s dismissal.

[57] I do not accept that Mr Garcia admitted that he continued to urinate in the area after October 2013. The evidence about the conversation between Mr Lewandowski and Mr Garcia on 21 March at which that admission was allegedly made is far from clear. After considering both versions of the discussion, I am of the view that it is more probable than not that Mr Lewandowski misunderstood what Mr Garcia said to him. English is not the first language of either Mr Lewandowski or Mr Garcia and they do not have a common first language. If I accept that both versions of the conversation accurately reflect the understanding of each of the participants, it is probable that Mr Garcia believed that he told Mr Lewandowski that he had not urinated behind the containers for a long time and that Mr Lewandowski believed that he said he would stop doing so.

[58] I also note that the warning letter records that Mr Garcia said he had stopped urinating in that area, not that he admitted to still doing so.

[59] Further, I do not accept Mr Lewandowski’s evidence that on 5 May 2014 Mr Garcia told him that he would “piss wherever I want to piss”. It is improbable that Mr Garcia, a vulnerable worker because of his visa status, would have made such a statement to Mr Lewandowski, the Managing Director of his employer and sponsor. It is even more improbable that Mr Lewandowski would have tolerated for a nanosecond that such a statement was made to him by Mr Garcia, much less that Mr Lewandowski would have walked away after such a comment was made and considered his position and decided on 7 May to dismiss Mr Garcia. Mr Lewandowski had no compunctions about directing Mr Hall to write or termination letter or issuing an instruction that Mr Garcia should be dismissed. That he would not have taken such action immediately in the face of such a statement from Mr Garcia beggars belief.

[60] For these reasons I am satisfied and find that there was no valid reason for the dismissal of Mr Garcia.

Was Mr Garcia notified of that reason? - s. 387(b)

[61] Mr Garcia was notified of the reason for his dismissal by letter dated 7 May 2014.

Was Mr Garcia given an opportunity to respond? - s. 387(c)

[62] Mr Garcia was given no opportunity to respond to the allegations of misconduct that resulted in his dismissal. Mr Garcia was requested to attend a meeting to discuss the allegations of misconduct. He requested to be represented at that meeting by his Union and upon making that request was simply handed a pre-prepared letter informing him that his employment was terminated and told to leave the premises immediately. It is difficult to envisage a greater denial of procedural fairness.

Was there an unreasonable refusal to allow Mr Garcia to have a support person present? - s. 387(d)

[63] As noted above, Mr Garcia asked to have a support person present and was told that his employment was terminated with immediate effect. In my view the failure to even consider his request for representation constituted an unreasonable refusal to allow him to have a support person present. This is not a case where Mr Garcia’s request could have delayed the meeting for an unreasonable period or where he was offered alternative representation. Quite simply, his request was not even considered.

Was Garcia was warned about his conduct? - s. 387(e)

[64] I am not satisfied that Mr Garcia was warned about his conduct. Naming him at a tool box meeting (if this in fact occurred) does not constitute a warning. I am also unable to accept that he received the written warning dated 21 March 2014. I do not go as far as to find that the written warning tendered to the Commission was fabricated. However, I am of the view that it is passing strange that it was sent to Mr Garcia in the mail. If, as Mr Hall stated, the warning was prepared at or around 7.30 at night, the quickest and most secure way to give it to Mr Garcia would have been to wait until the next day and deliver it to him personally. Further, on the terms on the letter raise questions about why it was required to be given at all. The letter records that Mr Garcia said he had stopped the very conduct he is being warned about.

To what degree did the size of the employer’s enterprise likely impact on the procedures followed in effecting the dismissal? - s. 387 (f)

[65] Hitec is not a small employer and at the time of Mr Garcia’s dismissal, employed some 70 persons. The Company employs a Health and Safety Manager who also plays a human resource management role as evidenced by the fact he drafted Mr Garcia’s termination letter. There is no basis for finding that the size of Hitec impacted on the procedures followed – or lack of thereof – in effecting Mr Garcia’s dismissal.

To what degree did the absence of dedicated human resource management specialists or expertise in the enterprise likely to impact on the procedures for followed in effecting the dismissal? - s. 387(g)

[66] For the reasons set out in relation to s. 387(f) this is also not a relevant factor in the present case.

Are there any other relevant matters? - s. 387(h)

[67] As previously noted, Mr Garcia is a vulnerable worker due to his visa status. The termination of his employment in his personal circumstances has had an additional harsh effect in that he is not eligible for any social services. It has also impacted on his family and his desire to bring them to Australia. I accept Mr Garcia’s evidence about these matters.

[68] I also note that this is the second dismissal effected by Hitec where an employee who has been invited to a meeting to discuss an allegation of misconduct, and who has requested assistance from a Union representative, has been dismissed upon making such a request. The same treatment was afforded to Mr Clarito, whose application for an unfair dismissal remedy was heard immediately prior to this matter 21.

[69] This is an appalling manner in which to treat employees who are accused of serious misconduct. It is exacerbated by the fact that in both cases, the employees have been vulnerable employees who are working under s. 457 visas.

CONCLUSIONS

Mr Garcia’s dismissal was unfair

[70] I am satisfied that Mr Garcia’s dismissal was unfair on the basis that it was harsh, unjust and unreasonable. The dismissal was harsh because of its consequences for Mr Garcia’s personal circumstances including his vulnerability on the ground of his visa status. The dismissal was unreasonable because it was decided on inferences that could not reasonably have been drawn from the material before the employer given its failure to properly investigate the matter.

Remedy

[71] I am satisfied that Mr Garcia should have a remedy for his unfair dismissal. Mr Garcia seeks compensation. In the circumstances of this case, I am of the view that reinstatement would not be an appropriate remedy. I have also determined that compensation is an appropriate remedy for Mr Garcia’s unfair dismissal. In relation to compensation, s. 392 of the Act provides:

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWC considers relevant.

Misconduct reduces amount

(3) If FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or
(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[72] Both parties provided final submissions and witness statements in relation to remedy. Neither party sought to cross-examine persons who made statements on behalf of the other party and left the matter of any award of compensation to be determined on the basis of the material on the file.

[73] In relation to the factors I am required to consider, there is no evidence that any order for compensation will affect the viability of Hitec’s enterprise. The submissions on behalf of Mr Garcia also point to the fact that Mr Lewandowski gave evidence that the business is expanding from year to year and going from strength to strength.

[74] Mr Garcia had twenty-three months service with Hitec. In relation to the remuneration he would likely have received had he remained in employment, it is submitted that Hitec has sponsored Mr Garcia under a s. 457 visa arrangement for a period of four years and that he may have remained in employment with Hitec beyond that period and been sponsored for permanent residency. Mr Lewandowski also gave evidence that Hitec produces $30 million a year.

[75] It is stated in the final submission on behalf of Mr Garcia it is asserted that he earned $64,500 in the six month period immediately preceding his dismissal. He also states that his hourly rate for ordinary time was $32 per hour and for overtime $48 per hour. No evidence to support this assertion was provided either in the form of payslips or bank deposit records. Mr Hall’s statement indicates that Mr Garcia’s earnings were $61,841.60 for the period of 7 November 2013 until 7 November 2014 and that superannuation contributions of $5,720.35 were made on his behalf.

[76] Mr Garcia gave evidence that he had applied for over 40 jobs since his dismissal both on-line and in person and attached a computer generated summary of those positions. As previously stated, Mr Garcia is not eligible for social services because of his visa status and had not earned any remuneration between his dismissal and the date upon which he made a statement in relation to compensation. Mr Garcia also states that it is unlikely that he will obtain other employment in the foreseeable future.

[77] Hitec submits that Mr Garcia has not provided sufficient evidence in relation to efforts to mitigate the loss of his employment and contends that he has failed to detail the suitability of the roles for which he applied; details of relevant contact persons including those who interviewed him and proof that the applications were submitted. It is also contended that notwithstanding his statement that he is disadvantaged because of his visa status, Mr Garcia has not sought reinstatement and instead seeks compensation.

[78] Mr Hall who provided a statement on behalf of Hitec asserts that the minutes from a May 2014 tool box meeting in evidence in these proceedings indicate that in 6 – 8 weeks Hitec will be dramatically reducing the number of employees due to lack of work and that current contract work is due to be completed at that time. It is also asserted by Mr Hall that had Mr Garcia continued to be employed past May 2014 he would likely have received $30,694.72 gross plus superannuation contributions of $2,916 on the basis that Hitec’s current work/load order book will be completed by November 2014.

[79] Mr Hall also gives the following evidence:

● Hitec has no assured work orders that are classified as imminent;
● Hitec continues to seek work in the oil and gas industry which is slowing down;
● The advertisements referred to by Mr Clarito were in relation to a project which did not proceed and no personnel were hired;
● The number of employees of Hitec has decreased from 76 to 58 between May and October 2014 and further reductions are likely;
● In the six months prior to his dismissal Mr Garcia earned $61,841.60 gross including holiday pay and was paid superannuation contributions of $5720.35.

[80] Mr Hall also said that 40% of the work for current employees has been reduced to 38 hours per week, only selected employees are working overtime and 20% of employees are working 3 days a week.

[81] Hitec submits that Mr Garcia contributed significantly to his dismissal and that it was due to his misconduct. These matters should result in a 90% discount of any award of compensation. It is also submitted that a further discount should be made on the basis of contingencies.

Conclusion in relation to remedy

[82] It is not in dispute that Mr Garcia had some twenty-three months of service with Hitec. There was conflict in the evidence from Mr Hall and Mr Garcia in relation to the amount Mr Garcia earned in the six months prior to his dismissal and the amount he would have earned had he remained in employment. Neither Mr Hall nor Mr Garcia produced pay slips or other documentary evidence to support their assertions on this point.

[83] Using the figures available to me, I calculate that at the time he was dismissed Mr Garcia’s base annual salary was $63,232.00 (on the basis of a 38 hour ordinary week) and superannuation contributions were $5,960.88 (on the basis of 9% of his base annual salary. Given the state of the evidence and that it is untested, I do not have a sufficient basis to find that compensation should be calculated to include amounts for overtime or on the basis of what was earned in the six months prior to Mr Garcia’s dismissal.

[84] There is insufficient evidence upon which I could be satisfied that Mr Garcia would have had his hours reduced to the extent Mr Hall states or that he would have necessarily been dismissed in October 2014. Given that neither Mr Clarito nor Mr Hall were cross-examined about their evidence, I estimate that Mr Garcia would have worked a 38 hour week had he remained in employment for the six months following his dismissal.

[85] I also estimate that but for his unfair dismissal, Mr Garcia would have remained in employment for at least a further six month period. In this regard he had no formal warnings in relation to his conduct and work performance. It is also the case that had the allegations against Mr Garcia been properly investigated a different conclusion might have been reached. Further, had a written warning been issued to Mr Garcia early in the chain of events his dismissal might also have been avoided. In that six month period, Mr Garcia would have earned a base annual salary of $31,116.00.

[86] I accept that Mr Garcia has made reasonable attempts to mitigate the loss of his employment. He has given evidence of having applied for over 40 positions, and was not cross-examined about that evidence. I also accept that Mr Garcia would face additional obstacles in gaining alternative employment on the basis of his visa status and that he has earned no income for the six month period following the termination of his employment.

[87] I am satisfied that Mr Garcia did contribute to his dismissal by urinating in places where he should not have and that this conduct occurred until at least October 2013 and probably thereafter. Balanced against this is the probability that Mr Garcia was not the only employee who urinated in places where he should not have. In those circumstances I intend to make a deduction of 25% from the compensation I intend to award Mr Garcia.

[88] In the circumstances where the employer has given evidence of a downturn in business that may have resulted in a reduction in Mr Garcia’s hours of work or the termination of his employment on the basis of redundancy, I intend to make a further 25% deduction for contingencies.

[89] I have determined to award compensation to Mr Garcia in the amount of $15,558.00 and an amount of $1,400.22 with respect to superannuation contributions. There is no evidence from Hitec in relation to its financial capacity to pay such compensation, and on the basis that the Company was given an opportunity to lead such evidence, I do not propose to provide a further, opportunity in relation to his matter.

[90] However, I have also awarded an amount of compensation to Mr Clarito in respect of his unfair dismissal. In relation to Mr Clarito, Hitec has requested that it be permitted to pay compensation to Mr Clarito in instalments. In circumstances where two employees have been awarded amounts of compensation which are not insignificant, I am prepared to consider a further submission from Hitech setting out a reasonable proposal for the amount of compensation awarded to Mr Garcia to be paid in instalments, and the basis upon which that request is made.

[91] The submission from Hitec in relation to payment by instalments is required to be filed by 5.00 pm on Friday 9 January 2015. Any response to that submission is required to be filed by 5.00 pm on 16 January 2015. If permission is granted for payment of the compensation amount by instalments, the Order will also operate so that any default will result in the full amount becoming immediately due and payable. If submissions from Hitec are not received by the required date, the full amount will be ordered to be paid by 23 January 2015.

DEPUTY PRESIDENT

Appearances:

L.Midsen of the AMWUon Behalf of the Applicant.

N.Jarro of Counsel instructed by Mullins Lawyers on behalf of the Respondent.

Hearing details:

2014.

Brisbane:

October 8, 9, 10, 11

 1   Exhibit 1 Statement of Gregorio Garcia; Exhibit 2 Statement in Reply of Gregorio Garcia.

 2   Exhibit 4 Statement of Danilo Clarito.

 3   Exhibit 5 Statement of Jozef Lewandowski.

 4   Exhibit 6 Statement of Maziar Davani.

 5   Exhibit 7 Statement of Kenny Stewart.

 6   Exhibit 8 Statement of John Hall.

 7   U2014/7640

 8   Exhibit 1 Statement of Gregorio Garcia Annexure “GG4”.

 9   Exhibit 5.

 10   Exhibit 4.

 11   Exhibit 9

 12   Exhibit 1 Annexure “GG1”.

 13   Edwards v Giudice 94 FCR 561.

 14   Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 15   Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

 16   Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

 17   Farrugia v Transadelaide SAIR 6.

 18   King v Freshmore Print S4213.

 19   Walton v Mermaid (1996) 142 ALR 681 at 685.

 20   Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.

 21   U2014/7640

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