Mr Ian Fraser v Warp Pty Ltd
[2014] FWC 4388
•17 JULY 2014
[2014] FWC 4388 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ian Fraser
v
WARP Pty Ltd
(U2013/13594)
COMMISSIONER CLOGHAN | PERTH, 17 JULY 2014 |
Unfair dismissal.
[1] On 13 September 2013, Mr Ian Fraser (Mr Fraser or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his employment with WARP Pty Ltd T/A WARP Traffic Management (WARP or Employer).
[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[3] At the hearings on 4 March and 14 April 2014, the Applicant represented himself and gave evidence on his own behalf. The Employer was represented by Ms Beeson, Human Resources Consultant. Mr Chapman, General Manager, gave evidence on behalf of the Employer.
[4] At the conclusion of the hearing on 14 April 2014, I reserved my decision. This is my decision and reasons for decision.
RELEVANT LEGISLATIVE FRAMEWORK
[5] There is no dispute between the parties that Mr Fraser has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework is ss.385 and 387 of the FW Act.
[6] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) ...
(d) ...”
[7] The criteria for whether a dismissal was harsh, unjust or unreasonable can be found at s.387 of the FW Act and is as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
RELEVANT BACKGROUND
[8] On 28 August 2013, the following letter of termination of employment was forwarded to Mr Fraser. The relevant parts are:
“Further to our earlier correspondence I confirm you are currently on a period of leave.
Despite our requests the company has not received a medical certificate from you and considers this period of leave to be an unauthorised period of leave...
As we have been unable to discuss this matter with you in person and you are avoiding making contact with the company we find ourselves in a position that we much write to you regarding a very serious matter that has been identified and consequently investigated by WARP group.
WARP group is aware that on Monday 26 August you attempted to sabotage the company by deliberately attempting to cancel the company’s registered training organisation accreditation...a full investigation has been conducted into these allegations and there is very clear and indisputable proof that you have engaged in activities that are a serious breach of contract and could potentially have caused immense irreparable damage to the business...
We consider this behaviour to be gross misconduct. It was wilful and deliberate behaviour that struck at the heart of the employment relationship. Your actions are inconsistent with the continuation of your contract of employment and we have subsequently made the decision to terminate your employment.” 1
[9] The “sabotage” referred to relates to an email sent by Mr Fraser to Mr Michael Sharp, Regulation Officer, Education and Training Regulation, Department of Educational Services (DES) on 26 August 2013 at 7:37 am. The email is short and reads as follows:
“Please withdraw the application. We are currently reviewing the situation”. 2 (my emphasis)
[10] Mr Fraser’s email is in response to Mr Sharp’s email of 22 August 2013. Mr Sharp’s email relates to the Employer’s application for renewal of its registration as a Registered Training Organisation (RTO) 3. The DES correspondence required additional evidence from the Employer.
[11] Mr Sharp’s correspondence of 22 August 2013 referred to in paragraph [10] above explains that the Training Accreditation Council will not consider the renewal of the Employer’s registration application until the reporting requirements have been met. Further, “your response should be received no later than 12 September. Should your response not be received by this date your application will be returned.” 4
[12] What was Mr Sharp’s response to Mr Fraser’s email which withdrew the Employer’s renewal of registration as a RTO?
[13] Approximately 1.5 hours after receiving Mr Fraser’s email, Mr Sharp responded relevantly as follows:
“If you withdraw your organisation’s application for renewal of registration, the current registration expiry date (30 September 2013) will apply. Warp Pty Ltd will no longer be able to operate as an RTO after this date.
If you still wish to withdraw this application, your organisation’s Legally Responsible Person will need to confirm in writing, or by return email”. 5 (my emphasis)
[14] In my view, Mr Sharp’s response to Mr Fraser’s email withdrawing the Employer’s RTO application demonstrates two concerns. First, withdrawal of the application has the consequence of the Employer being unable to carry out any business activities as a RTO. Secondly, given the seriousness of such a decision to withdraw its application, the DES required confirmation from a person within the Employer’s organisation at a legally responsible level and not Mr Fraser.
[15] The renewal of the RTO registration is a five (5) yearly occurrence.
[16] In parallel with Mr Fraser’s withdrawal of the RTO application, he was also being required to respond to a workplace complaint.
[17] The Employer was investigating a workplace complaint against Mr Fraser and a meeting on Thursday 22 August 2013 had been adjourned to Monday 26 August 2013 at 8:00 am. This performance review meeting on 26 August 2013 was, in turn, adjourned to Tuesday 27 August 2013 to allow Mr Fraser to provide a response to the workplace complaint. Mr Fraser was given leave from his duties and responsibilities on 26 August 2013 to prepare for the meeting on Tuesday 27 August 2013.
[18] On arriving home after the performance meeting on 26 August 2013 to prepare his response to the complaint, Mr Fraser communicated with his General Practitioner. From 26 August to 1 December 2013, Mr Fraser was on sick leave, however, the sick leave certificate was only received by the Employer on 5 September 2013.
[19] At 14:59 pm on Monday 26 August 2013, Mr Fraser emailed the Employer’s Workers’ Compensation Coordinator an email stating that he would not be attending work “tomorrow” and had a medical certificate which he would “bring in”.
[20] On Wednesday 28 August 2013, the Employer became aware that Mr Fraser had, without authorisation, withdrawn WARP’s renewal of registration as a RTO. This withdrawal of re-registration as a RTO by Mr Fraser took place approximately 20 minutes before his discussions regarding a workplace complaint against him. In view of this consequence of this action, the Employer formed the view that it was serious misconduct and Mr Fraser’s employment was terminated on the same day through the correspondence referred to in paragraph [8] above.
CONSIDERATION
[21] Section 387 of the FW Act sets out the matters which the Commission must take into account in determining whether a dismissal was “harsh, unjust or unreasonable”. In seriatim, they are as follows.
s.387 (a) - was there a valid reason for the Applicant’s dismissal?
[22] I have adopted the definition of a valid reason stated by North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 in the following terms:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”
[23] Mr Fraser opened his closing submission with the words “WARP has actually failed to provide any real evidence of misconduct here. They say their processes are fair and open but they have been unable to actually provide any evidence of that.” 6
[24] For the benefit of the Applicant, I intend to address both issues, the first being the misconduct.
[25] The Applicant does not address in his witness statement his conduct in withdrawing the Employer’s registration as a RTO, save to say, that he is totally committed to WARP training.
[26] In oral evidence, Mr Fraser states that the rationale behind his conduct was, “...and I’m responsible for this...I hadn’t got the training information, I hadn’t got the information on the directors...” 7 Mr Fraser describes the application as “quite shoddy”. Mr Fraser’s evidence is that, “what I wanted to happen was to withdraw it, get all the information together and go forward with it.”8
[27] Having had the benefit of observing the witness, I consider Mr Fraser’s evidence a retrospective justification. This is particularly so when, notwithstanding his dismissal, Mr Fraser, without prompting, informed the Commission that subsequent to his dismissal, WARP registration as a RTO was suspended because it had failed the renewal registration audit 9. This evidence, I observed, was given by Mr Fraser with a certain amount of satisfaction.
[28] Mr Fraser’s intentions in his email withdrawing the Employer’s renewal of registration as a RTO became more apparent when he gave evidence, in his witness statement, that when he received his letter of termination of his employment, he believed he had been dismissed for communicating with the Training Advisory Council (TAC) that he was no longer the person responsible for renewal of the RTO 10. Mr Fraser gave evidence that he received his letter of termination of employment on: 28 August 2013,11 the “day after”,12 and “it might not have been the day after”13. This evidence is important because on 6 September 2013, Mr Fraser forwarded to Mr Chapman an email which states:
“I am currently on sick leave and will return to address other outstanding matters once cleared by my doctor and specialist.” 14
[29] Mr Fraser, without the Employer’s knowledge, informed the TAC that he was no longer WARP’s representative regarding RTO matters while allegedly on sick leave up to 5 September 2013. This occurred at a time when the Employer was unable to contact him regarding why he had withdrawn the Employer’s RTO registration. Alternatively, Mr Fraser became aware of his dismissal by registered post on 28 August 2013 or the day after, in which case, the email of 6 September 2013 was make-believe as he had already been dismissed.
[30] Mr Fraser’s evidence was neither convincing nor credible.
[31] When it was put to Mr Fraser why he had advised the DES that he was no longer the person responsible for the RTO, he responds by giving evidence that “there’s a degree of confusion...I wasn’t actually firing on all six cylinders at that time” 15. In my view, the confusion is not associated with the events, but the Applicant’s “ex post facto” reconstruction of events. The most convincing evidence from Mr Fraser was as follows:
“All right. Okay, so you knew the consequences of withdrawing the application. So can you explain whilst you were on leave why you didn't bring your request to withdraw the application to the attention of Mr Chapman so that he could manage its outcomes?---After I'd been suspended, sacked, all right, I wasn't going to do anything to help Mark [Mr Chapman].” 16
[32] In conclusion, I find that:
● Mr Fraser had no authority to withdraw the Employer’s application for renewal of registration as a RTO;
● Mr Fraser did not inform his superiors that he had withdrawn the application;
● Mr Fraser knew the serious consequences of withdrawing the application;
● the withdrawal of the application had the consequences of the Employer having to spend time, resources and expenses of recommencing the process again. Further, the Employer had to incur costs of re-application, lost revenue, and while not registered, unable to operate its business as a RTO; and
● finally, while Mr Fraser was uncontactable for the Employer regarding withdrawal of the registration as a RTO, he was sufficiently able to advise the Training Advisory Council that he was no longer the Employer’s representative with regards to the RTO.
[33] I consider Mr Fraser’s actions meet the definition of serious misconduct in accordance with Regulation 1.07 of the Fair Work Regulations 2009 as conduct that causes serious and imminent risk to the reputation, viability or profitability of the Employer’s business.
[34] However, Mr Fraser cannot be seen in isolation as, in parallel, the Employer was investigating Mr Fraser’s conduct regarding a workplace complaint.
[35] From the documents provided at the hearing, I am satisfied that on 9 May and 1 July 2013, Mr Fraser received two memoranda from the Employer entitled, “Re; General attitude towards fellow employees”. 17
[36] In both memoranda, Mr Chapman, General Manager, refers to incidents which, in the first case, involves the use of “profane language” towards an employee when asking him to leave the Applicant’s office. The memorandum also refers to emails from Mr Fraser to other staff showing a disdain towards fellow employees. The second incident referred to by Mr Chapman involved the “pushing” of an employee in which the Employer characterises as an assault which will not be tolerated or accepted. Mr Chapman concludes his memorandum of 1 July 2013 with the words, “I don’t want to ever hear or see an incident like this again”.
[37] Mr Chapman’s memoranda could have been more particularised, however, the Employer had put Mr Fraser on notice that certain aspects of his behaviour was unacceptable and a repeat of such behaviour would put his employment at risk.
[38] On 14 August 2013, Mr Chapman received a complaint about Mr Fraser from Mr Martin, Operations Manager. In the complaint, it was alleged that Mr Fraser was shouting and swearing at Mr Martin; this behaviour had been witnessed by other employees.
[39] On Thursday 22 August 2013, Mr Fraser was asked, by email, to attend a meeting with Mr Chapman. The meeting was for the purposes of addressing the complaint by Mr Martin but described as a “performance review”. The Applicant could bring a “support person” with him to the meeting.
[40] Mr Fraser gave evidence that he had not seen the email setting up the meeting but was asked to attend a meeting by Mr Chapman on Thursday 22 August 2013 in which Ms Beeson was also present. 18
[41] Because Mr Fraser had not seen the email, and the purpose of the meeting, it was postponed by the Employer shortly after it started. 19
[42] From the evidence, I am satisfied that Mr Fraser was given a copy of Mr Martin’s complaint at the meeting. 20
[43] Mr Fraser claimed he had been ambushed at the meeting and advised Mr Chapman and Ms Beeson that he would discuss the matter with his lawyer. 21
[44] The performance review meeting on 22 August 2013 was postponed to Monday 26 August 2013.
[45] At the meeting on Monday 26 August 2013, Mr Fraser stated that Mr Martin’s complaint was grossly exaggerated and had not been properly investigated. 22 Mr Fraser was asked to respond to the complaint.23 Mr Fraser sought more time to prepare a response to the complaint24. The Employer agreed and the discussion was adjourned to the following day, Tuesday 27 August 2013.25
[46] On arriving home on Monday 26 August 2013, Mr Fraser gave evidence that he was in a “very bad mental state” 26 and obtained an appointment with his General Practitioner27.
[47] According to Mr Fraser’s statement of facts/witness statement:
“As a result of that doctor’s appointment, I was “signed off” for the remainder of the week.
Doctor Helen Ryan (Victoria Park Medical Centre) also advised me that she would be away the following week, but I was to take additional time off if I felt I required it and she would sort out a medical certificate on her return”. 28 (my emphasis)
[48] Mr Fraser’s evidence is not conclusive of whether he actually attended the medical practice or saw Dr Ryan. However, it appears that a medical certificate was not issued on 26 August 2013 and would only be available at some time in the future.
[49] After communicating with his General Practitioner on Monday 26 August 2013, Mr Fraser emailed Ms Davis, the Employer’s Workers’ Compensation Coordinator (not Mr Chapman or Ms Beeson) that he would not be attending work “tomorrow”. And importantly, “I have a medical certificate which I will bring in” 29. I was not persuaded by Mr Fraser’s evidence as to why he contacted Ms David instead of Mr Chapman or Ms Beeson.
[50] In my view, the extent of the email to Ms Davis illustrates Mr Fraser’s indifference towards his responsibilities. The Employer had no knowledge of the period of sick leave because the certificate was not received by the Employer until 6 September 2013 certifying Mr Fraser as unfit for work from 26 August to 1 September 2014. Clearly, Mr Fraser knew that his absence was more than “tomorrow”.
[51] Although the Employer considered whether it should dismiss Mr Fraser while on “leave”, it did so because it could not make any contact with him by email or telephone. The Employer could not obtain a response from Mr Fraser as to the allegation of serious misconduct in withdrawing the Employer’s RTO renewal of registration.
[52] An employee cannot claim that processes are not fair and open if he or she deliberately makes themselves unavailable. When employees make themselves uncontactable, there is a distinct possibility that the employer will act without a response from the employee, especially in cases of serious misconduct.
[53] In making this observation, it is not an invitation to employers to override the need to act procedurally fair. The circumstances of this application are somewhat different to the normal disciplinary investigations.
[54] In summary, I find that the Employer had a sound, defensible and well founded reason to dismiss Mr Fraser for serious misconduct.
s.387(b) - notification of the reasons for termination of employment
[55] Mr Fraser was notified of the reasons for the termination of his employment.
s.387(c) - opportunity to respond
[56] The Employer unsuccessfully attempted to contact Mr Fraser to obtain a response to the allegation.
s.387(d) - support person
[57] The Applicant was advised that he could have a support person present. Consequently, the Employer did not unreasonably refuse to allow a support person.
s.387(e) - unsatisfactory performance
[58] Mr Fraser’s employment was terminated due to his conduct in withdrawing without authority the Employer’s five (5) yearly renewal of its registration as an RTO on 26 August 2013. However, Mr Fraser’s conduct occurred during an investigation which commenced on 22 August 2013 into a workplace complaint about his unsatisfactory performance.
[59] Mr Fraser’s witness statement is that after the initial meeting on 22 August 2013:
“Having recently been given a $10,000 pay rise, I had no reason to be concerned about the meeting and gave it no further thought”. 30 (my emphasis)
[60] Mr Fraser then proceeds to state in his witness statement that at the rescheduled meeting on 26 August 2013:
“The purpose of the meeting I was told, was a performance review in relation to an incident report concerning my behaviour with reference to an earlier incident [Mr Martin’s complaint]...I cannot remember what was said, as I was in a state of shock to find that I had been seriously ambushed and suspended from work”. 31 (my emphasis)
[61] However in cross examination, Mr Fraser concedes that:
● he was advised that the purpose of the meeting was a serious complaint by Mr Martin at the previous performance meeting on Thursday 22 August 2013 32:
● the Employer stated that it would be unfair to have the meeting on Thursday 22 August 2013 as Mr Fraser had been unable to arrange a support person 33;
● he was provided on Thursday 22 August 2013 a copy of the incident report by Mr Martin 34;
● the Employer advised him that it would manage the complaint against Mr Fraser fairly and that his responses would be carefully considered 35; and
● it is “quite possible” that he advised Mr Chapman and Ms Beeson that he felt he was being ambushed and would be contacting a lawyer.
[62] I find it improbable and implausible that after such a meeting on Thursday 22 August 2013 Mr Fraser “gave it no further thought” 36.
[63] Irrespective of the “$10,000 pay rise”, (which the Employer explains as payment for sales), I find it inconceivable that Mr Fraser gave Mr Martin’s complaint “no further thought” when he was asked at the meeting on 22 August 2013 to consider the allegation and prepare a response.
[64] In summary, while Mr Fraser was dismissed for serious misconduct, it occurred at a time when the Employer was investigating for the third time in a relatively short period of time, his performance as it related to his relationship with other employees.
s.387(f) - size of enterprise
s.387(g) - Human Resources
[65] The Employer is not a small business. However, the Employer is reliant upon an external Human Resources Consultant. In the circumstances, the Employer’s process relating to the withdrawal of registration as a RTO and Mr Fraser’s performance contained the elements of fairness.
s.387(h) - other matters
[66] I have not taken any other matters into consideration.
CONCLUSION
[67] In conclusion, for the reasons set out above, I am satisfied that Mr Fraser’s dismissal from his employment was not unfair pursuant to s.387 of the FW Act. Accordingly, the application must be dismissed. An Order to this effect is issued conjointly with this Decision.
COMMISSIONER
Appearances:
I Fraser, the Applicant.
J Beeson withM Chapman, on behalf of the Respondent.
Hearing details:
2014:
Perth,
4 March and 14 April 2014.
1 Exhibit R6
2 Exhibit R3
3 Exhibit R3
4 Exhibit R3
5 Exhibit R3
6 Transcript PN549
7 Transcript PN220
8 Transcript PN220
9 Transcript PN222
10 Exhibit A1
11 Transcript PN229
12 Transcript PN250
13 Transcript PN251
14 Exhibit R6
15 Transcript PN234
16 Transcript PN245
17 Exhibits R4 and R5
18 Transcript PN171
19 Transcript PN176
20 Transcript PN177
21 Transcript PN181
22 Transcript PN186
23 Transcript PN188
24 Transcript PN189
25 Transcript PN189
26 Exhibit A1
27 Exhibit A1
28 Exhibit A1
29 Exibit R6
30 Exhibit A1
31 Exhibit A1
32 Transcript PN176
33 Transcript PN176
34 Transcript PN177
35 Transcript PN178
36 Exhibit A1
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