Mr Jason Richardson v Aaction Traffic Pty Ltd

[2021] FWC 2650

[2021] FWC 2650

FAIR WORK COMMISSION

DECISION

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

Mr Jason Richardson
v
Aaction Traffic Pty Ltd

(U2020/11417)

DEPUTY PRESIDENT LAKE BRISBANE, 11 MAY 2021

Application for unfair dismissal remedy – dismissal for serious misconduct – whether valid reason for dismissal – application dismissed.

[1] Mr Jason Richardson (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging that he was unfairly dismissed from his employment with Aaction Traffic Pty Ltd (the Respondent). The Applicant seeks financial compensation.

PROCEDURAL HISTORY

[2] The Applicant lodged their Form F2 Unfair Dismissal Application on 21 August 2020. A Form F3 Employer Response was filed by the Respondent on 31 August 2020. The matter was listed for a conciliation before a staff conciliator, but it did not settle. The matter was then allocated to me for hearing and determination on 14 September 2020.

[3] The matter was listed for a telephone hearing at 11:00am on 20 October 2020.

[4] The Applicant objected to the Respondent’s use of paid representation on the grounds that it was not a complex matter and the size of the Respondent’s company rendered it capable of dealing effectively with the matter. However, representation was allowed on the basis that the Respondent’s representative, Mr Lloyns, had corresponded on the Respondent’s behalf and, while he attended to assist, he was not a solicitor.

[5] The Respondent contended that the Applicant was dismissed lawfully, that the application had no reasonable chance of success in that “the application is both frivolous and vexatious, it represents an abuse of process” and asserted that the Applicant brought the application for collateral purposes, one as a vendetta against both the Respondent, and in particular, Mr Kelly, and owner Mr Edwards. Notwithstanding that allegation, I determined to hear the matter, based on my preliminary view, that the Applicant’s application was genuinely made.

[6] The primary issue before me was whether the Applicant was unfairly dismissed.
EVIDENCE

[7] The Applicant filed a witness statement on his own behalf. His wife also prepared a statement. The Respondent relied on the witness statement of Mr Paul William Kelly, Managing Director of the Respondent. I have summarised their evidence.

[8] By way of background, the Respondent supplies the full range of traffic management services to the building and civil construction and maintenance sectors, along with both public and commercial utilities or organisation on a 24 hour, seven days a week basis.

[9] Prior to the Applicant commencing his employment with the Respondent, he and Mr Kelly had known each other socially for many years.

[10] The Applicant commenced his employment with the Respondent on 6 August 2018 as an Operations Supervisor with a salary of $52,000. At that time, the Applicant states that there was no mention of a requirement to be on call outside of hours. That was disputed by the Respondent.

[11] The Respondent’s business underwent a restructure in 2018 and the Applicant was appointed to the position of Regional Supervisor of the Sunshine Coast and Gympie Region on 10 December 2018, with an increased salary of $75,000. The Applicant asserts that again no mention was made of the need to be on call until shortly before Christmas in 2018, when he was informed that he would be included in the on-call roster. He claims that he did this work unpaid, out of loyalty to Mr Kelly, on the basis that it would be short term.

[12] Mr Kelly gave evidence that he believed that the Applicant was aware that supervisory staff had to assist with a weekend on-call roster and participation was mandatory duty for all employees in positions like the Applicant. He went on to say that Applicant had assisted in the development of an earlier iteration of the roster. Accordingly, the Respondent submitted that the requirement to participate in the on-call roster was within the position description which required the Applicant to comply with “any reasonable legal request from the Managing Director”. The Respondent argued that the on-call roster was a reasonable request as it was commonplace in the industry and employees could swap their weekends amongst themselves as desired, without oversight from Mr Kelly.

[13] On 11 May 2020, the Applicant asked Mr Kelly to remove him from the on-call roster because of the negative effect it was having on his family and his mental wellbeing. The Applicant stated that his continued participation in the on-call roster would result in his divorce. Mr Kelly responded to that remark with words to the effect of “don’t put that on me”. Nevertheless, Mr Kelly did remove the Applicant from the roster from late March 2020 even though that decision placed an additional burden on the other staff, who began complaining to Mr Kelly that the Applicant was receiving special treatment.

[14] The situation became untenable, according to Mr Kelly, when another employee sent him the following email on 21 July 2020:

‘I want to make you aware of my disappointment and frustration in Jason Richardson’s lack of Team Work when it comes to the After Hours roster, he hasn’t been on call for about 3 months and this is adding extra pressure to everyone else as we continually having to cover him, as you know I asked him for help this weekend as it is my weekend on call, but I’m also working on the ICB closure Saturday night – he refused, to me this far from ‘Team Work’… He’s the one that drew up the Roster… all that’s needed from him is to do 1 weekend in 5 – not really too much to ask!!!”

[15] Mr Kelly forwarded the complaint to the Applicant and informed him that he would be included in the on-call roster in future.

[16] On 24 July 2020, the Applicant made a formal request to not be included in the roster, referring again to the detrimental impact being on-call had on his family life and mental health. Mr Kelly told him that the business expected the Applicant to cooperate with his colleagues and be included in the on-call roster as per his employment obligations.

[17] On 30 July 2020, Mr Kelly again told the Applicant he would be required to comply with the on-call roster obligations. If he did not want to do so, the Applicant could go back to being a traffic controller. In those circumstances, his employment would be governed by the business’ Enterprise Agreement. During this discussion, the Applicant told the Respondent that he wanted his current position to be terminated before he would consider any other positions within the Respondent’s business.

[18] Regarding the alleged conversations on 30 July 2020, the Respondent alleged that the Applicant’s version of events omitted two salient details. First, that the Applicant had indicated words to the effect, “he would do anything if it was for me”, but after the disagreement that he had with the owner, Ron Edwards in late March 2020 he would not be doing anything extra for the business. Second, that after the Respondent reiterated that the Applicant was required to participate in the on-call roster, the Applicant said words to the effect of “you will need to terminate my position first before I would consider any other employment within the business”.

[19] On 30 July 2020, whilst in the vehicle with the Applicant, the Respondent agrees that he told the Applicant that his current position was at risk if he did not return to the on-call roster. He also agrees that the Applicant had indicated he would not return to that roster due to the pressure his wife was putting on him.

[20] On the morning of 3 August 2020, Mr Kelly emailed the Applicant giving him until close of business that day to inform him whether he had reconsidered his position over the weekend. It was accepted that email referred to whether he would return to the on-call roster or accept the alternative position. Curiously, this email attached a termination letter (in accordance with the Applicant’s request). That letter read:

“Dear Jason

As per our discussions on Thursday 30^th July 2020, this letter services as notice that the company will be terminating your employment as Regional Supervisor, effective two weeks from the date of this letter.

Your final day will be Friday the 14^th August 2020, whereby all entitlements will be paid to you, and all company equipment that is issued to you will be returned or collected.

As advised, the company has an expectation that the particular role that you and others within the organisation, adhere to the after-hours weekend rotating roster, which is to answer, and act accordingly to calls from clients and field staff.

This requirements has been verbally explained and reinforced via email, from myself on a number of occasions.

Your refusal to partake in this important part of the role had left the company with the only available option which was to offer you a role as a Permanent Part Time Traffic Management Implementor.

You stated that you would consider that option, after I had provided you the required notice to dismiss you from your current role.

I take this opportunity to remind you of your obligations under the contract between the parties, including the post-employment obligations.

I had hoped that this situation would have had an entirely different outcome, but I wish you well for the future.

Sincerely
Paul Kelly”

[21] The Applicant stated that this letter failed to address whether consideration was given to the Applicant’s demonstrated ability and exemplary standards of prior conduct, with an unblemished employment record and recent promotion.

[22] The Applicant engaged Paul Cradden of the Australian Workers Union to have discussions with the business on his behalf.

[23] Those discussions took place on 4 August 2020, between Mr Kelly and Mr Cradden. At that meeting, the only options put forward by Mr Cradden to resolve the matter was either reinstate the Applicant in his previous position, without requiring him to participate in the on-call roster or pay him $50,000 “to go away quietly”. The Respondent viewed this demand as “emotional blackmail boarding [sic] on extortion” and a betrayal.

[24] Later that day, Mr Kelly contacted the Applicant to inform him that his employment was terminated effective immediately and that he would receive three weeks’ pay in lieu of notice. That was later confirmed by email.

THE LAW

[25] Section 390 of the Act provides that the Commission may order a remedy for unfair dismissal if the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed and the Applicant has been unfairly dismissed. Both limbs must be satisfied.

[26] Neither party suggested that the Applicant was not protected from unfair dismissal at the time of the termination of his employment. In any event, I am satisfied he was.

[27] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[28] The parties did not dispute that the Applicant had been dismissed within the meaning of s.385 of the Act.

[29] The Applicant requested that he be issued with a termination letter before he would consider any alternative position with the Respondent. The Respondent ceded to that request on 3 August 2020. A copy of that letter was extracted above. Neither party suggested that the Applicant’s request to be terminated meant he was not “dismissed” within the meaning of the Act.

[30] Further, the parties’ conduct indicates that the Applicant’s employment was not terminated by letter on 3 August 2020. Indeed, the email to which that letter was attached, asked whether the Applicant had reconsidered his position. That suggests that conversations were ongoing. On that basis, despite the email attaching the termination letter on 3 August 2020, I am satisfied that the parties understood that the Applicant’s employment was terminated by the Respondent on 4 August 2020 and that that termination falls within the meaning of “dismissal” in s.385 of the Act.

[31] I am also satisfied that the Small Business Fair Dismissal Code did not apply and that the dismissal was not a case of genuine redundancy. Accordingly, I must consider whether the dismissal was harsh, unjust or unreasonable.

Was the dismissal harsh, unjust or unreasonable?

[32] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

[33] For there to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 1 and should not be “capricious, fanciful, spiteful or prejudiced.”2 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.3

[34] The Applicant submitted that there was no valid reason for the dismissal on the basis that the on-call roster was not part of the terms of his employment. The crux of his submissions was that he had agreed to participate out of loyalty to Mr Kelly for a short period but was not required to under the terms of his contract. The Applicant alleged that the requiring of an employee to participate in the on-call roster was not a reasonable request. On that basis, the Applicant alleges that his refusal to continue to participate in the roster could not have constituted a breach of his employment contract and therefore was not a valid reason for dismissal.

[35] The Applicant also made submissions in relation to ‘unreasonable overtime’ and cited Sheldrick v Hazeldene’s Chicken Far Pty Ltd (2014) FWC 5820. He pointed to the requirement to participate in the on-call roster as being a variation to the terms of his employment. The Applicant submits that as he was a salaried employee, he was not being paid overtime or shift work penalties and that his remuneration did not compensate for the extra hours now required by the on-call roster.

[36] The Respondent submitted that the Applicant’s refusal to participate in the on-call roster constituted a valid reason for dismissal on the basis that it was a breach of his employment contract. Specifically, the Respondent relied upon the term of the Applicant’s employment contract which stated that, “the Employee must… perform the duties as detailed in the position description, which is attached to the letter of offer” and the statement in the position description, which specified that an Operations Supervisors’ general duties included to comply with “any reasonable request from the Managing Director, Compliance Manager or Operations Supervisor – Rosters”. The Respondent submitted that having an on-call roster was fairly standard industry practice and that the salary offered to Operations Supervisors took into account their seniority and additional responsibilities. Consequently, the Respondent alleges that the direction from Mr Kelly for employees to participate in the on-call roster constituted such a request and that therefore the Applicant’s refusal was a breach of the terms of his employment.

[37] The Respondent further submits that the Applicant’s conduct before and after the termination of his employment has reached the definition of serious misconduct as defined in both the section 12 of the Act and regulation 1.07 of the Fair Work Regulations 2009 (Cth).

[38] Whether the reason for dismissal was valid turns on whether the request that the Applicant, as an Operations Supervisor, participate in the on-call roster was a reasonable request.

[39] The right of an employer to direct their employee is implied at common law, stemming from the ability of an employer to exert control over their employees.  4 Employees have a duty of obedience which requires an employee to comply with any lawful and reasonable direction given by a superior.5 A breach of this implied duty may constitute a breach of contract, and in turn, misconduct, which may provide the basis of a valid reason for dismissal. To be lawful, a direction does not require a positive statement of law endorsing the action. Rather, a direction can be classified as lawful provided it does not involve illegality and “falls reasonably within the scope of service of the employee.”6

[40] The question of what is reasonable is a “question of fact and balance”.  7 The fact that a “better” direction may have existed does not make a particular request unreasonable. Rather, what constitutes a reasonable request must be assessed in light of all the circumstances of the employment relationship. 8

[41] In this case, the nature of the Respondent’s request was that the relevant staff member take home a work phone once every five weekends and attend the site of an accident if required. Mr Kelly’s evidence was that this was standard practice across their industry. He noted that the remuneration of Operations Supervisors was commensurate to the responsibilities of their role, of which this was one. The Applicant had assisted in developing the first iteration of the roster. The complaint from the other staff member in respect of the Applicant’s failure to participate indicated that he, at least, did not think the on-call roster was unreasonable. Rather, he was frustrated with the Applicant’s refusal to cooperate.

[42] In terms of the reasonableness of the request, I found it significant that the Operations Supervisors were free to switch weekends between themselves if they did not want to work on their rostered weekends. It was also worth mentioning that, when the Applicant initially raised the impact the roster was having on his life, Mr Kelly removed him from it temporarily. It was not the case that the roster was strictly imposed on the employees without any regard for their personal circumstances. Rather, it was a responsibility shared among the more senior employees and they were afforded flexibility within the arrangement so that they could minimise the impact on their personal lives.

[43] For the reasons set out above, I find that Mr Kelly’s request that the Applicant participate in the on-call roster was a reasonable request. Accordingly, I am satisfied that the Applicant’s refusal breached the terms of his position description and by extension, his contract. The Applicant repeated refusal to participate in the roster, therefore, constituted a valid reason for terminating his employment.

Was the Applicant notified of the valid reason?

[44] Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 9 and in explicit10 and plain and clear terms.11

[45] The Applicant indicated in his material that he understood, as early as late July, that if he did not agree to participate in the on-call roster, his employment might be terminated or he would be offered a lesser position.

[46] The Respondent submitted that the Applicant was notified of the valid reason on 24 July 2020 and 30 July 2020 when Mr Kelly raised it verbally with the Applicant and then again by email on 3 August 2020.

[47] Having regard to the evidence set out above, I am satisfied that the Applicant was notified of the reason for his dismissal prior to the decision to dismiss being made, and in explicit, plain and clear terms.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[48] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 12

[49] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 13 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.14

[50] The evidence of both the Applicant and Mr Kelly indicates that discussions were had between the men about the Respondent’s issues with the Applicant electing to not participate in the on-call roster. I will not repeat the evidence that was summarised above. Having forwarded on the complaint from the other employee to the Applicant, Mr Kelly had a discussion with the Applicant, heard his concerns about the impact that the on-call roster would have on his family but then indicated that the Applicant would have to participate in roster. As was stated above, the Respondent was of the view that by failing to do so, the Applicant was in breach of his employee obligations.

[51] The Applicant arranged for a union representative to meet with the Respondent and advocate on his behalf. That occurred on 4 August 2020. Following that discussion, the details of which are set out above, the Responded decided to terminate the Applicant’s employment That was communicated to the Applicant by phone and followed by written communication.

[52] I am satisfied that the Applicant had an opportunity to respond.

Did the employer unreasonably refuse to allow the person to have a support person present to assist at any discussions relating to dismissal?

[53] The initial conversations between the Applicant and Mr Kelly were in an informal setting, without a support person. It is unclear whether one was offered, though it seems unlikely. In any event, at that stage, the conversation was not one relating to dismissal. Rather, it was Mr Kelly communicating the complaints he had had from another supervisor about the Applicant’s unwillingness to participate in the on-call roster and how they may move forward, either with the Applicant participating in the roster or taking a lesser role that did not require him to be on-call. In an ideal world, it may be that the Applicant should have been offered a support person, however I do not think the lack of one dramatically changes the circumstances, particularly given Mr Kelly met with the Applicant’s union representative on 4 August 2020, before making the decision to terminate the Applicant’s employment.

[54] I am therefore satisfied that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present.

The degree to which the size of the employer’s enterprise or 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

[55] As I have indicated above, the process in this dismissal may be imperfect, particularly in respect of the issuing of the termination letter on 3 August 2020. It is unlikely that someone more experienced in human resources management would agree to such a request from the Applicant.

[56] For the reasons set out above, I am satisfied that the process taken did not unduly affect the dismissal.

Any other matters

[57] The Applicant submits that he instructed Mr McCradden, his union representative, to negotiate his employment dispute and request $50,000 to live with himself for not righting a wrong.

[58] The Applicant submits that the dismissal also comes in the middle of a global pandemic, with the Applicant already experiencing financial hardship due to the nature of the Respondent’s decision, and that the Applicant will undoubtedly face an extended period of unemployment and/or underemployment due to the current environment and the Respondent’s strict post-employment restraints. The Applicant further submitted that due to the current economic climate, it would be difficult for him to find alternative employment.

[59] The Applicant requests reinstatement into the same or substantively similar position and compensation leading up to the date of reinstatement.

Conclusion

[60] Notwithstanding those other matters, for the reasons outlined above, I am satisfied that the Applicant was not unfairly dismissed.

[61] I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Printed by authority of the Commonwealth Government Printer

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 1   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 2   Ibid.

 3   Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

 4   Michael King v Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta[2014] FWCFB 2194, [26]-[29].

 5   Ibid; R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday; Ex parte Sullivan (1938) 60 CLR 601, 621.

 6   Ibid; Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374, [142], endorsing the decision of the Full Bench in Grant v BHP Coal Pty Ltd[2014] FWCFB 3027, [110].

 7   Construction, Forestry, Mining and Energy Union v Glencore Mt Owen Pty Ltd[2015] FWC 7752, [8]-[11].

 8   Ibid; Woolworths Limited (t/as Safeway) v Brown (26 September 2005) (PR963023).

 9   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 10   Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

 11   Ibid.

 12   Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

 13   RMIT v Asher (2010) 194 IR 1, 14-15.

 14   Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.