Mr Jeremy Ryman v Thrash Pty Ltd trading as Wisharts Automotive Services

[2015] FWC 3942

[2015] FWC 3942 [Note: An appeal pursuant to s.604 (C2015/4591) was lodged against this decision - refer to Full Bench decision dated 18 December 2015 [[2015] FWCFB 5264] and 4 April 2016 [[2016] FWCFB 1638]] respectively for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Jeremy Ryman
v
Thrash Pty Ltd trading as Wisharts Automotive Services
(U2015/33)

COMMISSIONER CAMBRIDGE SYDNEY, 12 JUNE 2015

Unfair dismissal - Small Business Fair Dismissal Code - dismissal with payment in lieu of notice - misconduct - misconduct sufficiently serious to justify immediate dismissal - Code applied and dismissal deemed fair - dismissal not harsh, unjust or unreasonable - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to s. 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 5 January 2015. The application was made by Jeremy Ryman (the applicant) and the respondent employer is Thrash Pty Ltd trading as Wisharts Automotive Services (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 5 January 2015. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Orange on 14 and 15 April 2015.

[4] At the Hearing, Mr P Boncardo, solicitor, appeared for the applicant. The applicant and one other witness were called to provide evidence in support of the claim. The employer was represented by Ms J A Webb, a barrister, who called a total of four witnesses who provided evidence on behalf of the employer.

Factual Background

[5] The applicant worked for the employer for about 3 years and 7 months. The applicant was employed as a motor mechanic. The applicant worked at the employer’s automotive service and repair business located in the New South Wales country town of Orange. The applicant performed a wide range of what may be described as motor mechanic duties.

[6] The employer is a small business and at the time of the applicant’s dismissal it employed five people. The employer is a family business operated by the owners, Mr and Mrs Wishart.

[7] The work performance of the applicant as a motor mechanic was not the subject of any identified criticism and he was regarded by the employer as a competent motor mechanic. However, during 2014 the employer observed what it described as the development of increasingly moody behaviour of the applicant at work.

[8] In the later part of 2014, the employer had cause to speak to the applicant on two separate occasions about the presence of friends of the applicant utilising the employer’s workshop facilities after business hours. The employer permitted its employees, including the applicant, to utilise the workshop facilities outside of business hours. However, this arrangement did not extend to any sanction for the presence of friends of employees at the workshop outside of the hours of the business operation.

[9] The allegedly increasing moody behaviour of the applicant culminated in an incident that occurred on the afternoon of Friday 19 December 2014. The incident of 19 December was a matter of significant evidentiary contest. However, at the very least, the December 19 incident involved the applicant having a strong disagreement with the employer, Mr Wishart.

[10] Friday 19 December was the last day of a full working week before Christmas. The employer had arranged to hold an end of year function or what might also be described as “Christmas drinks” to occur after an early finish, circa 3pm, on that Friday.

[11] At about 2 pm on 19 December the applicant was working on a motor vehicle when the employer, Mrs Wishart, asked him what particular food or drinks he would like to have the employer purchase for him to consume later at the “Christmas drinks”. The evidence of what followed from the inquiry of the applicant made by Mrs Wishart diverges dramatically.

[12] The applicant either politely told Mrs Wishart, “Nothing thanks. I don’t think I’ll go.” 1 Or alternatively the applicant responded by yelling at Mrs Wishart, “I’m not fucking going because I’m not fucking drinking with fucking Captain Klepto!”2

[13] Upon either version of the evidence of the December 19 incident, an argument occurred shortly following from the applicant’s response to Mrs Wishart’s inquiry as to the applicant’s preferences for personal consumption at the “Christmas drinks” function. The nature, detail and severity of the applicant’s conduct during the argument on 19 December were matters of significant contest and which have become critical to the determination of the claim for unfair dismissal remedy.

[14] The applicant continued to work for a short time after the argument had quietened on 19 December. Following the argument, the employer, Mr Wishart, first directed the other employees who were present at the workshop to leave the premises and then he also told the applicant to finish work and he indicated to the applicant that he could complete the task that he was undertaking on the following Monday, 22 December.

[15] The applicant did not attend the employer’s “Christmas drinks” function nor did he attend for work on Monday 22 December. The applicant sent an SMS message to the employer, Mr Wishart, at 6:57am on Monday 22 December, advising that he would not be attending for work. The SMS that the applicant sent to the employer mentioned that the reason for the applicant’s absence from work was connected with his business interests in a Hotel at Rankin Springs (a town approximately 300 kilometres from Orange). The employer was aware of the applicant’s involvement in the Hotel at Rankin Springs and responded to the SMS message with an acknowledgement and acceptance of the applicant’s absence.

[16] The employer stated that it was somewhat relieved to receive the SMS advice of the applicant’s non-attendance on the Monday morning because over the weekend Mr and Mrs Wishart had considered the applicant’s conduct during the Friday 19 December incident and they were intending to dismiss the applicant on the Monday morning.

[17] The applicant did not attend for work on Tuesday 23 December and he did not provide any advice to the employer concerning this absence. The employer’s business commenced a scheduled Christmas/New Year closure from the close of business on 23 December until it reopened on 5 January 2015. Consequently, the applicant was not rostered to return to work until 5 January 2015.

[18] On 24 December the employer changed the locks on the front gates of the business premises. Consequently, when the applicant attended for work on the morning of 5 January he was unable to unlock the gates and gain entry into the premises. Mr and Mrs Wishart arrived at the business premises a short time after the applicant and they unlocked the gates and entered the workshop with the applicant. Mr Wishart then told the applicant that as a result of, inter alia, the 19 December incident, his employment was terminated. Mrs Wishart confirmed this verbal advice to the applicant.

[19] The applicant was provided with an employment separation certificate dated 7 January 2015, which was the only written confirmation of the verbal advice of his dismissal given on 5 January. The employment separation certificate contains the following information regarding the reason for dismissal: “serious misconduct intimidation / yelling / swearing witnessed by customers & other staff.”

[20] The applicant was paid three week’s wages in lieu of notice. The applicant has obtained some alternative casual employment since the dismissal.

The Case for the Applicant

[21] Mr Boncardo, who appeared for the applicant, made verbal submissions in addition to documentary material that had been filed. Mr Boncardo submitted that the applicant had been unfairly dismissed.

[22] The submissions made by Mr Boncardo addressed both the substantive merits issues of the claim and issues which surrounded the operation and application of the Small Business Fair Dismissal Code (the Code).

[23] Mr Boncardo made detailed submissions which, in summary, contended that the employer was unable to rely upon the Code in respect to the summary dismissal components of the Code because the employer had paid the applicant three weeks wages in lieu of notice. Therefore, according to Mr Boncardo the dismissal of the applicant was not a summary dismissal for the purposes of any application of the Code.

[24] Further, it was submitted by Mr Boncardo that the provisions of the Code as they related to dismissal other than summary dismissal, had not been complied with by the employer. Consequently, Mr Boncardo submitted that the employer could not rely upon the summary dismissal provisions of the Code nor could the dismissal of the applicant be established to have satisfied the relevant operative provisions of the Code in respect to other than summary dismissal.

[25] Mr Boncardo described the employer's reliance upon the Code as an eleventh hour manoeuvre which had not been identified by the employer in response to the application at any time earlier than after the applicant had filed its evidence and submissions. Mr Boncardo submitted that the employer’s belated reliance upon the Code reflected an absence of veracity in respect of the employer's subjective belief about the applicant's alleged conduct on 19 December.

[26] The submissions of Mr Boncardo challenged that the employer genuinely believed that the alleged serious misconduct of the applicant in respect of the 19 December incident, was of such magnitude or gravity as it had subsequently sought to portray. Mr Boncardo mentioned that the applicant had been permitted to continue to work after the incident on 19 December and the employer had sanctioned the applicant's absence on both 22 and 23 December as it treated and paid these days as annual leave.

[27] Further, according to Mr Boncardo, support to establish that the 19 December incident could not be genuinely held to represent serious misconduct sufficient to justify summary dismissal, was provided by the employer clearly permitting the employment to remain on foot and taking no steps to contact the applicant between 19 December and 5 January to advise of any contrary position.

[28] Consequently, according to the submissions of Mr Boncardo, even if the employer was able to rely upon the summary dismissal provisions of the Code, there were a variety of factors which provided basis to successfully challenge whether the employer did believe on reasonable grounds that the applicant's actions on 19 December were sufficiently serious enough to justify immediate dismissal. In this regard Mr Boncardo made detailed submissions about what he described as the absence of contemporaneity between the alleged serious misconduct and the dismissal.

[29] In his further submissions on the issues of operation of the Code, Mr Boncardo noted that the employer had not provided any warning to the applicant nor had he been given any opportunity to respond to any concerns about his conduct or capacity. Therefore, Mr Boncardo submitted that the dismissal of the applicant was not in accordance with the requirements of the Code for a dismissal that was not summary in nature.

[30] Mr Boncardo made further submissions which were based upon the assumption that the Commission was satisfied that the employer had not complied with the Code. In this regard, Mr Boncardo addressed the various provisions of s. 387 of the Act.

[31] In summary, Mr Boncardo submitted that the alleged serious misconduct surrounding the 19 December incident, did not amount to conduct inconsistent with the continuation of the contract of employment. Therefore the dismissal was not for valid reason as the actions of the applicant did not represent the serious misconduct relied upon by the employer.

[32] Further, Mr Boncardo criticised that the employer failed to provide the applicant with a letter of termination and it was asserted that the applicant had not been properly notified of the reason for his dismissal. It was also submitted that the applicant had not been afforded any opportunity to respond to the reasons that the employer had asserted as the basis for dismissal. Mr Boncardo submitted that the applicant had been ambushed and verbally advised of his dismissal without being given any opportunity to respond. In addition, the immediate verbal advice of dismissal given to the applicant on the morning of 5 January, meant that the applicant was not given any opportunity to have a support person present.

[33] Although Mr Boncardo made submissions which conceded that the employer was a small business employer within the meaning of s. 23 of the Act, severe criticism was made of the alleged absence of procedural fairness associated with the manner in which the employer implemented the dismissal of the applicant. Mr Boncardo said that the absence of dedicated human resource management specialists or other expertise in a small business, should not be used as an excuse for a manifest failure to provide procedural fairness.

[34] Mr Boncardo also submitted that the dismissal of the applicant was a manifestly disproportionate response to the actual gravity of the conduct that occurred during the incident of 19 December. Further, Mr Boncardo submitted that the particular personal circumstances of the applicant including that he had a young family and significant financial commitments, were factors that should also assist the Commission to make a finding that the dismissal of the applicant was harsh, unjust and unreasonable.

[35] In further submissions made by Mr Boncardo it was asserted that there had not been a breakdown of trust or confidence between the applicant and the employer and the applicant sought Orders providing for reinstatement, continuity of employment, and restoration of lost pay.

The Case for the Employer

[36] The employer was represented by Ms Webb of counsel, who submitted that the dismissal of the applicant was not unfair. Ms Webb made oral submissions which elaborated upon documentary material that had been filed on behalf of the employer.

[37] Ms Webb submitted that as the employer was a small business it was entitled to rely upon the Code and in particular, subsection 385 (c) of the Act was relevant. According to the submissions made by Ms Webb, the dismissal of the applicant was consistent with the Code and therefore subsection 385 (c) of the Act meant that the applicant was not unfairly dismissed.

[38] Ms Webb made submissions which concentrated upon the 19 December incident which she said represented serious misconduct which the employer believed on reasonable grounds, was sufficiently serious to justify immediate dismissal. Ms Webb said that the employer made payment in lieu of notice because it believed that it was obliged to do so and that payment should not detract from the Commission being satisfied that the employer had complied with the Code.

[39] Ms Webb made submissions which stressed that the misconduct of the applicant during the 19 December incident involved aggressive use of foul language causing intimidation and fear to Mrs and Mr Wishart. It was submitted that behaviour in the workplace of the nature and severity exhibited by the applicant on 19 December, would be sufficiently serious to justify the immediate dismissal of the applicant. Ms Webb said that the employer had never had to deal with this kind of misbehaviour in the workplace before and it was completely unfamiliar with the necessary procedures to react to such circumstances.

[40] Ms Webb also submitted that the employer had carefully considered the conduct of the applicant on 19 December over the following weekend before it arrived at the decision to dismiss the applicant. In this regard Ms Webb said that the employer had a proper basis to establish that the applicant’s conduct was sufficiently serious to justify immediate dismissal. Therefore according to the submissions of Ms Webb, the employer had complied with the Code in respect of summary dismissal but had felt that it was duty bound to pay three weeks’ notice even though it had received advice to the contrary.

[41] The submissions made by Ms Webb acknowledged that the Commission was required to resolve the significant factual differences in the evidence as to the nature and severity of the 19 December incident. Ms Webb stressed that there was independent witness evidence which verified the sort of physical aggression that the applicant directed towards Mrs Wishart and this departed from the general level of robust swearing that would ordinarily be considered normal in the mechanical workshop. Ms Webb submitted that the Commission should find that the applicant's conduct was designed to intimidate Mrs and Mr Wishart and the conduct was witnessed by customers and thereby had significant potential to have a detrimental impact on the employer as a small local business.

[42] The primary submissions made by Ms Webb asserted that the dismissal of the applicant was consistent with the Code. However, Ms Webb made further alternative submissions which addressed the various factors contained in section 387 of the Act.

[43] Ms Webb submitted that the dismissal of the applicant was for a sound, well founded reason involving the misconduct of the applicant during the 19 December incident. Further, Ms Webb submitted that the first opportunity that the employer had to advise the applicant of his dismissal occurred on 5 January when he returned to work. Ms Webb conceded that there was no opportunity for the applicant to have a support person present, and some other procedural aspects of the dismissal should be considered having regard for the very small size of the employer's business.

[44] Ms Webb submitted that in all the circumstances the employer's actions were reasonable and were open to it and therefore the application for unfair dismissal remedy should be dismissed. Ms Webb stressed that the application should be dismissed primarily because the dismissal of the applicant complied with the Code. Alternatively, Ms Webb contended that when properly analysed and considered, the dismissal was not harsh, unjust or unreasonable.

Consideration

[45] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:

“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”

[46] In this instance there was no dispute that the applicant had been dismissed and that the dismissal was not a case of genuine redundancy. Consequently, only the provisions of subsections (b) and (c) of section 385 of the Act have any relevance.

Small Business Fair Dismissal Code

[47] The employer is a small business and the provisions of subsection 385 (c) of the Act require consideration. Specifically, it is necessary to determine whether the dismissal of the applicant was or was not consistent with the Small Business Fair Dismissal Code (referred to as “the Code”). Logically a determination of any application of the Code should precede any more general contemplation of whether the dismissal was harsh, unjust or unreasonable.

[48] The Code is in the following terms:

“Small Business Fair Dismissal Code

Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[49] In this case the applicant was dismissed for reason of serious misconduct and that part of the Code relating to summary dismissal has required examination and application to the particular circumstances surrounding the dismissal of the applicant. The first sentence of the Code is particularly relevant and is repeated: “It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.”

[50] In this instance the employer paid the applicant an amount equivalent to three weeks notice. However, apart from this payment, the dismissal contains all of the elements usually associated with a summary dismissal. In particular, the reason for the dismissal involved serious misconduct and the implementation of the dismissal although it was delayed because of the absence of the applicant from the workplace, was summary in nature. That is, the applicant was verbally advised of his dismissal without there being any contemplation of explanation or defence.

[51] The applicant’s solicitor argued that because there had been payment of a period of notice, the dismissal was not a summary dismissal and should not be assessed against those terms of the Code that are relevant to summary dismissal. In my view this proposition would impose an unrealistic and unintended rigidity on any application of the Code.

[52] A dismissal which is for reason of serious misconduct and which might appropriately justify termination without notice or warning, should still be properly assessed as a summary dismissal notwithstanding that an employer, for whatever reason, decided to make payment of an amount in respect to notice. Broadly speaking, the Code establishes requirements for dismissal without notice or warning which represent a less stringent evidentiary basis upon which any serious misconduct is established when compared to the evidentiary basis that applies for a medium/large business. Similarly, the Code sets out less stringent requirements for other dismissals than those which apply to a medium/large business.

[53] That part of the Code which deals with summary dismissal is concerned with the evidentiary basis upon which a small business employer establishes serious misconduct. While the other dismissals part of the Code introduces a less stringent set of procedural requirements than applies to a medium/large business. The requirements that are mentioned in the Code as being relevant to cases of other than summary dismissal will invariably have little or no relevance to circumstances where a dismissal is made without notice or warning and is based upon serious misconduct. It would be contrary to the spirit and intent of the Code if, when a small business employer decided to pay an amount in lieu of notice in respect to a dismissal for serious misconduct, it was required to satisfy the procedural requirements of the other dismissals part of the Code.

[54] Therefore, although the dismissal of the applicant was not strictly a summary dismissal because an amount was paid in lieu of notice, in all other respects the dismissal was manifestly in the character of a summary dismissal. In particular the dismissal was, in the employer’s view, for reason of serious misconduct justifying the immediate termination of employment at the soonest practical opportunity. Consequently, it is appropriate to apply that part of the Code which relates to summary dismissal to the circumstances of the dismissal of the applicant.

[55] There are three primary operative components contained in the first sentence of the summary dismissal part of the Code, which if in combination are satisfied, have the effect of rendering any summary dismissal to be fair. The first component involves the existence of a belief on the part of the employer. The second component requires that the belief of the employer was made on reasonable grounds. The third component requires that the employer’s belief be that the conduct was sufficiently serious to justify immediate dismissal.

Existence of Belief

[56] The first component, the existence of a belief, represents a conscious acceptance on the part of the employer of a fact to be true. In most instances it would be unlikely that there would be great contest about the existence of the belief in the mind of the employer. Unless there was evidence to suggest that there was some reason for dismissal other than that stated by the employer, it would seem that the existence of the belief would usually be easily established.

[57] In this case the employment separation certificate which the employer provided to the applicant relevantly described the misconduct of the applicant as “... serious misconduct intimidation / yelling / swearing witnessed by customers & other staff.” The basis of the dismissal of the applicant involved the misconduct that the employer witnessed. Indeed, the conduct of the applicant was directed at Mrs and Mr Wishart.

[58] Consequently, the evidence confirms that the employer did genuinely and honestly hold the belief that the applicant had engaged in misconduct during the 19 December incident which involved yelling and swearing in a manner intended to intimidate Mrs and Mr Wishart and which would recklessly or intentionally be inimical to the commercial interests of the employer.

Belief Made on Reasonable Grounds

[59] The second component identified in the first sentence of the Code is that aspect involving whether the belief of the employer was made on reasonable grounds. This particular component of the Code is an issue which in other instances has led to significant contest and argument and has occupied the substantial amount of consideration in various decided cases.

[60] Importantly, the Full Bench Decision in the case of John Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo [2012] FWAFB 1359 3 (Pinawin) articulated that there was a distinction to be made between the application of the Code and a determination of whether summary dismissal was warranted. The Full Bench at [29], endorsed the “approach and observations” made in two other Decisions, one of Bartel DP in Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Caf 4and the other of McCarthy DP in Harley v Rosecrest Asset Pty Ltd T/A Can Do International5.

[61] I am of course obliged to follow the authority established by the Full Bench determination made in Pinawin. Consequently, the approach to assessment as to whether the employer’s belief was established on reasonable grounds does not involve a requirement to be satisfied that the employer had properly established grounds to justify summary dismissal.

[62] It seems to me that the Code, as interpreted by the authority established inPinawin, provides small business employers with significantly less stringent requirements in respect to the basis and procedure upon which to implement a summary dismissal than would otherwise apply. In Pinawin the Full Bench stated: “It is not necessary to determine whether the employer was correct in the belief that it held.” 6 The corollary of these less stringent requirements leads to the prospect that a small business employer could have arrived at an incorrect belief, but if it held that belief on reasonable grounds the decision to dismiss would be consistent with the Code and rendered to be fair.

[63] In the circumstances of this case, the employer did not need to conduct an investigation into the incident of misconduct as they were direct witnesses to the event. In addition, the evidence has established that Mrs and Mr Wishart considered and discussed the 19 December incident over the following weekend and they formed the view that the applicant’s conduct during the incident was serious misconduct.

[64] Consequently, in this instance where the employer witnessed the misconduct there can be little alternative other than to conclude that for the purposes of the Code, the belief of the employer as to the serious misconduct of the applicant was established upon reasonable grounds.

Sufficiently Serious to Justify Immediate Dismissal

[65] The third component that I have identified in the application of the Code in instances of summary dismissal involves the question of whether the employer believed that the conduct of the applicant was sufficiently serious to justify immediate dismissal. It is important to recognise that the wording of the Code is directed towards the belief that the employer had, as opposed to any independent, objective assessment about whether the particular conduct was sufficiently serious to justify immediate dismissal. The Code would have little practical purpose if its operation was subject to the Commission's assessment as to whether the nature of the misconduct was sufficiently serious to justify summary dismissal. That assessment would occur as part of the routine processing of an unfair dismissal claim for circumstances other than small business.

[66] In this instance it was argued that the employer did not genuinely hold a belief about the nature and severity of the applicant’s misconduct during the 19 December incident. In particular it was asserted that the delay between the occurrence of the misconduct and the dismissal reflected an absence of genuine belief on the part of the employer as to the severity of the misconduct. The continuation of the employment of the applicant for a period of some 17 days after the 19 December incident, without any suspension from duty, was a matter which might ordinarily deprive an employer from capacity to subsequently treat the conduct as serious and wilful misconduct inconsistent with the continuation of the employment.

[67] However, the evidence has established that the employer’s initial delay in reacting to the 19 December incident can be attributed to shock, distress and bewilderment of Mrs and Mr Wishart. Over the weekend that followed the employer formed a view that the applicant’s misconduct during the 19 December incident was serious misconduct sufficiently serious to justify immediate dismissal. This approach should be recognised as the employer acting with commendable caution against any hasty, immediate reaction at the time that the 19 December incident occurred.

[68] The applicant did not attend for work on 22 or 23 December and if the employer had received appropriate advice at that time it should have suspended the applicant from duty and advised him accordingly rather than acceding to the SMS advice of his absence for 22 December. Instead, regrettably, the employer openly permitted the employment to continue without alerting the applicant to the seriousness with which it had determined the 19 December incident.

[69] It should be recognised that as a small business employer, being justifiably unfamiliar with the most appropriate approach to dealing with an event such as the 19 December incident, it is understandable that Mrs and Mr Wishart felt some relief that they might avoid a difficult and unpleasant dismissal of an employee just before Christmas. However, importantly, the conviction to dismiss and the genuineness with which the employer held this view were reflected by evidence of the employer changing the locks on the gates to the business premises on 24 December.

[70] The subsequent delay until the dismissal was implemented on 5 January 2015 can be properly attributed to the applicant's scheduled absence from the workplace.

[71] The delay between the occurrence of the misconduct on 19 December and the dismissal on 5 January is attributable to reasonable and acceptable factors and significantly included the absence of the applicant from the workplace rather than any lack of conviction in the mind of the employer as to the seriousness of the applicant's misbehaviour.

[72] Further, although the failure to suspend the applicant from work at an early time consistent with the seriousness of the alleged misconduct might ordinarily provide basis to impeach any subsequent summary dismissal, such considerations do not arise with the test relevant to the operation of the Code.

[73] Consequently, the third component relevant to compliance with the Code requires that the Commission be satisfied that the employer did genuinely believe that the employee's conduct was sufficiently serious to justify immediate dismissal. Whether or not the Commission would endorse that belief is irrelevant for purposes of compliance with the Code.

[74] Consequently, I am satisfied that when the employer made the decision to dismiss the applicant, it genuinely believed, on reasonable grounds, that the applicant had committed misconduct that was sufficiently serious to justify immediate dismissal. The payment of an amount in lieu of notice and the delay before the dismissal was implemented, have not operated to impeach that decision.

[75] Although a primary finding that the dismissal of the applicant was consistent with the Code must follow, I have decided that for abundant caution and completeness I shall also resolve the factual contests surrounding the 19 December incident.

The 19 December Incident

[76] Any broader determination as to whether the dismissal of the applicant was or was not unfair would logically focus upon the resolution of the significant factual contests surrounding the nature and detail of the applicant's conduct during the 19 December incident. The evidence provided by the applicant portrayed the incident as a regrettable disagreement not capable of representing serious misconduct. On the other hand, the evidence of the employer characterised the incident as an unprompted, aggressive, insulting and intimidating outburst directed at the employer and sustained in a manner which would be likely to damage the commercial interests of the employer's business operation.

[77] Understandably, the evidence that each of the respective Parties provided sought to assist their particular version of the 19 December incident. A consideration of the totality of the evidence provided in respect to the 19 December incident, displays significantly different versions of the incident such that these differences are not reconcilable by way of natural human deficiencies in recollection of the event, coupled with the natural tendency to provide personally supportive evidence. Unfortunately the nature and extent of the factual contests means that one version must be broadly accurate and the other a deliberate misrepresentation of the true position.

[78] Each of the respective versions of the 19 December incident contains identifiable inconsistencies and incongruities. For example, Mr Wishart said that the applicant did not make mention about some countries using particular methods of torture 7 while Mr Penrose said that he heard the applicant say something about the noise of the pressure washer being a means of torture.8 These different recollections about the detail of what the applicant said during the 19 December incident represent what might be described as natural evidentiary defects. Clearly, people will invariably have different recollections of aspects of detail of what was at the very least, an uncomfortable incident.

[79] In contrast however, certain deficiencies with the evidence provided by the applicant are unable to be attributed to natural human imperfections. For example, the applicant maintained that he used no swearing or profanities during the “conversation” that he had with the Wisharts on 19 December 9. An examination of the applicant's witness statement10 reads as if the applicant conversed in a manner displaying the courtesy and diplomacy of a Sunday school teacher. Frankly, the applicant's version of his level of cordiality during the 19 December incident is so unrealistic as to be fanciful.

[80] In addition, the nature of certain inconsistencies in the applicant's evidence was troubling. For instance, the applicant's witness statement said that he remained at the Hotel in Rankin Springs on 23 December 11. Strangely however the applicant provided evidence during the Hearing which established that he drove back to Orange on the late evening of 22 December and was in Orange to see his solicitor on 23 December12.

[81] The evidence of the applicant can also be contrasted with the evidence of Mr Swain, a customer of the employer, but a person who could be generally regarded as an independent witness. Relevantly, paragraph 24 of Exhibit 1, the applicant's version of his response to Ms Wishart's inquiry, can be compared with both paragraph 10 of exhibit 4 and paragraph 4 of Exhibit 5. In summary, an examination of the applicant's evidence in totality leads me to regretfully conclude that it was unreliable and must be rejected accordingly.

[82] Consequently, I have determined the factual contests surrounding the 19 December incident in favour of the employer's version of that event. Therefore, that incident would represent serious and wilful misconduct sufficient to justify the summary dismissal of the applicant. Further, although the dismissal of the applicant involved some procedural deficiencies those matters would not operate to militate against the valid reason for dismissal so as to render it unfair.

Conclusion

[83] This unfair dismissal claim has involved consideration of the application of the Small Business Fair Dismissal Code (the Code). Although the applicant was paid an amount in lieu of notice, all other aspects of the dismissal characterise it as a summary dismissal made on the basis of serious misconduct.

[84] In such circumstances I have determined that the summary dismissal provisions of the Code are applicable. The Code declares that it is fair for an employer to summarily dismiss if, it believes on reasonable grounds, that the employee’s conduct was sufficiently serious to justify immediate dismissal.

[85] I have examined the specific requirements which arise from the wording contained in the Code. Further, I have approached consideration of the circumstances in this case with due regard for the Full Bench authority establish by the Decision inPinawin.

[86] In this instance, upon careful examination of the evidence, I have found that; (a) the employer genuinely held a belief which represented the basis for the dismissal, (b) the belief of the employer was established upon reasonable grounds, and (c), the employer genuinely believed that the conduct of the applicant was sufficiently serious to justify immediate dismissal.

[87] Consequently, in view of the findings that I have made, the dismissal of the applicant must be held to have been consistent with the Code. Therefore the dismissal of the applicant is rendered by the Code to have been fair and the application for unfair dismissal remedy must be dismissed.

[88] If, in the alternative, the Code was not applicable, an examination and consideration of the various criteria contained in s. 387 of the Act would result in a determination that the dismissal of the applicant was not harsh, unjust or unreasonable.

[89] Therefore upon either basis, the application for unfair dismissal remedy must be dismissed and an Order to that effect will be issued accordingly.

COMMISSIONER

Appearances:

Mr P Boncardo, solicitor appeared for the applicant.

Ms J A Webb of counsel, appeared for the employer.

Hearing details:

2015.

Orange:

April 14, 15.

 1   Exhibit 1 @ paragraph 24.

 2   Exhibit 4 @ paragraph 10.

 3   John Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo [2012] FWAFB 1359.

 4   Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Café [2010] FWA 7891.

 5   Harley v Rosecrest Asset Pty Ltd T/A Can Do International [2011] FWA 3922.

 6   John Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo [2012] FWAFB 1359 @ Para [29].

 7   Transcript @ PN1103.

 8   Transcript @ PN1859.

 9   Transcript @ PN1793.

 10   Exhibit 1.

 11   Exhibit 1 @ paragraph 36.

 12   Transcript @ PN515 - PN518.

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