Mr John Hirst v Stable Investment Management Services Pty Limited

[2010] FWA 451

[2010] FWA 451

FAIR WORK AUSTRALIA

DECISION

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

Mr John Hirst
v
Stable Investment Management Services Pty Limited
(U2009/10518)

COMMISSIONER CARGILL SYDNEY, 28 JANUARY 2010

Termination of employment.

[1] This decision arises from an application by Mr J. Hirst (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Stable Investment Management Services Pty Limited (Stable or the respondent). The dismissal occurred on 6 July 2009. The application was lodged with Fair Work Australia (FWA) on 20 July 2009.

[2] The matter was dealt with by an FWA Conciliator but did not settle. It was then the subject of a conciliation conference before another Member of FWA in November 2009 but remained unresolved. The matter was heard by me in Sydney on 20 January 2010 as part of the Arbitration Roster.

[3] The applicant represented himself at the arbitration and was the only witness in his case. The respondent was represented by its Manager, Mr Harcourt. Mr Harcourt was the only witness for the respondent.

[4] The matter was dealt with by way of a hearing. Both parties expressed a preference for such a course of action and, in the circumstances, I considered that it was appropriate to do so taking into account the factors set out in section 399(1) of the Act.

FACTS AND EVIDENCE

[5] The applicant was employed by the respondent as a Facilities Manager. He was responsible for a strata-titled commercial building in Brookvale, a suburb of Sydney. The applicant commenced employment in February or March 2008 on a part-time basis. In November 2008 he became a full-time employee. His salary was $65,000 per year.

[6] The applicant’s employment was terminated on 6 July 2009. He was summarily dismissed. The dismissal took place in a meeting on that day at which both the applicant and Mr Harcourt were present together with a Mr Horton, Chairman of the Stable Group of Companies. A letter of termination was provided to the applicant by email either later that day or on the following day.

[7] The reasons for the applicant’s dismissal are said to be for serious repeated breaches of company policy and for blatantly lying. A number of allegations of misconduct are made by the respondent. In summary these include: the applicant’s confrontational behaviour with tenants, owners and contractors in the building; a failure to attend work on 3 July and then repeated lying about that failure and activities undertaken on that and the previous day; issuing a master key to an unauthorised person without approval; and, regular late arrival at work.

[8] Mr Harcourt’s evidence in relation to the first issue was that the respondent received many complaints from tenants and owners about the applicant’s inappropriate behaviour. Those complaints included allegations of physical and verbal assault, aggressive and confrontational conduct and the sending of inappropriate emails as well as trespass and the removal of goods without authorisation. Mr Harcourt provided copies of letters, statements and emails setting out the various complaints. It should be noted that none of the authors of these documents was present to give evidence during the hearing.

[9] The applicant generally refuted the material put by Mr Harcourt. The applicant specifically denied physically or verbally assaulting anyone during the course of his employment. His evidence was that the only physical contact he had was when he acted in self defence in response to aggressive behaviour by an employee of one of the property owners in the building.

[10] The applicant specifically denied verbally assaulting one of the building occupants, a Mr Wood, in respect of whom the respondent had received a solicitor’s letter informing them that any further similar incidents would lead to police involvement and the seeking of an apprehended violence order. The applicant’s evidence was that Mr Wood had verbally assaulted him and he was only “standing his ground” in response. The applicant’s evidence was that he was not shown the solicitor’s letter but concedes that the respondent did have a discussion with him about the incident.

[11] The applicant disagreed that he did not have a constructive relationship with many of the building’s occupants. He acknowledged that there were some with whom the relationship was difficult but testified that it was just not achievable to have a positive relationship with all.

[12] The applicant denied that he had trespassed upon any property within the building and also denied that he had removed goods without authorisation. His evidence was that the item in question, a laptop computer belonging to the respondent, was in full view in an open office and in danger of being stolen. He had removed it for safekeeping.

[13] Mr Harcourt’s evidence was that the applicant had been counselled and warned about his behaviour on a number of occasions during his employment. The most recent of these was about a week before the applicant’s dismissal. Mr Harcourt acknowledged that the applicant had never received a written warning. His evidence was that the respondent was “not that sort of business”. I note in this regard that, as at the date of the dismissal, the respondent had three employees and the Stable Group as a whole, only six employees.

[14] The applicant denied that he had ever been counselled or warned by the respondent. His evidence was that there had been conversations or discussions about various incidents but no counselling and no warning either verbal or written.

[15] The evidence in relation to the second issue, the events of 2, 3 and 6 July 2009, is not really in dispute. The applicant requested a day’s leave on 3 July. He says he informed Mr Harcourt that the purpose of the leave was to visit his son who lives in Northern New South Wales. He had booked a flight for his proposed trip. Mr Harcourt says that the applicant provided no reason for the proposed leave. Mr Harcourt refused the request as he and his wife, who also works for the company, had planned to take five days leave and go away. This leave had been approved already and travel plans made.

[16] The applicant did not cancel his flight booking despite his leave application being refused.

[17] The applicant says that he injured himself whilst at work on 1 July. He telephoned Mr Harcourt early on 2 July and informed him that he would not be able to attend work that day and was going to the doctor. The applicant’s evidence is that the doctor prescribed pain killers and anti-inflammatory medications and provided him with a medical certificate indicating unfitness for work. This certificate was not in evidence and the period of unfitness is unclear.

[18] After attending the doctor the applicant telephoned Mr Horton to provide an update. He informed Mr Horton that he could hardly move as it was so painful. The applicant claimed that he could only move by crawling on all fours. He also stated that he would not be attending work on the following Monday and would need help to visit the osteopath later that week as he could not make it on his own. This conversation took place about 4.15pm.

[19] At approximately 5.10pm that same day a person, not employed by the respondent but known to Mr Harcourt and who presumably knew the applicant, observed the applicant walking briskly to the boarding gate at Sydney airport for a flight going to Byron Bay. This person took a photo of the applicant on their mobile telephone and provided this to Mr Harcourt.

[20] The applicant’s evidence is that after attending the doctor and knowing that he was not fit for work for the rest of the week he was persuaded by his son’s mother to take some extra pain killers and make the trip as originally planned. The applicant says that he was “theatrical” in his description of his injury to Mr Horton.

[21] As a result of the applicant’s absence on 3 July Mr Harcourt and his wife had to cancel their trip. Mr Harcourt’s evidence is that this caused them cost, inconvenience and personal hurt.

[22] The applicant did not attend work on 6 July. Mr Horton rang him to inquire about his health. The applicant said that he was unable to attend work. Mr Horton and Mr Harcourt drove to the applicant’s home to challenge him about his absence on 3 July. The applicant concedes that he was asked three or four times whether he had flown to Bryon Bay. He denied it each time. When confronted with the photo of him at the airport the applicant admitted that he had indeed flown to Byron Bay.

[23] Mr Horton then asked the applicant if he thought he could still work for the respondent in view of the circumstances. The applicant said he could. Mr Horton disagreed and informed the applicant that his employment was terminated.

[24] There was not a great deal of evidence in relation to the third and fourth allegations put by the respondent. The applicant denied providing a master key to an unauthorised person. He was not cross-examined about his attendance record during his employment.

SUBMISSIONS

[25] The applicant submitted that his dismissal was unfair. The accusations made against him by various tenants and occupants of the building had all been made after the fact. The applicant submitted that, although there may have been some grains of truth in the complaints, they were generally fictitious. The applicant noted that, if he had been engaged in any assault, there would have been police involvement.

[26] The applicant submitted that he was between a rock and a hard place in dealing with tenants. Furthermore he had not been warned or counselled about any incidents or conduct during the course of his employment.

[27] The applicant acknowledged that he had lied about the reasons for being absent from work on 3 July.

[28] Mr Harcourt submitted that the applicant had a history of aggressive behaviour although he acknowledged that the applicant did get on with some of the building occupants. He submitted that the respondent was in danger of losing its contract to manage the building if it had retained the applicant in its employment. Mr Harcourt submitted that the applicant had been given every opportunity to correct his behaviour.

[29] Mr Harcourt submitted that the applicant’s continued dishonesty about travelling to Byron Bay had led to a complete loss of trust.

CONCLUSIONS

[30] Section 396 of the Act sets out four matters which must be decided in applications of this type before the merits are considered. These matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[31] It should be noted that paragraph (d) has no relevance in this matter.

[32] As indicated earlier in this decision, the applicant was dismissed on 6 July 2009 and lodged his claim on 20 July 2009. It has been made within 14 day time period required in section 394(2).

[33] Section 382 specifies when a person is protected from unfair dismissal. It provides that the person is so protected if, at the time of dismissal:

“a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[34] In this case the evidence demonstrates that the respondent is a small business employer. Section 383 provides that the relevant minimum employment period is one year. The applicant was employed by the respondent for a period in excess of one year. The evidence also demonstrates that the applicant’s annual rate of earnings was less than the high income threshold which at the relevant time was $108,300.

[35] It follows that the applicant was protected from unfair dismissal.

[36] The next matter to be decided is whether the dismissal was consistent with the Small Business Fair Dismissal Code. As the applicant was dismissed without notice the relevant part of the Code is that which is titled “Summary Dismissal”. It is as follows:

“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.”

[37] In addition to the examples of serious misconduct in the Code, the term “serious misconduct” is defined in section 12 of the Act as “having the meaning prescribed by the regulations”. Regulation 1.07 of the Fair Work Regulations 2009 provides as follows:

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

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

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

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

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

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

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

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

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

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

…..”.

[38] The applicant behaved in a duplicitous manner towards his employer in relation to his physical condition and ability on 2 and 3 July. He then compounded the situation on 6 July by persistently lying to the respondent about his activities until faced with proof in the form of the photo of him boarding the plane to Byron Bay. The applicant’s behaviour was clearly deliberate.

[39] The applicant’s dishonesty amounted to a breach of the relationship of trust and confidence and his misconduct was inconsistent with the continuation of his contract of employment. The respondent justifiably believed on reasonable grounds that the applicant’s conduct was sufficiently serious as to warrant summary dismissal.

[40] Because of this finding in relation to the events on 2, 3 and 6 July there is no need for me to consider the other factors relied on by the respondent as a basis for the dismissal.

[41] I am satisfied that the dismissal was consistent with the Small Business Fair Dismissal Code.

[42] Section 385 of the Act sets out a number of conditions which must be met in order for a person to be unfairly dismissed. One of those conditions is that the dismissal was not consistent with the Small Business Dismissal Code. In this matter I have determined that the termination of the applicant’s employment was consistent with that Code. It follows that the applicant was not unfairly dismissed.

[43] The application is dismissed.

COMMISSIONER

Appearances:

J. Hirst, the Applicant

D. Harcourt for the Respondent

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