Mr Joseph Xuereb v Forkserve Pty Ltd
[2012] FWA 3624
•30 APRIL 2012
[2012] FWA 3624 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Joseph Xuereb
v
Forkserve Pty Ltd
(C2011/6507)
SENIOR DEPUTY PRESIDENT HARRISON | SYDNEY, 30 APRIL 2012 |
General Protections, application filed out of time, extension of time refused, application dismissed.
[1] Mr Xuerub has filed an application for Fair Work Australia to deal with a general protections dispute. It relates to his employment with Forkserve Pty Ltd (Forkserve). In his application he refers to s.352 of the Fair Work Act 2009 (the Act) as having been contravened. That section provides that “An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations”. Despite the handwritten entries he made in his application that he had not been dismissed, as this matter progressed, it was clear he had been. The date that dismissal took effect is a matter in issue between the parties. Depending on the date of dismissal an issue which may need to be considered is if the application has been filed out of time and, if so, whether I should extend the time for filing. In the context of that consideration Forkserve submits that the application has no merit as the reasons for the applicant’s dismissal were not as he asserts. This decision deals with these issues.
[2] In the event I find the application to have been filed out of time s.366 becomes relevant. It is in these terms:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[3] As Forkserve submitted that the application is out of time and an extension of time was opposed I listed the matter for hearing. Mr Xuerub represented himself and Forkserve was represented by Mr Doughman, a solicitor.
[4] In his s.365 application Mr Xuereb responded to the question in paragraph 3 concerning whether the alleged contravention involved his dismissal by ticking both the yes and the no box. He inserted a comment that he was “still employed as far as I’m concerned as have not signed anything in regards to resignations, or verbally stated anything". In that part of his application addressing the alleged contravention of the Act he indicated he had a worker’s compensation claim, was on light duties and had last worked on 19 August 2011. He said he had made contact numerous times with his employer but had been advised on 22 September 2011 his job no longer exists and he “was finished up there”. He also made comments about his separation certificate which I refer to later in this decision. In that part of the form which requires the applicant to describe their “Capacity/Position” he recorded “Casual (customer service manager come mechanic etc etc)”.
[5] Numerous documents were tendered by both parties in the hearing and oral evidence was given by the applicant and Ms Cooper for Forkserve. It will be apparent from the next paragraph that neither parties’ evidence was entirely satisfactory. That of Forkserve has some inconsistencies in it. I give as an example the reference in the separation certificate to the applicant’s employment having ceased on 19 August 2011. This is to be contrasted with the evidence of Forkserve before me that the dismissal took effect on 5 September 2011. In this respect I accept that 19 August 2011 was the last day the applicant did any work for Forkserve. Seen in that light it is not so fundamental an inconsistency in the evidence that it necessitates me approaching with caution any other evidence given on behalf of Forkserve. Likewise, some of Forkserve’s emails suggest it alternated between describing the parting of ways between it and the applicant as being due to an absence of work, a suggestion it was a resignation or that it was a dismissal for serious misconduct. The inconsistencies in the applicant’s evidence are much greater. There are key aspects of his evidence I am unable to accept. They will become apparent in the findings I make below. In relation to any issues about which there is a contest in the evidence I prefer the evidence of Forkserve to that given by the applicant.
[6] Based on that evidence I make the following findings.
- The existence of “pornographic/explicit images" in the applicant’s work van discovered by a work colleague and which had formed the subject of a complaint by that work colleague.
- Urinating in a customer’s front yard without asking to use their amenities.
- Overfilling a customer’s battery causing acid to spill on the floor and inside the battery case of the forklift causing Forkserve over $1500 in repairs and transportation costs.
- Offensive comments about the applicant's partner made in the presence of other work colleagues which gave rise to a complaint by a work colleague.
- Leaving a customer’s site without advising the customer and leaving a forklift parked in a position so as to indicate it was ready for work when it was not.
- Taking the company van without the consent of Forkserve and parking it on a footway, facing the wrong way, causing it to be badly damaged by a garbage truck.
- Smoking in the workplace contrary to the company's policy.
- Being repeatedly late for work.
(a) The applicant commenced employment on 14 September 2010. There was a previous period of employment that was not addressed in any detail by the parties. The applicant’s engagement was as a casual employee which status he retained at all times. 1
(b) On 21 June 2011, a customer of Forkserve complained about a forklift service on 8 June 2011. In short, the complaint was about a serviceman (identified to be the applicant) who had left the customer's premises without informing the relevant person as to what was happening. The service was not completed on that day. Two days later another serviceman had attended the customer’s premises and was unaware what he needed to attend to as no paperwork had been left by the previous serviceman. The forklift still had not been serviced. The customer was unhappy about this and indicated he would not pay for two services on the forklift.
(c) A document dated 13 July 2011 addressed to the applicant and titled "Re: Warning for smoking” records that numerous verbal warnings had been given to staff regarding the dangers involved in smoking in the workshop. The existence of gas bottles of flammable substances on the premises is referred to as well as WorkCover requirements to not smoke on the premises. The document concludes "please take this as a first warning due to the fact that you were caught smoking on the premises on 13/7/2011”. The applicant accepted he had been warned about smoking but said that did not relate to his having done so in the vicinity of gas bottles. He said he had never seen this written warning and although the signature on that document looked like his it was not. 2 I accept the evidence of Ms Cooper that the applicant had been given several verbal warnings about smoking prior to the decision to put this warning in writing. She had made the applicant sign the warning and she had kept the original and gave the applicant a photocopy.3
(d) 19 August 2011 was the last day the applicant performed any duties for Forkserve. 4
(e) A letter dated 25 August 2011 to Ms Jack from an employee of Forkserve commenced with the sentence “I'm writing to complain about Joe again". The "Joe" in this letter is the applicant. The complaint is about rude comments of a sexual nature being made by him and also offensive comments he had made about his partner. Reference was also made to sexual images and dirty pictures in the applicant’s van. There is a request that something be done about this urgently otherwise the employee would hand in her notice and take such other action as may be available to her.
(f) A WorkCover NSW Medical Certificate dated 31 August 2011 recorded that the applicant had a “heavy lifting at work” injury on 8 June 2011 and was now fit for pre-injury duties from 31 August 2011. 5
(g) On 5 September 2011 a rehabilitation closure report was completed indicating that the applicant has been certified fit for pre-injury duties. In that part of the report titled "Summary of progress" the following sentence appears "Ms Sarah Cooper of Forkserve Pty Ltd. has expressed no ongoing concerns in relation to Mr Xuereb’s performance or ability to manage at work".
(h) The applicant went to work on 5 September 2011. When he arrived an employee named Sean asked him what he was doing there as he, Sean, had sent a text message saying there was no work for him. The applicant said he did not receive such a message. The applicant then commenced to disrupt the staff and said words to the effect that he been terminated on the basis there wasn't enough work for him. Ms Cooper said that at that stage he had not been dismissed but she became upset about the way he was acting so she rang Ms Jack in Queensland. Ms Jack said she would consider the matter and then later rang her back and advised Ms Cooper to terminate the applicant’s employment.
(i) A document dated 5 September 2011 on Forkserve letterhead was then prepared. It bears the name and signature of the applicant and he concedes that the signature is his. 6 The document records that he acknowledged "taking the following tools today following termination of my employment". Underneath that acknowledgement is a list of tools and other equipment.7 The applicant said that the document he had signed listed all of the tools he was taking but did not have the endorsement at the top referring to the termination of his employment. I do not accept his evidence in this regard. I find he signed the document on 5 September 2011 and it clearly contained the words I have referred to above.
(j) Later in the day of 5 September 2011 Ms Cooper prepared a letter of termination. A letter to the applicant signed by Ms Cooper and dated 5 September 2011 was posted to him that day. 8 It is titled "Termination letter". Forkserve sent the letter to the applicant’s home address. It tendered an extract from its outgoing mail register records showing a letter being sent addressed to the same address which is identified in the s.365 application. The letter records that due to the number of complaints from customers and staff about the applicant, Forkserve had carried out an investigation and decided to terminate his employment. The incidents are said to comprise serious misconduct and the complaints are then referred to. I will summarise them:
(k) In relation to the "pornographic/explicit images" in his work van the applicant, when pressed in cross-examination, gave several answers which included "that's got nothing to do with the case", "well, my van-it was parked there for so long", "who knows who could have put it in there?", "I never had no books in there" and finally "there may have been, yes". 9 The applicant accepted he did urinate in a customer's front yard but it was a matter of urgency.10 I have earlier referred to the evidence and my findings about the issue of smoking in the workplace. The applicant could not recall if he had overfilled a customer’s battery. He did not challenge the other matters referred to in the termination letter.
(l) On 20 September 2011, Ms Jack emailed the applicant attaching his pay slip for the week ending 17 August 2011 and a pay slip for the day of 19 August. She said there was no pay slip for 24 August as the applicant had gone on holidays. 11
(m) On 22 or 23 September 2011 the applicant attended at Forkserve’s premises and spoke to Ross Jack. There had not been any prearranged appointment; the applicant had turned up unannounced. Ross Jack told the applicant that his job no longer existed.
(n) In an email of 5 October 2011 the applicant asked for his separation certificate to be forwarded to him as soon as possible. In her response of 6 October 2011, Ms Jack said she was in Queensland and had asked the office for the applicant’s paperwork to be sent to her to complete.
(o) A separation certificate dated 21 October 2011 signed by Ms Jack recorded that the applicant’s employment had ceased on 19 August 2011. The “Other “ box was ticked in answer to the question as to the “reason for separation” and the details given were that the applicant had advised the employer that 2 days work was not enough and he was looking for a 5 days a week job. 12
(p) In an email dated 24 October 2011 the applicant indicated he had still not received the separation certificate and said it should be sent by email as soon as possible or he will “have to go to industrial relations.ok” 13 The response from Ms Jack on 25 October was that the hold up was due to the applicant wanting Ms Cooper to “put something false” on the certificate “regarding disability”. The certificate had then been discussed with the applicant’s solicitor and filled out properly. The applicant took issue with the comment he had tried to get Ms Cooper to lie on his separation certificate and said that he would be applying for “unfair dismissal etc etc...”.14 I prefer Forkserve’s account of the circumstances relating to the separation certificate.
(q) In a letter to the applicant dated 26 October 2011 the applicant’s solicitors provided him with a copy of the separation certificate said to have been “forwarded from your Employer via facsimile transmission”. 15
(r) In an email exchange on 28 October the applicant advised Ms Jack she should get her facts correct and to talk to Ross Jack about a conversation the applicant had with him on 22 September 2011 and that future correspondence should go to his solicitor. 16 Ms Jack responded that Ross Jack no longer managed the business and had not for some time due to health issues. She asked the applicant to not contact staff as he had been rude to them and one had made a formal complaint about him and was considering taking out an apprehended violence order if there was any further abuse.
(s) The applicant denied receiving the termination letter. He says he had not seen it until he saw the employers response form (to which it was annexed) filed in these proceedings on 30 November 2011. I do not accept the applicant’s evidence. I have earlier found that the letter was sent to him on 5 September 2011. Forkserve says that a letter with an Australia Post stamp dated 2 December 2011 was received back in its office. It is to be noted this was a few days after the employers response form was served on the applicant. The returned envelope (which had been opened) had the termination letter inside. The envelope had a “Return to Sender” stamp on it with the box “Left address/Unknown” ticked and some handwriting on it which I am unable to fully decipher but appear to be “No sthis address opened to determine”. 17
(t) On 16 November 2011 the applicant filed his application for FWA to deal with the general protections dispute. It was some 12 days out of time. I have referred above to the entries made in that application.
(u) On 30 November 2011 Forkserve filed its response to the s.365 application. It denied any temporary absence from work by the applicant had anything to do with his dismissal and confirmed that he was dismissed on 5 September 2011.
[7] I have earlier found that the termination of the applicant’s employment took effect on 5 September 2011. In this respect I am persuaded by the document signed by him on that day relating to the tools he was removing from his van, the oral evidence of Ms Cooper that she informed the applicant his employment was terminated on that day and the terms of the termination letter sent to the applicant on that day. His application is therefore out of time and accordingly I need to take into account the considerations listed in s.366.
[8] I first refer to the reason for the delay. The applicant gives no reasons for the delay. He does not accept there has been any delay. He submits he did not need to put his application in until he had received his separation certificate. On his submission that was no earlier than 21 October 2011, the date of the separation certificate. He criticised Forkserve for the delay in providing that certificate to him. I am not persuaded this submission has merit. It was due to the applicant’s own inappropriate demands about how the certificate should be completed which led to the delay in providing it to him. It could only be finalised when his solicitors became involved. The applicant’s insistence that time should be run from 21 October 2011 is at odds with his evidence that on 22 or 23 September 2011 Ross Jack had told him his job no longer existed. It is at odds with his email of 5 October 2011 in which he asked for his separation certificate to be sent to him as soon as possible. 18
[9] Despite my indication to the applicant that he should make submissions on the basis I was likely to find his dismissal took effect on 5 September 2011 he maintained throughout the hearing that if there was a dismissal it was not before 21 October 2011. He declined to take the opportunity I gave him to address me on the s.366 considerations. 19 I find there is no reasonable explanation for the delay.
[10] I next turn to consider the action taken by the applicant to dispute the dismissal. I have earlier noted that he advised Forkserve in an email that he may go to “industrial relations” and subsequently that he would be applying “unfair dismissal etc etc...”. Those emails were on 24 and 28 October 2011. There was no other evidence relevant to this consideration.
[11] Forkserve did not make any submission as to any prejudice caused by the delay.
[12] I refer to the merits of the s.365 application. I acknowledge the merits have not been the subject of a full hearing. The compass of the facts relating to the merits however seems to be narrow and I am of the view that the evidence that would be called in a full hearing has been substantially put before me. This is a case in which I am persuaded it is appropriate that I make a finding about the merits. In my opinion the applicants case that the termination of his employment was due to him being temporarily absent from work because of illness or injury is without merit. There was nothing in the evidence to suggest that any such absence from work motivated the employer in deciding, as it did, to dismiss the applicant.
[13] The reason for the applicant’s dismissal was as Forkserve has submitted. The reasons unarguably amount to misconduct if not serious misconduct. I accept that these reasons constitute the sole reasons the employer decided to dismiss the applicant.
[14] In reaching this decision I should indicate that I have given the applicant the benefit of an assumption that s.352 may be applicable to his absence from work on a work-related and compensable injury. There is some doubt as to whether that is the matter to which the section is addressed. In this respect I note that the section refers to the regulations. The relevant regulation is 3.01. Regulation 3.01(4) would not apply as the applicant was a casual employee and not entitled to paid personal leave. The terms of regulation 3.01(6), and the explanatory memorandum to the regulations at paragraph 91, indicate that s.352 may not relate to an employee’s absence on workers compensation. This is not a matter that either party addressed me on and it is not necessary for me to comment further on it.
[15] Finally, I refer to s.366(2)(e) of the Act being the fairness as between the applicant and other persons in a like position. Nothing was said about this section. It is a neutral consideration in the circumstances of this matter.
[16] I am not persuaded there are exceptional circumstances such as to warrant an extension of time for the filing of the s.365 application. The s.365 application is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr J Xuereb, the Applicant
Mr A Doughman, solicitor, for the Respondent
Hearing details:
2012.
Sydney.
20 January.
1 PN176-180
2 PN348-358
3 PN429
4 PN181
5 Exhibit A1
6 PN218
7 Exhibit R1
8 Exhibit R2
9 PN244-249
10 PN 256
11 Exhibit A2
12 Exhibit A4
13 Exhibit A2
14 Ibid
15 Exhibit A5
16 Exhibit A2
17 Exhibit R6
18 Exhibit A2
19 PN761-763
Printed by authority of the Commonwealth Government Printer
<Price code C, PR523144>
0
0
0