Mr Jukka Nyrhinen v Becker Vale Pty Ltd
[2012] FWA 4005
•17 MAY 2012
[2012] FWA 4005 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jukka Nyrhinen
v
Becker Vale Pty Ltd
(U2011/12413)
COMMISSIONER MACDONALD | WOLLONGONG, 17 MAY 2012 |
Application for unfair dismissal - smoking inside the spray paint booth - dismissal - actual or electronic cigarette - dismissal unfair
[1] This decision arises from an application by Mr Jukka Nyrhinen (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Becker Vale Pty Ltd (the respondent).
[2] The dismissal was advised by Mr Mario Bezzina, General Manager, at a meeting with the applicant on Thursday, 22 September 2011. A letter of dismissal of the same date was provided to the applicant.
[3] The unfair dismissal application was lodged with Fair Work Australia (FWA) on 6 October 2011.
[4] The application was dealt with by an FWA Conciliator on 31 October 2011, but did not settle. The application was programmed for a Hearing.
[5] The Hearing took place before myself in Wollongong on 5 March 2012.
[6] The applicant was represented by Mr Adam Walkaden, Legal Officer, of the Australian Manufacturing Workers Union (the AMWU). Mr Walkaden called the applicant as a witness.
[7] The respondent was represented by Mr David Potts, Solicitor, Kells The Lawyers. Mr Potts called the following witnesses:
Michael Tamplin - Fitter Machinist
Michael Hutton - Production Manager
Paul Strangman - Mechanical Team Leader
Michael Inskip - Warehouse Co-ordinator
Brecon Sanderman-Gay - “W” Strap Machine Operator
The last named respondent witness was not required for cross-examination.
[8] During the proceedings, on the second day, Mr Potts sought to recall Mr Hutton to give further evidence (as to the re-establishment of the employment relationship) and call a new witness, Ms Carly Smith who had assisted Mr Potts and hence heard the evidence of all previous witnesses. The union objected to both witnesses giving evidence. With reservation, I over-ruled the union and allowed the recall of Mr Hutton and the appearance of Ms Smith (Human Resources Manager).
BACKGROUND
[9] The applicant commenced employment with the respondent in September 2008 as an industrial spray painter. The respondent is in the business of repairing and servicing mining equipment. The applicant’s role was to prepare and spray paint mining equipment.
[10] On Wednesday, 14 September 2011, the applicant was working in the spray painting booth.
[11] On that same day, a fellow employee, Mr Michael Tamplin, said that he smelt cigarette smoke and investigated for its source. He walked into the fabrication workshop and as he was walking past the spray paint booth, he looked inside it and stated that he saw the applicant inside, standing at the rear of the booth. He was standing near the filtration system with a cigarette in his right hand by his side. The applicant asserted that he was smoking an electronic cigarette, being a device for reducing or quitting smoking actual cigarettes.
[12] Mr Tamplin informed a Len Young, HSEQ & T Co-ordinator and Mr Paul Strangman, Mechanical Team Leader, the next day of what he had seen the day before.
[13] The respondent carried out an investigation which included taking witness statements from various persons. The applicant was represented by the AMWU during the investigation.
[14] Arising out of the investigation, the applicant was dismissed at a meeting held on 22 September 2011. He was issued with a letter of the same date, signed by the General Manager, Mr Mario Bezzina. The letter implies that a finding has been made that the applicant had been smoking an actual cigarette in the spray paint booth. That action caused a serious and imminent risk to health or safety of a person (who is not identified in the letter). Such action constituted serious misconduct warranting summary dismissal.
FINAL SUBMISSIONS
For the applicant
[15] Mr Walkaden gave final submissions and referred to the Applicant’s Outline of Submissions 1 and the evidence from the proceedings. In summary Mr Walkaden put the following:
a) The applicant was smoking an electronic cigarette in the spray paint booth and not an actual cigarette. Thus there was no valid reason for dismissal.
b) The applicant was summarily dismissed for misconduct and hence the respondent bears the onus of proof.
c) To justify a summary dismissal by the respondent, the conduct by the applicant must amount to a serious and wilful breach of the contract of employment, one which amounts to a deliberate flouting of the essential contractual conditions.
d) The applicant was denied procedural fairness. Thus, at the first meeting where the cigarette smoking allegation was raised, Mr Hutton (Production Manager) indicated that the respondent would accept a resignation from the applicant. An employer who is approaching an allegation of misconduct with an open mind, would not put such a proposition. Mr Walkaden said that such a proposition demonstrates that the decision to dismiss had already been made. That proposition was put to the applicant before he was given an opportunity to respond.
e) Further, the applicant was denied procedural fairness, in that he was not given the opportunity to be heard on penalty prior to any decision being made.
f) The applicant sought reinstatement, lost wages and continuity of employment.
For the Respondent
[16] Mr Potts gave final submissions and referred to the Respondent Submissions 2 and gave evidence in the proceedings.
[17] In summary, Mr Potts put the following:
a) The applicant has previously been warned on two occasions for smoking at the respondent’s premises.
b) Smoking at the respondent’s premises is strictly prohibited per the relevant enterprise agreement. “No Smoking” signs are displayed on site and the smoking prohibition is set out in the employee handbooks and manuals.
c) Mr Michael Tamplin’s evidence was that he could smell cigarette smoke and he traced that smell to the applicant whose only response was “Really?” At no stage did the applicant say he was smoking an electronic cigarette.
d) Mr Paul Strangman spoke to the applicant about the smoking a cigarette allegation and the applicant did not say he was smoking an electronic cigarette.
e) Two employees (Inskip and Sanderman-Gay) provided statements indicating that the applicant complained that he had been “dobbed in.”
f) During the investigation process, the applicant was provided with procedural fairness.
g) The dismissal was not harsh. There was a valid reason for dismissal. Reinstatement was opposed.
CONSIDERATION
[18] Section 396 of the Act, sets out four matters which must be decided, before considering the merits of an unfair dismissal application. Those 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.”
[19] The unfair dismissal application was made fourteen (14) days after termination and was therefore made within the fourteen day time limit specified in section 394(2). This satisfies paragraph (a) of section 396 above.
[20] Section 396(b) requires cross-referencing to section 382 in order to be satisfied. Neither party raised paragraph (b) as an issue for my consideration. Therefore, the applicant is a person protected from unfair dismissal.
[21] Paragraph (c) and (d) of section 396 have no relevance in this case.
[22] The applicant claimed that he had been unfairly dismissed and sought reinstatement and money for lost remuneration.
[23] Section 385 of the Act provides that a person has been unfairly dismissed if FWA is satisfied as to four criteria:
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.”
[24] Paragraph (a) of section 395 is satisfied by way of the dismissal of the applicant. Paragraphs (c) and (d) have no relevance in this case. As to paragraph (b), the applicant said his dismissal was harsh and/or unjust and/or unreasonable.
[25] In order to determine whether the applicant’s dismissal was harsh, unjust or unreasonable, it is necessary for FWA to consider the factors set out in section 387. Those factors are:
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 matter that FWA considers relevant.”
(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);
[26] The first factor to be considered is whether there was a valid reason for the dismissal. In this case, the issues put against the applicant related to his conduct.
[27] Mr Mario Bezzina, General Manager, dismissed the applicant on 22 September 2011. His letter of dismissal of the same date implicitly gave as the reason for dismissal that the applicant had been smoking (an actual cigarette) inside the spray pain booth. 3
[28] The applicant denied he had been smoking an actual cigarette. Rather, he asserted he had been smoking an electronic cigarette.
[29] The issue then for FWA, was whether the applicant had been smoking an actual cigarette or an electronic cigarette.
Onus and Standard of Proof
[30] The applicant was summarily dismissed. Accordingly, the respondent carries the onus of establishing from the facts that there was a valid reason for the termination of the applicant’s employment. Further, the standard of proof upon the respondent is to show that, on the balance of probabilities that its version of the events has been made out in order to support a valid termination: Yew v ACI Glass Packaging Pty Ltd (per Wilcox CJ). 4
Actual vs. Electronic Cigarette
[31] The case by the respondent against the applicant was primarily threefold: (a) the direct evidence of Michael Tamplin; (b) the alleged delay in the applicant raising the defence of an electronic cigarette; and (c) he had previously breached the No Smoking policy
[32] Michael Tamplin was interviewed on Friday 16 September 2011 as part of the investigation process. His typed statement from that interview was signed on 19 September. 5 In his statement, Mr Tamplin says:
a) Whilst working on Wednesday, 14 September 2011 he “smelt cigarette smoke” and decided to investigate for the source.
b) He walked into the fabrication workshop and whilst walking past the spray paint booth, he looked inside and saw the applicant “standing at the rear of the spray booth near the filtration system with a cigarette in his right hand by his side.” (During the hearing, the advocates agreed that the applicant was 8 to 10 but closer to 10 metres distant from Mr Tamplin).
c) Then he said to the applicant; “I could smell cigarette smoke from outside.”
d) The applicant allegedly replied; “Really.”
e) He (Mr Tamplin) left and went outside the fabrication workshop.
f) He reported this incident the next day, Thursday, 15 September to Len Young and Paul Strangman.
g) At approximately 7:30am on Thursday, 15 September, he said the applicant approached him and accused him (Tamplin) of scoring brownie points, which he (Tamplin) denied.
[33] In his statement, Mr Tamplin also states that; “I have no doubt at all that it was a cigarette. I am aware that he (the applicant) is trying to quit smoking and has an imitation cigarette that gives off a vapour similar to cigarettes but has no smell. I have not seen Jukka (the applicant) use this for many months.”
[34] Mr Tamplin was cross-examined on his statement – in particular about his knowledge of the characteristics of an electronic cigarette. 6 He said in his statement that an electronic cigarette does not give off a smell. The significance of that assertion by Mr Tamplin goes to the heart of the respondent’s case against the applicant. Thus, if an electronic cigarette does not give off a smell, then Mr Tamplin smelt the odour of an actual cigarette. If an electronic cigarette gives off a smell, then Mr Tamplin’s claim that it does not is wrong and it raises the question as to what did Mr Tamplin smell – an actual cigarette or an electronic cigarette? In that regard, the respondent carries the onus of proof, given that it is a summary dismissal.
[35] Under cross-examination, Mr Tamplin agreed that he had “limited knowledge” about an electronic cigarette. What he knew was restricted to what the applicant had told him previously “months ago”. His claim that no smell was given off was based on his observation of the applicant utilising the electronic cigarette and taking “one puff” only on it. He agreed that if someone took more than one puff on an electronic cigarette, there might be a smell (“could do” was his response). He then agreed it’s “possible” that an electronic cigarette does smell. He agreed there was a contradiction between his oral evidence that it was “possible” that an electronic cigarette could give off a smell and his claim in his written statement that it gave off “no smell”. He then agreed he was not an expert on electronic cigarettes. It was then put to Mr Tamplin that:
a) As he is not an expert on electronic cigarettes and
b) That his opinion that it does not give off a smell is based on the observation of one puff, then
c) It was not possible for Mr Tamplin to be a hundred per cent sure that an electronic cigarette does not smell.
Mr Tamplin rejected this proposition.
[36] That proposition was again put to Mr Tamplin and again he rejected the proposition. He said he “smelt cigarette smoke” but to the next question he agreed he did not know “what an e-cigarette smells like”.
[37] I make the finding that because Mr Tamplin does not know what an electronic cigarette smells like (let alone whether it gives off a smell), then he can’t say that what he smelt on that day was not an odour coming from an electronic cigarette.
[38] That finding, however, is not the end of the matter as to the electronic cigarette. Does an electronic cigarette in fact, give off an odour? If it does not, then Mr Tamplin could not possibly have smelt its odour. The consequences of there being no odour emitted from an electronic cigarette, is that Mr Tamplin smelt the odour of an actual cigarette.
[39] The applicant’s case / defence was that he was smoking an electronic cigarette. It gave off a vapour and it had an odour. In his witness statement, the applicant deposed that his electronic cigarette:
“looks identical to a cigarette. On using the e-cigarette, the tip turns red and a vapour is omitted (sic. emitted)...the vapour looks like smoke. On using the e-cigarette, an odour is omitted (emitted). There is a choice of flavours that can be used. On Wednesday 14 September 2011, the flavour that I used was B&H. I understand B&H stands for Benson and Hedges. I say that the odour that is omitted (emitted) from the B&H flavour is similar to the odour that is omitted (emitted) from a cigarette.” 7
[40] The foregoing evidentiary extract comes from the applicant’s witness statement which is dated 16 December 2011. The extract shows that he asserts that an odour is emitted from the electronic cigarette. The respondent did not put on any documentary material to rebut the assertion. (The respondent called a witness, Ms Smith, to question the odour assertion of the applicant who gave a witness box demonstration of smoking his electronic cigarette. I will deal with this court room evidence later.)
[41] The applicant’s claim in his witness statement of an odour being emitted was not the first time that he made this claim.
[42] One of the employees who prepared a statement for the respondent’s investigation process, was Mr Michael Hutton, Production Manager. That statement, dated 16 September (two days after the alleged incident) reports on a meeting with the applicant and his union official representative (and others). Mr Hutton asked the applicant if his e-cigarette emitted a cigarette odour. The applicant responded “Yes – they emit a puff of smoke and it probably smells like a cigarette.” 8
[43] The foregoing evidence is significant. It shows that the applicant was not raising a belated defence of an odour in December (three months after the incident). He raised the defence of an odour the day after the incident. But that last statement needs clarification. The incident was not reported on the day (14 September) by Mr Tamplin. He did not report the incident to management until the next day, 15 September. It is that day that the meeting called by Mr Hutton took place. In other words, the applicant has raised the defence of the use of an electronic cigarette and that it gives off an odour, on the same day that the allegation is raised with him.
[44] Mr Hutton asked if there was an odour to the electronic cigarette and was given an affirmative response by the applicant. The respondent does not challenge that claim by the applicant. That was regrettable in the sense that had the respondent asked for a demonstration (for odour purposes) from the applicant, then Mr Tamplin’s claim that he smelt cigarette smoke could have been tested there and then.
[45] Finally, as to the odour issue, I return to the evidence of Ms Carly Smith, who had assisted Mr Potts (the respondent’s solicitor) during the first day of the hearing. Ms Smith is a HR Manager for the Becker Mining Australia group.
[46] Her evidence in chief went to the applicant’s demonstration of smoking an electronic cigarette in the witness box. She deposed she was sitting (at the bar table) some four or five metres from the witness box and she could not detect any odour coming from the applicant’s e-cigarette.
[47] Ms Smith was cross-examined on her evidence. She agreed she was not an expert on e-cigarettes and had not used one. She agreed that there is an air-conditioner in the court room and a vent almost directly above the witness box. Ms Smith agreed there would be variables (factors) that would influence whether a person could smell something which comes from a regular cigarette – variables such as distance and ventilation. She said it was possible that variables could influence whether a person could smell an e-cigarette (assuming it gave off an odour). Ms Smith agreed that the court room environment was different to the respondent’s worksite. 9
[48] For the record, I was sitting closer to the witness box than Ms Smith and I could not detect any odour, arising out of the applicant’s demonstration.
[49] The evidence of Ms Smith does not assist me in my deliberation of this matter. I concur with Mr Walkaden’s submission that the demonstration took place in an operating air-conditioned environment and the air flow caused by that air conditioning can impact on at least, the direction of the flow of any odour from the electronic cigarette. Further, there was a vent almost directly above the witness box and any odour could have been dispersed by that air vent flow and / or sucked up into the vent.
[50] Accordingly, I cannot give any weight to the evidence of Ms Smith.
[51] The respondent’s other limb to attack the applicant’s case was to argue that the applicant’s defence of using an electronic cigarette was a delayed defence (as in an afterthought). He did not, it was put, immediately raise this defence when events first unfolded.
[52] Although the incident took place on a Wednesday, Mr Tamplin did not report the incident until the next day, Thursday. Given that the termination letter said that the applicant’s conduct (smoking a cigarette in a spray paint booth) “caused a serious and imminent risk to health or safety of a person”, I find it curious that the alleged smoking of a cigarette in a paint and paint fumed environment, was not immediately reported by Mr Tamplin. There was no evidence of any animosity between the applicant and Mr Tamplin (who no longer works there).
[53] Mr Tamplin in reporting the incident on the Thursday, deposed he spoke to Mr Len Young and Mr Paul Strangman. There was no witness statement from Len Young.
[54] The respondent relies upon the witness statement of Paul Strangman, the supervisor of the applicant, to support its claim that the applicant’s electronic cigarette defence was an afterthought - and by implication, not true.
[55] Mr Strangman’s witness statement advises of the conversation he had with the applicant in the morning of that Thursday. In that statement he says he questioned the applicant about Mr Tamplin’s allegation and the applicant responded three times that he had not been smoking in the spray paint booth. 10 Mr Potts from the respondent, submitted that the applicant denied smoking a cigarette but did not add the defence that he was smoking an electronic cigarette. The applicant deposed in his first statement of 19 September that he had raised the electronic cigarette defence in their Thursday morning conversation.11
[56] The witness statement of Paul Strangman says that the applicant was asked by him if he was smoking (actual cigarette implied) in the spray paint booth. The applicant responded in the negative. True, it is, that the applicant did not add to his reply that he was smoking an electronic cigarette. But shortly thereafter, he told another employee that he was not smoking a real cigarette but a substitute as he was trying to quit smoking. He told this to Brecon Sanderman-Gay who said their conversation took place “At some stage during early to mid-morning of Thursday...” 12 Thus, the applicant’s defence of an electronic cigarette was raised by him within a short space of time (up to only a few hours) of having been advised of the smoking allegation. It also follows that he raised this defence before his Thursday afternoon meeting with Mr Hutton, Production Manager.
[57] Given that the applicant raised this defence within a short space of time, then the claim of a delay / afterthought defence is rejected. On Mr Strangman’s version, the applicant did not raise the defence with him but the applicant did so with the next person he spoke to about the incident.
[58] The witness statement of Mr Sanderman-Gay reports the applicant’s imitation cigarette defence and then reports the applicant saying: “You don’t expect workmates to stab you in the back”. Mr Sanderman-Gay deposed he responded: “Why did you do it, the gates are just over there?” He added that the applicant gave no response.
[59] The applicant, under cross-examination, said he agreed with the conversation set out by Mr Sanderman-Gay. 13 I do not see that anything turns on the question to the applicant: “Why did you do it...?” I do not know what was intended by this question because the maker of the statement was not required for cross-examination. The “it” may refer to the applicant’s response of smoking an imitation cigarette and Mr Sanderman-Gay expressing the view that the imitation cigarette should have been smoked outside in order to avoid anyone saying anything.
[60] The respondent also relied upon the witness statement of Mr Michael Inskip to support its claim of the delayed defence of an electronic cigarette. 14 Mr Inskip relates a conversation between him and the applicant that took place on the Wednesday - the day of the incident. Thus, the conversation took place the day before the applicant was told of the smoking a cigarette allegation. That being so, he had no need to raise his electronic cigarette defence with Mr Inskip.
[61] In his witness statement, Mr Inskip reports that the applicant said: “that Mr Tamplin’s a cunt, workmates should be looking out for each other, we should be mates”. But they were the only words said by the applicant. The respondent put a submission that the applicant’s words showed that he was complaining about being “dobbed-in” and by inference, these were words of guilt (he had been caught smoking an actual cigarette). Without further evidence as to the meaning of these words, I am not able to find that these words represent words of guilt.
[62] The respondent also relied upon the applicant's previous breach of the company's No Smoking policy as evidence that he had smoked an actual cigarette in the spray paint booth.
[63] There was an issue as to whether he had been given one or two verbal warnings over the breach of that policy. The applicant said one only verbal warning. He gave evidence about both incidents in examination in chief.
[64] The incident for which he says he was given a verbal warning, occurred in the morning before he started work. He was in the car park and did not have a cigarette lighter to light up a cigarette. The applicant went to his car and used the car cigarette lighter. As he was walking to the designated smoking area, the Production Manager drove into the worksite. He was given a verbal warning for smoking on site (in the car park).
[65] The other incident for which he says he was not given a verbal warning, occurred when he went outside a building after hearing some bad news from his brother. He lit up a cigarette in a non-smoking area "without even thinking". The General Manager saw the incident and spoke to the applicant.
[66] The inference drawn by the respondent is that the applicant had breached the No Smoking Policy before and did so again on 14 September 2011. The applicant does not deny the previous breaches but denies doing so on this occasion. If the applicant had of denied the previous breaches and I concluded that he had done so, then I would have looked more favourably on the respondent's inference to be drawn.
[67] Against the inference sought to be drawn by the respondent, is the applicant's agreement that he had previously breached the No Smoking Policy and his denial that he had done so on this occasion. As to his denial, he said he was smoking an electronic cigarette and importantly, in my view, other employees were aware that he had been smoking such a device before this incident. That is, his defence of smoking an electronic cigarette was not a surprise, new matter. Michael Tamplin, who reported the incident, knew of the imitation cigarette.15 Paul Strangman, the applicant's supervisor, gave evidence that he had seen the applicant "use his e-cigarette inside the factory...a couple of times" and had not told the applicant to stop using his electronic cigarette.16
[68] Given the foregoing evidence going to the applicant's acknowledgement of breaches, his denial of a breach on this particular occasion and his known use of an imitation electronic cigarette, then I reject drawing the inference sought by the respondent that he had been smoking an actual cigarette in the spray paint booth.
[69] Still on the inference scenario, I note that the applicant said as to the second breach of the No Smoking policy, that he lit up a cigarette "without even thinking". It was not put to him in the witness box that he had lit up a real cigarette in the spray pain booth "without even thinking". The evidence, in any event , against lighting up a real cigarette in a spray paint booth, is strong. The evidence goes to the applicant's knowledge as to the consequences for lighting up in a spray paint booth as opposed to lighting up outside. Thus, he said of the spray paint booth: "...I'm working in an explosive environment. The last thing I want to do is blow myself up, right?"17
Conclusion on Valid Reason for Dismissal
[70] Having considered all of the evidence, and for the reasoning set out above, I find that the respondent has not discharged its onus of establishing that there was a valid reason for the dismissal of the applicant.
(b) whether the person was notified of that reason
[71] The applicant was notified of the reason for dismissal.
(c) whether the person was given an opportunity to respondent to any reason related to the capacity or conduct of the person
[72] The applicant was called to a meeting on Thursday 15 September 2011 and advised of the allegation of smoking in the spray pain booth. He was given the opportunity to respond to the allegation at that meeting. He said he had been using an electronic cigarette. The applicant was stood down pending an investigation.
[73] The union put in final submissions that the Production Manager showed a closed mind because he offered to the applicant the opportunity to resign before the applicant was given an opportunity to respond. The Production Managed denied this claim during his being cross-examined. I am not persuaded that the union's claim has been made out.
[74] The applicant was recalled from suspension to a meeting with the General Manager. Other persons were in attendance, including the Production Manager (Mr Hutton). According to the applicant, the General Manager dismissed the services of the applicant after introductions were complete.18 The General Manager did not give evidence. Mr Hutton did but did not contradict the foregoing account of the brevity and content of the meeting.
[75] Given that the applicant had given an explanation of smoking an electronic cigarette and the consequent investigation into the incident and hence his defence, then the General Manager should have put the respondent's finding to the applicant for his response before announcing his dismissal.
(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
[76] The applicant was represented by his union official.
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about the unsatisfactory performance before the dismissal
[77] This factor has no relevance as performance was not an issue.
(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
[78] This factor was not an issue.
(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
[79] This was not an issue.
(h) any other matters that FWA considers relevant
[80] Mr Potts, Solicitor for the respondent, recalled successfully, over objection from the union, a witness to give further evidence. That witness was Paul Strangman, the Supervisor for the applicant. His evidence went to the relationship of trust had broken down. Two reasons were advanced in final submissions to support that assertion.
[81] The first reason was that the applicant was not truthful in saying he had been smoking an electronic cigarette. I reject that reasoning for saying that the trust relationship had broken down given that I have concluded that the respondent has not proven that he was smoking an actual cigarette.
[82] The second reason goes to the applicant's complaint to three employees he had been "dobbed in" for a safety breach. If the words of the applicant are to be read as being "dobbed in", then how do those words show that the relationship between himself and the respondent has broken down? Importantly, even if these words are to be construed as reflecting he was complaining of being "dobbed in", his complaint could arguably be that he was complaining of being "dobbed in" for something he did not do.
CONCLUSION
[83] The applicant was dismissed by the respondent by way of a dismissal letter dated 22 September 2011. That dismissal followed a suspension of the applicant and an investigation into the claim by a then employee (Mr Tamplin) that the applicant has been smoking a real cigarette in the spray paint booth.
[84] The dismissal letter implies that a finding has been made by the General Manager that the applicant had been smoking a real cigarette.
[85] The applicant protested his innocence and filed his section 394 unfair dismissal application.
[86] Given that the dismissal was summary, the respondent carried the onus of establishing on the balance of probabilities, that the applicant had been smoking a real cigarette - instead of an electronic cigarette as he claimed.
[87] Fair Work Australia considered the applicant's claim that he had been unfairly dismissed by considering the factors set out in section 387.
[88] After deliberating on the evidence, Fair Work Australia found that there was not a valid reason for the dismissal of the applicant. Taking into account all of the evidence and requirements of the Act, I find that the dismissal of the applicant was unjust: Byrne v Australian Airlines Ltd. 19 As a result, I found that the applicant was unfairly dismissed within the meaning of the Act.
REMEDY
[89] The relevant sections of the Act in relation to the remedy of reinstatement sought by the applicant are:
“390 When FWA may order remedy for unfair dismissal
1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
b) The person has been unfairly dismissed (see Division 3).
2) FWA may make the order only if the person has made an application under section 394.
3) FWA must not order the payment of compensation to the person unless:
a) FWA is satisfied that reinstatement of the person is inappropriate; and
b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as application for remedies.
391 Remedy – reinstatement etc.
Reinstatement
1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
a) Reappointing the person to the position in which the person was employed immediately before the dismissal; or
b) Appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
a) The position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
b) That position, or an equivalent position, is a position with an associated entity of the employer;
The order under subsection (1) may be an order to the associated entity to:
c) Appoint the person to the position in which the person was employed immediately before the dismissal; or
d) Appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:
a) The continuity of the person’s employment;
b) The period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:
a) The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
b) The amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
[90] As to the foregoing statutory criteria, I am satisfied that: the applicant was protected from unfair dismissal at the time of being dismissed: s.390(1)(a); that the applicant was unfairly dismissed: s.390(1)(b); and that the applicant had made an unfair dismissal application: s.390(2).
[91] The applicant seeks reinstatement. I am satisfied that reinstatement is appropriate given the circumstances of the case, and my consideration of the trust issue raised belatedly by the respondent. The order for reinstatement is to be to the position occupied by the applicant immediately prior to his summary dismissal: s.391(1)(a).
[92] I am satisfied that it is appropriate to also make an order to restore lost pay: s.391(3).
[93] I consider that there should be an order to maintain the applicant’s continuity of service with the respondent: s.391(2).
COMMISSIONER
Appearances:
Mr A Walkaden, Legal Officer, AMWU, for the applicant
Mr D Potts, Solicitor, for Becker Vale Pty Ltd
Hearing details:
5 March 2012
Wollongong,
1 Ex 13
2 Ex 14
3 Ex 1, Annexure JN-4
4 (1996) 71 IR 201 at 204
5 Ex 2
6 Tr 05/03/2012, PN603 to PN704
7 Ex 1, para 13
8 Ex 3, para 18
9 Tr 06/03/2012, PN1364 to PN1434
10 Ex 9
11 Ex 1, Annexure JH-1
12 Ex 11
13 Tr 05/03/2012, PN322 to PN 327
14 Ex 10
15 Ex 2
16 Tr 05/03/2012, PN1061 to 1063
17 Tr 05/03/2012, PN 296
18 Ex 1, para 18
19 (1995) 185 CLR 410 at 465
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