Mr Kim Hamani v The Cool Clear Water Group Pty Ltd
[2010] FWA 2246
•17 MARCH 2010
[2010] FWA 2246 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Kim Hamani
v
The Cool Clear Water Group Pty Ltd
(U2009/11453)
DEPUTY PRESIDENT MCCARTHY | PERTH, 17 MARCH 2010 |
Termination of employment
Background
[1] Mr Kim Hamani ("the Applicant") lodged an application for an unfair dismissal remedy asserting that his employment with the Cool Clear Water Group Pty Ltd ("the Respondent") was terminated unfairly.
[2] In the application the Applicant stated that in July 2009 he notified a Manager of the Respondent, Mr Ian Myles, that he needed to travel to France urgently due to a death in his family.
[3] The Applicant says that he then rang Mr Myles before his return to work and was requested to report to the office on 10 August 2009, the day he says he intended to return to work. He attended that meeting on 10 August 2009 and claims that his employment was terminated. He says he had no warnings prior to his termination about his conduct or performance and claimed that there were no good grounds to justify the termination.
[4] The Respondent lodged a response to the application and asserted that the termination was for grounds including:
(i) inadequate sales performance;
(ii) driving the Respondent’s vehicle without a current driver’s license;
(iii) using the Respondent’s credit card for an unauthorised purchase;
(iv) excessive unauthorised time off work;
(v) failure to inform the Respondent of the expected return to work date when he went to France;
(vi) failure to report a minor vehicle accident involving the Respondent’s vehicle; and
(vii) failure to inform the Respondent of the whereabouts of the company vehicle during his absence.
[5] The Respondent also asserted that the Applicant had not been forthright when questioned about the currency of his driver’s license and attempted to represent that his license was current when it wasn’t.
[6] I do not intend to canvass all of the assertions and counter assertions.
[7] I conducted a Directions conference on 6 October 2009 and following that conference I was advised by the Applicant's representative not to list the matter for hearing to enable the parties to pursue discussions regarding a possible settlement. In November I was advised that the matter had not settled and a hearing date was sought. I listed the matter for hearing on 11 February 2010. I also issued Directions requiring the lodgment of outlines of submissions and witness statements. The Applicant lodged documents outlining his argument and his version of the facts.
[8] The listing for hearing was issued on 9 November 2009. The listing makes it clear that the hearing was to be in person.
[9] The Respondent made appearance on the listed date of 11 February 2010 but the Applicant did not attend. Mr Myles gave evidence at that proceeding. He attested to a document which outlined his version of the facts.
[10] I wrote to the Applicant asking for an explanation as to why he did not attend. He advised that he had understood that the proceedings on 11 February 2010 would be by telephone and had endeavoured to contact my office by telephone on that morning. He requested that the matter be re-listed in order that he had an opportunity to present his case and to cross examine. I decided to re-list the matter to give the Applicant the opportunity to present his case. I indicated that only the Applicant was required to attend the proceeding.
The Evidence
[11] Neither party was represented during the proceedings. The Applicant had a friend assisting him, Ms Cox, although she did not wish to seek permission to appear. Ms Cox endeavoured to ensure that the Applicant properly understood any questions I had of him and expanded on and further explained what the Applicant was saying.
[12] The sequence of events were such that neither Mr Myles nor the Applicant were cross-examined. I do not consider that the Applicant would have been able to conduct any reasonable form of cross-examination either alone or with Ms Cox’s assistance. I am confident that I am in a position to be able to make a proper assessment of the various assertions and counters to those assertions, notwithstanding that the evidence was provided separately by each party without the other party being present.
[13] It appears to me, from the evidence of Mr Myles and the Applicant, that the Applicant either misunderstood or misinterpreted the context and what Mr Myles meant and intended in their discussions regarding use of vehicles and driving. An example of this is Mr Myles’ assertion that the Applicant drove the company vehicle whilst he did not have a driver’s license. The Applicant asserted that Mr Myles condoned the Applicant driving without a license, something Mr Myles denies. The Applicant’s own evidence is that Mr Myles had suggested the obtaining of an extraordinary license and facilitated the obtaining of it. Further, the Applicant says that Mr Myles had stated, "You are not allowed to drive the company car (without a license)," but that, "if you want to drive another car that's up to you...or if your friends or your partner take you around it's up to you." The Applicant asserted from this and other conversations that Mr Myles had agreed to him driving without a license.
[14] The evidence does not establish the Applicant’s contention of condonation by the Respondent. I find the evidence establishes that Mr Myles did not wish the applicant to drive the company vehicle at all whilst the applicant’s license was under suspension but indicated a willingness for the Company vehicle to be available for his use if he arranged for someone else to drive it. Any further expressions by Mr Myles regarding whether the Applicant drove I consider to have been intended to convey that Mr Myles could not control the Applicant’s behaviour all of the time.
[15] After the obtaining of an extraordinary license the Applicant was able to lawfully drive until 7:30pm. He was caught by police driving at 8:30pm during the period he was driving with the extraordinary license. The Applicant had an explanation for driving at that time but I do not find his explanation to be satisfactory. That incident and conduct I consider was a valid reason for his termination of employment.
[16] The Applicant also admits that he used the company credit card with approval for the purchase of petrol and that on three occasions he also purchased pies at the same time using the credit card. He asserts that he was not told not to do this and therefore assumed that it was permissible, especially as the pies only cost about $3 each. This conduct I also consider to be conduct that was another valid reason for termination of employment.
[17] I find that there was a valid reason for the termination of the Applicant’s employment. I also find that the Respondent did not inform the Applicant of the conduct or performance issues complained of and did not give him an opportunity to respond to those complaints. I have also had regard to the size of the company and the lack of any human resources expertise.
[18] I find that the termination of employment was not unfair. The application is therefore dismissed
DEPUTY PRESIDENT
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