Mr Luke McDermott v Endfire Engineering SEQ Pty Ltd

[2014] FWC 6506

[2014] FWC 6506

FAIR WORK COMMISSION

DECISION

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

Mr Luke McDermott
v
Endfire Engineering SEQ Pty Ltd
(U2014/1148)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 18 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] This matter concerns an application by Mr Luke McDermott (“the Applicant”) who seeks an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”). The application relates to the dismissal of the Applicant by Endfire Engineering SEQ Pty Ltd (“the employer”) on 17 March 2014.

[2] The Applicant had been employed as a fire technician from 17 April 2012. He claims that on 17 March 2014 he was approached by Mr Peter Roser, who was his manager. Mr Roser was said to have enquired as to his whereabouts earlier that morning and where he had been the previous afternoon. The Applicant replied, “dropping my son to and picking him up from school as I have done every fortnight since I have been employed here.”

[3] The Applicant claimed that he was also queried about his arrival time at a job on the previous Thursday.

[4] The Applicant contended that Mr Roser, at that juncture, stated, “I’m going to finish you up immediately.”

[5] This was the full extent of the Applicant’s written evidence in this application. He claimed that the dismissal was “unlawful” for reasons that he was dismissed on the grounds of his family responsibilities arising from his status as a single parent.

[6] The employer contends that in the period January 2013 to March 2014, the Applicant had been counselled and warned on numerous occasions in relation to his failure to comply with company policy; particularly so in respect of his absences.

[7] Mr Roser’s evidence was that since January 2013, the Applicant’s conduct had deteriorated. On 22 January 2013 the Applicant was said to have failed to attend work, was unable to be contacted and did not return any of his employer's calls.

[8] Similar conduct occurred between 29 January 2013 and 4 February 2013. During this period of time the Applicant was said to have failed to attend to work and could not be contacted by his employer and failed to return any telephone messages or text messages. The Applicant was said to have returned to work on 5 February 2013 but did not provide any explanation for his absence.

[9] On that day, the Applicant was said to have been given a verbal warning by his supervisor and was advised that his conduct was unacceptable. The Applicant was counselled to comply with company policies which required notification of absences. The Applicant was said to be conversant with this policy for reasons he had attended the induction procedure (as evidenced by his signature) and this matter had been addressed at that time.

[10] On 11 April 2013 the Applicant forwarded a text message to his supervisor that read, “slept in think I will take an RDO.”

[11] Mr Roser claimed that the Applicant had provided no notice of seeking an RDO (contrary to company policy) and that his absence had caused difficulties for a client who had booked in for a service appointment that day.

[12] Mr Roser further claimed that the Applicant’s supervisor gave him a verbal warning on 12 April 2013 in relation to failing to attend work on 11 April 2013 (which refers to the incident above).

[13] No further warnings appeared to have been given until 18 July 2013. At this time the Applicant’s supervisor was said to have given him a warning for speeding in a company vehicle. The company vehicle is equipped with a vehicle tracking device which provided a speed report indicating the Applicant had been travelling 136 km/h on a motorway. It was said that the Applicant was booked for speeding in a company vehicle on 24 January 2014 and was at that time reminded that he had already been warned about speeding and endangering his own safety and that of the public.

[14] Between 3 September and 5 September 2013 the Applicant was said to have failed to attend work and had not notified an absence or the reasons for his absence to his employer. Upon his resuming work on 6 September 2013 the employer stressed once again, it was said, the importance of following the company procedures regarding notification, in accordance with requirements outlined at induction.

[15] On 4 September 2013, Mr Roser had directed the following correspondence to the Applicant. The correspondence was signed off by the Applicant on 19 September 2013:

Luke,

It is with regret and disappointment that I am writing this however your attendance record, inability to follow company procedures for sick days and personal appearance at times is unacceptable. The procedure for inability to attend work (sick or personal reasons) is to notify the office as soon as possible so daily scheduling can be assessed and clients can be notified if necessary. Two or more consecutive days off (1 day before or after a public holiday) require a doctor's certificate. There have been several incidents this year alone where this procedure has not been followed and no attempt to contact the office or your supervisor has been made. Your employment conditions are based on Endfires employment agreement as full-time employed. This requires you to work a 40 hour week where two hours are accumulated towards a rostered day to be taken once a month. Any deviation from this can only happen with permission from your supervisor, not as you see fit. As for standard of dress Endfire Engineering prides itself in portraying a professional image to our clients and the general public alike. There for clean, tidy and ironed clothes are required at all times. Please let me put it clearly to you that it will be the last as if such an incident happens again I will have no alternative but to seek your employment. (sic)

[16] On 15 October 2013 Mr Roser indicated that the Applicant was again late for work. When an inquiry was made by his supervisor, the Applicant said “Don’t stress, just late”.

[17] The Applicant was again late (by some 2 1/2 hours) to a major client’s job on 5 December 2013. The client was said to have complained because the job was not commenced on time.

[18] On 17 December 2013 an exchange by SMS message took place between the Applicant and his supervisor, it was said. On that occasion the Applicant was advised that he had been booked for 7:30 AM the next morning for a job, to which the Applicant replied that the supervisor should “unbook me.” The supervisor was said to have stated in reply, “Do you want to keep your job?” The Applicant was said to have messaged back to his supervisor, “Yeah with a fire company not with this circus.”

[19] The Applicant was to arrive at site on 17 February 2014 over two hours late. Mr Roser said he counselled the Applicant the following day (18 February 2014) and reiterated the warning cited above. Mr Roser claimed that he informed the Applicant that, “He didn't have any more chances.”

[20] On 13 March 2014, Mr Roser stated that the Applicant was two hours late to a job which caused another technician to wait upon his attendance, and the client appointment was delayed.

[21] The next day, 14 March 2014 the Applicant could not be found at work and was contacted and requested to come to back to the office by his supervisor. At that time the Applicant is said to have communicated to his supervisor that, “on the way to the coast to pick up my child, see you Monday.” Mr Roser was concerned that the Applicant had taken this course of action without seeking permission, let alone to use a company vehicle for a private purpose.

[22] Ms Tiffany Richards, the employer’s accounts manager, gave evidence about the conduct of the Applicant and claimed she had confronted the Applicant about his recurring failure to arrive to work on time on one occasion. Ms Richards contended that the Applicant had indicated in response that he was seemingly unable to motivate himself to attend work on time.

[23] By 17 March 2014 Mr Roser appears to have had enough of the Applicant’s conduct and terminated the Applicant’s employment. The conduct of 13 March 2014, Mr Roser said, had been “the last straw.” Mr Roser said he convened a meeting with the Applicant and dismissed him on the basis of his “inability to take seriously the job and his responsibilities to the company.”

[24] Mr Roser claimed that at no time did he make any reference to the dismissal being for reasons of the Applicant exercising his family responsibilities or because he might have carer obligations for his son on weekends. It was further claimed that the Applicant had not advised anyone in the company of “his specific need for specific family friendly work arrangements to suit any weekend childcare.” Mr Hajdu, as the Applicant’s direct supervisor, gave evidence to the same effect; there had never been any formal or informal arrangements to this end (and the Applicant’s own evidence under cross examination appeared to suggest the same). Just how the Applicant set out managing his family needs from an operational perspective therefore falls into question - it appears he took advantage of opportunities as they arose but without any agreement of his employer, let alone about any regular familial commitments. The evidence considered immediately below is to the same end.

[25] Mr Roser also stated that the Applicant did not seek approval to use his company vehicle for private activities, and should reasonably have understood from his induction that company vehicles were not used for this purpose.

[26] In any event, Mr Roser’s further evidence was that the Applicant notified his supervisor by text on some occasions that he was finishing early on Friday or starting late on Monday (but even then the notification was not in advance of the cessation of work or the late arrival). Indeed, Mr Roser continued that the SIMTRACT vehicle tracking data of the company vehicle used by the Applicant for the period January to March 2014 gives no evidence that the Applicant was regularly dropping off and picking up his son from school on a fortnightly basis.

[27] Mr Roser’s evidence was that the Applicant on his termination was paid all monies owing to him. This included the two week notice period paid in lieu, his accrued RDOs, his annual leave and a backdated increase in hourly wage rate. Mr Roser’s evidence was also that the cost of the Certificate II Asset Maintenance Training course was deducted from the Applicant’s final payment in accordance with their signed agreement.

Legislative provisions

[28] Section 387 of the Act provides as follows:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(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 matters that the FWC considers relevant.

Consideration

(a) whether valid reason(s) for the dismissal

[29] The Applicant was dismissed for reasons of his unreliability as an employee. The evidence of Mr Roser provided a detailed and compelling narrative in this regard. I have no reason to think that Mr Roser’s evidence was fabricated. It was candid evidence and given from the position of a manager with a close understanding of an employee’s work performance and disciplinary history.

[30] The Applicant largely contended that the employer had exaggerated the circumstances by referring to a small number of instances of tardiness spread over a lengthy time period, and that some of the conduct of which the employer complained had a wider context.

[31] This does not appear to be the case at all. The employer had reached the point, by December 2013, where the Applicant’s unreliability was such that it was despatching another employee to a relevant site just in case the Applicant did not present himself on time. It did this in order to maintain engagement with the client and to preserve its professional standing (even though the alternative employee could not complete the task with which only the Applicant was familiar).

[32] The Applicant had demonstrated an absence of a mature commitment to his workplace obligations over an extended period of time. An employer must have trust and confidence in an employee to faithfully render it the contracted services. The Applicant in this case proved to have little regard to meeting the basic operational responsibilities reasonably expected by his employer and was unreliable. He was quite often late, seemingly impervious to guidance in this respect, personally unmotivated and dismissive of any cooperative spirit in his dealings with his employer.

[33] The Applicant’s own evidence did not reflect well on his motivation, particularly so in relation to a job role for which a condition of employment was being available to clients outside of ordinary hours.

[34] In one instance, the Applicant contended that he did not consider that it was necessary for him to attend a client’s site at the stipulated time for reasons that he believed that it would not be possible for him to perform any duties for at least one and a half hours (while a diesel pump was repaired or started up).

[35] His supervisor (the Applicant said) told him that this would be an unwise step and that he was expected to be at the relevant site at 7 AM and that Mr Roser “would be pissed off with him if he doesn’t.”

[36] The Applicant contended, regardless, that he had done a few early-morning starts previously and was not inclined to perform another.

[37] But the Applicant went further. He claimed in his viva voce evidence that he did not believe that he could have attended the site;

“Knowing me I knew that I would not be able to make it on time.”

[38] The Applicant found working in a variable hours role to be demanding and that he “was not all that great in the morning.”

[39] The Applicant deliberately did not contest the claims of Ms Richards, either. Those claims were to the effect of the Applicant's lassitude in respect of submitting timesheets, and more generally still about the Applicant’s motivation.

[40] This is not evidence that is determinative in its own right, of course. But it does reinforce the image of the Applicant’s conduct, as outlined in the principal complaints set out by Mr Roser.

[41] In my view, the employer had a valid reason for the dismissal of the Applicant.

(b) whether the person was notified of that reason

[42] The Applicant was not, it appears, notified of the reason for his dismissal in advance of the decision to dismiss him having been taken by Mr Roser.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[43] There was an exchange between Mr Roser and the Applicant at the dismissal meeting on 17 March 2014. It appears this exchange did not amount to an opportunity for the Applicant to respond to the reasons for his dismissal as they related to his conduct. The decision by Mr Roser was preordained on the basis of his prior experience of the Applicant’s conduct (as set out above in Mr Roser’s evidence).

(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

[44] The circumstances of the dismissal meeting were not such that an opportunity was given to the Applicant to consider the attendance of a support person.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[45] The dismissal of the Applicant did not relate to unsatisfactory performance, but rather to his conduct as an employee.

(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

[46] No issue was raised as to the size of the employer’s workplace and the extent to which it impacted upon the dismissal procedures.

(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

[47] No issue was raised as to the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise impacted upon the dismissal procedures.

(h) any other matters that the FWC considers relevant.

[48] The Applicant has directed my attention to his evidence in relation to discrimination. The Applicant was of the view that the dismissal was unfair for reasons that he was singled out because of his family responsibilities. The evidence in this matter did not tend in that direction at all, as I have indicated above.

Conclusion

[49] The dismissal was not harsh unjust or unreasonable when all the circumstances are considered. There were deficiencies in the procedural process leading to the dismissal. The Applicant was not given an opportunity to evaluate the body of the claims made about his behaviour as they had accumulated over time. But in the end, the employer had invested a very considerable amount of its time in managing the Applicant and warning him about the consequences of his conduct. The employer’s efforts in this regard appear to have had little effect.

[50] Reasonably, additional opportunities for procedural fairness would not have yielded a different outcome. The Applicant’s evidence in these proceedings indicated that there was little likelihood that further discussion would have persuaded his employer to reconsider the circumstances.

[51] The dismissal, therefore, was not an instance in which an employer acts impulsively on the basis of a single misdemeanour. In this particular case, there were many misdemeanours over a period of time and the Applicant was given an opportunity to rectify his standing in the eyes of the employer on numerous occasions. But for reasons known to himself he was disinclined to do so.

[52] Nor is this a case in which the Applicant was dismissed because he was exercising his family responsibilities. The evidence of Mr Roser and Mr Hajdu was unequivocal in this respect: neither had taken into account any issues - to the extent they were even known - about the Applicant’s so-called “regular” familial responsibilities. The weight of the evidence is in respect of other concerns about the Applicant altogether.

[53] The application under s.394 of the Act is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr L. McDermott, Applicant

Mr W. Smith, of the National Fire Industry Association, Queensland, for the Respondent

Hearing details:

Brisbane

2014

11 September

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