Mr Mark Scott v Aqua Environmental Pty Ltd T/A Aqua Environmental
[2011] FWA 3713
•29 JUNE 2011
[2011] FWA 3713 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Mark Scott
v
Aqua Environmental Pty Ltd T/A Aqua Environmental
(U2010/11813)
COMMISSIONER CRIBB | MELBOURNE, 29 JUNE 2011 |
Application for unfair dismissal remedy.
[1] This decision concerns an application by Mr Mark Scott (the applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). It is alleged that the termination of his employment by Aqua Environmental Pty Ltd (the respondent) (Aqua) was harsh, unjust or unreasonable. The applicant is seeking a remedy in respect of his dismissal.
[2] The respondent raised a jurisdictional objection to the application on the basis that Mr Scott did not have 12 months’ employment as he was a contractor for part of that period. The objection was dismissed by a decision of Commissioner Bissett on 12 November 2010. 1 This decision was appealed by the company and, on 15 February 2011, a Full Bench of the Tribunal dismissed the appeal.2
[3] The arbitration of the substantive merits was held on Wednesday 4 May 2011 with respect to witness evidence. Written final submissions on behalf of the applicant were filed on 18 May 2011. The respondent’s written final submissions were filed on 25 May 2011. The applicant was represented by Ms H. Renwick, Solicitor and the respondent by the Director and General Manager of the company, Mr H. Chapman.
[4] Evidence was given by Mr Scott, the applicant. On behalf of the respondent, Mr H. Chapman, Director and General Manager, Aqua Environmental, gave evidence.
WITNESS EVIDENCE
APPLICANT
Mr Scott
[5] It was Mr Scott’s evidence that he was employed as a leak technician by the respondent from 1 July 2009 until his termination came into effect on 16 August 2010. 3 He recounted that he first found out about his dismissal over the weekend of 14 and 15 August 2010. Mr Scott stated that Mr Chapman had sent him two or three emails outside of work hours during that period. He said that the first email from Mr Chapman had been sent on Friday afternoon 13 August 2010.4 The final email from Mr Chapman was said to have referred to a termination letter that he thought had been placed in his letterbox at home sometime over the weekend. He indicated that, if the letter had been delivered by close of business on the Friday, he would not have seen it on that day.5
[6] Mr Scott said that he was on unpaid leave from 13 to 16 August 2010. 6 He stated that, from the initial email from Mr Chapman on 13 August 2010, he had the assumption that Mr Chapman was inviting him to resign, because of his alleged unhappiness in the workplace. Mr Scott indicated that he had no desire to resign from his employment with the respondent. Given the seriousness of the mention of dismissal, he had replied to Mr Chapman’s email saying that, if there was to be such a discussion, it should be face to face and during work hours.7
[7] With respect to his request for time off from 13 to 16 August 2010, Mr Scott stated that he had asked Mr Chapman, in person, if he could take leave on the Friday and the Monday. He recalled Mr Chapman saying that it would not be a problem and for him to make an application through the ePayroll system for the two days so that the hours could be logged to keep the books tidy. 8 Mr Scott said that he had done that and was not at work on the Friday (13 August 2010) because he was under the impression that the leave was not going to be a problem.9 He recalled that he had a deficit of 5 hours annual leave at the time of his request. He had assumed that, on Mr Chapman’s verbal notification, he would be permitted to take unpaid leave as he had in the past. Mr Scott indicated that he had been advanced two or so weeks when he had gone on holiday to Thailand.10 He stated that he had not sent Mr Chapman an email about the leave in August 2010, as he had regarding the leave for Thailand, because there was a critical difference between two days leave (August 2010) and four weeks leave to Thailand.11
[8] Mr Scott stated that, after he had applied for the leave in August 2010 by ePayroll, he had not viewed or was personally aware of any notification from ePayroll regarding his leave request at the time he flew to Melbourne. This was thought to have been either on Thursday night, 12 August 2010 or Friday morning 13 August 2010. 12 Mr Scott indicated that he had assumed that Mr Chapman was well aware that he would not be at work on 13 and 16 August 2010.13 He said that he had not received the notification that his request for leave had been declined. He thought that he would have had to log back into his email to have seen the email declining his leave request. He did not dispute that he would have received an email.14 Mr Scott stated that:
“... from my initial request for leave I understood the leave to be accepted verbally...” 15
and
“...I can’t confirm or deny on something almost a year ago, whether I logged in – whether I had gone into my email on that day.” 16
[9] In terms of the warning he had received on 16 July 2010, Mr Scott described the situation and explained that he and the rest of the Melbourne crew were given a written warning regarding finishing work early. 17 He thought that the warning stated that the timekeeping procedures were not to be breached again and that there had to be greater communication and honesty when dealing with management. He assumed that this had meant keeping Mr Chapman informed of his whereabouts, particularly if he was not going to be present at work.18 Mr Scott stated that he had not breached the procedures again and that nothing else had been brought to his attention since the written warning.19
[10] Mr Scott confirmed that he had received phone calls from a blocked number on Friday 13 August 2010. He understood that Mr Chapman had rung and left a message. However, he said that he had not checked his voicemail. He stated that he did not try and return Mr Chapman’s calls on Friday afternoon. 20
[11] It was confirmed by Mr Scott that, on commencement with the company, he had undergone a company induction and that he had understood and agreed to follow the leave procedures. 21
RESPONDENT
Mr Chapman
[12] Mr Chapman stated that the email trail from Friday 13 August 2010 showed that Mr Scott checked his emails pretty regularly. He said that the applicant would have known that his application for leave was declined. 22 This was because, at the time Mr Scott applied for leave he had a negative balance of 5 hours. Secondly, Mr Scott had applied for annual leave rather than unpaid leave.23
[13] With respect to the alleged “door stop” conversation between Mr Chapman and the applicant about his leave, it was Mr Chapman’s evidence that he did not recall that discussion 24 and that he may not have been in Sydney that day.25 He added that, if it had taken place, he would have insisted that the request be put in writing through the ePayroll system or in an email. Mr Chapman stated that it was never the proper means to request leave verbally and that he had not verbally approved Mr Scott’s leave request.26
[14] Mr Chapman confirmed that Mr Scott had applied for annual leave on 11 August 2010 at 8:42 pm and stated that he had personally declined the leave at 6:00 am on 12 August 2010. He stated that the accompanying note said that he would give unpaid leave if requested in a separate email. As no such email was forthcoming, he had understood that Mr Scott had not wanted to take up the offer of unpaid leave. 27 It was recalled that Mr Scott had been trained on the new leave application system (ePayroll) sometime between January 2010 and August 2010 when he took unpaid leave.28 Mr Chapman doubted whether he had tried to call Mr Scott on 12 August 2010 following declining his leave request.29
[15] It was Mr Chapman’s evidence that he had been surprised when Mr Scott had not attended work on the Friday as his paid leave application had been declined and he had not applied for unpaid leave as had been requested. He stated that he had tried to call Mr Scott but he had not answered his phone. 30 Mr Chapman stated that his work number was not blocked.31 He recalled that, after his phone calls to Mr Scott were not returned, he had emailed him. Mr Scott had declined the offer of a meeting on the basis that it should be during his normal work hours.32
[16] Mr Chapman stated that Mr Scott had been dismissed during working hours via the letter that was placed in his letterbox prior to close of business on Friday 13 August 2010. His dismissal was effective Monday 16 August 2010. 33 He confirmed that Mr Scott had emailed him over the weekend indicating that he would report for work in Sydney on Tuesday. Mr Chapman said that, in his reply, he had referred Mr Scott to the letter in his letterbox. He explained that he had not waited until the Tuesday because he felt that there would be more headaches if Mr Scott was dismissed in Sydney and he then had to get him back to Melbourne. He had found out on Friday afternoon that Mr Scott was back in Melbourne. As Mr Scott had declined a meeting with him over the weekend, he took steps after that.34 Mr Chapman recalled that Mr Scott had not asked for an opportunity to collect his belongings. However, it was said that Mr Scott did request a meeting but he did not specify where.35
[17] The reason for Mr Scott’s dismissal was stated as his not following the leave request procedures and for failing to communicate with management (Mr Chapman) as required in the recent warning letter. 36 Mr Chapman explained that he had relied on and followed the Small Business Fair Dismissal Code and checklist. He said that Mr Scott had not been summarily dismissed as he was paid notice in line with the National Employment Standards.37
[18] With respect to the written warning issued to Mr Scott on 20 July 2010 38, Mr Chapman stated that it included advice that compliance with the requirement for greater communication with management, particularly timekeeping would be monitored. If there was no improvement, further disciplinary action including dismissal could be taken.39
WRITTEN FINAL SUBMISSIONS
APPLICANT
Small Business Fair Dismissal Code
[19] On behalf of Mr Scott, Ms Renwick submitted that the applicant had been unfairly dismissed under the Small Business Fair Dismissal Code (the Code). 40 It was argued that Aqua is a small business employer under the “meaning of small business employer” set out in section 23 of the Act.41
[20] It was stated that Mr Scott’s dismissal was not a summary dismissal and that Mr Chapman had confirmed this during the hearing on 4 May 2011. 42 On the basis of the assumed reasons for Mr Scott’s dismissal, it was argued that they were not sufficiently serious to justify immediate dismissal. Therefore, Mr Scott’s dismissal was not a summary dismissal under the Code.43
[21] Neither was it said to be a case of an “Other Dismissal”. This was because Mr Scott was not provided with a reason for his dismissal. Secondly, it was argued that Mr Scott had not breached the procedures stipulated in the warning of 20 July 2010 and that they were unrelated to the leave procedures. He had, therefore, not been warned about the leave procedures. Further, Ms Renwick contended that Mr Scott was not given an opportunity to respond to the termination of his employment despite him requesting a meeting – in person and within normal work hours. 44
[22] Finally, with respect to procedural matters, Ms Renwick submitted that no evidence of compliance with the Code has been provided by the respondent. Mr Scott had requested a meeting but one was not granted. 45
Section 387 of the Act
[23] It was further argued that Mr Scott’s dismissal was harsh, unjust and unreasonable. This was on the basis that section 387 of the Act had been breached by the respondent. 46
Valid reason
[24] The applicant submitted that central to this case, is the issue of “what was the reason for Mr Scott’s dismissal?” It was stated that there was no reason set out in the letter of termination. Mr Chapman’s email of 13 August 2010 was highlighted in terms of it saying that Mr Scott was unhappy at work and that he had made a mistake with ePayroll. The email further said that Mr Scott was being provided with an opportunity to remain in his usual place of residence which is what the respondent thought that he wanted. This was argued to not constitute a valid reason. 47
[25] Mr Chapman’s answer, during his evidence on 4 May 2011, that Mr Scott had been dismissed for not following the leave procedures and for not having greater communication with management, was referred to. It was said that this was the first time the proper reason for the applicant’s dismissal had been provided by the respondent – 9 months after the termination of his employment. 48
Notified of the reason
[26] It was argued that Mr Scott was not notified of any reason for his dismissal. Ms Renwick stated that the warning of 20 July 2010 did not relate to Mr Scott’s dismissal as it concerned timekeeping and communication with management and did not mention leave procedures or being unhappy at work. 49
[27] Further, the applicant submitted that this was the first time he had issues with the ePayroll system. Also, he had understood that Mr Chapman had given him verbal approval for the leave. 50
Opportunity to respond and support person
[28] The applicant submitted that he was not given an opportunity to respond despite requesting a meeting within work hours. This was not provided by the company. 51 In addition, it was stated that all of the correspondence regarding Mr Scott’s dismissal occurred outside work hours and via emails. Mr Scott had responded to the emails saying that he wanted to stay in his current position. He was not given an opportunity to have a meeting with a support person.52
Other matters
[29] Ms Renwick contended that the other matters which should be considered included that Mr Scott was not aware that he had made a mistake with ePayroll. It was argued that Mr Chapman had given him verbal approval to take the leave and that he had proceeded on that basis. The applicant stated that his application had been declined 12 hours after he had applied via an email to Mr Scott’s personal email. Mr Chapman had not telephoned the applicant and told him that his leave was no longer approved. 53
[30] Also, it was submitted that account should be taken of Mr Chapman’s email offering Mr Scott the opportunity to resign. It was stated that this was the first time that the applicant was notified of his mistakes. 54
Remedy
[31] On behalf of the applicant, it was submitted that reinstatement was not appropriate in this case. It was explained that it was 16 months since Mr Scott had worked for Aqua. In addition, the dispute over the past 8 months had created a less than amicable relationship between the parties. This was said to have not been assisted by the respondent’s non-attendance at the conciliation conference in September 2010 nor the hearing in October 2010. 55
[32] Instead, compensation of $11,668.00 (lost income) plus $1,780.60 (lost superannuation) totalling $13,448.60 was sought. The calculations were based on 10 weeks of unemployment together with the difference between his remuneration with Aqua and the alternative employment for a period of 16 weeks. 56
[33] It was submitted that, after his dismissal, Mr Scott had immediately begun seeking alternative employment. 57
RESPONDENT
Small Business Fair Dismissal Code
[34] On behalf of the respondent, it was submitted that it was common ground between the parties that the Small Business Fair Dismissal Code applies to Aqua. The issue was said to be, therefore, as to whether the Code had been complied with. It was stated by the company that Mr Scott’s dismissal falls within the “Other Dismissal” provisions of the Code. 58
[35] It was contended that the respondent had complied with the Code on the basis that:
• The dismissal related to the warning of 20 July 2010.
• This warning gave the applicant a reason why he was at risk of being dismissed – if there was no improvement.
• There was a valid reason based on the applicant’s conduct.
• The applicant had an opportunity to respond to the warning and a reasonable chance to rectify the problem.
• The applicant’s breach of the attendance policy took a different form and occurred soon after the warning but after sufficient time for there to have been an improvement. 59
[36] The respondent argued that the warning of 20 July 2010 related specifically to issues arising from non-attendance at work. It required “greater communication and honesty when dealing with management on all matters”. The warning also stated that if his performance did not improve, further disciplinary action may be taken, including dismissal. 60 The warning was said to have resulted from several unauthorised early departures from work by Mr Scott. It reflected a more general concern that Mr Scott was not attending work as required by the terms of his employment as set out in the Attendance Policy. The warning was stated to relate to breaches of the Attendance Policy in June and July 2010. Mr Scott’s unauthorised absence from work on 13 August 2010 was a further breach of the Attendance Policy. This had occurred less than 4 weeks after Mr Scott had been given the warning.61
[37] It was further submitted that the fact that Mr Scott had used different methods in failing to attend work without authority should not count against Aqua in their invoking of further disciplinary action (dismissal) after Mr Scott had failed to attend work on 13 August 2010. 62
Section 385 and 387 of the Act
[38] If the application is not dismissed on the basis of the Code, the respondent submitted that the Tribunal must determine whether Mr Scott has been unfairly dismissed. It was stated that, of the provisions set out in section 385 of the Act, the only issues to be determined are whether the dismissal was consistent with the Code and whether the dismissal was harsh, unjust or unreasonable. In order for the dismissal to be an unfair dismissal, the respondent argued that the dismissal must be found to be both harsh, unjust or unreasonable and inconsistent with the Code. 63
[39] With respect to the provisions of section 387, it was submitted by Aqua that:
• There was a valid reason for Mr Scott’s dismissal – not following the leave request procedures and not having greater communication with management, i.e: failure to follow policy and failure to communicate with Mr Chapman after having been warned a few weeks prior. 64
• There were issues in June and July 2010 regarding non-attendance at work which resulted in a warning to the applicant. Mr Scott had “merely adjusted his reasoning for non-attendance”. 65
• The valid reasons for the dismissal were the breach of the Attendance Policy following other earlier breaches together with a failure to communicate with management as referred to in the warning. 66
• It was conceded that, prior to the hearing, the applicant had not been notified of the specific reason for his dismissal. Mr Chapman’s email of 13 August 2010 had been designed to spare Mr Scott the embarrassment of being dismissed for conduct issues – hence it being couched as the applicant appearing unhappy and it not reflecting badly on his performance. 67
• It was noted that Mr Chapman’s email of 13 August 2010 did refer to one of the components of the dismissal – Mr Scott’s unauthorised absence from work on 13 August 2010. 68
• The company’s failure to provide full notification of all of the reasons for dismissal should be considered in the context of a small business which does not have dedicated human resources specialists. 69
• It was also conceded that the applicant had sought a meeting with a support person following Mr Chapman’s first email. It was acknowledged that Mr Scott was dismissed without such a meeting. The absence of dedicated human resources specialists was said to have impacted on the procedures followed by the company. 70
[40] The respondent submitted that its failings regarding process did not render the dismissal harsh, unjust or unreasonable. The Tribunal should take account of the existence of a valid reason and notification of at least part of that reason in the warning and in Mr Chapman’s email of 13 August 2010. 71
[41] In terms of section 387(h) of the Act, Aqua submitted that other relevant matters are:
• Mr Scott was in breach of Aqua’s Attendance Policy and Leave without Pay Policy. It was stated that the latter required the employee to ensure that they had approval for any leave without pay and that a leave request should be submitted via ePayroll. 72
• On the basis of the company’s policies, it was incumbent on Mr Scott to confirm that his leave application through ePayroll had been approved. 73
[42] With respect to the dispute between Mr Scott and Mr Chapman as to whether they had a conversation about the applicant’s leave, the evidence of Mr Chapman was highlighted. Further, it was argued that Mr Scott was well aware of the leave policy. It was asserted that, following the declining of his leave application, Mr Scott had either:
• Failed to check his email for more than 24 hours after applying for the leave; or
• Was aware that it had been declined but failed to take further action – requesting unpaid leave in a separate email. 74
[43] The respondent submitted that, on the balance of probabilities, the applicant was aware of the response from ePayroll. 75 Therefore, Mr Scott was in breach of the Leave without Pay Policy and the Attendance Policy. His absence from work on 13 August 2010 was described as negligent at best and dishonest at most.76
Remedy
[44] Aqua agreed with the applicant that reinstatement is inappropriate in this matter. 77
[45] With respect to the applicant’s claims regarding compensation, the respondent submitted that:
• The length of the applicant’s service is an important factor as Mr Scott had only been employed for 13 months. This was said to just be long enough to make a valid unfair dismissal application. The Tribunal was referred to an authority in support of this contention. 78
• The remuneration that the person would have received was also said to be a significant factor. The Tribunal was referred to the excellent reference given by Mr Chapman to Mr Scott dated 19 July 2010. The Tribunal was requested to take account of this together with evidence that Mr Scott was actively seeking other employment whilst still working for the respondent and Aqua’s significant dissatisfaction with the applicant’s conduct. It was submitted that these should indicate to the Tribunal that Mr Scott would not have remained with Aqua for a significant period. 79
• It was noted that the applicant, in his Witness Statement, identified his occupation as “Assistance Property Valuer”. The respondent argued that it was likely that Mr Scott was now earning significantly more than in the past. 80
• Under section 387(h) of the Act, the Tribunal was asked to consider the fact that Mr Scott received in excess of his statutory entitlements whilst employed by Aqua. 81
[46] In terms of section 392(3) of the Act, it was submitted that the applicant’s dismissal was the result of his misconduct – his failure to comply with the leave policies. Therefore, any compensation ordered should be reduced accordingly. 82
[47] Finally, the respondent contended that, in the event that compensation is ordered, it should be limited on the basis of the applicant’s short length of service, the likelihood that he would not have remained employed by the respondent for any significant period of time and the applicant’s misconduct. 83
CONCLUSIONS
[48] Section 396 of the Act sets out four matters which must be decided in applications of this kind 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.”
[49] There is no dispute between the parties that the application was made within time (section 396(a)) and that Mr Scott was protected from unfair dismissal (section 396(b)). There was also no dispute that this matter did not concern redundancy. Therefore, section 396(d) is not relevant in this case. Accordingly, it is now necessary to determine whether the dismissal was consistent with the Small Business Fair Dismissal Code (section 396(c)).
Section 396(c)
[50] It was common ground that the respondent was a small business employer within the meaning of the Act and that the Small Business Fair Dismissal Code applied in this matter.
[51] The Code provides as follows:
“Summary Dismissal
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.
Other dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.
Procedural matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.” 84
[52] It was also common ground that Mr Scott had not been summarily dismissed and that the “Other Dismissal” requirements applied. In these circumstances, the following matters arise for consideration:
• Did the respondent give Mr Scott a reason why he was at risk of dismissal?
• Was the reason a valid reason related to Mr Scott’s conduct or capacity?
• Was Mr Scott warned that he risked being dismissed if there was no improvement?
• Did the company provide Mr Scott with an opportunity to respond to the warning and give him a reasonable chance to rectify the problems, having regard to Mr Scott’s response?
[53] In applying these requirements, I must also have regard to the procedural matters set out in the Code, namely, that an employee can have another person present in discussions where dismissal is possible. Further, a small business employer will be required to provide evidence of compliance with the Code.
[54] I will deal with each of these matters in term.
Did Aqua give Mr Scott a reason why he was at risk of dismissal?
[55] It was the applicant’s submission that, at no stage prior to the hearing on 4 May 2011, was the applicant notified of the reasons for his dismissal. It was further argued that the reasons for Mr Scott’s dismissal were unrelated to the warning he was given on 20 July 2010. The warning was said to have concerned greater communication and honesty when dealing with management. However, the reasons for his dismissal appear to be not following leave procedures and not having greater communication with management.
[56] On the other hand, Aqua conceded that, prior to the hearing, the applicant had not been notified of the specific reason for his dismissal. This was because Mr Chapman had wanted to spare Mr Scott the embarrassment of being dismissed for conduct issues. However, it was argued that Mr Chapman’s email of 13 August 2010 had referred to one of the reasons for the dismissal – his unauthorised absence from work on Friday 13 August 2010. Further, the company contended that the reasons for Mr Scott’s dismissal and the further requirements of the applicant contained in the warning, were closely related and that the reasons for the warning had been discussed with Mr Scott at the time.
[57] I have considered all of the material before me and it is evident that, until the hearing on 4 May 2011, Mr Scott had not been given a specific reason for his dismissal. Mr Chapman’s email of 13 August 2010 referred to Mr Scott’s request for annual leave and that he had not applied for unpaid leave in writing – as he had been requested. 85 However, the thrust of the email appears to be that Mr Scott appeared to be unhappy and that he should take the opportunity to remain in Melbourne and seek alternative employment. The email also said that this did not reflect badly on Mr Scott’s performance but that, given his “current poor approach to employment with us”, the company was providing him with this opportunity.86 Aqua was prepared to pay 1 weeks pay in lieu of Mr Scott providing notice of termination. The email ended on the basis that, if Mr Scott had not responded by 5:00 pm on 16 August 2010, it would be assumed that he wished to terminate his employment with Aqua.87
[58] On the basis of the contents of the email, it cannot be said that Mr Chapman had told Mr Scott the reasons it was being suggested that he should leave. There is reference to Mr Scott not applying for leave without pay as he was asked to and a reference to Mr Scott’s “current poor approach to employment” with the company and him being unhappy. However, it cannot be said that Mr Scott was given the reasons for his dismissal.
[59] With respect to whether the warning of 20 July 2010 concerned the same issues for which Mr Scott was dismissed, it is my view that the answer is yes. The written warning that Mr Scott was given was the result of a number of occasions when he had finished work early and Mr Chapman had not been consulted/advised of this. The warning stated that Mr Scott had agreed to:
“greater communication and honesty when dealing with management on all matters, particularly when relating to time keeping.” 88
[60] The reasons for the applicant’s dismissal appear to have been his absence from work on 13 August 2010 which was not authorised and which was in breach of the company’s Attendance and Leave Policies. Further, there had been a failure to communicate with management (Mr Chapman) regarding the leave. From Aqua’s perspective, this incident and the events that had resulted in the warning in July 2010 were variations of the one theme, namely, Mr Scott was absent from work without Mr Chapman’s approval or knowledge. This conduct was, therefore, in breach of the company’s Attendance and Leave Policies. However, it is drawing a long bow to say that the July warning about leaving work early constitutes notification to Mr Scott of the reasons for his dismissal. It is noted that the letter of termination dated 14 August 2010, did not specify any reason for Mr Scott’s dismissal. 89
[61] The Small Business Fair Dismissal Code states that the small business employer “must give the employee a reason why he or she is at risk of being dismissed.” With respect to whether or not this occurred, it is clear that Mr Scott, in the warning of 20 July 2010, was told that he risked further disciplinary action, including termination, if he did not improve his communication and honesty with management, particularly timekeeping. 90
[62] Therefore, although Mr Scott was not notified of the reason for his dismissal, in terms of the requirements of the Code, I find that he was given a reason why he was at risk of being dismissed.
Was the reason a valid reason related to Mr Scott’s conduct or capacity?
[63] The reasons for Mr Scott’s dismissal related to his conduct and not his capacity.
[64] It was argued by the applicant that there was no valid reason for his dismissal. This was on the basis that the email from Mr Chapman referred to Mr Scott being unhappy at work, having made a mistake with ePayroll and him wanting to be in Melbourne and providing an opportunity to find alternative employment there. None of these things were said to constitute a valid reason for the dismissal. With respect to Mr Scott’s alleged unauthorised absence from work on 13 August 2010, it was contended that Mr Chapman had verbally approved the leave. He had also asked Mr Scott to apply through the ePayroll system which he had done. At the time he left Sydney for Melbourne, Mr Scott’s evidence was that he was unaware that the leave was not approved. He could not recall whether or not he had checked his email after he had applied for the leave. He had assumed that Mr Chapman was aware that he would not be at work on 13 August 2010. This was said to be because he was under the impression that the leave would not be a problem based on his conversation with Mr Chapman.
[65] For the employer’s part, Aqua argued that there was a valid reason for the dismissal. This was said to be that, in not attending for work on 13 August 2010, Mr Scott had further breached the Attendance Policy (and Leave Policy) following having been warned about this issue in July 2010. Further, Mr Scott had failed to communicate with management in August 2010, which was something that he was specifically required to do by the warning of 20 July 2010.
[66] In terms of the alleged conversation between Mr Chapman and Mr Scott when verbal approval was allegedly given for Mr Scott to take leave, it was contended by Aqua that Mr Chapman’s account should be preferred. It was Mr Chapman’s evidence that he could not recall the conversation. He was adamant, however, that he did not verbally approve the leave.
[67] I have considered carefully all of the material before me concerning whether Mr Scott was given verbal approval to take leave on 13 and 16 August 2010 by Mr Chapman. It may well be that there was a conversation between Mr Chapman and Mr Scott regarding this leave. However, I find that it is most probable that Mr Chapman did not verbally approve the leave and that he told Mr Scott to apply in writing.
[68] Mr Scott applied for annual (paid) leave for 13 and 16 August 2010 at 8:46 pm on Wednesday 11 August 2010. At 6:32 am the following morning (12 August 2010), Mr Chapman declined the leave with a note saying that annual leave could not be granted as there was negative balance (-5 hours). 91 The note also said that unpaid leave would be given if requested in a separate email. Mr Scott worked on 12 August 2010 and then flew to Melbourne on either that night or the following morning (13 August 2010). It was Mr Scott’s evidence that he could not recall whether he had checked his email between making the leave application and flying to Melbourne. Mr Scott said that he had acted on the assumption that his leave application had been approved (by the ePayroll system) as Mr Chapman had given him prior verbal approval.
[69] I consider that it was Mr Scott’s responsibility to ascertain whether his leave had been formally approved – prior to taking the leave. On the material before me, including the witnesses’ evidence, I have concluded that Mr Scott did not check his email on Thursday 12 August 2010. I have formed the view that it is most probable that this was deliberate on Mr Scott’s part. If Mr Scott had checked his email, he would have seen a note saying that his annual leave application had been declined but that, if he applied for leave without pay in a separate email, it would be approved. It was incumbent on Mr Scott to have checked his email for the approval notification and not to have gone on leave until he had received formal approval of the leave. Mr Scott’s actions in not ensuring that he had formal approval to go on leave breached the company’s annual leave policy. He also breached the Attendance Policy as Mr Chapman was entitled to expect that Mr Scott would be at work on Friday 13 August 2010 and Monday 16 August 2010 because Mr Scott had been notified that his application for the annual leave had not been approved. Further, as there had been no application for leave without pay from Mr Scott, Mr Chapman was reasonably able to expect that Mr Scott would be at work on 13 and 16 August 2010. It was not, in my view, Mr Chapman’s responsibility to chase Mr Scott up. As indicated earlier, it is the employee’s responsibility to ensure that the leave they are taking has been formally approved, prior to taking it.
[70] In addition, Mr Scott had been previously given a written warning on 20 July 2010 regarding leaving work early on a number of occasions which had not been approved or authorised by Mr Chapman. The warning required greater communication and honesty with management by Mr Scott, on all matters, particularly timekeeping.
[71] When the situation that occurred on 13 August 2010 is taken together with the written warning of a few weeks earlier, which dealt with unauthorised absences and a lack of communication with management, it is concluded that there was a valid reason for Mr Scott’s dismissal.
Was Mr Scott warned that he risked being dismissed if there was no improvement?
[72] The written warning dated 20 July 2010 stated that:
“Please be advised that should your performance not improve, further disciplinary action may be taken against you, which may include the termination of your employment.” 92
[73] It was made clear in the warning that the improvement that was expected of Mr Scott concerned his performance regarding “greater communication and honesty with management by Mr Scott, on all matters, particularly timekeeping”. 93
[74] Therefore, I find that Mr Scott was warned that he risked being dismissed if there was no improvement.
Did the company provide Mr Scott with an opportunity to respond to the warning and give him a reasonable chance to rectify the problems, having regard to Mr Scott’s response?
[75] The written warning stated that several issues had been raised with the applicant and that he had been provided with an opportunity to respond to these issues. The warning listed three responses from Mr Scott. In his evidence, Mr Scott did not challenge the contents of the warning letter.
[76] Therefore, I conclude that Mr Scott was provided with an opportunity to respond to the warning.
[77] With respect to the question of whether Mr Scott was given a reasonable chance to rectify the problems, it is required that the Tribunal has regard to Mr Scott’s response when answering this question. The warning cited Mr Scott’s response as having included:
“You explained you finished early because you felt the Melbourne office didn’t have sufficient work on hand.”
“You felt that as a salary employee you were not paid an hourly rate.”
“As a salary employee you felt it would not be acceptable to dock hours to offset the days you finished work early.” 94
[78] Mr Scott was dismissed nearly four weeks after he was given the warning. Given Mr Scott’s response to the warning, I am of the view that Aqua gave him a reasonable chance to rectify the problems. Therefore, I consider that the second part of this requirement of the Code has been complied with.
Procedural matters
[79] It was not disputed that Mr Scott asked for a meeting to discuss the issues raised in Mr Chapman’s email of 13 August 2010. It was conceded by Aqua that Mr Scott was dismissed without any meeting having taken place. With respect to Aqua’s evidence of compliance with the Code, a completed checklist was not provided. A copy of the written warning given to Mr Scott was provided as was a signed Witness Statement by Mr Chapman. Attached to the Witness Statement were a number of documents pertaining to this case, e.g. company policies, Mr Scott’s leave application.
[80] Therefore, I conclude that the first procedural requirement of the Code relating to the right to access a person to assist has not been complied with.
Was the dismissal consistent with the Code?
[81] As the first of the procedural requirements of the Code has not been complied with, I am unable to conclude that Mr Scott’s dismissal was consistent with the Code.
[82] Therefore, as the dismissal was not consistent with section 396(c) of the Act, there is no capacity to dismiss the application pursuant to section 396.
[83] As a consequence, I now turn to section 385 of the Act. Section 385 of the Act provides as follows:
“385 What is unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.” 95
[84] In this matter, section 385(a) has been met, the dismissal was not consistent with the Code (section 385(c)) and section 385(d) is not relevant. Therefore, in order to determine whether Mr Scott was unfairly dismissed, it is necessary to consider whether his dismissal was harsh, unjust or unreasonable (section 385(b)).
Was the dismissal harsh, unjust or unreasonable?
[85] In determining whether Mr Scott’s dismissal was harsh, unjust or unreasonable, the Tribunal is required to take into account the factors set out in section 387 of the Act.
[86] The factors are as follows:
“Section 387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
I will deal with each of these factors in turn, in the context of my earlier findings.
Valid reason – section 387(a)
[87] As set out in paragraph 63 above, the reasons for Mr Scott’s dismissal related to his conduct and not his capacity.
[88] The reasons for the applicant’s dismissal related to his unauthorised absence from work on Friday 13 August 2010 which was in breach of the Attendance and Leave Policies and also which occurred without communication with Mr Chapman. This incident followed a written warning that Mr Scott had received, dated 20 July 2010. The warning related to occasions when he finished work early which had not been authorised by Mr Chapman or communicated to him. Both the incidents which were the subject of the warning and the 13 August 2010 situation involved breaches of company policies e.g. Attendance and Leave Policies. They both occurred in the absence of communication by the applicant with Mr Chapman. Taking all of this into account, including the findings and discussion set out in paragraphs 63 – 71 above, I am satisfied that there was a valid reason, related to Mr Scott’s conduct, for his dismissal.
Notification – section 387(b)
[89] Mr Scott was not notified of the reasons for his dismissal. The first time he heard what the reasons were was during the hearing on 4 May 2011.
[90] I am not satisfied that Mr Scott was notified of the reasons for his dismissal.
Opportunity to respond – section 387(c)
[91] Mr Scott requested a meeting to discuss the issues raised by Mr Chapman in his first email on 13 August 2010, prior to his dismissal. He was dismissed without such a meeting.
[92] I am not satisfied that Mr Scott was given an opportunity to respond to the reasons for his dismissal.
Support person – section 387(d)
[93] When Mr Scott requested the meeting, he did not ask for a support person to be present. He asked for the meeting to be in person and within work hours. 96
[94] Therefore, a request for a support person was not unreasonably refused. Rather, it was the request for a meeting that was unreasonably refused.
Warnings regarding performance – section 387(e)
[95] Mr Scott was dismissed for conduct issues and not for performance issues, for which he had received a written warning, dated 20 July 2010.
[96] Therefore, this factor is not relevant in this matter.
Size of the employer’s enterprise – section 387(f)
[97] The respondent submitted that the size of the employer’s business (being a small business) impacted on the procedures followed by Aqua in effecting the dismissal.
[98] Aqua is a small business and it is apparent from the material before me that this has impacted on the procedures followed.
Human resource expertise – section 387(g)
[99] The employer argued that the absence of dedicated human resource specialists impacted on the procedures followed.
[100] It is noted that Aqua has no human resource management expertise. I consider that this absence had an impact on the procedures followed and contributed to a process which lacked coherence and any shred of procedural fairness.
Other matters – section 387(h)
[101] The respondent sought that the Tribunal took account of the breaches of the company’s policies and the applicant’s alleged failure to check his email after applying for leave.
[102] Each of these matters has been considered in determining whether there was a valid reason for Mr Scott’s dismissal. Therefore, there are no other matters I consider relevant.
SUMMARY
[103] In all of the circumstances of this matter and, having taken account of each of the factors in section 387 of the Act, I determine that, on fine balance, the termination of Mr Scott’s employment was not harsh, unjust or unreasonable. On the one hand, the procedural aspects of Mr Scott’s dismissal were deplorable and cannot be excused even on the grounds that Aqua is a small employer with no dedicated human resource specialists. On the other hand, there is a valid reason for Mr Scott’s dismissal. The conduct of the applicant in July 2010 and on 13 August 2010 goes to the relationship of trust between an employer and employee. To have been absent from work without management’s knowledge or approval in July 2010 and then again, in essence, on 13 August 2010, outweigh, finely, the considerable flaws in the process of terminating the applicant’s employment.
[104] Therefore, as all of the requirements of section 385 of the Act have not been met, this means that Mr Scott’s dismissal is not unfair within the meaning of the Act.
[105] Accordingly, Mr Scott’s application for an unfair dismissal remedy is dismissed. An order to his effect will be issued separately.
COMMISSIONER
1 [2010] FWA 8676
2 [2011] FWAFB 989
3 Transcript PN 374 and 434 - 441
4 Ibid PN 379
5 Ibid PN 374 - 380 and 444 - 446
6 Ibid PN 378
7 Ibid PN 387 - 389
8 Ibid PN 398 and 517
9 Ibid PN 398 - 399
10 Ibid PN 399
11 Ibid PN 505 - 506
12 Ibid PN 410 - 411
13 Ibid PN 412
14 Ibid PN 455 - 495
15 Ibid PN 496
16 Ibid PN 500
17 Ibid PN 413 - 415
18 Ibid PN 524 - 528
19 Ibid PN 413 - 417
20 Ibid PN 447 - 452
21 Ibid PN 507 - 509
22 Ibid PN 559
23 Exhibit R1 at paragraph 12
24 Transcript PN 563, 565 and 589
25 Ibid PN 563 and 567
26 Ibid PN 563 - 566 and 568
27 Exhibit R1 at paragraph 12 and Transcript PN 590 - 592
28 Transcript PN 627 - 633
29 Ibid PN 593 - 597
30 Ibid PN 599 - 603 and 616 and Exhibit R1 at paragraphs 16 - 18
31 Transcript PN 622
32 Exhibit R1 at paragraph 20
33 Transcript PN 634 - 639
34 Ibid PN 641 - 645
35 Ibid PN 647 - 650
36 Ibid PN 654 - 655
37 Ibid PN 656 -659
38 Exhibit R1 at Attachment D
39 Ibid at paragraph 11
40 Final Submissions for the applicant dated 18 and 27 May 2011 at page 1 respectively
41 Final Submissions for the applicant dated 18 May 2011 at paragraph 6, page 6
42 Ibid at paragraph H at pages 1 and 7
43 Ibid at paragraph 4 at page 7
44 Ibid at paragraph I at pages 1 and 7
45 Ibid at paragraph J at page 8
46 Ibid
47 Final Submissions for the applicant dated 18 May 2011 at pages 2 and 9 at paragraph K(a) and Final Submissions for the applicant dated 27 May 2011 at page 1
48 Final Submissions for the applicant dated 18 May 2011 at page 2
49 Ibid and at paragraph K(b) at page 9
50 Ibid
51 Ibid at page 2
52 Ibid at paragraphs K(c) and (d) at page 9
53 Ibid at pages 2 - 3
54 Ibid at paragraph K(e) at page 10
55 Ibid at paragraph K at page 11
56 Ibid at paragraph K(c) at pages 3 - 4 and 12
57 Ibid at paragraph K(d) at page 12
58 Respondent’s Written Submissions filed 25 May 2011 at paragraphs 4 - 5
59 Ibid at paragraph 10
60 Exhibit R1 at Attachment D
61 Respondent’s Written Submissions filed 25 May 2011 at paragraphs 7 - 9
62 Ibid at paragraph 11
63 Ibid at paragraphs 14 - 16
64 Ibid at paragraph 20
65 Ibid at paragraph 21
66 Ibid at paragraph 22
67 Ibid at paragraph 23
68 Ibid at paragraph 24
69 Ibid at paragraph 25
70 Ibid at paragraph 27
71 Ibid at paragraph 28
72 Ibid at paragraphs 30 - 34
73 Ibid at paragraph 35
74 Ibid at paragraphs 36 - 37
75 Ibid at paragraph 38
76 Ibid at paragraphs 38 - 41
77 Ibid at paragraph 44
78 Ibid at paragraphs 48 - 49
79 Ibid at paragraph 50 - 57
80 Ibid at paragraph 61
81 Ibid at paragraph 62
82 Ibid at paragraphs 63 - 68
83 Ibid at paragraph 69
84 Danute Kristina Grigonis v Adelaide Coffee Company Pty Ltd[2011] FWA 1586 at paragraph 54
85 Final Submissions for the applicant dated 18 May 2011 at Annexure C
86 Ibid
87 Ibid
88 Exhibit R1 at Attachment D
89 Final Submissions for the applicant dated 18 May 2011 at Annexure B
90 Exhibit R1 at Attachment D
91 Ibid at Attachment E
92 Ibid
93 Ibid
94 Ibid
95 Danute Kristina Grigonis v Adelaide Coffee Company Pty Ltd[2011] FWA 1586 at paragraph 80
96 Final Submissions for the applicant dated 18 May 2011 at Annexure G
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