Mr Michael Tenahu v PTH Enterprises
[2012] FWA 5294
•21 JUNE 2012
[2012] FWA 5294 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael Tenahu
v
PTH Enterprises
(U2011/2568)
COMMISSIONER BOOTH | BRISBANE, 21 JUNE 2012 |
Application for unfair dismissal - arbitration.
[1] This matter concerns an application for unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act).
[2] Mr Michael Tenahu (the Applicant) was employed as a casual employee by PTH Enterprises, a business operated by Mr Peter Moir (the Respondent) as a trolley collector.
[3] The Respondent employed the Applicant as a sub-contractor to Collymore Enterprises Pty Ltd, a company operated by Mr Nick Collymore. In his statement, Mr Collymore deposes that he has numerous sites around Queensland all run by sub-contractors and that the Respondent is himself engaged or ‘employed’ 1 by Mr Collymore as a sub-contractor for Woolworths and Big W in a regional Queensland town.
[4] The Applicant worked for the employer from 1 June 2010 until his dismissal on 14 December 2011. His work involved gathering trolleys which sometimes involved using a tractor.
[5] The Applicant says he was dismissed from his employment because he raised issues of safety about the tractor, issues of wages of the younger staff, and the non-payment of his superannuation.
[6] The Respondent says that the Applicant was dismissed for unacceptable behaviour on a number of occasions which included verbal abuse and anger towards the Respondent including demanding that the Head Contractor sack the Respondent and allegations that the Respondent sabotaged the tractor.
The Applicant’s evidence
[7] The Applicant filed an unsworn statement, a number of photographs, details of the superannuation payments, a pay slip and two statements from Centrelink. He expanded on his statement further in submissions and was cross-examined. In support of his application he filed a number of statutory declarations ultimately only relying on the statutory declaration of Mr Rogers and the statement of Ms Turcarelli who was also cross-examined.
What the applicant says happened before the date of dismissal
[8] The Applicant submitted that he raised a number of issues with the Respondent prior to his dismissal. The Applicant indicates he raised non-payment of superannuation with the Respondent on several occasions about 3 to 4 months after he commenced employment. Additionally he indicated that he spoke to Mr Collymore and that Mr Collymore undertook to speak with the Respondent and discuss how the issue of superannuation was to be fixed. However this issue was not addressed until these proceedings commenced.
[9] On the issue of the roadworthiness and safety of the tractor, the Applicant under cross-examination said:
“I was passing the information on to you about the repairs and they weren't getting done...”
[10] On the issue of problems with payslips for the younger employees the Applicant said he spoke to both the Respondent and Mr Collymore. During cross-examination the Applicant stated as follows:
“And Peter got wind of me telling them to double check, or their parents, make sure that they check the bank statements because they weren't getting pay slips. When I spoke to Nick about it - because I even - Nick was - he come down - and he had to anyway because he had an appointment with Woolworths, plus he had an appointment with two parents, ladies that were coming there to see why their sons weren't paid properly. “
[11] The Applicant tendered a statutory declaration by Mr Ray Rogers who was not cross examined. Mr Rogers stated that he never had an issue with the quality or quantity of the Applicant’s work; that he kept up with safety requirements and since he has left Mr Rogers has had complaints about safety and that the store has run out of trolleys three times.
[12] Ms Turcarelli who is the mother of a previous young employee of the Respondent was cross-examined. She noted that her son, Ezekiel, “ really loved working as a trolley boy..he totally enjoyed working with..Mr Tenahu”. After her son voluntarily left the employment for another position, Ms Turcarelli deposed that the Respondent did not pay his full entitlements. This situation was a terrible experience for her son. It was resolved only after Ms Turcarelli met with Mr Collymore.
What the applicant says happened on the day of his dismissal
[13] In his statement, the Applicant stated that on the day of his dismissal he arrived at work and raised his concerns about the safety of the tractor and his view that the tractor was unroadworthy and he could not collect the trolleys around town. He stated that about one hour later two police officers approached him at work and told him that the Respondent wanted the keys to the tractor and the trolley shed and then escorted him to collect his belongings.
[14] At the hearing the Applicant expanded on what happened:
"Can I make one phone call before actually giving the keys?" And they said yes, they were standing right there, and I rang up Nick, Peter's boss, and I asked them if he had anything to do with this, what's going on today and his reply to me was, "No, I haven't, Peter's the boss and he makes the decision.
...
After that that's when I was fired, I had no job.
...
The day I had approached him, on the day I got dismissed. I had approached him about the tractor being unroadworthy. I had actually been pulled up one period by the police and they asked me to take it off the main road because I was doing trolley runs around Kingaroy...”
[15] The Applicant denied the Respondent’s claims of abusive behaviour by the Applicant. He submitted that the only time he was notified of his dismissal was on the morning of the 14th when two police officers approached him.
[16] In final submissions he submitted:
“The real reason for my dismissal is because I was educating the trolley boys on the - to keep a track on their hours worked and getting paid right. I was also asking more frequently about getting the tractor fixed, and my super.“
[17] Further the Applicant submitted that he was never warned and that there were inconsistencies between what was said to Centrelink and what was written on the Employment Separation Certificate.
[18] After the dismissal the Applicant points to the two differing versions of events given to Centrelink by the Respondent. One version was that there was a ‘shortage of work' and the Applicant’s ‘unsuitability for this type of work’. The other stated the reason for the separation as “Verbal abuse and threats to employer - employee was already on final warning after vandalizing customer car”.
[19] The Applicant submitted that the Respondent could not explain these different versions and that I should take this into account in my decision.
The Respondent’s Evidence
[20] PTH Enterprises is a business operated by the Respondent. The Respondent is a sub-contractor to Mr Nick Collymore’s business, Collymore Enterprises Pty Ltd. The Respondent appeared on his own behalf.
[21] Other than the Respondent’s response to the application which included a contemporaneous note on the date of dismissal, the Respondent’s written evidence consisted of a statutory declaration from the principal contractor Mr Collymore. Both the Respondent and Mr Collymore were cross-examined.
What does the Respondent say happened before the date of dismissal?
[22] The Respondent submits that the Head Contractor, Mr Collymore spoke to the Applicant on three occasions about his behaviour and on one of those occasions the applicant was angry and swearing. On this occasion he said that he directed the Respondent to the issue:
“a first and final letter that his casual employment would be terminated if he continued the unacceptable language and behaviour”
[23] In evidence-in-chief, the Respondent asked Mr Collymore about the behaviour of the Applicant and the response of Mr Collymore was as follows:
“How many times have you had cause to talk to - - - ?---Probably about - three for definite, and those occasions where one where I actually turned up at the centre. He was absolutely going off his nana, f'ing, (indistinct) and cursing about the staff that were there, not f'ing doing their job. They're f'ing well doing what they f'ing hell he was doing, and just going off his head. And I said, "Listen, Mick, just calm down, you can't speak like that." I said, "It's totally unappropriate." I said, "If you've got issues with staff members," I said, "you need to take it up with Peter." In which case I made a phone call to Peter and told him that Mick had problems with a couple of staff there but I also said to Peter his mannerisms and which he's going on, the swear words that he's using is totally inappropriate. And I issued for Peter to give him a warning letter.”
[24] On the question of warnings, the Respondent says he did issue them at a local coffee shop but did not ‘keep the paper work” 2
What does the Respondent say happened on the date of dismissal?
[25] In submissions the Respondent says that he had a phone call from centre management that when he got there, he was met by the Applicant in what he describes as an “absolute rage”. He accused the Respondent of sabotaging his own tractor and at that point the police were called.
[26] The Respondent further says that when he spoke with the Applicant in front of the police, the Applicant said “I have nothing to say to you. You are not my boss”.
Mr Collymore said in evidence-in-chief as follows:
“But his major - the reason - the major decision was his behaviour on Friday, 14th, was totally unacceptable. And as an employee(sic) I'm - there's no way I'm going to stand for it. And he was making wild accusations that - he wanted me to get rid of Peter and he wanted me to put him on in Pete's role. And I said, "That's not going to happen."
The Respondent’s submissions
[27] The Respondent does not dispute that the Applicant could do his job. He stated “his ability to do the job most of the time was all right.” 3
[28] On the question of problems with the tractor he acknowledged there were problems but not as many as were asserted.
[29] On the question of staff wages the Respondent stated that in a 2½ year period there had been two complaints about wages.
[30] The Respondent submits that none of these matters were the reasons for the termination.
[31] He submits that the Applicant was sacked because of his temper and because of his misconduct and that on the day of dismissal the Applicant was “so angry he couldn't even string two sentences together.”
[32] The Respondent admits that there were no written warnings but asserts there were at least three verbal warnings.
[33] On the question of inconsistency between the Centrelink report and Separation Certificate the Respondent disputed that the Centrelink document was the official document because in the Respondent’s view the official document was the one issued by his company that stated the reason for the dismissal was that the Applicant’s abuse and threats and that the Applicant was on his final warning after vandalizing a customer car.
Conclusion and findings
[34] In determining this application, the Tribunal must consider the following matters:
● whether the Applicant was dismissed;
● whether the conduct alleged took place;
● whether that conduct justified the dismissal;
● whether the dismissal was harsh, unjust or unreasonable.
[35] The parties agree that the Applicant was dismissed from his employment on 14 December 2012. This occurred in the car park.
[36] The circumstances that lead to dismissal are disputed. They are also clouded by the different versions of events given to Centrelink (a shortage of work and unsuitability for this type of work as against “Verbal abuse and threats to employer - employee was already on final warning after vandalizing customer car”).
[37] The Applicant points out the clear differences between these statements, and also says thathehad never been warned either verbally or in writing.
[38] The employer says that the behaviour of the Applicant on the morning of the dismissal was enough to terminate his employment regardless of anything else that happened.
[39] I note that the employer does not rely on performance issues as a reason for termination and I have not therefore considered the question of the Applicant’s work performance in determining this application.
[40] The Applicant’s conduct is the reason given by the employer for the termination. This being the case, I have to decide whether this conduct occurred and if so whether it was a valid reason for the termination of employment:
“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.
The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it.” 4
[41] In turning to the reasons given by the Respondent, the Respondent asserts that on the day of the dismissal the Applicant accused the Respondent of sabotaging the tractor and was angry and abusive. The Respondent submits that the behaviour justifies instant dismissal. In contrast, the Applicant said on the morning of the dismissal he took the opportunity to state his concerns about the safety of the tractor, as the tractor was unroadworthy and he could not collect trolleys. Superannuation was also raised the day of the dismissal. In response the Applicant asserts that the Respondent became very angry and walked away without saying anything in reply.
[42] It is agreed that some time afterwards two uniformed police officers approached the Applicant requesting the keys to the tractor and a trolley shed.
[43] I have firstly to decide whether the impugned behaviour occurred.
[44] This is a difficult decision for the Tribunal. Neither party provided any significant corroborative evidence to assist its case. The version of events on the day of dismissal are completely different. The Applicant said he merely raised the issue of the tractor and his superannuation. In contrast, the Respondent and Mr Collymore suggested that the Applicant was so angry he could not speak in a civil way, and made unsubstantiated allegations and unreasonable demands.
[45] For reasons outlined below, I prefer the evidence of Mr Collymore to that of either the Applicant or the Respondent on the important question of whether the Applicant was angry, made allegations of sabotage and demanded the sacking of the Respondent.
[46] It is also unlikely that the police would be called to remove an employee and obtain an employee's keys in circumstances described by the Applicant, adding further credence to Mr Collymore’s evidence.
[47] The Respondent’s case is that the Applicant had been warned on numerous occasions about his angry outbursts and about demanding that the Respondent be sacked by the Head Contractor. While there is no evidence to support these warnings occurred, the Applicant did admit in cross-examination that he told Mr Collymore that he should ‘get rid of’ the Respondent as follows:
And then discussed that point about the wages. Nick says to me, "What do you reckon you should do?" Or, "What should I do?" I says, "The only way to do this, cover your back, do the wage yourself and get rid of Peter." That's what I said. I don't want the headache, I just come here to work. I didn't want the contract...”
[48] Mr Collymore deposes that the Applicant again repeated his demand to sack the Respondent in the last phone call. Such a demand, made on more than one occasion provides some corroboration of the version of events given by the Respondent.
[49] I have formed the view that the conduct on the day of dismissal as described by the Respondent and supported by the statement of Mr Collymore occurred. I am therefore required to decide whether there is a valid reason for the termination.
Was there a valid reason for the termination?
[50] In Qantas Airways Ltd v Cornwall, the Full Court of the Federal Court said:
“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.” 5
[51] The Applicant’s evidence suggested that the tractor used to move trolleys was not fit for the purpose. It would not be unsurprising if an employee complained about this. Indeed, any employee has a right to use safe equipment.
[52] In the event the employee considers the equipment is unsafe, an employee has every right to complain and refuse to drive the tractor. In some circumstances it may be proper to complain to the head contractor, especially as seems to be the case here, the head contractor kept close contact with the sub-contractor and employees. However, it is another matter to accuse the employer of sabotaging his own tractor.
[53] Was the accusation of sabotage sufficient to terminate the employee? On its own it would be unlikely to be found as a valid reason given that the conduct, although quite extreme, was based on what was no doubt a genuine concern for safety. However, this was not the only behaviour that occurred. Accompanying the very unusual allegation was a demand for the sacking of the sub-contractor. It may be on rare occasions acceptable to demand that your employer be sacked. In this case, however, when combined with accusing the employer of sabotaging his own tractor and the alleged unacceptable conduct and language, the conduct indicates not just a lack of respect but a complete breakdown in the employer-employee relationship.
Does then the conduct justify termination?
[54] In Edwards v Justice Giudice, Moore J said:
“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.” 6
[55] As noted above, I have concluded that the conduct occurred.
[56] The Applicant admitted on a previous occasion that he demanded the Head Contractor sack the Respondent, the sub-contractor. There is a dispute as to whether the Applicant wanted to sub-contract for himself, but no dispute that he certainly did not want the Respondent to run the contract. Whether the Respondent is competent is not for this Tribunal to decide. But demanding one’s boss be dismissed, along with quite strange claims of sabotage and angry and abusive behaviour means that the conduct in this case justified the termination.
Was the termination harsh unjust or unreasonable?
[57] There remains one last consideration for determining whether the dismissal was unlawful, despite my finding as to the conduct and the justifiability of the dismissal. That is whether the termination was “harsh, unjust or unreasonable”. 7 In Container Terminals Australia Limited v Toby,a Full Bench of the Australian Industrial Relations Commission said:
“In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…” 8
[58] The matters to be taken into account are set out in s.387:
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.
[59] The question of valid reason is dealt with above. I must therefore determine whether the dismissal was harsh unjust or reasonable.
[60] The Applicant was notified of the reason for his dismissal on the date of his dismissal. I note the Applicant was given no opportunity to respond to the reasons.
[61] No support person was provided during the dismissal.
[62] The matter did not relate to unsatisfactory performance by the Applicant.
[63] The Applicant's direct employer, is PTH Enterprises, is a small business employing less than 15 persons 9. The Respondent asserted that he had provided a number of verbal warnings to the Applicant about his conduct but admitted that none of these had been reduced to writing.
[64] There is no doubt that the lack of human resource management specialists has affected the process of this dismissal.
[65] Nevertheless businesses are required to treat employees fairly. There was limited or no criticism of the Applicant’s work. The Respondent explicitly said in final submissions that the dismissal was about conduct and not about performance.
[66] I have already formed a view that the Applicant’s behaviour on a number of occasions and ultimately on the day of dismissal warranted dismissal.
[67] However, there was no evidence whatsoever of formal warning, or indeed of any informal warning, and no evidence of an explanation of the consequences of the Applicant’s conduct. Even a simple conversation which advised that the Applicant’s behaviour was not acceptable and the consequences when such behaviour had occurred may have warned the Applicant that a repeat of such outburst may result in dismissal. There is no evidence before this Tribunal that could lead to a positive conclusion that such a conversation took place.
[68] I cannot therefore conclude that a warning was given to the Applicant about his behaviour.
[69] For this reason I have concluded that the Applicant was not warned about his unsatisfactory conduct prior and/or the day of his termination of employment and he was not given any opportunity to be heard.
[70] In the High Court decision in Byrne v Australian Airlines Limited McHugh and Gummow JJ said:
Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable. 10
[71] While the decision to terminate the employment of the Applicant because of his behaviour on the day of his termination provided a valid reason for the termination of the Applicant’s employment, the lack of procedural fairness by providing no warning to the Applicant that his behaviour was acceptable or the consequences of that behaviour and the lack of an opportunity to be heard in response makes the decision unjust.
[72] I therefore find the termination of the Applicant was unfair.
Remedy
Section 390 of the Act provides:
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 applications for remedies
[73] In all the circumstances of this case, reinstatement is both impracticable and undesirable. The employment relationship between the Respondent and the Applicant could not be restored and this is not an appropriate remedy in this case.
[74] When reinstatement is not ordered the Tribunal may make payment of monetary compensation.
[75] Section 392(2) of the Act sets out the criteria for deciding on suitable level of compensation:
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) 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 compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.
[76] As to sub paragraph (a) the order I intend to make will not have any obvious effect on the viability of the company. As to subparagraph (b) I take into account the Applicant's employment with the company in that he has been employed for 14 months. As to subparagraph (c) the Applicant earned approximately $680 per week. As to subparagraph (d) I am satisfied the Applicant has made efforts to mitigate his loss and note that he is now in full-time employment. I have taken into account paragraph (e) and (f). As to subparagraph (g) I note there had been little nor no criticism of the Applicant’s skill in doing his day-to-day work.
[77] Section 392(3) of the Act provides:
(3) If FWA is satisfied that misconduct of the person contributed to the employer's decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
[78] For reasons outlined above I have found that misconduct by the Applicant did occur and this provision is relevant to my assessment of the contribution by the Applicant towards the decision to terminate the Applicant by the Respondent has been factored in to the compensation that I decided to award.
[79] Balancing the above factors I find that the termination of the Applicant’s employment was procedurally harsh and denied him natural justice.
Order
[80] An order will issue that the company pay one (1) weeks wages (less appropriate tax according to law) to be paid at the rate the Applicant was earning at the date of termination of employment.
[81] I have concluded the figure of one (1) weeks wages after applying a discount which I would have otherwise awarded had the Applicant’s conduct not contributed to his dismissal. The sum awarded is to be paid within 14 days of the date of this decision.
[82] Any underpayments of superannuation payments due to the Applicant should be the subject of a separate application to the relevant authority.
[83] In accordance with s.381(2) of the Act I am further satisfied that each party has been accorded a “fair go all round” in these proceedings.
COMMISSIONER
Appearances:
Mr M Tenahu, the Applicant.
Mr P Moir, the Respondent.
Hearing details:
2012.
Nanango:
May 2 and 3.
1 The use of the term ‘employed’ is not legally correct, however the evidence shows that Mr Collymore has an employer-employee-like relationship with Mr Moir
2 Transcript dated 2 May 2012 at PN 221
3 Transcript dated 3 May 2012 at PN 701
4 King v Freshmore (Vic) Pty Ltd noted S4213 at paragraph nos. [23]-[24] per Ross VP, Williams SDP and Hingley C.
5 [1998] FCA 865
6 [1999] FCA 1836
7 s.385(b)
8 Print S8434, 24 July 2000 at paragraph 15
9 This is not a case where the Small Business Code is relevant
10 [1995] HCA 24 at paragraph 135
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