Mr Norman Govett v Gomed Pty Ltd T/A Paramedic Services Victoria

[2010] FWA 9100

[2010] FWA 9100

FAIR WORK AUSTRALIA

DECISION

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

Mr Norman Govett
v
Gomed Pty Ltd T/A Paramedic Services Victoria
(U2010/11009)

COMMISSIONER GOOLEY MELBOURNE, 30 NOVEMBER 2010

[1] Mr Norman Govett filed an application for relief in respect of the termination of his employment on 28 July 2010. The matter was referred for conciliation on 23 August 2010 but the matter was not resolved. The application was heard by Fair Work Australia on 8 November 2010.

[2] Mr Steve Gome of the Liquor, Hospitality and Miscellaneous Workers Union appeared for Mr Govett and Mr Jeff Krins a legal practitioner appeared with permission for Gomed Pty Ltd t/a Paramedic Services Victoria (PSV).

[3] Mr Gome gave evidence on his own behalf and Mr Douglas Dawson, the Managing Director, Mr Wayne Dawson, Manager - Clinical Support, Mr Iain Berry, Assistant Manager Operations, and Mr Steve Alcorn, Assistant Manager Clinical Support gave evidence for PSV.

The Evidence

[4] Mr Govett was employed by Patient Transit Care Pty Ltd from 1 July 2001 as an ambulance officer. The company was owned by Mr Douglas Dawson and Mr Ian Seaman. On 20 October 2006 Mr Govett entered into an Australian Workplace Agreement (AWA) 1 with PSV. Mr Douglas Dawson is a Director of PSV. Mr Govett was engaged as a full time Operational Supervisor and he was based at the Moorabbin Branch. All his accrued entitlements were transferred to PSV.2

[5] Mr Govett was the only Operational Supervisor employed by PSV at the date of his dismissal because PSV had not replaced the supervisors as they retired. 3

[6] In mid 2009 PSV began looking at the introduction of an electronic Time Management System. Some discussion about this took place with Mr Govett in 2009. 4 Mr Wayne Dawson gave evidence that Mr Govett expressed a concern about the security of the fingerprint system.5

[7] On 5 February 2010 a notice was circulated which advised as follows:

“A new electronic employee management system to streamline the time and payroll process including electronic external access will shortly be implemented; initially it will be trialled at Moorabbin Branch. PSV intend using the system to roster and schedule employees, calculate and record wages, hours of duty including absences. It will replace the current manual method of timesheets.” 6

[8] Mr Govett gave evidence that he asked Mr Wayne Dawson to give him some information about the system. 7 Mr Dawson did not know much about the system at this time.8

[9] On 25 February 2010 Mr Govett emailed Mr Wayne Dawson seeking some information on the system. Mr Dawson referred him to the website of the creators of the system (Mitrefinch). 9

[10] Mr Govett contacted Mitrefinch and they forwarded him a powerpoint presentation however Mr Govett still did not understand how the system operated and he had concerns about privacy and how PSV would link the system with payroll. 10

[11] In April 2010 PSV decided to conduct a trial of an electronic Time Management System at the Moorabbin Branch. The System used a finger print derived biometric system. The system did not store a copy of the actual fingerprint but rather a code derived from key data points on a person’s finger print. 11

[12] On 29 April 2010 a staff notice was circulated outlining the new system and its roll out. 12 It advised that:

“The next phase of the rollout is registration and enrolment of employees in the system. To register in the system each employee enrols their finger using the biometric reader on the access terminal. A mathematical representation is then automatically compiled using a pattern recognition algorithm engineered by a company called Biocrypt. The mathematical representation is then saved in a binary file as a template. The binary file is a collection of zeros and ones that form the mathematical representation. It is not possible to reconstruct a person’s fingerprint from this template. Following enrolment an employee arriving for their shift simply registers their employee number on the access terminal key pad and places their registered finger on a terminal reader. At the end of their shift the procedure is repeated. Enrolment for the system will commence from Monday 3rd May 2010.”

[13] Mr Wayne Dawson gave evidence that he tried to enrol Mr Govett in the Time Management System on 17 May 2010 but Mr Govett said he would not enrol because he had questions regarding his privacy. Mr Dawson asked Mr Govett to email his questions to him.

[14] On 17 May 2010 Mr Govett sent Mr Wayne Dawson an email setting out seven specific questions about the operation of the system: 13

“1. Once the binary file is recorded, who has access to this information? what safeguards do PSV have in place to guarantee the non distribution of this personal information?

2. On leaving the employ of PSV what happens to the binary file? Is it automatically deleted? If a request is made by a departing employee to delete this file, what assurances are given by PSV to in the future fulfil this request.

3. In the unlikely event that I am late or delayed in logging onto the access terminal, how will my pay be effected? Will my pay be docked for the exact time in minutes late or delayed, or will there be a deduction of a pre programmed time block. Has the employee the opportunity to explain their lateness or otherwise? If so who would they report to?

4. PSV Payment Advice Slips currently calculate time using a Decimal representation of time, how will the system convert time in hours and minutes into the decimal system? Recently I noticed that the Payroll Program was rounding down claims to 2 decimal places. This resulted in an underpayment of time claimed.

5. In the unlikely event that I omit to either Log in or Log off using the access terminal, what safeguards are in place to ensure/ guarantee the payment for time worked. If for unforeseen reasons the systems fails or rejects the designated finger, what is the process in place to ensure/guarantee payment for time worked (in particular overtime)?

6. How are Meals Out and Bonuses claimed? How does the system differentiate between an overtime or casual shift, to ensure the correct hourly rate is being used in the payment calculation?

7. In the spirit of staff cooperation and workplace efficiency, does the Management of PSV intend to in some way reward the staff using this new technology?

I would be pleased if you were able to in good faith and to best of your ability supply answers the above questions.

On receipt of these answers, I anticipate that my registration to the Time Management System would follow shortly after.”

[15] On 21 May 2010 Mr Wayne Dawson responded to Mr Govett’s questions as follows:

“1. See attached privacy policy

2. Procedure will be implemented

3. Referred to Admin Manager (log with comms)

4. Referred to Admin Manager

5. Procedure will be implemented (log with comms)

6. Referred to Admin Manager

7. Referred to Managing director”

[16] Mr Douglas Dawson’s response to question 7 was “it is anticipated that benefits to staff would be no longer need to ensure time sheets are completed correctly or received to pay roll in order to process and possibility that pays would be placed into employees accounts a day earlier.” 14 This response was emailed to Mr Govett on 21 May 2010.

[17] While Mr Wayne Dawson thought the other questions were answered 15 there was no evidence of any other answers to these questions being provided to Mr Govett. It was not put to Mr Govett that these questions were answered.

[18] On 3 June 2010 Mr Govett sent an email to the Administrative Services Manager about a payroll query in which he stated “once I am registered on the TMS the issue of overtime claims will no doubt be a thing of the past”. 16

[19] While Mr Douglas Dawson’s evidence was that Mr Govett was directed to enrol by 10 May 2010 there was no evidence that Mr Govett was ever directed to enrol. 17

[20] Mr Govett was on sick leave from 21 June to 12 July 2010. 18

[21] On 19 July 2010 Mr Berry contacted Mr Govett on the radio and told him that he was to report to the Seaford Branch at 7am the next morning 19. No explanation was given to Mr Govett about why he was being transferred.

[22] Mr Govett’s roster for 20 July 2010 had him rostered to work at Moorabbin. 20

[23] Mr Govett told Mr Berry that he would not attend the shift at Seaford as he was rostered at Moorabbin and had an appointment in the city after work. 21 He was told that Mr Douglas Dawson would contact him.22

[24] Mr Douglas Dawson then contacted Mr Govett on the radio and he told Mr Govett that he was to report to Seaford at 7am.

[25] Mr Govett’s 23 evidence was that the following conversation took place:

Dawson:“I want you to start at 7 at Seaford tomorrow.”

Govett: “I can’t do that. And my AWA (Australian Workplace Agreement) says I am supposed to have 7 days notice of a shift change.”

Dawson:“I don’t care what your AWA says.”

Govett: “I might have a doctor’s appointment tomorrow”.

Dawson:“If you’re not at Seaford tomorrow, your employment is in jeopardy.”

Govett: “My rostered shift is 0700 at Moorabbin and that’s where I’ll be.”

[26] Mr Douglas Dawson’s evidence was that Mr Govett told him that he would not comply with the request because he had to be given seven days notice of a change to his shift location. Mr Dawson told him that the seven days notice was only required for a change to the shift times and not locations. Mr Dawson said he cautioned Mr Govett twice that his refusal could jeopardise his employment. He said that Mr Govett said that he might have a doctor’s appointment the next day. 24

[27] Mr Govett’s evidence was that he thought the transfer to Seaford involved a demotion. 25 While it was put to Mr Govett that he had no idea what his duties would be the next day at Seaford26 there was no evidence put by PSV about the position Mr Govett would have filled had he attended at Seaford on the day.

[28] On 20 July 2010 Mr Govett reported for duty at the Moorabbin Branch. 27 Mr Govett was then instructed to attend the Seaford Branch and he did.

[29] After he arrived at Seaford Mr Govett attended a meeting with Mr Douglas Dawson. At that meeting Mr Douglas Dawson advised Mr Govett that he was being dismissed for wilful misconduct, namely his refusal to report for work at Seaford as directed. Mr Dawson asked Mr Govett if he had anything to say about his dismissal and he said no comment. Mr Dawson asked him if he wanted to discuss the dismissal and he again said no comment. Mr Dawson said he would send him a letter outlining his dismissal in the mail. 28

[30] The letter of termination advised as follows:

“Because of your persistent refusal to take part in the Time Management System trial as directed you have lost the confidence of management and I have decided to terminate your employment immediately.

In addition to your refusal to take part in the Time Management System trial you have shown a reluctance to participate in a review of your position as per your contract of employment with the company, despite being requested to do so on three occasions. I have also decided to terminate your employment immediately for refusing to comply with my direction regarding your work location. 29”

[31] Mr Govett’s employment was terminated summarily and he was not paid in lieu of notice. 30

[32] Mr Govett’s evidence was that prior to his dismissal he earned $1250 per week and that he was paid in addition to that a productivity bonus of $65 per week. 31 His pay slip showed he was paid an hourly rate of $23.82 per ordinary hour worked.32 This evidence was uncontested.

[33] Mr Govett’s evidence was that he had earned a total of $13,011.20 from the date of his termination. He had gained casual work with another ambulance company. 33 However Mr Govett had not sought further full time work for family reasons.34

[34] Mr Govett stated the he was 58 years old and had worked as an Ambulance Office for most of his adult life. He stated that it would be difficult for him to find permanent work at his age in his chosen profession. 35 Mr Govett was not cross examined on this.

[35] Mr Douglas Dawson gave evidence that prior to his termination “Mr Govett had been pushing the boundaries in many facets of his employment, placing undue stress on other employees with his unreasonable behaviour and time wasting. I had spoken with those affected employees and advised them to continue to placate Mr Govett and he would probably grow tired of his behaviour so we could get on with running the business.” 36

[36] Further Mr Dawson gave evidence that Mr Govett “had on a number of occasions [been] subjected to criticisms about his work performance and in particular his claiming of overtime when not due, misuse of his company fuel card and misuse of his company mobile phone. 37”

[37] None of these allegations were put to Mr Govett in cross examination.

[38] Mr Berry gave evidence that he found Mr Govett “to be high opinionated, self indulgent and aloof. Since my appointment as a senior staff member working with him as a peer, I found him to be intimidating and uncooperative. He caused me a great deal of stress dealing with his attitude on a daily basis.” These allegations were not put to Mr Govett in cross examination.

Was the termination of employment harsh, unjust or unreasonable?

[39] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, Fair Work Australia must take into account the following:

s387(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);

[40] PSV submitted that the direction for Mr Govett to enrol in the Time Management System and participate in it was a lawful and reasonable request at common law and under his AWA and therefore his refusal to enrol and participate was serious misconduct. Further Mr Govett’s refusal to commence at Seaford on 20 July 2010 was serious misconduct. They submit therefore that there was a valid reason for the termination of Mr Govett’s employment.

[41] A valid reason is one which is sound, defensible or well founded. 38

[42] In Container Terminals Australia Limited v Toby 39, 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…”40

[43] The Full Bench in Royal Melbourne Institute of Technology v Geoffrey Asher 41 summarised the approach to be adopted when dealing with summary dismissal. Whether there is a valid reason for termination, is not determined by whether the employee is or is not guilty of conduct justifying dismissal at common law. A finding that an employee engaged in serious misconduct or misconduct may constitute a valid reason for termination.

[44] The evidence establishes that Mr Govett was never directed to enrol in the Time Management System. The evidence establishes that Mr Govett had questions about the System about which he sought answers. He was asked by Mr Wayne Dawson to put his questions in writing and he did. It does not appear, on the evidence before Fair Work Australia, that he ever received a complete response to these questions. Further after that request in May 2010, Mr Govett was not spoken to about the Time Management System again. It is clear that he was never directed to enrol on the System. Mr Douglas Dawson, who on his own evidence, decided to move Mr Govett to Seaford because he wanted the trial to commence, 42 did not advise Mr Govett that the reason for the transfer was because he was not enrolled and his non-enrolment was holding up the trial.

[45] I do not find Mr Govett’s conduct in seeking additional information prior to enrolling in the Time Management System was inappropriate and I do not find that his failure to enrol was a valid reason for the termination of Mr Govett’s employment.

[46] Given there was no evidence to support the suggestion that Mr Govett had refused to participate in a review of his position I do not find that this was a valid reason for the termination of Mr Govett’s employment.

[47] Mr Govett did however refuse to report for duty at Seaford. Mr Govett maintained that his AWA required him to be given seven days notice of a change of location. Mr Douglas Dawson took the view that he could roster Mr Govett at any location without notice.

[48] The AWA provides as follows in relation to time recording:

“2.2.3 Where applicable you will comply with our record and timekeeping requirements. We will maintain pay records in accordance with the Act.”

[49] The AWA provides as follows in relation to duties:

“2.4.1 Your initial appointment under this Agreement is that identified at the Signatory Page. Subject to your qualifications, experience and fitness, you are required to perform all of the tasks of the classification including those tasks that are incidental or of a lower classification to the main functions of your position.

2.4.2 Your allocation to tasks and the location of work will be at our discretion considering operational requirements.”

[50] The AWA provides the following in relation to rosters and changes of shift:

“4.3.1 Individual and temporary shift changes will be notified to you at least 7 days in advance or otherwise by mutual agreement between you and us.

4.3.2 You may be rostered to commence duty at different locations on a daily basis. However, we will endeavour to nominate locations within a reasonable geographic sector relative to your place of residence.”

[51] PSV relies on these clauses to support their submissions that the direction given to Mr Govett to attend work at Seaford was a lawful and reasonable direction and that his failure to do so was serious and wilful misconduct. PSV submitted that clause 4.3.1 applied to starting and finishing times 43 and that had clause 4.3.1 applied to a change of locations, clause 4.3.2 would have had no work to do. I do not accept that submission. Clause 4.3.2 may do no more than provide that an employee has no fixed place of work and can be rostered at any location on any day of the week. However it does require them to be rostered at the different locations.

[52] Mr Govett submitted that clause 4.3.1 applied to a change of roster and not just starting and finishing times. He further submitted that if clause 4.3.1 did not apply, then he was entitled to reasonable notice of a change of location. 44

[53] It is unfortunate that neither party had regard to their obligations under the dispute resolution clause of the AWA both with respect to the dispute over the Time Management System and the direction to work at Seaford. The use of the dispute resolution procedure may have seen the dispute over the Time Management System resolved. This would have been preferable to the course adopted by Mr Douglas Dawson who decided to avoid the issue of the Time Management System by directing Mr Govett to report for work at Seaford. Further on 19 July 2010 given both parties knew that they had a different view about the AWA the dispute resolution procedure provided them with an opportunity to resolve the dispute through discussion.

[54] However no party sought to resolve this dispute other than by standing on what they saw as their legal rights: Mr Douglas Dawson to direct Mr Govett to attend work at Seaford and Mr Govett to refuse the direction because there was insufficient notice.

[55] It is clear that the roster provided to Mr Govett had him rostered to work at Moorabbin on 20 July 2010. There is nothing in the AWA that advises when rosters are to be provided or whether rosters once posted can be changed. The AWA provides for shifts to be changed on seven days notice or by mutual agreement but says nothing about roster changes.

[56] Mr Douglas Dawson’s evidence was that it was common place that work locations for employees were changed daily. 45 However the evidence established that Mr Govett had never previously been directed to work at Seaford.46 The AWA makes it clear that for operational reasons the location of work is at PSV’s discretion.

[57] On the evidence while I accept that Mr Govett believed that clause 4.3.1 entitled him to seven days notice of a change of location, the clause makes no reference to location changes and is limited to changes of shifts, that is, starting and finishing times and possibly days of the week.

[58] While it is not unambiguously clear I accept that the AWA permitted PSV to change Mr Govett’s work location and that in failing to report for work at Seaford Mr Govett had failed to comply with a lawful direction of his employer.

[59] It was submitted by Mr Govett, that while the direction may be lawful it may not be reasonable. 47 As I understand the submissions of Mr Govett, the direction was unreasonable because it was done without reasonable notice and Mr Govett was being demoted as a result of the transfer and the transfer was not motivated by operational reasons.48

[60] While it would have been preferable for Mr Douglas Dawson to have resolved the issue of Mr Govett’s non enrolment in the Time Management System by other means, it was not unreasonable in the circumstances for him to move Mr Govett to a location where an electronic time keeping system was not in place. The location was not unreasonable in that it was closer to Mr Govett’s home and while it was not clear what duties Mr Govett was to perform the AWA permitted Mr Govett to be assigned a range of duties. There is no suggestion that Mr Govett would have suffered a reduction in pay.

[61] Not every refusal of an employee to follow a lawful and reasonable direction of their employer justifies termination of employment. In this case Mr Dawson was aware that Mr Govett was of the view that he was entitled under this AWA to notice of the change. However Mr Govett was also aware that Mr Dawson did not consider his AWA a barrier to the direction. He was also aware that a refusal to comply would place his employment in jeopardy. At this point he should have been aware of the seriousness with which Mr Dawson would view a refusal to follow the direction.

[62] Whilst I would not have found that Mr Govett’s conduct in refusing the direction to report for work at Seaford was serious misconduct at common law, it was misconduct.

[63] In the circumstances I conclude that there was a valid reason for the termination of Mr Govett’s employment.

s387(b) whether Mr Govett was notified of that reason

[64] The letter of termination advises Mr Govett of three reasons for the termination of his employment. At the time of the termination of his employment he was advised of one of the reasons for his dismissal, namely his refusal to report to Seaford.

[65] In Crozier v Palazzo Corporation Pty Ltd 49 the Full Bench of the Australian Industrial Relations Commission considered whether the equivalent provision in the Workplace Relations Act 1996 (as it existed prior to Workplace Relations Amendment (Work Choices) Act 2005) required the employee to be notified before the decision was made.

[66] The Full Bench held that:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG (3) (b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted”. 50

[67] It is clear on the evidence that Mr Govett was not advised of the reasons for the termination of his employment before the decision was made to terminate his employment. Mr Douglas Dawson’s evidence was that he “informed Mr Govett that he was being dismissed for wilful misconduct, namely his refusal to report for work at Seaford as I directed him the previous afternoon. I asked him if he had anything to say about this dismissal. 51 Mr Govett replied no comment.”

[68] As Mr Govett was not advised of the reasons to terminate his employment prior to the decision being made I find that he was not notified of the reason.

s387(c) whether Mr Govett was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[69] For the reasons set out above in relation to section 387(b) the opportunity to respond is a reference to an opportunity to respond before a decision is taken to terminate the employee’s employment.

[70] I find that Mr Govett was not provided with an opportunity to respond to the reason for his termination.

s387(d) any unreasonable refusal by the employer to allow Mr Govett to have a support person present to assist at any discussions relating to dismissal;

[71] While Mr Govett was not told in advance of the purpose of the meeting, given the events of 19 July 2010, in particular the warnings Mr Govett received that his refusal to report for work at Seaford would put his employment in jeopardy, Mr Govett should have been aware that the meeting would deal with his ongoing employment. In any event once becoming aware of the purpose of the meeting Mr Govett did not ask for a support person.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Govett had been warned about that unsatisfactory performance before the dismissal;

[72] The letter of termination and Mr Douglas Dawson’s evidence raised issues of unsatisfactory performance. The only evidence of any discussion about this with Mr Govett prior to his dismissal was Mr Douglas Dawson’s evidence that “when management including myself attempted to discuss his conduct with him, Mr Govett was very defensive and confrontationist and displayed quite bizarre behaviour.” 52 None of this was put to Mr Govett in cross examination. I therefore find that Mr Govett was not warned about unsatisfactory performance.

s387(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

[73] It was submitted that this is not a large employer. There are 75-100 employees; a large number are casuals. It has a flat management structure. 53

s387(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;

[74] PSV submitted that the presence of dedicated human resources specialists would have not had an impact on the procedures. 54

s387(h) any other matters that FWA considers relevant.

[75] Mr Govett submitted that his performance during his employment with PSV was consistently of a high standard 55 and Mr Govett was not cross examined on this. There was some evidence about issues with Mr Govett’s performance but this evidence did not go to his performance of his duties. Mr Berry found him to be opinionated, self indulgent and aloof. There was no explanation of what he meant by these terms. As set out at paragraphs [35]-[36] of this decision Mr Douglas Dawson had received some unspecified complaints from unnamed employees.

[76] Mr Govett had lengthy service with PSV and its predecessor. 56 It was also submitted that he would find it difficult to find secure employment in his chosen profession.57 This was disputed by PSV, but no evidence was put before the Tribunal to support the submission.58

[77] I accept Mr Govett’s evidence about his performance during his employment. There was no evidence that in his nine years employment with PSV and its predecessor that Mr Govett was not a skilled employee who performed his duties as required by his employer.

[78] The evidence of Mr Douglas Dawson about other alleged misconduct cannot be relied upon. If it was seriously contended that Mr Govett had claimed overtime when not entitled to it and misused his company fuel card and mobile phone it would have been expected that detailed evidence of these allegations would have been put before Fair Work Australia.

[79] Mr Govett was not cross examined about his performance and these serious allegations were not put to him. These issues were not relied upon by PSV to justify the termination of Mr Govett’s employment and I therefore have not taken this evidence into account in determining if the dismissal was unfair.

[80] It is relevant that the reason for the direction to Mr Govett to report for duty at Seaford was Mr Douglas Dawson’s desire to commence the trial of the Time Management System at Moorabbin and not for other operational reasons. It is also relevant that Mr Douglas Dawson did not tell Mr Govett of this reason and that there was no discussion with Mr Govett in the period from 21 May 2010 about his enrolling in the Time Management System. It is also relevant that Mr Govett was not given any notice of the transfer despite the fact that notice could have been given earlier.

[81] It is also relevant that Mr Govett was warned that his failure to attend at Seaford would put his employment in jeopardy and that he chose to not attend rather than attend and have the issue of whether his employer was entitled to transfer him dealt with under the dispute resolution procedure. Mr Govett must take some responsibility for the escalation of this matter.

Conclusion

[82] In Byrne v Australian Airlines McHugh and Gummow JJ of the High Court said:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[83] In this case I am satisfied that the termination of Mr Govett’s employment was a disproportionate response to his misconduct. Mr Govett mistakenly considered that he was entitled to notice of the change of location. Mr Douglas Dawson knew that this was the only reason Mr Govett did not comply with the direction. There was no evidence to suggest that had this issue been resolved Mr Govett would have refused to comply with the direction. Further there is no evidence that had Mr Govett’s concerns about the Time Management System been responded to or if he had been given a direction that he would have not complied with a direction to enrol.

[84] Mr Govett was a long standing employee and I accept his uncontested evidence that he will find it difficult to gain full time employment in his profession.

[85] I therefore find that the termination of Mr Govett’s employment was harsh, unjust or unreasonable because of the impact on Mr Govett and because it was disproportionate to his misconduct.

[86] There was no dispute that Mr Govett was dismissed and it was not submitted that PSV was a small business or that this was a genuine redundancy.

[87] I therefore find that Mr Govett was unfairly dismissed.

Remedy

[88] Section 390 of the Fair Work Act 2009 (FW Act) empowers Fair Work Australia to order a remedy if an employee is unfairly dismissed:

“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.”

[89] Having found Mr Govett was unfairly dismissed it is necessary to determine the remedy.

[90] As a starting point it is necessary to determine if reinstatement is appropriate.

[91] Mr Govett seeks reinstatement. PSV submits that reinstatement is not appropriate because if Mr Govett returns there would be a resumption of conflict and insubordination. 59 Apart from this incident there were no other examples of conflict and insubordination placed before Fair Work Australia. I do not consider raising questions about a new Time Management System is insubordination or an example of conflict. As I did not find that Mr Govett refused to enrol in the system this cannot be an example of insubordination or conflict.

[92] While I have found that Mr Govett was not entitled to refuse the direction to work at Seaford this is not a case of insubordination. Mr Govett genuinely thought he had a right to notice of transfer.

[93] Mr Govett has worked successfully with PSV and its predecessor company for nine years. Mr Douglas Dawson was a director of both companies.

[94] Mr Douglas Dawson accepted that had it not been for the failure of Mr Govett to comply with the direction given on 19 July 2010 he would not have terminated Mr Govett’s employment. 60 Mr Dawson says at this point he lost all confidence in Mr Govett and his ability to perform his duties as a senior member of PSV.

[95] I accept that Mr Dawson’s evidence on this point however I do not consider that this is necessarily a barrier to reinstatement. When employment is terminated, particularly for serious misconduct, it is inevitable that some damage to the relationship of employment will occur. However in this case Mr Govett has been employed by PSV and its predecessor company for a significant period. Mr Govett on appointment to PSV was promoted from an Acting Operational Supervisor to Operational Supervisor. There is no evidence that in the past four years he has not performed these functions. I see no reason why the employment relationship cannot be successfully re-established.

[96] I further have had regard to the consequences of the loss of employment for Mr Govett. I accept that Mr Govett will have difficulty gaining employment in his profession.

[97] Having regard to the submissions and the evidence, I therefore find that reinstatement is appropriate. It is also appropriate that Mr Govett’s continuity of employment be maintained.

[98] From the dismissal to the date of this decision is 18.5 weeks. Mr Govett would have earned a minimum of $23125 in this period had he remained in employment.

[99] In the period to the date of the hearing Mr Govett earned $13,011.20. Assuming he would have earned a similar amount in the period since the hearing I calculate his loss to the date of the decision to be $9343.80. Mr Govett has not actively looked for full time work in this period for personal reasons.

[100] Given Mr Govett’s contribution to the escalation of this dispute I have decided not to order Mr Govett compensation for the entire period from his termination. I will therefore order that PSV pay Mr Govett $4500 less appropriate taxation. An order giving effect to this decision is being issued at the same time as this decision. 61

COMMISSIONER

Appearances:

S Gome from the Liquor, Hospitality and Miscellaneous Workers Union for the Applicant.

J Krins for the Respondent.

Hearing details:

2010.

Melbourne:

November 8.

 1   Exhibit A1 NG2

 2   Exhibit A1 at [1]-[6]

 3   Transcript PN 159

 4   Exhibit R1 at [8], Exhibit A1 at [14], Exhibit R2 at [2]

 5   Exhibit R2 at [2]

 6   Exhibit R 1 at DD2

 7   Exhibit A1 at [14]

 8   Exhibit R2 at [3]

 9   Exhibit A1 at NG6

 10   Ibid at [14]

 11   Exhibit R1 at [9]

 12   Ibid at DD 3

 13   Exhibit A1 at NG7

 14   Ibid NG7

 15   Transcript PN 274

 16   Exhibit A1 at NG8

 17   Transcript PN 185,186,187,237-238, 269

 18   Exhibit A1 at [14]

 19   Exhibit R3 at [3]

 20   Exhibit A1 at NG 9

 21   Exhibit R3 at [3]

 22   Ibid at [4]

 23   Ibid at [9]

 24   Exhibit R1 at [18]

 25   Transcript PN 34-37

 26   Ibid at PN 100-105

 27   Exhibit R1 at [19]

 28   Ibid at [22]

 29   Ibid at DD 4

 30   Exhibit A1 at [12]

 31   Transcript PN 72-74

 32   Exhibit A1 at NG4

 33   Transcript PN 64, 68.

 34   Ibid PN 75.

 35   Exhibit A1 at [16]

 36   Exhibit R1 at [27]

 37   Ibid at [30]

 38   Selvachandran v Peteron Plastics Pty Ltd (1995) 62IR 371 at 373

 39   Print S8434, 24 July 2000

 40   Ibid at [15]

 41   [2010] FWAFB 1200

 42   Exhibit R1 at [16]

 43   Exhibit R5 at [3]

 44   Transcript PN 342

 45   Ibid at PN 167

 46   Ibid PN 56

 47   Ibid PN 341-342

 48   ibid

 49   Print S5897

 50   Ibid [73]

 51   Exhibit R1 at [22]

 52   Ibid at [12]

 53   Transcript PN 392

 54   Ibid PN 393

 55   Exhibit A 2 at [10]

 56   Ibid at [11]

 57   Transcript PN 361

 58   Ibid PN 404

 59   Exhibit R5 at [27]

 60   Exhibit R1 at [28]

 61   PR504367

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