Mr Paul Moitzi v Paradise Motor Homes
[2015] FWC 3413
•5 JUNE 2015
[2015] FWC 3413
The attached document replaces the document previously issued with the above code on 5 June 2015 to correct typographical errors.
Nate Burke
Associate to Deputy President Asbury
Dated 9 June 2015
| [2015] FWC 3413 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Paul Moitzi
v
Paradise Motor Homes
(U2014/13870)
DEPUTY PRESIDENT ASBURY | BRISBANE, 5 JUNE 2015 |
Application for relief from unfair dismissal.
Introduction
[1] Paul Rudolph Moitzi applies under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Paradise Motor Homes Pty Ltd. Mr Moitzi is a Fitter/Machinist and Toolmaker who was employed by Paradise Motor Homes as a leading hand in its sub-assembly section from 8 August 2012 until his dismissal with effect from 19 November 2014.
[2] Mr Moitzi was dismissed for failing to change a faulty switch in a motor home in circumstances where it was alleged that the fault had been diagnosed and a replacement switch provided to him several weeks before the customer was scheduled to collect the motor home. Paradise Motor Homes asserts that as a result of the failure of Mr Moitzi to change the switch, there was a fault with the motor home during handover to the customer, causing damage to the Company’s reputation.
[3] Mr Moitzi asserts that his dismissal was unfair on the basis that he had determined to install the switch at the end of the Quality Assurance (QA) process where the issue should have been identified, and that he was not aware that the motor home in question was ready for customer handover. Mr Moitzi also asserts that the timing of his dismissal and his age meant that it was difficult for him to find alternative employment. Further, Mr Moitzi asserts that his dismissal was procedurally unfair.
[4] The application was made within the period required in subsection 394(2) of the Act. Mr Moitzi is a person protected from unfair dismissal as defined in s.382 of the Act. Paradise Motor Homes is not a small business employer and the dismissal was not a case of genuine redundancy. The matter was dealt with by way of a hearing, as it was considered that this was the appropriate course, having taken into account the matters set out in s.399 of the Act and the views of the parties.
Evidence
[5] Mr Moitzi gave evidence on his own behalf. 1 Evidence for Paradise Motor Homes was given by:
- Ben MacLean, General Manager; 2
- Leon Oostendorp,- Production Manager; 3
- Michael MacLean, Dealer Principal; 4
- Russell Barrett, Leading Hand Final Fit Out; 5 and
- Colin MacLean, Managing Director. 6
[6] Notwithstanding Directions to the contrary, none of the witnesses, other than Mr Ben MacLean who conducted the case for Paradise Motor Homes, were present at the Commission to be cross-examined. Witnesses who were available gave evidence by telephone.
[7] It is not in dispute that in or around the last week of October 2014, Mr Moitzi was working on a motor home when he noted that a light on the control panel was on, indicating that the levelling legs on the motor home were down when in fact they were up. After manually setting the legs of the motor home to a level position so that the cabinet makers could work on it, Mr Moitzi called Mr Ben MacLean and advised him of the issue. Mr Ben MacLean diagnosed the problem as being caused by a float switch in the fluid reservoir having an intermittent fault causing the legs down indicator light to come on the display indicating that the legs were down when in fact they were fully retracted.
[8] Mr Ben MacLean told Mr Moitzi that he would order a new float switch. The new float switch arrived on or about the first week of November 2014. Mr MacLean said that he immediately told Mr Moitzi that the switch had arrived and took it to Mr Moitzi telling him that it needed to be fitted right away. In relation to this Mr MacLean said:
“...the new switch came in and I came straight over, because it was so important I literally came straight over. The vehicle was still sitting in the same spot at that time as when we first identified that the switch was faulty, and I brought it straight over and we both looked at it. This is obviously what I'm saying. We both looked at it and because it was a slightly different colour, the switch, and you are unsure about how it would fit. And I said that we needed to fit it”.
[9] Mr Moitzi denied that Mr Ben MacLean brought the switch to him or that he told Mr Moitzi to fit it straight away. Mr Moitzi said that the switch came in through the store and was put on his workbench in or around the first week of November 2014. Mr Moitzi said that the discussion with Mr Ben MacLean was about the old switch and difficulties which may be encountered fitting a new switch.
[10] Mr Moitzi said that at the time he noted the fault with the switch, the cabinet makers had not completed work on the motor home. Mr Moitzi said that in his view it was not reasonable that he replace the switch at that point because other tasks would also need to be undertaken in order fit the replacement switch including:
- Resetting the motor home to a level position;
- Removing everything including tools from inside the motor home;
- Activating the slideouts;
- Manually bringing down the levelling legs until the motor home was in a level position using a spirit level inside the motor home;
- Setting the control panel so that when the auto button was pressed the motor home was returned to the correct position.
[11] Mr Moitzi decided that he would install the replacement switch at the end of production or at the Quality Assurance (QA) stage. Mr Moitzi made this decision because the levelling legs would not have been set at this point and any issue with the switch would have been identified once the motor home reached the QA section. Mr Moitzi said that he expected that someone from the QA section would notify him so that he could go and fit the switch. In response to a question from the Commission, Moitzi said that at the QA station there is an inspector who does a list of work that needs to be completed or rectified. Because the switch was faulty, Mr Moitzi expected that it would be put on a list for him to work on during the QA checking process which is undertaken for each completed motor home
[12] Mr Moitzi said that at the time he identified the fault, it was not an intermittent fault. Mr Moitzi agreed that he did not tell anyone in QA about the fault. Mr Moitzi disputed that he told Mr Ben MacLean that he did not fit the switch immediately because he was too busy. In his oral evidence Mr Moitzi, in response to a question from the Commission about why he had not fitted the switch, said that “we were down a few staff...and things had to be reprioritised”. Mr Moitzi also said that it was his decision to have the job of fitting the replacement switch done in the QA bay, because to do it too early would have impeded other jobs. Mr Moitzi agreed that he knew the scheduled completion date for the motor home, and had not fitted the switch at by that time.
[13] Mr Moitzi said that he was not aware that the motor home was in the customer handover bay until Mr Oostendorp came to him on 19 November and asked him for a switch. Mr Moitzi said that it was only later that he became aware that the faulty switch had not been identified in the QA stage.
[14] Mr Oostendorp said that he performed the QA check on the motor home in question on 18 November 2014. During the QA check the levelling system showed up a fault. Mr Oostendorp reset the hydro system and the fault was no longer evident. The QA check was completed and the vehicle was detailed and placed out the front for delivery to the customer. On the customer handover day Mr Oostendorp received a telephone call from Mr Ben MacLean who told him that there was a problem with the hydro system and requesting that Mr Oostendorp look at it and get someone to fix the problem.
[15] Mr Michael MacLean said that he looked over the vehicle before handover and noted that it was in position ready, having been levelled on its automatic levelling system, with 240 volt power connected and air-conditioning running. Mr Ben MacLean said that he was informed of the fault on 19 November when the customer handover staff person told him that a “legs down” alarm was sounding in a new motor home that he was in the process of delivering. Mr Ben MacLean went to the delivery area. Mr Ben MacLean assessed the problem and decided that it was the float switch. Mr Ben MacLean said that his first thought was that the batch of float switches was faulty as this was a rare fault.
[16] At this point the customer was halfway through the handover of the vehicle and was upset about the fault. Because of this it was difficult to move the vehicle and it was decided to attempt to fix the problem in the handover bay to avoid upsetting the customer further. Mr Ben MacLean (then unaware that the motor home was the same one he had previously asked Mr Moitzi to replace the switch on) asked Mr Oostendorp to talk to Mr Moitzi and see if he could get a switch from another kit or vehicle to swap over. Mr Ben MacLean said that after making that request of Mr Oostendorp, he sat down with the very unhappy customers to assure them that this problem was not common and “their dream $300,000.00 motor home will be everything they expect.”
[17] Mr Oostendorp went to speak to Mr Moitzi and asked him to go to the handover bay to change the switch. At this point, Mr Oostendorp discovered that Mr Moitzi had the replacement switch for the vehicle in question in his tool box. Mr Moitzi does not dispute that he had the switch but states that it was on his work bench. Mr Oostendorp said that Mr Moitzi told him it would take 1.5 hours to change the switch and that he needed the vehicle to be brought to his section because it would be easier to do the job there.
[18] Mr Oostendorp took the switch and went to discuss the matter with Mr Michael MacLean who said that he would change over the faulty switch. Mr Michael MacLean stated that Mr Oostendorp told him that Mr Moitzi wanted the motor home to be taken out the back for thirty minutes to enable the switch to be changed and Mr Oostendorp did not think it was a good idea to upset the customer further. Mr Michael MacLean said that he asked Mr Oostendorp to get the float switch and the correct spanner, swapped the switch over, taking five minutes to complete what was a simple and easy task. Mr Oostendorp said that he and Mr Michael MacLean replaced the switch together and the job took around ten minutes with no mess or damage.
[19] Mr Moitzi did not dispute that he refused to go out to the handover bay to fit the switch and requested that the vehicle be brought to him. Mr Moitzi pointed to the discrepancy between the evidence of Mr Michael MacLean and Mr Oostendorp in relation to the time that Mr Moitzi said that it would take to fit the switch. However, Mr Moitzi did not dispute that he said that it would take a period of time to complete the task and that he wanted the vehicle brought from the handover area to his area in order to undertake the task. During Mr Moitzi’s cross-examination of Mr Oostendorp in relation to the conversation about the switch, the following exchange occurred:
“MR MOITZI: Just quickly, Leon, when you came to get the switch from me?---Yes.
I believe you came to ask to the effect that do I have a float switch. Is that correct?---Yes.
And I said, "Yes," and I grabbed the float switch, and then we looked at it together and I offered two scenarios of fitting. Would you agree with that?---No, I don't.
Okay?---I don't know about that. What have you got two scenarios - - -
Okay. I think the question came up about fitting the switch?---Yes, correct.
And I said, "The quick way to do it would be straight in from the top and pull it out, but when Ben and I tried it, it offered a little resistance, so it may actually have to go in through the tank"?---Yes.
So the other scenario would be to take the tank off and it's got to go up through the tank. Do you remember that?---I remember you telling me the tank would have to be removed and you needed the vehicle down in your section as it would take - you told me when I asked you how long it would approximately take and you said about an hour and a half. From there you also wouldn't be able to do it in the delivery bay, you needed the vehicle down in front of your area, because you needed to remove the tank and the fluid would go everywhere, and it could end up being a messy job. And you told me - - -
Yes, I think I remember saying the tank would have to be removed if the switch couldn't be taken out through the top?---Yes.” 7
[20] In relation to whether Mr Moitzi said that the job of fitting the switch would take half an hour or an hour and a-half, Mr Michael MacLean said:
“...Okay. Well, that part there for me is a little bit hard to sort of remember. I'm a very, very busy person at work and as soon as I heard it, it frustrated me, because I've got two customers who are really upset. They've just spent, you know, over a quarter of a million dollars with me and on my face value, and now they have a faulty part in their motor home and, yes, I've been told that it's going to take a certain amount of time out of their delivery, which is very important to them learning how to use their new motor home. That it has to be packed up and taken out the back. So yes, I'm saying that's basically what I heard, but it could have been an hour or it could have been half an hour, but from what I can remember, I thought it was a half an hour, but it could have very well been an hour and a half. I was a little bit upset at the fact that the motor home had to go back out into production to get repaired.” 8
[21] In relation to fitting the switch, Mr Michael MacLean said:
“Well, for me, it was just unacceptable, the whole thing. The fact that he didn’t want to go out and do it in front of the customer, and I had to deal with him personally, go out and do the job, after being told that - so even half an hour was ridiculous to me. It took me no more than five minutes to do the job, and I didn't drop a drop of oil on my salesman outfit, so - and I haven't been on the tools for, you know, four or five years now and I could still do it in a matter of minutes. So I don't see any excuse for it not being done...” 9
[22] In cross-examination and in response to a number of questions from the Commission, Mr Moitzi said that at the time he became aware of the problem with the switch, he did not know whether it would take ten minutes to fix because the job might have required the removal of the oil tank. In relation to the other tasks involved with levelling the motor home, Mr Moitzi agreed that these would have been done as part of the QA check in any event and were not relevant to replacing the switch. Mr Moitzi also agreed that there is a rolling production schedule for each vehicle and that notwithstanding his evidence of a constant shuffle in the production line, generally, vehicles do not move for a 12 day period during which they are being worked on. Cabinet makers could take from five to six days during that period. Mr Moitzi agreed that there was nothing to stop the switch being fitted while the cabinet makers were still working on the vehicle.
[23] Mr Moitzi also agreed that the rolling production schedule told him when the motor home was due for completion and that he had not fitted the switch at that point. Further, Mr Moitzi agreed that he is not the only person performing sub-assembly work and that the QA list could have gone to another employee who did not know about the faulty switch. Mr Moitzi said that the QA list in relation to the motor home in question had not gone to him. Mr Moitzi agreed that he knowingly left a faulty switch in the motor home but maintained that he expected the fault to show up during the QA check and to be included on the list of items for rectification.
[24] During the evidence of Mr Ben MacLean and Mr Oostendorp, QA documentation in relation to the motor home in question was tendered. 10 The documentation was tendered at the request of the Commission when it became apparent that the date upon which QA for the motor home in question was completed, and who had completed the tasks on the list, was relevant to the issues in dispute. Mr Moitzi had an opportunity to give evidence about what the documentation showed and to cross-examine witnesses for Paradise Motor Homes in relation to it.
[25] The documentation included a Quality Control Checklist indicating that Quality Control for the motor home was completed on 18 November 2011. The checklist has items under a heading “Rectification List” and a column where an employee in each section of Paradise Motor Homes can sign to indicate that the task in the rectification list has been carried out. A number of items on the checklist have been signed off as completed by Mr Oostendorp, including items which are under the department of sub-assembly in which Mr Moitzi worked.
[26] Mr Moitzi asserted that this was irregular and demonstrated that there were issues with Paradise Motor Homes’ QA process. Mr Oostendorp said that generally the items on the Checklist would be signed off by employees who completed them. Sometimes those employees do not sign off on the items and Mr Oostendorp while doing his final QA check ensures that they have been done and signs off on them himself. Mr Oostendorp occasionally performs a task on the list if he discovers during his final inspection that it has not been done.
[27] In relation to the motor home in this case, Mr Oostendorp could not remember whether he had completed the items of work on the list and signed off on them or whether he had simply checked that the items had been completed by someone else and then signed the form. It is not in dispute that the items did not include the faulty switch.
[28] After the replacement switch was fitted, Mr Ben MacLean, Mr Michael MacLean and Mr Oostendorp had a discussion about the situation. It was determined that the motor home was the one that Mr Moitzi had previously been asked to fit the replacement switch on, and it was determined that he had not fitted the replacement switch in the first instance and had the part in his tool box. They also considered that Mr Moitzi had refused to come out and fit the switch in the handover bay. It was decided to have a counselling meeting with Mr Moitzi. That meeting was scheduled for 2.30 pm on 19 November 2015.
[29] Mr Moitzi said that he was requested to attend the meeting by Mr Oostendorp. The meeting was conducted in an upstairs office and was also attended by Mr Ben Maclean. Mr Moitzi’s version of the meeting is that Mr Ben MacLean asked him what happened with the switch. Mr Moitzi responded by stating that he had intended to replace the faulty switch in the QA bay where it should have been identified by the inspectors. Mr Ben MacLean told Mr Moitzi that the way he dealt with the switch was unacceptable, and that his employment was terminated immediately.
[30] Mr Moitzi said that during the meeting he was not given an opportunity to respond to the allegations against him or for a support person to be present. Mr Moitzi also said that he was not warned about his performance. There were no warnings about Mr Moitzi’s performance prior to his dismissal. Mr Moitzi also said that he was shocked, hurt and embarrassed at the manner of his dismissal particularly when he had to go straight to his work station and collect his belongings and leave the workplace.
[31] Mr Ben MacLean said that he did not intend to dismiss Mr Moitzi at the meeting but to issue him with a warning. In order to be prepared for the meeting with Mr Moitzi, Mr Ben MacLean prepared a written warning in relation to the failure by Mr Moitzi to follow a direction to install a levelling switch in the motor home and stating that the likely consequence of further misconduct or insufficient improvement in Mr Moitzi’s performance would be a final written warning and then dismissal.
[32] Mr Ben MacLean’s version of the meeting was that he asked Mr Moitzi to explain what had happened with the switch and why he had not fitted it. Mr Moitzi stated that he had not had time to fit the switch because he was too busy. Mr Moitzi also stated that he expected someone else would find the problem and remind him to replace the switch before the vehicle was delivered to the customer.
[33] Mr Ben MacLean asked Mr Moitzi whether he had told anyone else that he had not fitted the switch or to remind him about fitting the switch and Mr Moitzi said that he had not done this. Mr Ben MacLean told Mr Moitzi that his excuse was unacceptable and Mr Moitzi then attempted to blame the QA inspector and Mr Oostendorp and then the cabinet fit out team. Mr Moitzi also stated that he stood by his actions and would do the same thing again.
[34] Mr Ben MacLean then stated that if this was Mr Moitzi’s attitude, he may not have a job with Paradise Motor Homes. Mr Moitzi said: “Well that’s it then” and Mr Ben MacLean told him to get his tools and leave. In cross-examination, Mr Moitzi said that he went into the meeting with a “gut feeling” that his employment was going to be terminated because this had happened to other employees who were asked to attend a counselling session. Mr Moitzi was also asked whether in the meeting on 19 November, he said he would do the same thing again. In response to this question, Mr Moitzi stated:
“In the course of the conversation that is somewhat correct. I said, looking at the time - the situation - I mean it seemed quite reasonable to - for the process I’d decided to do that switch in. I mean, hindsight is a great thing, but I said, you know, there was no reason why that wouldn’t have been picked up and I wouldn’t have got to do it in the QA Bay.” 11
[35] In his evidence to the Commission, Mr Moitzi maintained that he acted reasonably in deciding to replace the switch when the motor home was in the QA Bay or that he had caused damage to the Company’s reputation. Mr Moitzi also asserted that it was not his responsibility that the QA section missed the faulty switch and that this most likely occurred because of a reduction in the number of employees in each section.
[36] In relation to his employment record, Mr Moitzi said that he was not told of any issues with his conduct or work performance and had not received any verbal or corrective feedback. Mr Moitzi also said that he worked hard and had been required to work more hours after two employees in the sub-assembly section were dismissed leaving only Mr Moitzi and one other employee. Mr Moitzi further said that the supervisor in the sub-assembly section performed his own duties and took no leadership role at all. Mr Moitzi admitted that he had spoken to Mr Ben MacLean and Mr Oostendorp previously about his working hours but this discussion was about whether he would remain on a salary or be paid an hourly rate. Mr Moitzi said that as a result of this discussion, it was agreed that he would remain on a salary where the hourly rate would be lower than if he agreed to change his payment system to one based on hours worked.
[37] Mr Oostendorp said that during the period of Mr Moitzi’s employment he had spoken to Mr Moitzi about the fact that he was not completing enough hours to justify his salary. Mr Oostendorp also said that Mr Moitzi took longer than other staff to complete his work and that other staff complained about this. Mr Ben MacLean said that on or about the second week in October 2014 he gave Mr Moitzi a verbal warning regarding ongoing attendance issues and the fact that Mr Moitzi was not working the 44 hours per week covered by his salary.
[38] Mr Ben MacLean stated that he told Mr Moitzi that if he did not do the hours his pay would be dropped and Mr Moitzi said in response that he would do the hours. Mr Ben Maclean also stated that Mr Moitzi’s attendance was down in the weeks before he failed to fit the switch and he was not too busy to complete that task.
[39] Under cross-examination, Mr Moitzi was asked on a number of occasions about his failure to work the full number of hours covered by his salary and repeatedly responded by saying that he had never claimed to be too busy to fit the switch and by asserting that he had raised issues about how work was going to be done following staff reductions. Mr Moitzi also insisted that he had been required to prioritise work and had decided that fitting the switch did not need to be done until the QA part of production.
[40] Mr Colin MacLean gave evidence that he had given Mr Moitzi two bolts and instructed Mr Moitzi to fit them to a vice. It was discovered after Mr Moitzi’s dismissal that this had not been done. The instruction was given because the bolts on the vice had been machined in a way that made them unsafe. Mr Colin MacLean maintained that the only employee other than himself with the skill to machine the bolts in the first place, was Mr Moitzi. Mr Moitzi said that he had not been given bolts and could not remember any discussion about this matter.
[41] Mr Moitzi’s annual salary at the time of his dismissal was $62,660.00. At the point he was dismissed the length of Mr Moitzi’s service was some two and a-half years. Mr Moitzi contended that but for his dismissal he would have remained in employment for at least a further two years. Mr Moitzi gave evidence of having applied unsuccessfully for other maintenance fitter and fitter/machinists jobs which were advertised and also making contact with prospective employers for the purpose of seeking employment. At the time the matter was heard Mr Moitzi had not obtained other employment and was in receipt of Centrelink assistance in the amount of approximately $6.00 per week on the basis of his wife’s income. Mr Moitzi did not seek reinstatement and contended that he should be awarded compensation for his unfair dismissal. It is not in dispute that Mr Moitzi was paid three weeks wages in lieu of notice on the termination of his employment.
Relevant Legislation
[42] In considering whether the Commission is satisfied that a dismissal was harsh, unjust or unreasonable the Commission must take into account those matters specified by s.387 of the Act, as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person— whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[43] The onus rests with the respondent to establish that the misconduct as alleged took place and it constituted a valid reason for dismissal: Culpeper v Intercontinental Ship Management Pty Ltd. 12 A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”13 The reason for termination must also be defensible or justifiable on an objective analysis of the relevant facts,14 and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.15
[44] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 16
Consideration
Was there a valid reason for Mr Moitzi’s dismissal?
[45] I do not accept that Mr Moitzi’s conduct in failing to fit the switch was reasonable. Mr Moitzi was aware that the switch was faulty, and regardless of how it came to be on his work bench or in his tool box, Mr Moitzi had the replacement switch to fit to the motor home in question.
[46] I found Mr Ben MacLean to be a truthful witness and I accept that he had a discussion with Mr Moitzi about the faulty switch and told him that he would order a replacement. I also accept that Mr Ben MacLean made it clear that Mr Moitzi should fit the switch immediately upon receiving it. Whether that discussion occurred when the faulty switch was identified or the new switch arrived, is irrelevant. I am satisfied and find that Mr MacLean instructed Mr Moitzi to fit the switch when it arrived.
[47] Mr Moitzi knew that switch on the vehicle in question was faulty and that a replacement had to be fitted. Mr Moitzi received the replacement switch and made a conscious decision to do the job at a time of his choosing rather than at the time he received the switch. Mr Moitzi’s denial that he stated that he was too busy to fit the switch is at odds with his evidence about work load, the reduction in the numbers of employees in the sub-assembly section and his criticism of the supervisor of that section.
[48] Mr Moitzi knew that the motor home in question was scheduled for completion on a particular date and did not fit the switch. He also failed to inform other employees about the faulty switch in circumstances where he knew that he was not the only person who would be informed of QA issues with the motor home and that another employee might be called on to rectify those matters. On his own evidence, Mr Moitzi retained the replacement switch on his workbench notwithstanding that another employee might have been called on to fit it and made no reference to this fact to anyone. It is not to the point that the fault was not intermittent when Mr Moitzi discovered it. What is to the point is that it was not reasonable for Mr Moitzi to rely on QA to pick up the fault in circumstances where he knew of its existence and failed to take appropriate steps to rectify it.
[49] I accept that the ramifications of Mr Moitzi’s failure to fit the switch were significant. The fault re-emerged during the handover to customers of a $300,000.00 motor home. The customers were understandably angry and upset and it took effort on the part of Mr Ben MacLean to placate them. Mr Moitzi did not attempt to rectify the problem by going to the handover bay, but rather, told Mr Oostendorp that the motor home would need to be returned to his section for the work to be performed. Whether Mr Moitzi told Mr Oostendorp that he needed thirty minutes or an hour and a-half to do the job, is also irrelevant. The relevant point is that having been told of a fault that he already knew about, and in circumstances where he had the replacement part to rectify the fault, Mr Moitzi took no steps to rectify the matter.
[50] The fitting of the switch in the hand over bay was a minor task which took Mr Michael MacLean no more than ten minutes to perform. That it may have taken longer and that Mr Moitzi foresaw difficulties with the task is also not to the point. Mr Moitzi made no effort to go to the handover bay to attempt the task or to assist in its performance.
[51] I also accept Mr Ben MacLean’s evidence that notwithstanding his failure with respect to fitting the switch, there was no intention to dismiss Mr Moitzi on 19 November 2014 and instead Mr Ben MacLean intended to issue him with a warning letter. Mr MacLean decided to dismiss Mr Moitzi part way through the meeting because Mr Moitzi would not take responsibility for his actions and maintained that he would do the same thing again.
[52] Mr Moitzi agreed that this was his position at the meeting of 19 November 2014. At the point his application for an unfair dismissal remedy was heard, Mr Moitzi maintained this position. The overwhelming impression I gained was that Mr Moitzi blamed every one for the failure other than himself. In particular, Mr Moitzi’s attacks on the QA system of Paradise Homes were unfounded and his view that the problem was the failure of the QA system was unreasonable. A QA system is not a back up for poor decisions that are knowingly made by employees with responsibility for performing particular work.
[53] Mr Moitzi was responsible for fitting the switch and made a poor decision about delaying the fitting of the switch. That decision was not reasonable in the circumstances. The decision taken by Mr Moitzi created a significant risk that the task of replacing the switch would be overlooked. Mr Moitzi failed to take any precautions to ensure that the risks associated with his decision were mitigated. Mr Moitzi’s conduct in not replacing the switch when it was given to him was also a breach of the direction Mr Moitzi was given by Mr Ben MacLean. As a result of the failure on the part of Mr Moitzi, there was an issue when a customer was taking delivery of the motor home causing embarrassment and potential damage to Paradise Motor Homes.
[54] In all of the circumstances, I am satisfied and find that there was a valid reason for Mr Moitzi’s dismissal in that he refused to accept responsibility for a poor decision and maintained that he would do the same thing again.
Was Mr Moitzi notified of the reason or his dismissal?
[55] I am not satisfied that Mr Moitzi was notified of the reason for his dismissal. I accept that Mr Moitzi was told that he was required to attend a counselling meeting and that on arrival at the meeting found that it was about his failure to replace the faulty switch. However the meeting was intended to be a counselling meeting and the failure to install the replacement switch was not the reason for Mr Moitzi’s dismissal.
[56] The counselling meeting segued into a dismissal meeting and it does not appear from the evidence that Mr Moitzi was told that his response to the issues associated with failing to change the switch was itself viewed as a reason to dismiss him.
Was Mr Moitzi given an opportunity to respond to the reasons for his dismissal?
[57] I do not accept that Mr Moitzi was given an opportunity to respond to the reasons for his dismissal. In my view, when the meeting segued into a dismissal meeting it should have been adjourned to give Mr Moitzi time to consider his position and whether he wished to maintain his defence of his conduct. This would have allowed Mr Moitzi an opportunity to respond to the reasons for his dismissal.
[58] It is also the case that a warning letter was pre-prepared prior to the meeting indicating that with respect to the failure of Mr Moitzi to replace the switch, that a view had already been formed that his conduct was deserving of a warning before there was any discussion with him.
Was there an unreasonable refusal by Paradise Motor Homes to allow Mr Moitzi to have a support person present to assist at any discussions relating to the dismissal?
[59] Mr Moitzi did not make a request for a support person to be present so there was no refusal in this regard. However, had the meeting been adjourned at the point it became a meeting about Mr Moitzi’s dismissal, he would have been in a position to ask for a support person. While this is not an issue that can be considered under s. 387(c) it is relevant to the opportunity to respond to the allegations required to be considered under ss. 387(b).
If the dismissal related to unsatisfactory performance - whether Mr Moitzi had been warned about that unsatisfactory performance before the dismissal?
[60] I am satisfied and find that Mr Moitzi had received verbal warnings about his working hours or that he was at least aware that management of Paradise Motor Homes were of the view that he was not working sufficient hours to justify his salary. However, I am not satisfied that Mr Moitzi had been given a warning to the extent that he could reasonably have believed that his employment was in jeopardy.
[61] This is apparent from warning letter prepared for Mr Ben MacLean prior to the meeting on 19 November 2014, which makes it clear that Mr Moitzi was to be given a first written warning for failing to fit the switch and that a consequence of further misconduct or failure to improve would be a further warning rather than dismissal.
Did the size of the employer’s enterprise and the absence of dedicated human resource management specialists or expertise, impact on the procedures followed in effecting the dismissal?
[62] Paradise Motor Homes is a medium sized employer (employing approximately 38 staff). The Company does not employ dedicated human resource management specialists, only a payroll officer who was not present at the termination meeting. I accept that Mr Ben MacLean went to some effort to deal with the issues with Mr Moitzi and that events unfolded in a way that would have made it difficult for an employer without access to dedicated human resource management professionals.
[63] A dedicated human resource management professional may have decided to adjourn the meeting and to formulate further allegations about Mr Moitzi’s attitude to the incident with the switch and the view that the Company had of that attitude. A human resource management professional might also have ensured that Mr Moitzi was warned that his attitude and response to the matters that had been raised with him was placing his job in jeopardy and could lead to the termination of his employment. Regrettably, these steps were not undertaking, resulting in a denial of procedural fairness to Mr Moitzi.
Any other matters that the FWC considers relevant
[64] There is evidence about a further incident whereby Mr Moitzi failed to fit bolts to a milling machine as instructed by Mr Colin MacLean. Mr Moitzi disputes this and maintains that he has no recollection of the matter being raised with him. In the circumstances, I am unable to be satisfied that this incident - to the extent it occurred - is relevant to this matter.
Conclusions and remedy
[65] On balance, I am satisfied that Mr Moitzi’s dismissal was unfair. The dismissal was unreasonable because it was decided on the basis of views about Mr Moitzi’s attitude formed by Mr Ben MacLean from a single meeting with Mr Moitzi, in circumstances where the meeting was about another topic and Mr Moitzi was not on notice that dismissal was in contemplation.
[66] Given that I have found that Mr Moitzi’s dismissal was unfair, it is necessary to consider the question of remedy. As required by s.390 of the Act, I am satisfied that Mr Moitzi was protected from unfair dismissal and that he has been unfairly dismissed. I am also of the view that Mr Moitzi should have a remedy for his unfair dismissal
[67] Mr Moitzi does not seek reinstatement to his position and in the circumstances contends that the relationship has broken down and cannot be resumed. After hearing the parties and observing their interaction during the hearing, and in light of the fact that Paradise Motor Homes is a relatively small business, I accept that reinstatement is not practicable.
[68] I am also satisfied that an order for the payment of compensation is appropriate in all of the circumstances of the case. Section 392 of the Act provides as follows in relation to the remedy of compensation:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC 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 the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[69] There is no evidence that an order for compensation, particularly in the amount I intend to award, will have any impact on the viability of the business of Paradise Motor Homes. The length of Mr Moitzi’s service with Paradise Motor Homes was some two years and six months in duration. In all of the circumstances of this case, I do not accept that Mr Moitzi would have remained in employment for a further period two years. Mr Moitzi had received an informal warning about his work attendance and as a result of the failure to fit the switch, it would have been reasonable for Paradise Motor Homes to have given him a first warning about the failure to fit the switch and a further warning, and final warning, about his refusal to accept any responsibility for his failure.
[70] Given that this refusal still persisted at the time this matter was heard, I am of the view that Mr Moitzi’s continued employment would not have been for an extensive duration and at most would have subsisted for, at most, a six week period after his dismissal. In my view, this estimate is giving Mr Moitzi the benefit of the doubt. Had Mr Moitzi maintained his refusal to accept any responsibility for the failure to fit the switch, and subject to a further meeting to discuss that refusal, a decision to dismiss Mr Moitzi for his attitude may have been taken within a space of no more than a week from the meeting on 19 November 2014.
[71] In relation to mitigation, I satisfied that Mr Moitzi made reasonable attempts to obtain other employment after his dismissal and that no adjustment should be made in this regard. Mr Moitzi was paid three weeks wages in lieu of notice and this should be deducted from the six weeks compensation for the period that Mr Moitzi would likely have remained in employment.
[72] The amount of $3,615.00 less taxation deductions as required by law is to be paid to Mr Moitzi within 14 days of the date of this Decision. An order to that effect will issue with this Decision.
DEPUTY PRESIDENT
1 Exhibit 1 Affidavit of Paul Rudloph Moitzi.
2 Exhibit 2 Witness Statement of Ben MacLean.
3 Exhibit 5 Witness Statement of Leon Oostendorp.
4 Exhibit 7 Witness Statement of Michael MacLean.
5 Exhibit 6 Witness Statement of Russell Barrett.
6 Exhibit 8 Witness Statement of Colin MacLean.
7 PN636 to PN643.
8 PN703.
9 PN705.
10 Exhibit 3 Quality Control & SSM Checklists.
11 Transcript of proceedings PN260.
12 [2004] AIRC 261.
13 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
14 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
15 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
16 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines(1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
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