Mr Peter Hugo Maxwell Owen v Flemington Fields Pty Ltd T/A GKR Transport

[2010] FWA 3654

[2010] FWA 3654

FAIR WORK AUSTRALIA

DECISION

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

Mr Peter Hugo Maxwell Owen
v
Flemington Fields Pty Ltd T/A GKR Transport
(U2010/5062)

DEPUTY PRESIDENT MCCARTHY PERTH, 7 MAY 2010

Termination of employment.

Background

[1] Mr Peter Owen (the Applicant) lodged an aplcaition for an unfair dismissal remedy (the Application) regarding the termination of his employment with Flemington Fields Pty Ltd t/as GKR Transport (the Respondent).

[2] The assertions of the Applicant are set out in the Application as follows:

“1. I had explained to my employer that my intentions were to eventually move into the mining industry. They were very supportive at that time. I was asked to attend an interview for Barrick Gold on 24 December 2009.

2. I asked my employer for annual leave for this day so I could attend the interview a week prior. I was given the day off by my immediate boss, Graham Smith. On the 22nd December i went to work as usually and the Operations Manager, Adrian Webb approached me and said "If you're hearts not in it, you may as well not be here, you're sacked"

3. I was asked to leave the premises immediately. I haven't returned since.”

[3] The following grounds were stated in the Application as the reasons why he asserted the dismissal was unfair:

“1. I was a very efficient and loyal employee towards GKR. I carried out all work required by job description and more.

2. I was completely upfront with my employer when explaining to them that i intended to further my career in the mining industry.

3. I have spoken with DOCEP with regards to my dismal and they have informed me that it is not legal for an employer to fire an employee for attending another job interview.

4. I find it particularly unfair as this was something I had discussed with my employer for the last year.”

[4] The Respondent lodged an Employers Response to the Application for unfair dismissal (the Employer’s Response) and in it stated the reasons for dismissal were:

“Peter informed GKR that he needed to attend a job interview on the 24th December 09. Adrian Web (Operations Manager) informed Peter that he was required to work on that day as we were busy. Peter shoes to attend the interview.”

[5] The Employer’s Response stated the following in response to the Applicant’s contentions:

“It was known that Peter was looking for work in the mining industry which was fine, until it started to affect his work at GKR. He should have arranged the interview for another time. We needed all our drivers at work for Christmas deliveries.”

[6] I wrote to the parties on 22 April 2010 and informed that them that it appeared from the documentation that:

1. Mr Peter Owen asserts that he was given permission by Graham Smith to not be present at work on the morning of 24 December;

2. Mr Cunningham asserts that Mr Owen was directed to attend work on 24 December; and

3. Mr Owens asserts that on 22 December his employment was terminated by Mr Cunningham and Mr Webb.

[7] I also indicated in that letter that I expected both parties to be present and to give evidence in support of their contentions. I then identified questions that I considered should be addressed.

Consideration

[8] Evidence was given by the Applicant and by Mr Mark Cunningham, Human Resource Manager for the Respondent and Mr Graham Smith, Fleet Controller for the Respondent. Mr Cunningham also explained that Mr Adrian Webb was not available to give evidence as he was overseas.

[9] It appears to me from the evidence that the series of events and the nature of the conversations that the following is the most likely that occurred:

1. Mr Smith initially give provisional permission for the Applicant not to attend work on 24 December;

2. Prior to 24 December and, most likely on 22 December, it appears Messrs Webb and Cunningham withdrew that permission and informed the Applicant of their decision;

3. The Applicant was also told that he would be required to work on 24 December at the usual time;

4. After being told that he would be required work the Applicant then made it clear that he would not be attending work on 24 December and he made that clear after being given the direction to attend work on 24 December; and

5. Following that refusal the Applicant’s employment was terminated.

[10] Mr Smith also gave evidence that it was usual when someone intended to be absent to “give a couple of weeks notice” due to the time of the year (Christmas). He also stated that the Applicant was told that “they needed him there for the day’s work because it was Christmas Eve and a lot of places are knocking off early type thing, and we were needing a couple of drivers.”

[11] I consider that the employment was terminated at the initiative of the Respondent on 22 December 2009 following the Applicant’s refusal to agree to attend work when required. The requirement of the employer, in the circumstances, I consider to have been reasonable given the nature of the operations and the day in question.

[12] I find that there was a valid reason for termination. I also find that the Applicant was aware of the reason and the conversation that occurred on 22 December had the effect of notifying of that reason. Indeed that conversation also provided him with the opportunity to respond, either by accepting that he was required on 24 December and agreeing to attend. He chose not to. There was no support person present at the critical conversation but there is no evidence of any refusal for a support person to be present. Undoubtedly the matter could have been handled better but I make no adverse findings against the employer in respect for the procedures followed.

[13] For the above reasons I find that the termination of employment was not harsh, unjust or unreasonable and dismiss the Application.

DEPUTY PRESIDENT

Appearances:

Mr P Owen on his own behalf (by telephone)

Mr G Smith and Mr M Cunningham of Flemington Fields Pty Ltd t/as GKR Transport

Hearing details:

2010.

Perth:

April 28.

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