Mr Peter Mabior v Rew Bros Pty Ltd T/A Rew Bros Cleaning Pty Ltd

[2018] FWC 6731

[2018] FWC 6731

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Peter Mabior
v
Rew Bros Pty Ltd T/A Rew Bros Cleaning Pty Ltd
(U2018/7202)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 31 OCTOBER 2018

Application for unfair dismissal remedy – failure by employee to follow lawful directions of employer – performance deficiencies – valid reason – procedural fairness – application dismissed

[1] Mr Peter Mabior (the Applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Rew Brothers Cleaning Pty Ltd (‘Rew Brothers’ or ‘the employer’). He claims to have been unfairly dismissed on 7 July 2018. At the date of dismissal he was employed as a cleaner.

[2] Mr Mabior claims that his dismissal was harsh, unjust or unreasonable. He seeks re-employment.

[3] Rew Brothers is a private family company providing commercial cleaning services in Adelaide, South Australia. It opposes the application. It says that Mr Mabior was a casual employee working regular hours who was dismissed on 7 July 2018 for not following the employer’s reasonable and lawful directions. It submits that its dismissal was not harsh, unjust or unreasonable and that no issue of remedy arises.

[4] Mr Mabior was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the statutorily required minimum employment period (section 382(2)(a)). I am satisfied that the whole of Mr Barone’s employment as a casual employee counts towards this period because his employment was regular and systematic and he had a reasonable expectation of continuing employment on that basis. 1 His annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act. Whilst a family business, Rew Brothers is not a small business within the meaning of the FW Act.

[5] The application was filed within the statutorily required 21 days after dismissal took effect.

[6] On 13 August 2018 conciliation of the application was conducted by a Commission-appointed conciliator. It did not settle. It was referred to me for hearing and determination.

[7] I issued directions in the matter on 4 September 2018. Both in advance of and at the hearing I received witness statements, documents and materials from Mr Mabior and from the employer.

[8] A pre-hearing dispute arose concerning the mode of determination. By decision dated 4 October 2018 2 I decided to hear the matter by conference.

[9] I heard the matter by determinative conference in Adelaide on 18 October 2018. Both parties were self-represented. The employer’s case was presented by co-owner and director Mr Philip Rew. I reserved my decision, which I now deliver.

[10] The evidence before me was both oral and documentary.

[11] At the hearing Mr Mabior gave evidence in support of his claim. The employer called a Site Manager and co-director Christopher Rew, a Head Supervisor Brandon O’Leary and a Relief Leading Hand Haydn Gartner. Philip Rew also gave evidence, though much of his evidence was less relevant as he was not directly involved in events at the workplace that gave rise to the dismissal.

[12] Some factual discrepancies arise on the evidence, particularly the events in the workplace on Saturday 7 July 2018. Issues of credit are relevant, as well as the consistency of oral testimony with documentary evidence, the inherent plausibility of differing versions and the demeanour and consistency of oral evidence.

[13] Where factual discrepancies occur, I prefer the evidence of Mr Christopher Rew, Mr O’Leary and Mr Gartner over the evidence of Mr Mabior. The oral evidence of each of the company witnesses is consistent with documentary evidence whereas in critical areas, Mr Mabior’s evidence was inconsistent with documentary material before me, for example his denial that he received a formal written warning during the shift on 5/6 July. Mr Mabior also displayed a poor recollection of times and sequence of events, and his evidence shifted as the hearing progressed. Whist sincere, he conveyed the impression of telling me what he wanted me to hear, rather than what exactly occurred. In contrast, the evidence of Mr Christopher Rew, Mr O’Leary and Mr Gartner was largely consistent. Mr O’Leary and Mr Gartner in particular added no gloss to their evidence; it was factual, unembellished, presented without emotion and plausible.

[14] Some of the evidence before me strayed from factual matters into hearsay, opinion, assumption and commentary. I place reduced levels of weight on such evidence except where corroborated by direct evidence, is uncontested or inherently believable. I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of a Full Bench of this Commission which has said:

“The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.” 3

The Facts

[15] I make the following findings.

Events Prior to 6 July

[16] Rew Brothers had a longstanding and commercially significant contract to clean a large poultry processing factory operated by Inghams Enterprises at Bolivar in suburban Adelaide. The cleaning work was usually performed during evenings, once the day’s processing had been completed. The cleaning of the premises and of production equipment was required to be performed to high standards of quality in order to meet hygiene and food processing requirements.

[17] On 12 April 2017 Mr Mabior was employed by Rew Brothers as a cleaner to clean the Inghams poultry processing plant 4. He regularly worked approximately 35 hours per week and was engaged and paid as a casual employee under the Cleaning Services Award 2010, a modern award of the Commission. His Letter of Appointment referenced a Position Description signed and dated 12 April 2017. The Position Description listed five “Responsibilities”. They included:

“1. Responsible for cleaning the machinery, walls, floors and ceilings correctly, safely and efficiently;

…………

5. Responsible for following any reasonable instruction issued by the Supervisors or Management.”

[18] Until his dismissal, Mr Mabior worked almost fifteen months in this role.

[19] Cleaners worked in groups, and during each shift the groups would rotate around the factory in order to undertake different tasks. A leading hand would manage the work of each group, and a head supervisor would allocate persons to leading hand roles, and oversee the work of all groups.

[20] Management of the Inghams contract was overseen by Site Manger Mr Christopher Rew, from an office located upstairs inmabior the plant.

[21] Prior to and during the relevant week (that is, the week commencing Monday 2 July 2018), Mr O’Leary was the Head Supervisor.

[22] A ‘Supervisors and Leading Hand Notebook’ was maintained in the plant 5. The supervisors and leading hands would handwrite a record of issues or incidents (if any) arising with or between staff that arose during shifts, including directions, counselling or warnings given to staff.

[23] The Site Manager Christopher Rew also maintained a ‘Manager’s Notebook’ of issues or incidents (if any) arising with or between staff that were escalated to his attention, including verbal or written warnings 6.

[24] Whilst Leading Hands could issue directions and Head Supervisors could issue verbal warnings, the practice of the employer was that formal written warnings would generally be issued by the Site Manager, usually Christopher Rew.

[25] The ‘Supervisors and Leading Hand Notebook’ indicates that Mr Mabior was given directions, counselling or verbally warned on at least nineteen occasions during the course of his employment for incidents of a sufficiently serious nature to be so recorded. The incidents included failure to follow instructions, slow and low quality work and failure to follow safety procedures. Although each of the past Supervisors and Leading Hands who recorded these notes did not give evidence, I am satisfied on the evidence of Christopher Rew and Mr O’Leary that there is no particular reason to disbelieve that such discussions took place broadly in the form recorded albeit the note-book record is a shorthand summary and does not record the employee’s response (if any).

[26] The ‘Manager’s Notebook’ indicates that Mr Mabior was counselled or verbally warned by the Site Manger on at least five occasions during the course of his employment for incidents of a sufficiently serious nature to be so recorded. These occurred on 4 October 2017, 14 October 2017, 28 May 2018, 26 June 2018 and 6 July 2018. I accept Christopher Rew’s evidence that these warnings were given as recorded. Some of these warnings (for example, the 26 June 2018 warning) concerned the same matter recorded in the ‘Supervisors and Leading Hand Notebook’.

[27] The claim made by Mr Mabior in his application to the Commission that “I have not been counselled or warned by my employer of any deficiencies in my performance or conduct since I started working” is not correct. It is inconsistent with the documentary evidence produced by the employer. His evidence on this point shifted ground during the hearing, once the note-books were produced.

[28] On 25 June 2018 Mr Mabior was spoken to by his leading hand Mr Gibbs about slow work and that he had not cleaned a conveyor belt properly because he had failed to remove a whole chicken from the belt during cleaning. Mr Gibbs made a note of this counselling in the ‘Supervisors and Leading Hand Notebook’. Mr Mabior received similar counselling by Mr Gibbs on 26 June. 7

[29] These incidents were escalated to the Site Manager’s attention. On 26 June Christopher Rew spoke to Mr Mabior. Mr Rew advised him that he must follow instructions, especially concerning safety procedures and quality of cleaning or his job would be at risk. He was reminded that his leading hands, including Mr Gibbs, had previously advised the same. He was advised that he would be issued a final written warning once the warning was prepared, “as he had been told many times and retrained on some areas multiple times” 8.

[30] Due to the need to draft the written warning (which was prepared on 2 July and dated that same day 9) and due to rostering absences (including Mr Mabior being absent sick on 3 and 4 July10), the next opportunity for the Site Manager to give Mr Mabior the written warning was on the shift commencing Thursday 5 July.

[31] At the end of that shift (which was by then past midnight, that is in the early hours of Friday 6 July) Christopher Rew called Mr Mabior to his office. He gave Mr Mabior the written warning (Exhibit R13). Mr Mabior claimed that he had not been told that he would be issued a written warning. Mr Rew reminded Mr Mabior that he had been informed on 26 June. Mr Mabior read the written warning and argued its contents. Mr Rew explained each of the issues in the warning. Mr Mabior claimed that Mr Rew was unfairly checking on his work and that this was bullying. Mr Rew said that he was doing so in order to satisfy himself that what leading hands and supervisors were reporting to him was reliable. He said that this was not bullying. Mr Mabior maintained the argument and refused to sign the warning. Mr Rew said that the warning was nonetheless issued. Mr Mabior returned to the factory floor.

[32] As previously noted, I reject Mr Mabior’s oral evidence 11 that he was not issued a written warning by Christopher Rew during the 5/6 July shift. I prefer Christopher Rew’s evidence12 which is corroborated by the evidence of the handwritten warning and Mr Rew’s handwritten notes13 in the Manager’s Notebook of the conversation.

[33] The written warning indicated: 14

“You have not been following instructions given to you properly….Should you choose to continue with this behaviour it may result in the termination of your employment.”

[34] Also during the shift Mr Gartner, working as a cleaner, had a brief verbal altercation with Mr Mabior. Mr Gartner believed that Mr Mabior had spoken rudely to him. Mr Gartner informed Christopher Rew of his concern that Mr Mabior had done so, but took the issue no further.

Events of Saturday 7 July 2018

[35] Being a weekend, the cleaning shift commenced mid-afternoon and concluded prior to midnight.

[36] On the 7 July shift, Mr O’Leary was Head Supervisor and acting for Christopher Rew who was not at work. Mr Gartner had been appointed (the previous day) as Relief Leading Hand. Mr Gartner had briefly worked as a Relief Leading Hand. Whilst he had previously worked alongside Mr Mabior as a cleaner in a work group, Mr Gartner had not previously been a Leading Hand in Mr Mabior’s work group.

[37] Shortly after the shift started, Mr Mabior told a supervisor (Mr Reading) that he would not work under Mr Gartner. He said words to the effect “I don’t want to work with him. Get another supervisor”. Mr Gartner went upstairs and advised Mr O’Leary and sought his help. Mr O’Leary went onto the factory floor and spoke to Mr Mabior. Mr Mabior provided no explanation for not wanting to work with Mr Gartner other than he didn’t get on with him. Mr O’Leary told Mr Mabior that Mr Gartner would remain his leading hand for the shift and he had to do as directed by Mr Gartner. His note in the ‘Supervisors and Leading Hand Notebook’ reads as follows: 15

“Peter not listening to Haydn. I went in and told Peter that Haydn is supervising…so he has to listen to Haydn. Follow his instructions…He went off at me saying he will not listen to Haydn and Haydn can’t supervise because Peter still has a grudge against Haydn. I told him Haydn is supervising. If he wants to he can quit or he can just do his work. If he doesn’t do his work he will lose his job.”

[38] An hour later Mr Gartner spoke to Mr Mabior about the need for a machine to be switched off in order for him to clean it safely. Mr Mabior refused to speak to Mr Gartner or engage with him, other than saying ‘No I don’t want to talk to you”. Mr Gartner informed another leading hand (Mr Legierski) of the problem and sought his guidance. Mr Legierski took Mr Mabior upstairs to Mr O’Leary. Mr Mabior claimed that Mr Gartner was checking on his work and that this was bullying. Mr O’Leary said that it was not bullying and was the job of a Leading Hand to check on work quality. Mr O’Leary firmly told Mr Mabior to listen to Mr Gartner or “I will have you come back upstairs and the end of the night and fire you” 16.

[39] Mr O’Leary asked Mr Reading to keep an eye on how Mr Gartner was going with Mr Mabior.

[40] Christopher Rew was not working on 7 July. However, in light of the problem, Mr O’Leary rang Mr Rew on his day off and told him of Mr Mabior’s refusal to take instruction from Mr Gartner. Mr O’Leary told Mr Rew that he had told Mr Mabior that if he continued to do so he would be fired. Mr Rew gave Mr O’Leary permission to dismiss Mr Mabior if he continued to refuse to follow instructions. At that point, Mr O’Leary had not decided to do so.

[41] During the shift, Mr Gartner adjusted the consistency of cleaning foam being used by Mr Mabior. He did so for quality reasons. Doing so was consistent with the role of a Leading Hand and regular practice. Mr Mabior took exception to Mr Gartner doing so. Mr Mabior reversed the consistency of the foam, causing it to shoot up and partially strike Mr Gartner. The cleaning foam contains a cleaning chemical. Although not injured in any way, Mr Gartner took exception to this incident which was witnessed by Mr Reading.

[42] Towards the end of the shift Mr Gartner attempted to speak to Mr Mabior about an area of floor he had not swept properly. Mr Mabior ignored Mr Gartner. Mr Gartner paused for about ten seconds and again asked Mr Mabior to look at an area he had missed. Mr Mabior continued to ignore Mr Gartner. Mr Reading stepped in and told Mr Mabior (who was still ignoring Mr Gartner) that feathers and other mess were on the floor and to re-clean the area. A short time later Mr Reading inspected the area and it was not clean.

[43] Mr Reading had had enough. He told Mr O’Leary that Mr Mabior had continued to not communicate with Mr Gartner and to not do his job safely or effectively. Mr O’Leary asked Mr Reading to bring Mr Mabior upstairs, and that he (Mr Mabior) could bring a witness with him if he wished. Mr Reading did so. At that point Mr O’Leary made a decision to dismiss Mr Mabior.

[44] Mr Mabior came upstairs without bringing a witness. Mr O’Leary terminated Mr Mabior’s employment. He told him words to then effect “you don’t listen to me, you don’t listen to Chris Rew, you don’t listen to instructions given by your supervisors, so I’m terminating your employment.” Mr Mabior interjected. Mr O’Leary said that he wasn’t interested in again hearing from him, that it was decided and he would need to give his swipe card to Mr Reading and be paid his final week’s pay.

[45] Mr Mabior asked Mr O’Leary when he would receive his Employment Separation Certificate. By text message at 10.37pm on 7 July 17 Mr O’Leary advised that he could collect it from Mr Philip Rew the following Monday 9 July, which he did. The Employment Separation Certificate18 indicated that Mr Mabior was dismissed for “misconduct as an employee: Peter refused to follow reasonable instructions”.

[46] Mr Mabior’s dismissal occurred approximately one hour before the scheduled conclusion of his shift. He was paid wages up to the conclusion of his shift on 7 July.

[47] He issued these proceedings on 13 July.

Consideration

[48] In these proceedings both Mr Mabior and Rew Brothers advance the proposition that the consistent, unchanging, regular and near full time hours and shifts worked each week by Mr Mabior leave it open for the Commission to conclude that Mr Mabior, notwithstanding being engaged and paid as a casual employee, was dismissed within the meaning of the FW Act.

[49] Although I consider the observations of a full bench of the Commission in City of Sydney RSL & Community Club v Balgowan 19to be sound in that casual employees, as a matter of orthodox construction, are employed only to the end of each shift, I conclude in the context of this matter (and in light of the concession made by the employer) that this is, in the words of the full bench, one of the “rare cases where a casual employee has been found to have been engaged under a single continuing contract of employment”20. Hence I conclude that Mr Mabior was dismissed within the meaning of the FW Act. No jurisdictional barrier exists to the determination of his claim.

[50] Mr Mabior will have been unfairly dismissed if his dismissal was “harsh, unjust or unreasonable” having regard to the matters set out in section 387 of the FW Act.

[51] I now consider those matters.

Valid reason

[52] A valid reason is one that is sound, defensible and well founded and should not be capricious, fanciful, spiteful or prejudiced. 21

[53] The evidence before me is that on at least three separate occasions during the shift of 7 July 2018 Mr Mabior deliberately and consciously refused to take instruction from Mr Gartner, refused to communicate with Mr Gartner and refused to take Mr O’Leary’s direction that required him to recognise and work under Mr Gartner during the shift, as the lawfully appointed leading hand.

[54] There is no evidence before me that Mr Mabior had reasonable grounds to refuse to do so. His allegation, made during these proceedings but not made whilst he was employed, was that Mr Gartner bullied him. This claim is without foundation. Mr Mabior had made a similar allegation against another leading hand, Mr Gibbs. Christopher Rew’s evidence is that Mr Mabior had raised that allegation (concerning Mr Gibbs) with him (Christopher Rew) and that Mr Rew had advised Mr Mabior that overseeing work was not bullying. There is no evidence to support an allegation of bullying against Mr Gartner. Mr Mabior constructed such a claim against Mr Gartner during these proceedings. His unhappiness with Mr Gartner on 7 July may have been because of the altercation Mr Gartner reported to Christopher Rew during the shift of 5/6 July, but the evidence before me is that Mr Mabior spoke rudely to Mr Gartner on that day, prompting him to escalate the issue.

[55] I am satisfied that all requests Mr Gartner made of Mr Mabior on 7 July 2018 were lawful, were made for good reason and were professionally communicated. Reasonable management action, whether it be to direct work or to ask for work that is not properly performed to be remedied is not bullying. Mr Gartner’s requests were reasonable management action and taken in a reasonable manner.

[56] Similarly I find that Mr Reading and Mr Legierski’s requests to Mr Mabior during that shift of 7 July were also reasonable, as was Mr O’Leary’s clear directions (given on two separate occasions) that Mr Gartner must be recognised as his leading hand on that day.

[57] Mr Mabior’s refusal to recognise the authority of his leading hand (Mr Gartner) and failure to follow the directions of other supervisors and managers on 7 July was a valid reason for dismissal. It was insubordination. No business can operate efficiently on the basis that an employee can choose who is or is not to be their supervisor on a shift, let alone a business where staff work in groups and where leading hands and supervisors change in the ordinary course of business. Whether an employee such as Mr Mabior has a preference for one supervisor over another is not to the point. Absent an objectively established clear and compelling reason to refuse to work under the direction of a supervisor or manager, it is a valid reason to terminate the employment of an employee who refuses to do so after being advised that they are required to do so.

[58] I am also satisfied that during the shift on 7 July Mr Mabior did not work safely, in that he objected to a machine being switched off by his leading hand in order to clean it. The procedure being applied by Mr Gartner was in accordance with policy. Mr Mabior also recklessly reversed the decision of his leading hand (Mr Gartner) to turn down the pressure of his cleaning foam hose, causing it to spray on and in the vicinity of Mr Gartner. This too was unsafe conduct.

[59] I also find that during the shift on 7 July Mr Mabior failed to efficiently clean his area towards the end of his shift, and when asked by Mr Reading to do so, still failed to effectively clean that area.

Notification

[60] Mr Mabior was notified verbally by Mr O’Leary of the reason for his dismissal at the time he was dismissed. He was also advised of this reason in writing in the Employment Separation Certificate.

Opportunity to respond

[61] When Mr Mabior was called up to see Mr O’Leary on the last occasion on 7 July, Mr O’Leary had, moments prior, made his decision to dismiss Mr Mabior. At that point, Mr O’Leary did not provide Mr Mabior an opportunity to respond to the latest incident on the shift which triggered the dismissal (the incident reported by Mr Reading).

[62] Whilst Mr Mabior did attempt to protest and was shut down by Mr O’Leary, that failure in this final exchange must be viewed in the context of the previous exchanges only hours earlier between Mr O’Leary and Mr Mabior. On two separate occasions earlier in the shift, Mr O’Leary had formally spoken to Mr Mabior about his insubordination and on both occasions he had listened (but with justification rejected) what Mr Mabior had said as to why he was not willing to take instruction from Mr Gartner.

[63] More so, in both of these exchanges Mr O’Leary specifically and directly told Mr Mabior that if he did not accept the authority of Mr Gartner, he would be sacked by night’s end.

[64] That is in fact what occurred.

[65] Having had both Mr Legierski and Mr Reading report continued failure to follow directions, and in light of Mr Mabior’s willingness to carry the argument even with senior managers, Mr O’Leary had understandable reasons to not again seek further explanation from Mr Mabior once he had made up his mind to dismiss.

[66] In these circumstances the denial of an opportunity to respond during the termination discussion was a failure of one aspect of procedural fairness but a less serious failure than it might otherwise have been.

[67] I am also satisfied that Mr Mabior was given a full opportunity to respond during each of the counselling and warnings given to him in preceding weeks by Mr O’Leary and Christopher Rew. In particular, prior to and at the time of giving Mr Mabior the formal written warning dated 2 July, Christopher Rew listened (but again justifiably rejected) Mr Mabior’s allegations and argument that it was others but not he who was in the wrong.

Support person

[68] Albeit at short notice, Mr Mabior was provided the opportunity to have a support person present during his termination discussion with Mr O’Leary. There is no evidence before me that on any other prior occasion he asked for or was denied by the employer permission to have a support person during a disciplinary discussion.

Performance warnings

[69] Mr Mabior had multiple informal counselling and warnings from multiple different leading hands, supervisors and managers concerning his work, his failure to take instruction and his failure to work in a safe manner. In excess of twenty such occasions are record in the ‘Supervisors and Leading Hand Notebook’ and the ‘Manager’s Notebook’. Some are more serious than others, but I am satisfied that it was not the practice of leading hands, supervisors or managers to frivolously or needlessly write a report on discussions that were simply routine.

[70] More formally, the written warning of 2 July given to Mr Mabior on 5/6 July shift, which was preceded by the verbal discussion with the Site Manager Christopher Rew on 26 June ought to have put Mr Mabior on clear notice that he was on a final warning for the very conduct he displayed 48 hours later on the 7 July shift.

[71] Even more relevantly, the two verbal warnings given by Mr O’Leary on 7 July – one on the factory floor and the other in his office – made it abundantly clear that Mr Mabior’s employment was hanging by a thread.

Size of employer’s business

[72] Rew Brothers, although not a large family business employs approximately 41 persons due to the casual nature of its employee profile and multiple sites where it provides services. It is not a small business as defined by the FW Act. I accept Philip Rew’s evidence that it is a business vulnerable to adverse commercial impacts should it lose significant contracts such as the Inghams contract.

Human resource specialists

[73] Rew Brothers has no specialist human resource expertise. Philip Rew undertakes payroll and human resourcing work, in conjunction with managers and supervisors when required. It was Philip Rew who drafted the warning letter of 2 July 2018 that was given to Mr Mabior.

Other matters

[74] I have had regard to the possibility that there may be some cultural issues involving a business which employs persons from diverse backgrounds, including Mr Mabior. There is however no evidence before me of any reason, cultural or otherwise, as to why Mr Mabior would not accept instruction from a supervisor, and no submissions were made to me in that regard. Even if Mr Mabior considered Mr Gartner (or Mr O’Leary for that matter) too young to oversee or supervise his work he nonetheless refused to take the instruction of Christopher Rew who is of a comparable age. In any event, it is not appropriate to speculate on these matters in the absence of evidence or submission, and I do not do so.

[75] There are no other matters relevant that have not been otherwise considered.

Conclusion on merits

[76] Mr Mabior engaged in deliberate insubordination on repeated occasions during his shift on 7 July 2018. That conduct was in and of itself a valid reason for dismissal. His position description made it clear that he was required as a term of his employment to “follow any reasonable instruction issued by the supervisors or management.”

[77] Mr Mabior was put on notice by Mr O’Leary on two occasions earlier during the 7 July 2018 shift, with as much clarity as humanely possible, that continued insubordination would lead to his dismissal that night.

[78] Mr Mabior rolled the dice, refused to back down and accept the authority of Mr Gartner, and was subsequently dismissed.

[79] The dismissal was reasonable and just.

[80] Nor was the dismissal harsh. Even though Mr Mabior could be a good worker, he had an unhealthy rap sheet of counselling and warnings largely consequential on wanting to work his way and refusing to take instruction or direction when he thought it unwarranted. The counselling and warnings he was given were proximate and relevant to the subject matter for which he was ultimately dismissed.

[81] I am satisfied that the employer gave Mr Mabior plenty of opportunity, notwithstanding that it can be criticised for not hearing him out on the very final occasion that triggered its decision to dismiss – although for reasons set out earlier in this decision that failure is less serious when viewed in the context of what occurred earlier in the shift.

Conclusion

[82] Taking into account all of the relevant factors arising from the consideration of sections 387(a) to (h) of the FW Act I find that Mr Mabior’s dismissal was not harsh, unjust or unreasonable.

[83] In conjunction with the publication of this decision, I issue an order dismissing the application.

DEPUTY PRESIDENT

Appearances:

P. Mabior, on his own behalf

P. Rew, for the Respondent

Hearing details:

2018.

Adelaide.

18 October.

Printed by authority of the Commonwealth Government Printer

<PR701929>

 1 Section 384 FW Act “period of employment”

 2   [2018] FWC 6195

 3   Pearse v Viva Energy Refining Pty Ltd[2017] FWCFB 4701 at [14]. See also section 591 of the FW Act and King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, 17 March 2000) Print S4213 at [61] - [62]; Enterprise Flexibility Agreement Test Case (Print M0464) at page 13; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 509

 4 R11 Signed Letter of Appointment 12.04.2017

 5 R6 Supervisors and Leading Hand Notebook (extracts)

 6 R7 Managers Notebook (extracts)

 7 R6 page 14

 8 R7 page 4

 9   Evidence of Philip Rew audio transcript 18.10.2018 at 11.19am

 10   Evidence of Christopher Rew audio transcript 18.10.2018 at 3.47pm and 3.52pm

 11   Evidence of Peter Mabior audio transcript 18.10.2018 at 3.42pm

 12   Evidence of Christopher Rew audio transcript 18.10.2018 at 3.45pm

 13 R7 pages 6 - 7

 14 R13 paras 2 and 3

 15 R6 page 16

 16 R4 Statement of Brandon O’Leary para 2

 17   Evidence of Brandon O’Leary audio transcript 18.10.2018 at 3.37pm

 18   R9

 19   [2018] FWCFB 5 at [23] – [25]

 20   Ibid at [24]

 21   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373