Mr Richard Tymczyszyn v Fabfit Pty Ltd

[2014] FWC 1486

[2014] FWC 1486

FAIR WORK COMMISSION

DECISION

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

Mr Richard Tymczyszyn
v
Fabfit Pty Ltd
(U2013/2469)

DEPUTY PRESIDENT ASBURY BRISBANE, 4 MARCH 2014

Application for unfair dismissal remedy - Jurisdictional objection - Small business fair dismissal code.

Background

[1] Mr Richard Tymczyszyn was employed by Fabfit Pty Ltd as a sales representative from 14 September 2011. Fabfit is an importer and wholesale distributor of plumbing and electrical supplies. Mr Tymczyszyn was Fabfit’s sole sales representative and the Company had not previously employed a person in this capacity. Mr Tymczyszyn was dismissed without notice, on 15 July 2013, on the ground of serious misconduct, described in a letter of that date informing him of his dismissal, as: “[providing] highly confidential company information to an employee of another company that is a wholesale supplier of PVC pipes to the plumbing and electrical industry”.

[2] Mr Tymczyszyn applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy and contends that his dismissal was unfair because he did not engage in misconduct, and was not given a warning about the seriousness of the issue to be discussed at the meeting which resulted in his dismissal. Mr Tymczyszyn also asserts that his dismissal was unfair because there was no valid reason; no reasonable opportunity to respond to the allegations; no support person was allowed to be present at the meeting during which he was dismissed; and that there was a failure to properly investigate the matter.

[3] The application is met with a jurisdictional objection on the ground that Mr Tymczyszyn’s dismissal was not unfair, because it was consistent with the Small Business Fair Dismissal Code.

[4] Evidence in support of the objection was provided on behalf of Fabfit by:

• Ms Jessica Van Der Togt, Administrative Assistant;



• Mr Bill Allan, Director; and



• Mr Barry Aplin, Director.

[5] Mr Tymczyszyn gave evidence on his own behalf disputing that Fabfit was a small business employer and in support of his application for an unfair dismissal remedy.

[6] With respect to the initial matters required to be considered by virtue of subsections (a), (b) and (d) of s.396, Mr Tymczyszyn’s application was made within the period required in s.394(2) of the Act; he was protected from unfair dismissal as provided in s.382 and the dismissal was not a redundancy.

[7] After considering evidence on the question of whether Fabfit is a small business employer, I determined that when Mr Tymczyszyn was dismissed, Fabfit was a small business employer as defined in s.23 of the Act. This conclusion was reached on the basis that Mr Aplin produced a list naming 13 employees. Mr Aplin’s evidence was that he and Mr Allen are not employed by Fabfit. They are not on the payroll and do not draw a wage. Rather, Mr Allen and Mr Aplin and their wives pay tax on the profit from the Company. Mr Aplin and Mr Allen are engaged in other activities involving the lease of property, but do not employ persons in relation to those activities.

[8] Having found that Fabfit is a small business employer, by virtue of s.396(c) of the Act, I am required to decide whether Mr Tymczyszyn’s dismissal was consistent with the Small Business Fair Dismissal Code, before considering the merits of the application. If Mr Tymczyszyn’s dismissal is found to be consistent with the Small Business Fair Dismissal Code, it is withdrawn from the general operation of s.385 of the Act and the Commission cannot find that the dismissal was otherwise unfair on the basis that it was harsh, unjust and unreasonable. Fabfit carries the onus of establishing, on the balance of probabilities, that the dismissal was consistent with the Code.

[9] If the dismissal is not consistent with the Code it is not automatic that a finding will follow that the dismissal was unfair on the basis that it was harsh, unjust or unreasonable. The onus is then on Mr Tymczyszyn to establish that this was the case and the matter will be determined on the basis of the criteria in s.387 of the Act.

The Small Business Fair Dismissal Code

[10] The Small Business Fair Dismissal Code is provided for in s.388 of the Act, as follows:

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[11] The terms of the Small Business Fair Dismissal Code were declared by legislative instrument with effect from 1 July 2009. Those terms are as follows:

“Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.

Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair, it is sufficient, though not essential, than an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned either verbally, or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem having regard to the employee’s response.

Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer may be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia. Evidence may include a completed check list, copies of written warning(s), a statement of termination or signed witness statements.”

[12] The Code provides for two kinds of dismissal - summary dismissal on the grounds of serious misconduct, and other dismissal on the basis of conduct or capacity to do the job. In determining whether a summary dismissal on the grounds of serious misconduct was consistent with the Code, the Commission must first consider whether the employer believed that the employee’s conduct was sufficiently serious to justify summary dismissal.

[13] The Commission must then consider whether the employer’s belief was based on reasonable grounds. 1 It is not necessary for the Commission to be satisfied that there was a valid reason for the dismissal or to make a finding that the employee actually engaged in the misconduct.2 It is also not consistent with the requirements of the Code for the Commission to determine whether summary dismissal was warranted.

[14] Consideration of whether the employer’s belief that an employee has engaged in serious misconduct was based on reasonable grounds, incorporates the concept that the employer has carried out a reasonable investigation into the matter, rather than that the employer’s belief was correct. 3 In relation to reasonableness, a Full Bench of Fair Work Australia observed in John Pinawin T/A Rose Vi.Hair.Face.Body v Domingo:

“Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation and reached a reasonable conclusion in all of the circumstances. Those circumstances include the experience and resources of the small business employer concerned.” (ibid)

[15] The requirement of reasonableness goes to the misconduct itself as well as the belief that the employee engaged in the misconduct. Thus the employer’s belief that a particular kind of misconduct is sufficiently serious to justify summary dismissal, must be reasonable. Not all misconduct will be sufficiently serious so that it can be said that the employer could have reasonably believed that it justified summary dismissal. However, it is also the case that the reasonableness of the belief is considered from the perspective of the employer and in light of its experience and resources, and not from the perspective whether the misconduct provided a valid reason for dismissal in the manner in which that issue is considered pursuant to s.387(a) of the Act.

[16] Relevant to this consideration will be the examples of serious misconduct set out in the Code itself and in s.12 of the Act and Regulation 1.07 of the Fair Work Regulations 2009, which provide as follows:

“12 The Dictionary

serious misconduct has the meaning prescribed by the regulations.”

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”

[17] Serious misconduct is not confined to the specific matters listed in Regulation 1.07 but is defined to include those matters and retains its ordinary meaning. Such ordinary meaning is found in the examples in the Small Business Fair Dismissal Code Checklist, which asks the person who effected the dismissal whether any of a number of statements apply including:

• The employee was stealing money or goods from the business.



• The employee defrauded the business.



• The employee threatened me or other employees, or clients, with violence or actually carried out violence in the workplace.



• The employee committed a serious breach of occupational health and safety procedures.

[18] The Checklist goes on to ask whether the employee was dismissed for some other form of serious misconduct.

[19] There is a distinction in the provisions of the Act and the Regulations between “serious misconduct” and “misconduct”.  The former term is defined and the latter is not.  In general terms, misconduct is wrongful conduct.  To be properly described as “serious”, misconduct must be: “significantly worse than negligence and serious in its culpable quality as misconduct, as distinct from the results”. 4 Serious misconduct is judged on an objective basis, and it is therefore not necessary that the employee should intend to do wrong.  Wilful misconduct carries the additional connotation of intention, or a deliberately reckless course of misconduct, with knowledge that it is wrong.5 Regulation 1.07 does not require that misconduct be wilful before it is serious misconduct, but provides that serious misconduct includes wilful or deliberate behaviour. 

The alleged serious misconduct

[20] The serious misconduct alleged against Mr Tymczyszyn was that he emailed a highly confidential and commercially sensitive document to an employee of another company.

[21] Mr Aplin tendered an email dated 29 January 2013 sent at 12.57 am to a person I will refer to as Mr T. The sender is “Richard” and the electronic signature block on the email is Mr Tymczyszyn’s. Mr Aplin stated that the email was sent from Mr Tymczyszyn’s laptop computer, while it was on the network operating in Fabfit’s office premises. The email is in response to an email from Mr T requesting that current price lists for plumbing and electrical be provided as discussed.

[22] The email states that the attached documents are “current prices. The “Attachments” section at the top of the email refers to the following documents:

• Elec fitting price Jan2012.pdf;



• Electrical price list 1.9.12 Fab.xls;



• Plumbing Moulded Pricelist 1.11.12.xls;



• Plumbing Fabricated Pricelist 1.11.12.xls.

[23] Copies of the actual attachments to the email were also tendered by Mr Aplin. Those attachments are headed as follows:

• FOB Price of UPVC Electrical Fittings from January 2012



• Fabricated Plumbing Price List 1.11.12



• Moulded Plumbing Price List 1.11.12



• Fabricated Electrical Price List 1.9.12

[24] The inclusion of the first document - FOB Price of UPVC Electrical Fittings from January 2012 - was the reason for Mr Tymczyszyn’s dismissal. The document headed FOB Price of UPVC Electrical Fittings from January 2012 sets out the Free On Board cost to Fabfit of product sourced from Fabfit’s supplier. Essentially the document details the cost base of Fabfit. Fabfit has a strategic alliance with the supplier - a manufacturer of plumbing and electrical supplies based in China. Fabfit has invested financial and equipment resources in that Company and it supplies products exclusively to Fabfit. The document also includes the name of the supplier and its addresses in Hong Kong and China. Mr Aplin said that the document is commercially sensitive and confidential.

[25] Mr Aplin said that Fabfit has a list of selling prices for moulded electrical fittings, which details the prices at which those fittings are sold to customers. Had that document been appended to the email instead of the document headed “FOB Price of UPVC Electrical Fittings from January 2012” there would have been no issue as all information emailed to Mr T would have related to the selling prices for components sold by Fabfit.

[26] Mr Aplin also said that that Mr Tymczyszyn was provided with the cost list so that he could calculate selling price and required margins for Fabfit with respect to individual customers, and was aware of the commercial sensitivity and confidentiality with which Fabfit held this information. Mr Tymczyszyn was authorised only to provide Fabfit’s standard selling price lists to customers.

[27] In his oral evidence to the Commission, Mr Aplin said the cost list was the basis of Fabfit’s mark-up and for it to fall into the wrong hands was “unbelievable”. Mr Aplin also said that Mr T is active in the electrical market, had previously engaged in undercutting Fabfit and as an “on-selling customer” was the worst person that the document in question could have been provided to. Mr Aplin emphasised the fact that Fabfit’s margins on its products are very small; driven by volume; and can change depending on the customer.

[28] In his written statement to the Commission, Mr Tymczyszyn said that the information in the email in question could be requested by any supplier and was not as crucial or confidential as claimed. In response to a question from the Commission about whether he would send an email such as the email of 29 January 2013 in the normal course of his employment, Mr Tymczyszyn said that he would not send all of the attachments and would not send the attachments like that. Mr Tymczyszyn also stated that it was not an email that he would send.

[29] Under cross-examination Mr Tymczyszyn agreed that he was privy to sensitive customer information such as buying prices, rebates, mark up and cost structure generally. Mr Tymczyszyn also agreed that his written contract of employment prohibited the distribution of Fabfit’s confidential information.

[30] In closing his case, Mr Tymczyszyn made the following submission and had an exchange with me as follows:

“MR TYMCZYSZYN: .... First and foremost, the email in question, I did not send it. I would not send it at all because I do realise that is an important document and I wouldn't do something like that. I'm not that type of person to do it. I didn't have any gain in doing this, I enjoyed my job and I thought I did it correctly. But I also believe, to get back to the point, I believe that both directors of Fabfit did not follow the Small Business Fair Dismissal Code. As when we first got here in the meeting, they were unaware of the number of employees they had and could not provide you written evidence in regards to that.

They did not investigate this, and as you indicated before, if a mistake was made. The employer never gave me any reasonable time to put my case across, as I have had a chance to do that today in front of you. Serious misconduct which I was dismissed on includes theft, fraud, violence and serious breach of occupational health and safety procedures, which none of them I fall into. I was never giving a written warning, I was never given a verbal warning in the time that I was employed with the company.

The employer failed to follow the requirement of the unfair dismissal provisions on the Fair Work Act 2009 and the small business code, not advising of severity or reasons of the meeting, not providing reasons for not allowing a reasonable opportunity to respond to all allegations. They did not supply a full copy of the email and attachments, as yourself and I only just got it half an hour ago. I was dismissed in July but the email in question was sent back in January, six months. In the meeting I was placed in a (indistinct) and the meeting of the two directors who accused me of the misconduct and refused to listen to my objections and denied all allegations.

If I was informed that I was about to lose my job, I would have asked to bring a support person, I wasn't allowed to do that. I wasn't told that I was going to lose my job. During the course of my employment there are no current workplace policy and procedures in place at the workplace and no specified Internet usage policies or procedures. There are no clear instructions or guidelines on what contents may be sent to clients or customers, and no specific instructions on these matters were ever given to me.

THE DEPUTY PRESIDENT: Would there have had to be a specific instruction not to send the list that the respondent buys its products for from its Chinese supplier?

MR TYMCZYSZYN: No.

THE DEPUTY PRESIDENT: No, I wouldn't have thought so.

MR TYMCZYSZYN: No, no. I'm not a lawyer so I'm just - - -

THE DEPUTY PRESIDENT: It's all right, I understand.

MR TYMCZYSZYN: At the end of the day I came here to tell you I did not send that email. I would not send that email. I wouldn't do something like that, and I know that document. I had no material gain to do anything and, like I said, if I made a mistake or something, that I've got in the work contract, I should have been retrained. "Richard, you've done a mistake." I can accept if I've done a mistake.

THE DEPUTY PRESIDENT: But you maintain you didn't admit you had made a mistake - - -

MR TYMCZYSZYN: Correct.

THE DEPUTY PRESIDENT: - - - you just didn't send the email.

MR TYMCZYSZYN: I didn't send that email.

THE DEPUTY PRESIDENT: So you can't have it both ways.

MR TYMCZYSZYN: Okay, all right.

THE DEPUTY PRESIDENT: You either concede there's a possibility you made a mistake - - -

MR TYMCZYSZYN: No.

THE DEPUTY PRESIDENT: - - - or you don't.

MR TYMCZYSZYN: No, I didn't make a mistake, I didn't send the email regardless, that's something I would not do. If I send an email, yes, I would send these prices, but never ever would I attach this - ever. Also to prove to you that Barry did get investigated by an IT expert, and as the IT expert said, they can't prove that I pressed the enter key. If I pressed that enter key and I was guilty of what I was accused of, I wouldn't be here today standing in front of you. That's all I've got.”

[31] Mr Tymczyszyn attempted to establish that other employees, including Ms Van Der Togt, could have accessed his email account at any time. In particular Mr Bymczyszyn pointed to an email sent by Ms Van Der Togt in March 2013 from his email account to a customer of Fabfit.

[32] Ms Van Der Togt said that she did send that email, but signed it under her own name and provided a copy to Mr Tymczyszyn. Ms Van Der Togt also maintained that she did not have access to Mr Tymczyszyn’s laptop and did not use it. On the occasion when she sent an email from Mr Tymczyszyn’s account, Ms Van Der Togt did so from her own computer. Ms Ven Der Togt also said that she did not have access to Mr Tymczyszyn’s email account until March 2013.

Investigation of the incident

[33] Mr Aplin and Mr Allen did not become aware that the email had been sent until early May, when it was brought to their attention by Ms Van Der Togt. According to Ms Van Der Togt, an order was received from Mr T quoting prices that were less than Fabfit’s standard pricing. When Ms Van Der Togt rang Mr T, he indicated that the prices were in accordance with Mr Tymczyszyn’s email correspondence. Ms Van Der Togt went looking in Mr Tymczyszyn’s emails to try to find information about pricing, and discovered the email of 29 January 2013. Ms Van Der Togt believed that the email contained confidential Company financial information, and reported the matter to the Administration Manager, who in turn referred it to Mr Aplin.

[34] Mr Aplin said that he became aware of the email in early May, but did not take any action at that time, because he was seeking information from the Fair Work Ombudsman about the matter, and because he travelled overseas for a 10 day period. Mr Aplin also caused Fabfit’s IT provider to determine whether the email had been sent by Mr Tymczyszyn. The IT provider confirmed that it was sent from Mr Tymczyszyn’s laptop computer, while it was in the office of Fabfit, on the basis that the laptop computer was on the office network when the email was sent.

[35] Mr Aplin said that he considered the Small Business Fair Dismissal Code forwarded to him by the Ombudsman’s office and sought advice by telephone from that office. Mr Aplin said in his statement that he was advised that the provision of confidential information by Mr Tymczyszyn was grounds for dismissal.

[36] Mr Tymczyszyn was working in Sydney for a two week period in early July. Mr Aplin said that he telephoned Mr Tymczyszyn on or around Friday 12 July and asked him to attend a meeting on Monday 15 July. The meeting was attended by Mr Allen and Mr Aplin. Mr Tymczyszyn did not ask for a support person to be present. Mr Allen and Mr Aplin said that their concerns about the email were put to Mr Tymczyszyn and he was given an opportunity to respond. Mr Tymczyszyn was also provided with a copy of the email and the attachments to examine and consider, but he was not allowed to keep the attachments.

[37] Mr Allen and Mr Aplin said that Mr Tymczyszyn initially admitted that he had sent the email, but could not explain why he had done so, other than he had made a mistake. Mr Tymczyszyn then said that someone else must have accessed his laptop and sent the email. Mr Allen and Mr Aplin considered Mr Tymczyszyn’s responses. They noted that at the time the email was sent, no other employee had access to Mr Tymczyszyn’s email. It was also considered unlikely that another employee would have accessed Mr Tymczyszyn’s laptop computer as he usually had it with him and it is password protected.

[38] Mr Allen and Mr Aplin concluded, on the balance of probabilities, that Mr Tymczyszyn did send the email on 29 January 2013. This disclosure of confidential information was considered to be a breach of trust, and it was decided by Mr Allen and Mr Aplin that Mr Tymczyszyn’s conduct was sufficiently serious to justify immediate dismissal.

[39] In response to a proposition from the Commission that the document may have been accidentally forwarded to Mr T, Mr Aplin said that he was not convinced that there had been an error but later said that he did not rule out the possibility that Mr Tymczyszyn forwarded the document accidentally. Mr Aplin also said that he concluded that the document was either sent deliberately, or if sent in error, the error was so significant that he and Mr Allen had lost confidence in Mr Tymczyszyn.

[40] Mr Tymczyszyn said in his statement that he was called into a meeting with the Directors of Fabfit on Monday 15 July 2013. No indication of the severity of the meeting was given and Mr Tymczyszyn was not provided with an opportunity to have a support person present at the meeting. Mr Tymczyszyn also said that there was a power imbalance at the meeting and that Mr Allen and Mr Aplin did not listen to his objections and denial of the allegations or give him a reasonable time to respond to them.

[41] In his oral evidence, Mr Tymczyszyn said that he did not ask for a support person because he did not know what the meeting was about, or that he was to be dismissed. Mr Tymczyszyn said that if he had known about the subject matter of the meeting, he would have brought a support person to the meeting. In relation to the document he was alleged to have emailed to Mr T, Mr Tymczyszyn said that he was shown the document but not allowed to keep a copy, and only saw it for about ten seconds before Mr Aplin pulled it out of his hand.

[42] Mr Tymczyszyn denied that he stated to Mr Allen and Mr Aplin that he had sent the email or that he had done so accidentally. Mr Tymczyszyn maintained that he had simply denied sending the email. Mr Tymczyszyn agreed that he did state that someone else may have accessed his laptop and sent the email.

Conclusions

[43] After considering the evidence in this case, I am satisfied that Mr Tymczyszyn’s dismissal was consistent with the Small Business Fair Dismissal Code. I have reached this conclusion for the following reasons. I accept that Mr Aplin reasonably believed that the emailing of the document entitled “FOB Price of UPVC Electrical Fittings from January 2012” was serious misconduct justifying summary dismissal.

[44] Fabfit is a small business. It has entered into a strategic alliance with an overseas manufacturer. The margins on Fabfit’s products are small and the market is competitive. A document which identifies and provides contact details for the overseas manufacturer, and which sets out Fabfit’s margin on each electrical fitting, is commercially sensitive and highly confidential. Mr T while a customer of Fabfit, also on-sold products. He had worked for a competitor and had previously engaged in undercutting Fabfit’s prices. The fact that the document was sent to Mr T is a matter that could cause a serious and imminent risk to the viability or profitability of Fabfit.

[45] In those circumstances it is entirely reasonable for Mr Allen and Mr Aplin to have taken the view that any actions of an employee of Fabfit which resulted in that document falling into the hands of Mr T, was serious misconduct.

[46] Mr Aplin did not engage in a knee jerk reaction when he became aware of the email being sent. Rather, he sought advice from the Fair Work Ombudsman about the conduct alleged against Mr Tymczyszyn and satisfied himself that such conduct could amount to serious misconduct justifying summary dismissal.

[47] I also accept that Mr Aplin and Mr Allen reasonably believed that Mr Tymczyszyn was responsible for the document being emailed to Mr T. There was a reasonable investigation in relation to the question of whether Mr Tymczyszyn sent the email. Mr Aplin sought information from Fabfit’s IT provider to assist with the investigation.

[48] As a result of the investigation, Mr Aplin was satisfied that the document was emailed from Mr Tymczyszyn’s computer. This was a reasonable conclusion given the advice that was obtained from the IT provider and that the email contained Mr Tymczyszyn’s electronic signature block. I accept that the investigation did not establish that Mr Tymczyszyn actually sent the email.

[49] However, I am satisfied that it was reasonable for Mr Aplin to conclude that Mr Tymczyszyn did send the email. Mr Allen and Mr Aplin were consistent in their evidence and each gave evidence that Mr Tymczyszyn stated at the meeting of 15 July that he did send the email but it must have been a mistake, and then said that someone else had accessed his computer and sent the email.

[50] This is exactly the position that Mr Tymczyszyn took in this hearing. In the exchange with me set out above, Mr Tymczyszyn raised the possibility that he had made a mistake and then changed his position and indicated that he simply did not send the email. There were also other inconsistencies in Mr Tymczyszyn’s evidence. In his written statement Mr Tymczyszyn said that the information set out in the document entitled FOB Price of UPVC Electrical Fittings from January 2012, was not confidential or as crucial as claimed by Mr Aplin and Mr Allen. In his oral evidence Mr Tymczyszyn indicated that he did understand that it would not have been appropriate for that document to have been sent to a customer, and that he clearly understood that this was the case.

[51] I am also of the view that Mr Tymczyszyn’s attempts to establish that other employees of Fabfit used his computer to send emails in a manner which gave an appearance that he had sent them, was unconvincing. Ms Van Der Togt’s evidence established that she had perfectly legitimate reasons for needing to access Mr Tymczyszyn’s emails, and that on the one occasion about which evidence was given, when she sent an email from Mr Tymczyszyn’s account, she signed it herself. I also accept that Ms Van Der Togt did not have access to Mr Tymczyszyn’s email account until March 2013 - after the email was sent to Mr T.

[52] Mr Tymczyszyn’s oral submissions and evidence to the Commission are more consistent with the version of events put by Mr Allen and Mr Aplin, than they are with the version of events set out in Mr Tymczyszyn’s written statement. Confronted with a response given by Mr Tymczyszyn, consistent with his evidence to the Commission, it was not unreasonable for Mr Allen and Mr Aplin to conclude that he had engaged in serious misconduct justifying summary dismissal. It was also reasonable for Mr Allen and Mr Aplin to conclude that if the email was sent by mistake, it was a significant mistake, destructive of their confidence in Mr Tymczyszyn.

[53] I do not find that Mr Tymczyszyn was untruthful in his evidence to the Commission. I accept that he genuinely believes that he did not send the email in question. I also accept that if the email was sent in error then Mr Tymczyszyn has paid a significant price for that error by reason of his summary dismissal.

[54] However, the question I am required to determine is not whether Mr Tymczyszyn actually sent the email, or whether this occurred accidentally. What I am required to determine is whether Mr Allen and Mr Aplin had reasonable grounds to conclude that the emailing of the document entitled FOB Price of UPVC Electrical Fittings from January 2012 was serious misconduct and that Mr Tymczyszyn did email the document to Mr T.

[55] For the reasons set out above, I am satisfied that this is the case. It follows that the termination of Mr Tymczyszyn’s employment was consistent with the Small Business Fair Dismissal Code, and is withdrawn from the operation of the provisions of the Act dealing with unfair dismissal. Mr Tymczyszyn’s application for an unfair dismissal remedy is dismissed, and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr R. Tymczyszyn

Mr B. Cooper on behalf of the Respondent

Hearing details:

11 December 2013, Brisbane

 1  

John Pinawan t/a RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359.

 2   Khammaneechan v Nankhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe [2010] FWA 7891.

 3   [2012] FWAFB 1359 .

 4   Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25 at 42 per Derrington J.

 5   Ibid at 42.

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