Mr Robert McDowell v Renaissance Traditional Bathrooms Pty Ltd

[2014] FWC 837

[2014] FWC 837

FAIR WORK COMMISSION

DECISION

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

Mr Robert McDowell
v
Renaissance Traditional Bathrooms Pty Ltd
(U2013/13996)

COMMISSIONER SPENCER BRISBANE, 18 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] The following decision, now edited, was delivered ex tempore at the Hearing in relation to this matter.

[2] Mr Robert McDowell, the applicant in these proceedings, has applied for relief from unfair dismissal pursuant to section 394 of the Act. Mr McDowell alleges that the dismissal of his employment from Renaissance Traditional Bathrooms Pty Ltd, the respondent, was harsh, unjust or unreasonable. The applicant had been employed with the respondent for some 18 months.

[3] The parties have attended before the commission today and a hearing has been held in relation to this matter. Prior to this the commission received in response to written directions written submissions and evidence and these have been considered by the commission. The evidence of both parties has been further provided and considered today. I have further received evidence from a witness in the hearing today. He has been called by the applicant and has been cross-examined by Mr Shaw on behalf of the respondent. The three witnesses called on behalf of the respondent have not been subject to cross-examination at the election of the applicant. The applicant has however made submissions as to the credibility or weight that I should place on those witness statements given they are all ongoing employees of the respondent.

[4] The parties are in dispute about the reasons for the termination given at the termination meeting on 16 September however there were a series of common disciplinary issues addressed by both parties today. The performance matters generally, in the evidence before the commission, relate to the applicant’s dress standards, the applicant’s use of the respondent’s computer systems for personal use, the applicant’s attendance at work and the applicant’s booking of a ticket for travel to New Zealand and returning to Melbourne.

[5] I will firstly address the Small Business Fair Dismissal Code. The first matter for consideration is the respondent’s jurisdictional objection alleging that the dismissal was consistent with the Small Business Fair Dismissal Code. It is not in dispute that the respondent was a small business at the time of dismissal for the purposes of the Act. The remaining matter for consideration is whether the dismissal was consistent with the Code. The onus rests upon the respondent to satisfy the commission that the respondent complied with the Code.

[6] Insofar as the respondent relies upon the summary dismissal portion of the Code, the respondent must satisfy the commission that the conduct of the employee was sufficient to justify immediate dismissal. The commission is not required to make a finding, as to whether the conduct occurred, rather the commission needs to make a finding that the respondent had a reasonable belief that the conduct of the employee was serious enough to warrant instant dismissal.

[7] I am unable to be satisfied that any of the reasons relied upon amount to summary dismissal. The Code defines “serious misconduct” as theft, fraud, violence and serious breaches of occupational health and safety procedures. The respondent has not relied upon specifically any of these reasons. I am not satisfied that the conduct complained of meets the tests of the above matters or would meet the test of serious misconduct warranting instant dismissal.

[8] The respondent has not complied with the Code in relation to summary dismissal on this basis, therefore that jurisdictional objection is dismissed however in doing so it is noted that on questioning of the parties, the applicant’s dismissal took effect immediately, but he was paid the statutory notice. In fact he was paid two weeks wages in lieu of notice, commensurate with his 18 months employment, and in addition paid a further two weeks. This four weeks would be commensurate, as argued by the applicant, with the four weeks, he was owed under the contract of employment. I discuss this further.

[9] At this point I now turn to consider the merits of the application in considering whether a dismissal is unfair. Firstly I must be satisfied that the dismissal was harsh, unjust or unreasonable. Those matters I am required to consider in relation to whether the dismissal was harsh, just or unreasonable as set out by section 387 of the Act. The decision will set out those matters in full.

[10] For the purposes of this ex tempore decision section 387 requires there to be a valid dismissal; reason for the dismissal; that the person be notified of the reason; that they be given an opportunity to respond; any unreasonable refusal by the employer to allow the person to have a support person be considered; and if the dismissal related to an unsatisfactory performance by the person whether they were warned about such. I also must take into account 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 the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would also impact on the procedures and any other matters I consider relevant.

[11] The applicant says the termination was brought about very abruptly after the respondent discovered airline tickets he had booked in June for a trip to New Zealand and back to Melbourne as distinct from his workplace in Brisbane. The travel was to occur, on the basis of the tickets, in November. Mr Shaw noted this was the tipping point after the last 12 months where various issues, as noted, had been the subject of discussions between the parties.

[12] The reasons for termination rely on the aggregate of a number of these discussions undertaken by the respondent, as set out, he had held with the applicant. The applicant has conceded a number of these discussions. The respondent confirmed the applicant had been an excellent salesperson, although his figures had recently reduced. There were a number of issues that related to the applicant’s dress, attendance, lateness and commitment for work. The respondent had some 12 months prior agreed to sponsor the applicant on a section 457 visa and this was confirmed in March 2012. Accordingly, the respondent set out, they were looking for the same commitment of the applicant to the respondent’s business.

[13] In terms of a side issue, I note that the applicant referred to his return by plane from Ireland today to attend the hearing. I note the applicant did not make an application to attend the hearing by telephone. I also note that a directions conference was programmed and listed to be held with the applicant within the last two weeks prior to this hearing. He was not able to be reached by telephone at this time and it could not proceed.

[14] It is however recognised that the effect of the dismissal has been significant on the applicant. It has had quite an impact given the employer’s sponsorship was required to maintain his visa in Australia. The applicant submitted he had moved in to a new house, committed to a new residential lease and was content in Brisbane. However, when the respondent discovered the applicant’s plane tickets in September they had been in place for three months. The applicant stated he could have rightfully given the respondent one months’ notice of leaving. The respondent set out this would have left the respondent without a salesperson at the business.

[15] The applicant stated the respondent has, in the applicant’s own words, endeavoured to paint a picture of him as a stereotypical, unreliable drunk. I do not support such derogatory assessment of the applicant however I recognise the applicant was aware that the respondent had needed to, in a very basic way, discuss with him required business attire, attendance issues and it is clear from the evidence that the applicant attended in a dishevelled state and not in an acceptable state of presentation to conduct business.

[16] I take into consideration the applicant’s concerns regarding the respondent’s witnesses as continuing employees, in terms of the weight, I should give to that evidence. It has not been necessary to put weight on the respondent’s witness statements, given the evidence of the applicant and the respondent provided today and tested today and their further submissions.

[17] I find that there were, during the 18 months of employment, several separate discussions of which the applicant has been aware and conceded at least a version of today. In relation to all of the issues of non-attendance, presentation, lack of medical certificates for absences and dress code deficiencies, all of the information and standards required by the respondent on these matters are covered in the employment contract, as provided and as in evidence before the commission. There was clearly an accumulation or the progression of incidents over an 18 month period commencing with one discussion on 5 March 2012, the warning regarding attending work drunk and dishevelled. The applicant conceded such discussions, although he maintained that for his entire employment, he had been consistently attired at this level, by virtue of the photographic evidence provided. I note that there is no specific evidence that the applicant’s level of conduct was commensurate with the word “drunk”, but under the influence.

[18] The disciplinary record had escalated, covering further non-attendance issues, for return late from New Zealand and then further days late from a trip to Bali during a two week sales promotion, which the respondent emphasised was a significant sales period, that he required the applicant to be present. The respondent states that had the applicant been in a more structured workplace he would have been terminated far in advance. The respondent had, on the evidence, extended goodwill and given opportunities to the applicant to improve. The applicant however states that in June he booked the flights to New Zealand, after a bad day at the office. The respondent noted the existence of those particular flights remaining in place some three months later and that it was not simply the existence of those flights, but the accumulation of issues between the parties, that caused concern in the employment relationship.

[19] I consider the dress code and attendance issues to have warranted the disciplinary discussions that occurred, but in the circumstances it could reasonable have been expected that after the first discussion, the applicant should not have required further discussions on such a basic employment issue. I have not taken into account the alleged personal computer usage. No evidence of such or disciplinary discussions or policy or process evidence has persuaded me to do so.

[20] I acknowledge that the New Zealand bookings amount to an issue that provided a loss of trust and confidence by the employer in the employee. However the applicant stated he was denied the opportunity to respond. The applicant’s response in relation to this issue, even here today however, was not consistent with the commitment required by the respondent from the applicant and expected, particularly given the fact that the respondent had sponsored the applicant for a section 457 visa, and made that employment commitment to him.

[21] Accordingly, on the basis of the issues relating to the disciplinary discussions on dress, attendance, late return from the trips and the existence of the New Zealand tickets, but not the Internet usage, these other matters represent a valid reason. The respondent, it was agreed, was a small business employer and had no human resources department. Accordingly I have taken into account this fact, that they do not have experienced human resources professionals, and there is no evidence that the respondent also had any ready access to such specialised advice.

[22] I do not consider that the dismissal was effected so quickly as to avoid any knowledge by the applicant or that it was completely devoid of procedural fairness, however I note that in this regard there has been some procedural deficiencies. Commensurate with some award of compensation for this I acknowledge that there have been two weeks wages in lieu of notice paid above what is required by the National Employment Standards of two weeks in consideration of the applicant’s 18 months employment. I have also taken into account the respondent’s sponsorship and the effect on their business of the departure of the applicant. Also taken into account on the material before me, are the entitlements (such as the applicant’s pro-rata annual leave) and the respondent’s undertaking as to whether if these have not been paid that the pro rata annual leave will be paid.

[23] Accordingly, for all of the above mentioned reasons, considering the matters on the whole, I do not consider the dismissal to be unfair and there will be no further exercise of the jurisdiction in terms of providing any further compensation to the applicant. I consider that the further two weeks wages in lieu of notice is above what is required under the legislation, but that it also meets the respondent’s obligations under the contract; the additional two weeks meets the one month contract.

[24] At the Hearing I set a direction that the respondent will need to confirm that the pro rata annual leave has been paid within the next 14 days or confirmation that the correct amount has been paid in terms of the factual information. Subsequent to the Hearing the respondent confirmed that the amount was to be paid.

[25] For the aforementioned reasons. The Application pursuant to s.394 of the Act is dismissed.

[26] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code C, PR547415>