Mr Robin Partridge v Sherwood Services Club Inc

[2012] FWA 5139

[2012] FWA 5139

FAIR WORK AUSTRALIA

DECISION

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

Mr Robin Partridge
v
Sherwood Services Club Inc.
(U2010/8867)

COMMISSIONER ASBURY BRISBANE, 15 JUNE 2012

Application for unfair dismissal remedy - application to dismiss.

Background

[1] On 17 May 2010 an application for an unfair dismissal remedy was made by Mr Robin Partridge in relation to the termination of his employment by the Sherwood Services Club Inc. Mr Partridge was employed by the Club from 25 November 2007 until his dismissal on 5 May 2010. Mr Partridge was dismissed for an incident involving damage to a bus. Mr Partridge denied damaging the bus or alternatively that he had damaged it to the extent claimed by the Club.

[2] It is necessary to set out the history of the progress of this matter. A conciliation conference was held on 7 June 2010. It appears from material on the file that at the conciliation conference, in-principal agreement was reached in relation to a settlement of the application. Shortly after the conference, a deed setting out the terms of settlement was drawn up by the Conciliator and forwarded to the parties for signing. The deed was signed on behalf of the Club on 9 June 2010. Mr Partridge did not sign the deed, and until 27 September 2010, gave no indication as to the reasons for failing to do so.

[3] Between 27 September 2010 and 11 April 2011, Mr Partridge corresponded with various staff of Fair Work Australia (FWA) stating that agreement in-principle had been reached at the conciliation conference on 7 June 2010, but that he would not sign the deed of settlement until the veracity of certain statements made by management of the Club in its response to his application was tested, and seeking advice in relation to his position. There are file notes indicating that Mr Partridge attended at the Queensland Office of FWA on 31 March 2011 and was told that he should seek independent legal advice about his position.

[4] The file indicates that Mr Partridge was told that the file had been closed on the basis that settlement was reached at the conciliation conference. On 2 May 2011, the General Manager corresponded with Mr Partridge and informed him that as an independent tribunal, FWA was unable to provide him with advice. The letter went on to state that if in-principle agreement had been reached but not finalised, then he could advise FWA that he wished to have his application determined through a conference or a hearing. The letter went on to state that if a binding agreement had been reached and Mr Partridge had simply changed his mind, the Club may seek to enforce the agreement and Mr Partridge may be exposed to an application for costs by the Club.

[5] There is a file note indicating that Mr Partridge again attended the Queensland Office of FWA on 30 September 2011 seeking advice about what the letter from the General Manager dated 2 May meant. Mr Partridge was provided with the contact details of a public legal service. On 4 October 2011, Mr Partridge corresponded with the General Manager advising that in his view the agreement reached at the conciliation was an in-principle agreement and was not binding, and that he wished to proceed to have his application for an unfair dismissal remedy determined.

[6] On 21 October 2011, Clubs Queensland on behalf of the Club, corresponded with FWA asserting that Mr Partridge was reneging on an agreement reached at conciliation some 15 months earlier. The correspondence “suggests” that Mr Partridge be reminded of his obligations once an agreement has been reached in conciliation, and further “suggests” that should the matter proceed a conference be held before a Conciliator or a member of FWA in order to prevent any unnecessary costs being placed on the parties. There are file notes indicating that Mr Partridge informed staff of FWA that he did not wish to have a further conciliation conference and wished to proceed to a formal hearing of his application.

[7] The application was listed for Conference/Hearing on 13 and 14 February 2012. Directions were issued requiring the parties to file and serve outlines of submissions and statements of evidence from witnesses to be called. Mr Partridge did not comply with the Directions and the matter was listed for a Non Compliance Conference/Hearing on 8 December 2011. Mr Partridge subsequently filed and served material on 7 December 2011 and the Non-Compliance Conference/Hearing was adjourned and further Directions were issued with respect to material to be filed and served by the Sherwood Services Club. Upon receipt of the material from the parties, the listing for the hearing on 13 and 14 February 2012 was amended, so that the hearing would be conducted on 13 February 2012 only.

[8] The file indicates that there were a series of telephone discussions between Mr Partridge and staff of FWA in which Mr Partridge indicated that he would not be attending the hearing on 13 February 2012 and might seek to discontinue the matter. There is a note indicating that Mr Partridge told staff that he could not attend on 13 February 2012 because he was picking someone up at the airport. There are also notes indicating that Mr Partridge was informed that he should seek independent legal advice in relation to his position, and that if he failed to attend the hearing on 13 February 2012 without reasonable excuse, his application may be dismissed.

[9] Mr Partridge failed to attend the Hearing/Conference on 13 February 2012 and did not make contact with FWA to provide any explanation for his failure to do so. Sherwood Services Club, through its representative Mr Porter of Clubs Queensland appeared and all witnesses to be called by the Club were also present. Attempts by my Associate to contact Mr Partridge were unsuccessful.

The application by Sherwood Services Club to dismiss Mr Partridge’s application

[10] On 23 February 2012, Clubs Queensland filed and served submissions, seeking that Mr Partridge’s application be dismissed and that the matter be determined on the papers. Directions were issued on 23 February 2012 requiring Mr Partridge to file and serve an outline of submissions in reply to the application by Clubs Queensland, and statements of evidence from any witnesses he intended to call in relation to the application to dismiss, by 2 March 2012.

[11] The Directions issued on 23 February 2012 also contained the following Notice to Mr Partridge:

“Should Mr Partridge fail to provide the material as set out in 2. above by the due date, the matter will be determined on the material filed by Sherwood Services Club Inc. and his application for an unfair dismissal remedy may be dismissed.”

[12] The grounds upon which the application to dismiss is made are as follows:

● Mr Partridge’s unfair dismissal application was made on 17 May 2010;
● An “in-principle” agreement was reached to settle the unfair dismissal application on 7 June 2010 and terms of settlement reflecting that agreement were drafted by an FWA Conciliator and forwarded to the parties;
● Mr Partridge did not formally advise that he would not sign the terms of settlement and wished to proceed to a formal hearing of his unfair dismissal application until 4 October 2011;
● On 4 November 2011, FWA issued Directions requiring Mr Partridge to file and serve an outline of submissions and witness statements in relation to his unfair dismissal application by 28 November 2011;
● Mr Partridge failed to comply with this Direction by the required date but filed material on 7 December 2011 in line with amended Directions;
● Sherwood Services Club filed and served an outline of submissions and witness statements on 16 December 2011 in accordance with amended Directions;
● The matter was listed for hearing on 13 February 2011 and Sherwood Services Club appeared on that day ready to proceed, and with its witnesses present at FWA;
● Mr Partridge failed to attend;
● Mr Partridge has been tardy in his approach to prosecuting his application by not complying with Directions Orders and not appearing at the hearing, causing Sherwood Services Club to incur costs;
● The matter should be determined on the papers and dismissed.

Material filed by Mr Partridge

[13] Mr Partridge filed material in accordance with the directions. However the material filed by Mr Partridge did not address the Respondent’s application to dismiss his unfair dismissal application and instead reiterated the matters set out in his unfair dismissal application.

Consideration

Hearing

[14] Mr Partridge has failed to provide any excuse to the Tribunal for his non-attendance at the hearing on 13 February 2012. Further, Mr Partridge has provided no response to the assertions about his tardiness in pursuing his application for an unfair dismissal remedy. Mr Partridge has been given a reasonable opportunity to provide those explanations. Sherwood Services Club has complied with all Directions issued by the Tribunal and has been put to the cost of attending a scheduled hearing, with all witnesses, only to have Mr Partridge fail to attend without notice.

[15] In light of these matters, I have decided that it is not appropriate to hold a further hearing in relation to Mr Partridge’s unfair dismissal application or the application by Sherwood Services Club to dismiss that application, and to determine all matters on the basis of material on the file.

Mr Partridge’s Case

[16] Mr Partridge was dismissed on 5 May 2010 for damaging a bus by driving it into a wall twice; failing to report that damage; and in discussions with the Manager of the Club, denying that he had damaged the bus.

[17] In his unfair dismissal application filed on 17 May 2010, Mr Partridge attached a letter to the Committee of the Club dated 8 May 2010 in the following terms:

“After finishing the day shift of driving the courtesy bus at about half past five on Saturday, 1st of May 2010, I parked the bus, registration number 935LWC, in the bus parking area behind the club.

On going forward, I came close to the wall and I braked. I put the bus into reverse, got out of the bus, and went to the front of the bus to make sure I hadn’t hit the wall, and I noticed a mark on the left hand side of the front bumper.

The nature of the mark appeared to be not consistent with having collided with a vertical wall. I then proceeded to park the bus.

On the following morning, 2nd of May, at the start of the morning shift, I parked the bus at the front of the club and I informed the duty manager, at about ten o’clock, about the mark on the bus. He noted the damage in the bus inspection book for that day.

He made out an incident report and gave it to the general manager, Peter Ward. The manager interviewed me about the matter on the afternoon of the 5th of May, in his office.

He showed me a replay of me parking the bus on the night in question. He claimed I had crashed into the wall twice while parking the bus. He then accused me of being a liar and of being dishonest. He then told me I no longer had a job with the club.

While I can’t say with certainty that I never hit the wall, the nature of the damage is the reason why I didn’t report it as having been done by me. In the past, I have reported any damage to any bus done while I was driving it. I believe the manager has engaged in double standards in sacking me for allegedly being a liar, as he himself publicly lied about me in the club’s car park.

I draw your attention to the above matters because I believe the clubs committee, it’s members and it’s staff should be entitled to a management that is fair and reasonable to all.

There are other matters, unrelated to the above matters, concerning the manager’s behaviour towards me, which I can provide if so wished.”

[18] In the grounds and reasons accompanying his application, Mr Partridge again asserts that the position of the marks on the bumper of the bus, are the reason why he could not say that he was responsible for those marks.

[19] In his witness statement filed on 7 December 2011, Mr Partridge states that he was employed as a casual courtesy bus driver by the Club from 25 November 2007. Mr Partridge further states that while parking the bus on 1 May 2010 he came close to the wall, and on checking the front of the bus formed the view that scuff marks were not consistent with him hitting the wall. Mr Partridge said that he did not admit the damage because he was not certain he had caused the scuff marks, and asserts that he did tell the duty manager about the marks on the morning of 2 May 2010.

[20] Mr Partridge states that the Duty Manager took him to his office and showed him CCTV footage alleged to show him crashing into the wall and said that Mr Partridge was responsible for the damage. Mr Partridge said that he told the Duty Manager he would not take responsibility for damage to the bus because of the nature of the scuff marks on the bumper. Mr Partridge goes on to state that:

“Whether or not I did hit the wall on the first occasion, I will strenuously deny hitting it again.”

[21] Mr Partridge also said that the General Manager of the Club stated to FWA that the bus required urgent repairs, but when Mr Partridge enquired at the garage where the buses are serviced, he was told that no such work had been done on the bus in question.

[22] In his material filed on 28 February 2012 in response to the application by Sherwood Services Club to dismiss his unfair dismissal application, Mr Partridge again asserts that he has requested a fully itemised statement of repairs to the bus and his request has been refused, and attaches a statement from a panel repair establishment indicating that they quoted on repairs to a Toyota Hiace passenger van, registration number 935LWC, totalling $597.30 but did not perform those repairs.

[23] Mr Partridge reiterated the matters set out in his unfair dismissal application, and made various requests for photographic and other evidence showing that the bus had been driven into the wall twice. As previously noted, Mr Partridge provides no explanation as to his failure to attend the hearing scheduled for 13 February 2012 or for the delays on his part in prosecuting his unfair dismissal application.

The case for Sherwood Services Club

[24] The material filed on behalf of Sherwood Services Club is as follows:

● Outline of Submissions
● Witness Statement of Graham McMullin, Operations/Duty Manager;
● Witness Statement of Kim Adrych, Receptionist;
● Witness Statement of Corey Nettleton, Cellar Manager/Bus Driver;
● Witness Statement of Peter Ward, General Manager.

[25] The submissions and witness statements can be summarised as follows:

● Increases in insurance premiums resulted in drivers being instructed to take care while driving buses and at a series of meetings on 5 February 2008, 5 August 2008 and 13 June 2009, Mr Partridge and other drivers received an explanation of details of procedures in relation to the operation of club buses.
● Mr Partridge has signed a copy of a Handbook detailing bus drivers’ procedures including a requirement to report any faults or repair requirements.
● On 6 January 2010 all drivers and duty managers were issued with instructions including that they were to note damage to buses and how it was caused in the “courtesy bus inspection book” and notify duty managers.
● On Sunday 2 May 2010 at 9.45 am, Mr Partridge informed the duty manager Mr McMullin, that the bus was damaged and claimed that although he was the only person driving the bus on the previous day, he had not caused the damage.
● Mr McMullin said that he inspected the damage to the bus and noted that there was paint missing from a wall near where the bus was parked.
● Mr McMullin viewed the CCTV footage, which showed Mr Partridge driving the bus twice into the wall and getting out of the bus twice to check the damage.
● Mr McMullin showed Mr Partridge the footage and Mr Partridge said “oh” and walked away.
● Ms Adrych said that on Sunday 2 May 2010, Mr Partridge informed her that he had smashed the new bus and said he had no knowledge of the damage until informed by Mr McMullin and that he had no recollection of driving the bus into a wall.
● Mr Nettleton said that he inspected the bus on Tuesday 4 May 2010 and found that the damage was consistent with the bus hitting the corner of a wall near where it was parked and that the markings on the wall were at the same height to those on the bus.
● Mr Nettleton took the bus to Franklin’s workshop where an inspection found that several clips holding the bumper to the bus had been snapped and structural strengthening was carried out.
● Mr Nettleton then took the bus to Bignell’s smash repairs for a quotation and was given a quotation of $597.30 for the repairs.
● Mr Ward said that he met with Mr Partridge on Wednesday 5 May 2010 and told Mr Partridge that the CCTV footage showed him twice hitting the wall and twice getting out of the bus to inspect the damage.
● According to Mr Ward, Mr Partridge denied causing the damage to the bus and Mr Ward told him that he was dismissed for:

● failing to take due care;
● failing to report the damage when it happened; and
● denying damaging the bus when CCTV footage shows the incident quite clearly.

[26] In submissions in reply, the Club pointed out that the only new material filed by Mr Partridge was a statement from Bignell’s panel repairs indicating that the work quoted by them was not completed. In regard to this matter, the Club asserted that the work was carried out by another repairer, and provided a statement from the Office Manager of Franklin’s Workshop Pty Ltd about repairs to the bus to make it roadworthy, that were undertaken on 4 May 2010.

Conclusions

[27] After considering the material on the file, I am not satisfied that the dismissal of Mr Partridge was harsh, unjust or unreasonable. I am satisfied that there was a valid reason for the dismissal. It is not in dispute that there was damage to the bus. There is evidence that there was damage to the bumper of the bus which required structural repair, and regardless of which repairer carried out panel repairs, there is evidence of a not insignificant amount of money set out in a quotation for the repair of damage to the bus. It is also clear from Mr Partridge’s evidence that he accepts he may have caused some damage by driving into the wall, but disputes that he did this twice. On balance, and on the basis of the material filed by the parties, I am satisfied that Mr Partridge caused the damage to the bus. I also accept that Mr Partridge did not report the damage immediately, and that he denied having caused the damage.

[28] It is apparent from Mr Partridge’s statements that he was notified of the reasons for his dismissal. This is apparent from the statement of Mr McMullin who showed Mr Partridge the relevant CCTV footage several days before the interview with Mr Ward. It is also apparent from the statement of Mr Ward that Mr Partridge could have been in no doubt as to the reasons for his dismissal. Further, it is clear from the statements of Mr McMullin and Mr Ward, that Mr Partridge was given an opportunity to respond to the reasons for his dismissal and this finding is also supported by the statements made by Mr Partridge. In this regard, while Mr Partridge states that he did not accept the validity of the reasons for his dismissal, he was in no doubt as to what those reasons were.

[29] There is no evidence from Mr Partridge that he made a request to have a support person present in the discussions relating to the issue which lead to his dismissal, or that the Club unreasonably refused such a request. The dismissal was not in relation to unsatisfactory work performance, such that the issue of whether Mr Partridge was warned about his performance is determinative of whether he was unfairly dismissed. In any event, Mr Partridge had been made aware of the need to be diligent with respect to damaging buses, and had been shown the CCTV footage which formed the basis of the assertion by the Club that he had damaged the bus, some two days before the interview which lead to this dismissal.

[30] There is no evidence about the degree to which the size of the employer’s business impacted on the procedures followed in effecting the dismissal. There is also no evidence in relation to the degree to which the absence of dedicated human resource management specialists would be likely to impact on the procedures in effecting the dismissal.

[31] Mr Partridge has had a reasonable opportunity to present his case to the Tribunal and has failed to take advantage of that opportunity.

[32] The application by Mr Robin Partridge for an unfair dismissal remedy in U2010/8867 is dismissed. An Order to that effect will issue with this Decision.

COMMISSIONER

Appearances:

No appearance on behalf of the Applicant.

Mr E. Porter on behalf of the Respondent.

Hearing details:

2012.
Brisbane:
February 13.

Final written submissions:

March 5, 2012.

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