Mr Ross McAdie v Vanderfield Pty Ltd

[2013] FWC 7888

[2013] FWC 7888

FAIR WORK COMMISSION

DECISION

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

Mr Ross McAdie
v
Vanderfield Pty Ltd
(U2013/9517)

COMMISSIONER CAMBRIDGE SYDNEY, 9 OCTOBER 2013

Unfair dismissal - serious misconduct - history of performance and misconduct issues -employee conduct inconsistent with continuation of employment relationship - procedural deficiencies considered - dismissal not harsh, unjust or unreasonable - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Darwin on 14 May 2013. The application was made by Ross McAdie (the applicant) and the respondent employer is Vanderfield Pty Ltd (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 13 May 2013. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted in Darwin on 3 September 2013.

[4] At the Hearing, the applicant appeared for himself and he was the only witness called to provide evidence in support of the claim. The Commission granted permission for the employer to be represented by Mr D Baldry, a barrister. Mr Baldry called a total of four witnesses who provided evidence on behalf of the employer.

Factual Background

[5] The applicant had worked for the employer for about 15 months. The applicant was employed in a position described as a Service Advisor. The applicant worked at the employer’s Palmerston (Darwin) branch site. The applicant held the trade qualification of motor mechanic and he had worked in the motor, machinery and equipment industry for a total of 31 years, the last 20 years involving work in administrative roles.

[6] The employer is a company which has its headquarters in Toowoomba, Queensland. The employer operates retail sales and servicing facilities for agricultural, road transport, heavy and domestic machinery and equipment through nine branches located in Queensland, the Northern Territory and Western Australia. The employer has approximately 250 employees.

[7] The applicant’s role as a Service Advisor fundamentally involved customer contact and communication regarding service and repair work undertaken on customer’s machinery and or equipment. This role required both knowledge of the mechanical aspects of the customer’s machinery and its repair and or servicing, together with the interpersonal communication skills to inform and satisfy the needs of the customer.

[8] Unfortunately, during his period of employment the applicant developed some difficulties in respect to his interpersonal communications skills. A series of recorded incidents involving customer dissatisfaction with the applicant culminated in an incident which led directly to the applicant’s dismissal. The applicant’s dismissal from employment arose from his alleged misconduct, described as; “Repeated unsuitable communications with customers and similar unsuitable communications with other staff member”.

[9] The applicant was advised of his dismissal on Monday 13 May 2013. The dismissal of the applicant was directly connected with events of the preceding Friday, 10 May 2013. The events of the afternoon of Friday 10 May occurred in the context of three previous incidents involving customer complaint made against the applicant.

[10] The first recorded incident of customer complaint against the applicant occurred in December 2012. There were two further recorded customer complaints made against the applicant in March 2013 and 7 May 2013(initially incorrectly recorded as 6 May 2013).

[11] On the afternoon of 10 May 2013, the employer’s Northern Territory regional manager, Aaron Heath, received a telephone call from a very dissatisfied customer. The customer had been inquiring about the status of repair/service work being performed on his truck and he made particular complaint about the tone and language used by the employer’s representative who had apparently suggested that the customer could take his business elsewhere.

[12] After placating the dissatisfied customer, Mr Heath went to the service department office and inquired as to who had been involved with the customer that had made the complaint. The applicant identified himself as having dealt earlier with that customer. There was then a difficult exchange between Mr Heath and the applicant, the details of which involve some conflict in the evidence.

[13] Mr Heath would have been understandably upset about the customer complaint and in all likelihood his concern would have manifest in direct and abrupt questioning of the applicant. The applicant said that Mr Heath had interrupted his attempted explanation and had not allowed him to complete his answers and had “talked over him.” Mr Heath asserted that the applicant’s responses were made in a loud manner which displayed “attitude.” Mr Heath then left the service department and asked the service manager, Mr Hassall, to give him details of the difficulties that had arisen with the customer’s truck so that he could call the customer back.

[14] After Mr Heath left the service department the applicant then had a heated discussion 1 with Mr Hassall. The applicant was angry and expressed his dissatisfaction with what he considered to be the unfair way that he had been treated by Mr Heath. Mr Hassall told the applicant to “cool off” and he suggested that it would be in the applicant’s best interests if he went home, calmed down, and returned to work on Monday in a less aggravated state of mind.

[15] The applicant initially took Mr Hassall’s sage advice and he left work and drove for about two kilometres. Regrettably, at this point the applicant had a change of mind and he turned his vehicle around and drove back to the workplace whereupon he confronted Mr Heath and remonstrated with him. Upon his return to the workplace the applicant entered Mr Heath’s office and in the presence of various other staff members he made loud and aggressive complaint directed forcefully at Mr Heath.

[16] There was little response from Mr Heath, presumably he was somewhat stunned and perhaps intimidated by the applicant’s behaviour. The applicant then left Mr Health’s office and he returned to his vehicle and exited the workplace for a second time on that afternoon.

[17] Shortly after the applicant had left his office Mr Heath decided that the applicant should be dismissed from employment. Mr Heath instructed the Service Manager, Mr Hassall, and the Parts Manager, Mr Rose, to implement the dismissal of the applicant on the next working day, the following Monday.

[18] On Monday 13 May, the applicant was called into a meeting with inter alia, Mr Hassall and Mr Rose and he was told that his actions of the previous Friday amounted to “abusive behaviour” which was misconduct for which his employment was terminated. The applicant was offered an option of working out a three week notice period which he refused.

[19] The applicant was paid all accumulated entitlements together with 3 weeks wages in lieu of notice. The applicant has been unable to obtain alternative employment since his dismissal.

The Case for the Applicant

[20] The applicant was self represented and he made verbal submissions in addition to documentary material that had been filed earlier. The applicant submitted that he had been unfairly dismissed.

[21] The applicant submitted that the employer had shown a total disregard for due process. The applicant said that he had not been furnished with any warnings that his employment was in jeopardy. Further, he complained that the employer had failed to provide him with any counselling or training in any areas of concern.

[22] It was the applicant's contention that the decision to dismiss was made immediately after his exit from Mr Heath's office on Friday 10 May. Consequently, according to the applicant, the employer had denied him the right of reply and he was denied the right to defend himself. The applicant also complained that he was denied the opportunity to have a support person present at the termination meeting held on Monday 13 May. The applicant submitted that the employer's actions resulted in a denial of natural justice and a failure to provide him with a right of reply.

[23] According to the submissions made by the applicant, the employer had grossly exaggerated his actions and omitted important information relating to aspects of the recorded customer complaints which had been made against him. Further, the applicant submitted that if his behaviour towards customers was as bad as the employer suggested, it did not make sense for the employer to ask someone who was behaving so badly to continue to act in their employ, as was proposed by the suggestion of him working out the three week notice period.

[24] The applicant summarised his submissions by concluding that the decision to terminate his employment was “...based on a fit of pique by Mr Heath, who was affronted by an employee demanding common courtesy.”

[25] The applicant said that he was willing to accept reinstatement. However he proposed that the Commission should award monetary compensation of $40,000 as an alternative to reinstatement.

The Case for the Employer

[26] The employer was represented by Mr Baldry who submitted that the dismissal of the applicant was not unfair. Mr Baldry made submissions which elaborated upon documentary material that had been filed on behalf of the employer.

[27] Mr Baldry submitted that there was valid reason for the applicant’s dismissal. The submissions made by Mr Baldry referred to the reasons stated in the applicant's employment separation certificate involving repeated unsuitable communications with customers and similar unsuitable communications with other staff members. Mr Baldry submitted that the employer had reasonable, objective reasons for concluding that the applicant acted in a belligerent and aggressive manner when dealing with customers and this was reflected by the actions of the applicant during his confrontation with Mr Heath on Friday 10 May.

[28] Mr Baldry made submissions which conceded that some of the procedural requirements of section 387 of the Act had not been followed by the employer. However according to Mr Baldry these deficiencies did not displace the underlying basis for the decision to dismiss the applicant as a direct consequence of his actions on the afternoon of Friday 10 May. Mr Baldry said that the applicant's outburst in Mr Heath's office provided verification of a temperament which confirmed the most regrettable aspects of the recorded customer complaints which had been occurring with increasing frequency.

[29] Mr Baldry further submitted that the employer had simply lost all confidence in the applicant's ability to properly liaise with customers in anything other than a combative way. Mr Baldry stressed that much of the evidence about the applicant's conduct on the afternoon of 10 May was unchallenged and therefore a clear picture of the applicant's behaviour had been provided.

[30] In respect to the apparent incongruity arising from the applicant being offered an opportunity to work out the three week notice period and the employer’s firm belief that the applicant represented a risk to its business because of his combative approach to customer relations, Mr Baldry submitted that the proposition was made out of compassion for the applicant's personal circumstances and that the employer was contemplating a role for that period of the notice that would have involved minimal customer contact.

[31] Mr Baldry submitted that in all circumstances the employer's actions were reasonable and were open to it and therefore the application should be dismissed.

Consideration

[32] Section 385 of the Act stipulates that the Commission must be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[33] In this case there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.

[34] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) 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

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

387 (a) - Valid reason for the dismissal related to capacity or conduct

[35] In this instance, the evidence has established that the applicant was dismissed because of his misconduct on the afternoon of Friday 10 May 2013. That misconduct was considered by the employer in the context of the various customer complaints which had previously been made against the applicant. The employer considered that the applicant’s actions amounted to serious misconduct and against the background of the previous customer complaints the employer (Mr Heath) took the decision to dismiss without further inquiry being contemplated.

[36] Even if the actions of the applicant on the afternoon of 10 May were considered in isolation, the misconduct of the applicant would satisfy the definition of serious misconduct as contained in regulation 1.07 of the Fair Work Regulations 2009. Regulation 1.07 is in the following terms:

“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.”

[37] Although the applicant may have been aggrieved by the actual or perceived discourtesy shown to him by Mr Heath, there was simply no justification for the applicant’s deliberate, considered and aggressive confrontation of his employer when he returned to Mr Heath's office at about 5:00 pm on 10 May 2013.

[38] The applicant stood over his employer Mr Heath, who was seated in his office, he leant forward, pointed at Mr Heath and loudly said; “It's only common bloody courtesy to allow a person to answer in full when you ask them a question, especially when it's a complicated answer, and you want to look at your bloody attitude.” 2 It is difficult to imagine that this conduct would be anything other than wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment.

[39] Consequently, there was a valid reason for the dismissal of the applicant related to the serious misconduct committed on the afternoon of 10 May 2013. This valid reason for dismissal was fortified by the implications that the applicant's misconduct had in respect to confirmation of unacceptable conduct surrounding earlier customer complaint incidents.

387 (b) - Notification of reason for dismissal

[40] The employer provided verbal notification of the reason for the applicant's dismissal. Unfortunately the employer did not confirm the applicant’s dismissal in writing. The employer subsequently set out the reasons for dismissal in the employment separation certificate.

[41] It would have been preferable for the employer to have provided a letter of dismissal at the time that the verbal advice was given, Monday 13 May. This significant deficiency must be assessed and balanced against the other factors which form the basis for consideration as to whether in totality, the dismissal can be held to be harsh, unjust or unreasonable.

387 (c) - Opportunity to respond to any reason related to capacity or conduct

[42] The meeting that the employer held with the applicant on Monday 13 May did not represent an opportunity for the applicant to respond to the serious misconduct that the employer witnessed on the preceding Friday. Mr Heath had been the recipient of the applicant’s deliberate and aggressive confrontation and that experience had been sufficient for him to decide to terminate the employment without any further inquiry.

[43] Although it is readily understandable that Mr Heath would, after some short consideration, react to the applicant’s misconduct by deciding to terminate the employment without further inquiry, such a course of action is unwise and creates a procedural error which in some circumstances may transform what would otherwise be a justifiable, sound and fair decision into an unfair dismissal.

[44] In circumstances such as this case, where the employer witnessed the serious misconduct, there is strong prospect that any explanation or defence that could conceivably emerge would be unable to mitigate or justify the misconduct. However, importantly a potential for reconsideration of the dismissal theoretically exits. By way of a highly theoretical example; what if the applicant produced medical evidence that as an unpredicted consequence of the mixture of two prescription medicines he was suffering some psychological dissociative state and his misconduct could be entirely attributed to this psychosis.

[45] Consequently, even in circumstances involving unambiguous serious misconduct witnessed directly by the employer, there is little to be lost and much benefit obtained by providing an opportunity for explanation even if it would seem to be something of an exercise in futility. Therefore it would have been a fairly simple and highly desirable process step for the employer to advise the applicant at the commencement of work on Monday 13 May, that he was suspended from duty on the basis that his misconduct of the previous Friday was considered as basis for dismissal and he had say, a 24 hour opportunity to offer any explanation for his actions.

[46] The absence of this process step represents a deficiency which must be assessed and balanced against the other factors which form the basis for consideration as to whether in totality, the dismissal can be held to be either harsh, unjust or unreasonable.

387 (d) - Unreasonable refusal to allow a support person to assist

[47] If the employer had provided the applicant with an opportunity to explain his actions of Friday afternoon 10 May, then such opportunity should have also included the potential presence of a support person. As earlier mentioned, the meeting held on Monday 13 May was no more than a forum to communicate the decision to dismiss made by Mr Heath shortly after the misconduct event on Friday 10 May.

[48] Consequently, the absence of an opportunity to explain had as a practical consequence, the refusal to have a support person to assist and as such represents a concomitant process deficiency. This deficiency must be assessed and balanced against the other factors which form the basis for consideration as to whether in totality, the dismissal can be held to be either harsh, unjust or unreasonable.

387 (e) - Warning about unsatisfactory performance

[49] This factor has some relevance in this instance. The applicant had been made aware that the employer had concern about incidents involving customer complaints. Although the applicant had not been given formal written warning about his work performance, the prior customer complaint incidents represented the context in which the applicant’s misconduct was considered by the employer.

387 (f) - Size of enterprise likely to impact on procedures

[50] The size of the employer’s operation should have provided for a higher standard of procedure to have been followed such that the simple process step involving an opportunity to explain in the presence of a support person should have occurred.

387 (g) - Absence of management specialists or expertise likely to impact on procedures

[51] It appeared that the employer did not have dedicated employee relations management specialists as there was no evidence of the involvement of any such specialist staff during the process that led directly to the dismissal of the applicant.

387 (h) - Other relevant matters

[52] There was evidence provided about the very unfortunate personal circumstances of the applicant which understandably caused considerable distress and anguish for the applicant. It is unnecessary to disclose the detail of these personal difficulties in this Decision. I have sympathy for the personal predicament faced by the applicant. Accordingly I have not disregarded the physiological ramifications of these circumstances as contributing to some of the personality traits which the applicant exhibited, and which related to his behaviour at the workplace generally and in respect to the misconduct event of 10 May.

[53] However, on balance, the employer engaged the applicant in the full knowledge of these difficult personal circumstances and it should be commended for its preparedness to endeavour to assist the applicant. My consideration of the totality of the evidence and having observed the employer’s managers give evidence in the proceedings, leads to a conclusion that the employer acted more out of exasperation after exhausting its generally benevolent approach to the applicant.

Conclusion

[54] The applicant was dismissed for serious misconduct committed on 10 May 2013 and which involved the deliberate, considered, and aggressive confrontation of the employer. There was little factual contest about the detail of the misconduct and to the extent necessary, the applicant’s version of the misconduct event established that it was deliberate behaviour which was inconsistent with the continuation of the contract of employment.

[55] The applicant committed an act of serious misconduct. That serious misconduct was committed in the context of other work behaviour incidents. The dismissal of the applicant was established upon valid reasons.

[56] The procedure that the employer adopted to deal with the dismissal of the applicant included some significant procedural deficiencies. These procedural deficiencies have been considered and balanced against the blatant serious misconduct which provided valid reason for the dismissal.

[57] Various other factors, including the personal circumstances of the applicant, have also been evaluated and included in the consideration from which conclusions must be drawn.

[58] There were some factors, most notably procedural deficiencies, which balance in favour of the case for the applicant. However, the unambiguous serious misconduct involving behaviour which, in the absence of any mitigation, is fundamentally inconsistent with the continuation of the contract of employment compels me to conclude that the applicant's dismissal was not harsh, unjust or unreasonable.

[59] Consequently the application for unfair dismissal remedy must be dismissed and an Order [PR543046] to that effect will be issued accordingly.

COMMISSIONER

Appearances:

Mr R McAdie, appearing unrepresented.

Mr D Baldry, Counsel on behalf of the respondent.

Hearing details:

2013.

Darwin:

September, 3.

 1   Exhibit 1 @ Para 32 and transcript @ PN299

 2   Transcript of proceedings PN332.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR543044>