Mr Scott Brown v Cullen Bay Electrical

[2014] FWC 6044

[2014] FWC 6044

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Scott Brown
v
Cullen Bay Electrical
(U2014/7402)

COMMISSIONER WILSON MELBOURNE, 8 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] The following are my edited reasons for decision, originally given in transcript at Darwin on 28 August 2014.

[2] Mr Scott Brown was first employed by Cullen Bay Electrical Pty Ltd (“Cullen Bay Electrical” or “the company”) on 20 May 2011.

[3] Mr Brown was notified of his dismissal on Tuesday, 22 April 2014 by means of a letter, and the dismissal took effect from Wednesday, 5 May 2014. 1 As a result Mr Brown was dismissed on notice and he worked through the two weeks’ notice period.

[4] Cullen Bay Electrical is an electrical company based in Winnellie, Darwin. At the time of his dismissal, Mr Brown was employed as a qualified A grade electrician by the company, a position which was different to the one he occupied when he first commenced with the company. Mr Brown was working full-time at a Toga construction site on the Darwin waterfront.

[5] Although first employed by Cullen Bay Electrical in 2011, the evidence is that Mr Brown broke his employment for a period of some months in 2012. The parties agree that he returned to work with Cullen Bay Electrical in late 2012. On Mr Brown’s evidence this was around October 2012, and the evidence of all parties is that he worked for Cullen Bay Electrical continuously from that time until May 2014.

PRELIMINARY CONSIDERATIONS

[6] Relevant to the consideration of this matter are the provisions set out in s.396 of the Fair Work Act 2009 (“the Act”), which requires certain matters relating to an application to be determined before considering the merits of the application. This section provides as follows:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[7] Mr Brown’s application was made within the 21 day time period allowed for in section 394(2)(a). The date on which his dismissal took effect was Wednesday, 5 May 2014 and he made his application to the Fair Work Commission on 21 May 2014.

[8] Mr Brown is a person protected from unfair dismissal with his employment being covered by the modern award applying to the onsite construction industry. In addition Mr Brown completed the minimum employment period specified in section 383 of the Act, which in Mr Brown’s case, is a period of six months.

[9] For the purposes of section 396(c) of the Act, Cullen Bay Electrical is not a “small business employer” 2 since it employed more than 50 employees in May 2014. Since Cullen Bay Electrical is not a small business employer within the meaning of the Act, consideration of the consistency of Mr Brown’s dismissal with the Small Business Fair Dismissal Code does not arise.

[10] Lastly, in terms of section 396(d) of the Act, Mr Brown was not dismissed for reasons of redundancy.

[11] Having dealt with each of these initial matters it is now necessary for me to deal with the merits of the application. Before I do so it is appropriate to record that this matter proceeded before me by way of a determinative conference, mainly for the reason that neither of the parties were represented. At the start of the conference each of the persons giving evidence was administered an oath or affirmation and the conference proceeded as a discussion facilitated by me to ascertain the key factual matters.

[12] The people who gave evidence were, first of all, Mr Scott Brown, the Applicant; Mr Elias Yayakos, the proprietor of Cullen Bay Electrical Pty Ltd; and Mr Ian McMurtrie, who is a director of Top End Safety Solutions and who is also a contractor to Cullen Bay Electrical. Mr McMurtrie provided documentary evidence which is recorded in Exhibits R2 and R3. The other evidence in this matter comprises a short submission from Mr Brown, 3 a witness statement from Mr Ruwan Perera (the Cullen Bay Electrical accountant/project controller),4 and some 2011 pay advices relating to Mr Brown which were provided by Mr Perera during the determinative conference.5

LEGISLATION

[13] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009 (the Act), which is as follows;

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(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.

BACKGROUND

[14] Cullen Bay Electrical submit that Mr Brown was dismissed for reasons that he failed, despite repeated requests, to take steps to provide evidence to the company that he held a valid construction industry white card. The evidence of Mr McMurtrie is that under uniform national laws enacted in the Northern Territory, for a worker to work on a construction site he or she must evidence they have completed induction for construction work training. This training is to be completed with a registered training organisation and is usually undertaken online.

[15] Mr McMurtrie’s evidence is that having completed the training, a worker must then take steps to prove their identity to the registered training organisation, who in turn issues a plastic card which is about the size of a credit card or driver’s license - although it does not include the person’s photograph. Part of Exhibit R3 includes material from Northern Territory WorkSafe that broadly corroborates Mr McMurtrie’s evidence, although it does not make reference to the need to prove the identity of the worker prior to the issuance of the card. Mr Brown’s evidence is that he had been issued with such a card, but that he subsequently lost the card. Nonetheless, he retained a Statement of Attainment issued by a registered training organisation in April 2012. 6

[16] Part of the company’s submissions include that there were several advices to Mr Brown about the need to provide an updated card. On 8 April 2014, Mr Perera sent an email to Mr McMurtrie at about 12.22 pm with a list of employees, indicating his understanding of their “white card” status. 7 Mr McMurtrie responded shortly after receiving the email, indicating to Mr Perera that in reference to a particular worksite (the abattoirs), employees without a white card would not be able to continue to work after Friday.8 Mr McMurtrie indicated that he would be onsite on the Friday to check, and advised Mr Perera about the need for employees to complete their paperwork and provide evidence to the employer.

[17] Mr Perera then advised Mr Brown through an email on 8 April 2014 of the need to organise a white card at his earliest convenience. 9 Following that particular reference, a further email was sent on 14 April from Mr Perera to Mr Brown (and another employee), requesting an update regarding their progress in obtaining their white cards.10

[18] Having been sent that email, which on Mr Perera’s evidence is on 13 April 2014, there was then a response by Mr Brown on 16 April 2014 which indicated that he had obtained his white card, but lost it, and that there was no point in him renewing the card as he was leaving Australia in six weeks “for good”. 11 He indicated further that he was presently working at the waterfront, and that that particular site was satisfied with the certificate that he had obtained along with his white card.

[19] On 17 April 2014, Mr Yayakos emailed Mr Brown which questioned Mr Brown about these things, and in which Mr Yayakos requested that Mr Brown come and see him on the following Tuesday. Mr Brown responded by email on 22 April 2014 in which he said:

“As far as my white card goes. I have already obtained the white card and certificate. I never said once that I was not willing to re-apply for a replacement card, but I felt it would have been a waste of my time as I was planning to leave in 6 weeks and the replacement card would take that time to come through”. 12

[20] Mr Brown met with Mr Yayakos on Tuesday, 22 April 2014. At the meeting, Mr Brown was told that he would be dismissed. The evidence indicates that Mr Brown did not have an insight prior to that time that he would be dismissed. Mr Yayakos’ evidence is that this was because he had become “fed up” about the circumstances and in particular about what he saw as a failure by Mr Brown to update or replace the card that was said to be lost. Mr Yayakos’ evidence, and that of Mr McMurtrie, is that there had been three employees with some level of uncertainty about their white card status and that only Mr Brown had not taken steps to remedy the status.

CONSIDERATION

[21] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission (“the Commission”) must take into account the legislative factors set out earlier.

(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)

[22] It is well settled that the Commission’s approach in relation to assessment of whether or not there was a “valid reason” for a dismissal requires consideration of whether the reason put forward for the dismissal is ‘sound, defensible or well founded.’ In the same way, it is settled that a reason which is ‘capricious, fanciful, spiteful or prejudiced’ cannot be a valid reason. It is also the case that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It will not be enough for an employer to say that they acted in the belief that the termination was for a valid reason.

[23] The evidence of Mr McMurtrie is that the requirement to produce an actual white card on a construction site in the Northern Territory is a fundamental one. Failure to provide such a card on demand for an occupational health and safety inspector leaves both Cullen Bay Electrical at risk of a fine as well as the employee them self. I accept that evidence as truthful and an accurate representation of the risk faced by Cullen Bay Electrical. It is also consistent with the chain of advices given by Mr McMurtrie in various emails to the company and to Mr Perera in particular.

[24] I take into account that Mr Brown claims he was not warned of the consequences of failing to replace his white card. I also take into account Mr Yayakos’ response to the question put to him, that there were three occasions on which Mr Brown was told about the need to have a card or evidence of a replacement. Mr Yayakos’ submission that these sufficiently or adequately spelt out the consequences of failing to act is consistent with the overall effect of the evidence. The submission is, in effect, that Mr Brown was unable to perform the inherent requirements of his role because in the absence of a construction industry white card it is not possible to perform the work that is required of Mr Brown.

[25] The consideration of the Commission in respect of these issues requires that I take into account the role that Mr Brown was performing at the time that he was dismissed, and whether that was the role that he was employed to perform. In addition I take into account that the phrase “inherent requirements” has been judicially considered to mean something that is essential to the position, and that in order to determine what are the inherent requirements of a particular position usually requires an examination of the tasks performed, because it is the capacity to perform those tasks which is an inherent requirement. 13

[26] The evidence in this matter indicates that, at least in respect of onsite construction work, it was necessary for the “white card” to be evidenced as having been issued and that the failure to provide the card is contrary to the inherent requirements of the position. The evidence shows there are two steps involved in obtaining a “white card”. These are firstly completion of the online test of competencies, and secondly provision of proof of identity. Completion of the first stage will give a person a Statement of Attainment, however the card itself will not be issued until one’s identity has been verified by the registered training organisation. Northern Territory WorkSafe check for a validly issued card, not merely the Statement of Attainment. I find therefore that Cullen Bay Electrical did have a valid reason to terminate Mr Brown’s employment and that reason is that Mr Brown, at the time of his dismissal, had not taken steps to replace his construction industry white card.

[27] In arriving at this conclusion I have taken into account that Mr Brown was asked to work his period of notice of termination, which was two weeks, and that the work he undertook in those two weeks was performed on the same site from which he was dismissed. While this might be inconsistent with the argument that Mr Brown had to have the card and that failure is the reason for dismissal, Mr Yayakos’ frank evidence about this is that he made an error and that he was trying to do the right thing by Mr Brown. Taking into account the relative size of Cullen Bay Electrical and its lack of a human resources or industrial relations advisor I do not consider this militates against my finding that there was a valid reason for the termination of Mr Brown’s employment.

(b) whether the person was notified of that reason

[28] Beyond the issue of valid reason I need to consider whether or not Mr Brown was notified of the reason for his termination. On the evidence, the reason advanced to Mr Brown was his failure to obtain a white card. However, the evidence is not completely all one way. There is some evidence to the effect that there might have been other factors taken into account, in particular whether Mr Brown was about to leave in six weeks’ time. However, I consider that the overall evidence is that Mr Brown was notified of the reason for his dismissal being the absence of the white card.

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

[29] I consider in this particular matter that this factor is neutral given the way that the dismissal occurred. It was not put to Mr Brown that the company was considering dismissal, nor was Mr Brown asked for his views about that or provided with an opportunity to respond. Rather, it was simply put to Mr Brown that his employment was to be terminated. While that could be considered, and is, a failure of a process on the part of the company, I think in the overall scheme of this particular matter it does not change the effect of the decision.

(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;

[30] I consider this to be a neutral factor in that prior to the meeting, Mr Brown was not aware that he was about to be dismissed. During the course of the meeting, he was not made aware that he could have a support person present and indeed he did not ask to have such a person in attendance.

(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

[31] I do not consider that this factor, to any great extent, applies on the facts given that the matter is not related to unsatisfactory work performance.

(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;

[32] I take into account that the company does not have, on its evidence, a dedicated human resource management specialist, and I take into account its relevant size with 51 or 52 employees at the time of the dismissal. It is apparently not a sophisticated business in terms of human resource management practice, and I think that that may have impacted upon the way the dismissal occurred.

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

[33] I do not consider there are any other matters relevant to my decision.

[34] Overall I have found that there is a valid reason for Mr Brown’s dismissal. I also find that the valid reason is not then disturbed by any of the other factors which are set out within section 387 of the Act. As a result, I find that Mr Brown’s dismissal was not unfair within the meaning of the Act.

[35] As a consequence, I must dismiss the Applicant’s application to the Commission.

[36] An Order to the above effect will be issued in conjunction with this Reasons for Decision.

COMMISSIONER

Appearances:

Mr S Brown on his own behalf

Mr E Yayakos for the Respondent

Hearing details:

2014.

Darwin:

August, 28

 1   Form F2: Application for Unfair Dismissal Remedy (attachment).

 2   Fair Work Act 2009, s23.

 3   Exhibit A1.

 4   Exhibit R1.

 5   Exhibit R4.

 6   Exhibit R1, attachment 4 (certificate).

 7   Exhibit R1, ‘Evidence 1’.

 8   Exhibit R1, ‘Evidence 2’.

 9   Exhibit R1, ‘Evidence 3’.

 10   Exhibit R1, ‘Evidence 5’.

 11   Exhibit R1, ‘Evidence 8’.

 12   Exhibit R1, ‘Evidence 11’.

 13   Qantas Airways Ltd v Christie (1998) 193 CLR 280, per Gaudron J at [34]; Hail Creek Coal Pty Ltd v CFMEU (2004) 143 IR 354

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