Mr Shane Denny v Fulton Hogan Industries Pty Ltd

[2015] FWC 2490

[2015] FWC 2490

FAIR WORK COMMISSION

DECISION

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

Mr Shane Denny
v
Fulton Hogan Industries Pty Ltd
(U2014/13141)

COMMISSIONER CARGILL SYDNEY, 15 APRIL 2015

Application for relief from unfair dismissal.

[1] This decision arises from an application by Mr S Denny (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Fulton Hogan Industries Pty Ltd (the respondent or the company). The applicant’s dismissal occurred on 19 September 2014 and his application for relief was lodged on 8 October 2014.

[2] The matter was heard by me in Newcastle on 24 March 2015. At the hearing the applicant was represented by Mr Gleeson, solicitor and the respondent by Mr Fagir of Counsel. Both representatives appeared by permission pursuant to section 596.

[3] The applicant gave evidence. His witness statement dated 18 December 2014 became Exhibit Applicant 1. His oral testimony is at PN 24-461 of Transcript.

[4] The following witnesses gave evidence on behalf of the respondent:

Mr D. O’Lachlan Employee of the respondent and former colleague of the applicant. His witness statement dated 17 March 2015 was marked Exhibit Respondent 1 and his oral testimony is at PN 500-624 of Transcript;

Mr M. Whitter Maintenance fitter employed by the respondent at its Rutherford depot and former colleague of the applicant. His witness statement dated 16 March 2015 was marked Exhibit Respondent 2 and his oral testimony is at PN 632-737 of Transcript;

Mr F. Dietrich Asphalt Supervisor responsible for the respondent’s Road Crews in the Newcastle area. His witness statement dated 13 March 2015 was marked Exhibit Respondent 3 and his oral testimony is at PN 742-809 of Transcript;

Mr L. Mascelle Northern Divisional Manager with the respondent. He has overall responsibility for the Newcastle facility. His witness statement dated 20 March 2015 was marked Exhibit Respondent 4 and his oral testimony is at PN 827-1059 of Transcript;

Mr D. Clements Newcastle Department Manager with the respondent and responsible for the day to day operation of the depot. His witness statement dated 13 March 2015 was marked Exhibit Respondent 5 and his oral testimony is at PN 1073-1161 of Transcript.

FACTS AND EVIDENCE

[5] The respondent operates a large civil infrastructure, civil construction and road maintenance business. The applicant commenced employment with the company in February 2013. He was initially engaged as a Quality Assessor and was later transferred to be a member of the Road Crew. He was based at the company’s depot at Rutherford near Newcastle.

[6] The applicant received a written warning on 25 October 2013, Attachment LM-2 to Exhibit Respondent 4. The warning was issued at Mr Mascelle’s instructions and noted that the applicant’s performance was “below satisfactory”. It identified four factors of concern: failure to attend for pre-planned Saturday work; failure to follow instructions near machines; failure to follow instructions for allocated tasks; and lack of enthusiasm.

[7] The applicant’s evidence is that he signed the warning letter as he had no option, but he did not agree with its contents. His evidence is that the issues raised in it had not previously been brought to his attention. He had been unable to attend work on the particular Saturday in question as he had been unwell.

[8] It is the applicant’s evidence that, other than two periods of carer’s leave, he had approximately nine days of sick leave during the period of his employment. His evidence is that he provided a medical certificate on all but one such occasion and initially denied that he ever took leave without pay. Under cross-examination the applicant conceded that he could not recall whether he had taken unpaid sick leave after the exhaustion of his paid entitlements.

[9] Mr Mascelle’s evidence is that the payroll records show that the applicant had taken 20 days of sick leave during the time of his employment, Attachment LM-1 to Exhibit Respondent 4. Some of this was unpaid as he had run out of paid leave. It is also Mr Mascelle’s evidence that the applicant had not been providing medical certificates as requested.

[10] It is Mr Mascelle’s evidence that the applicant did not present for work the day after attending a concert. His evidence is that this, the applicant’s pattern of absences, failure to properly notify such absences and poor performance caused him to instruct the applicant’s manager to issue a final written warning dated 5 December 2013, Attachment LM-3 to Exhibit Respondent 4. The warning notes that further failure to follow or meet performance standards could lead to dismissal.

[11] At some point in either March or May 2014 the applicant was working as part of a Road Crew laying asphalt on a road on the Central Coast. One of the other members of the crew, CC, threw a shovel full of the hot mix onto the applicant. It is the applicant’s evidence that this was done in an aggressive manner. Fortunately the applicant was not injured. The applicant’s evidence is that the other employees and the Foreman were shocked at CC’s actions. The Foreman reported the incident, the matter was investigated and CC was issued with a final warning letter.

[12] It is the applicant’s evidence that, following this incident, he was subject to repeated bullying from CC, on a daily basis. He says that this was often done in front of other employees including supervisors and was always unprovoked. The applicant’s evidence is that the incidents were humiliating and caused him stress and anxiety especially as supervisors and management turned a blind eye to the situation. The applicant’s evidence is that he raised these issues and Mr Mascelle knew about them. It is Mr Mascelle’s evidence that the applicant did not bring any such complaints to his attention.

[13] In August 2014, the applicant was assigned to a Road Crew undertaking a job at Muswellbrook which involved staying overnight at a motel. The applicant became aware that he was to share a room with CC. He complained about this to his supervisor and then to Mr Clements. His evidence is that he told Mr Clements that he was concerned for his safety. It is Mr Clements’ evidence that, although he was aware of the earlier difficulties between the applicant and CC, he thought these issues had been resolved.

[14] It is Mr Clements’ evidence that the motel was booked out so it was not possible to obtain another room for the applicant. He rejected the applicant’s suggestion that he could share a room with a female member of the crew. The evidence of Mr Mascelle is that he didn’t know if the applicant had raised an issue about his safety. He says that, if he had thought safety was a factor, he would have brought either the applicant or CC back to Rutherford.

[15] It is the evidence of the applicant that, during the course of the evening, CC became intoxicated, had the TV on too loudly and made threatening remarks to him. The applicant says that he could not sleep as he feared something would happen to him. The next day the applicant reported the events to his supervisor.

[16] Following the return of the crew to the depot Mr Clements separately interviewed the applicant and CC. His diary notes of the interviews are Attachment DC-1 to Exhibit Respondent 5. It is the evidence of Mr Clements that both employees blamed each other for initiating the events in the motel room. In addition to the applicant’s complaint about CC’s threatening behaviour, CC alleged that the applicant had repeatedly walked around the room only wearing a singlet. CC also complained about the volume at which the applicant had been watching a video on his phone. The applicant’s evidence is that he had to get dressed in the bedroom as the bathroom was too small.

[17] It is the evidence of Mr Mascelle that, after receiving Mr Clements’ report of his interviews with the applicant and CC he had serious concerns about the employment future of each of them as they were both on final warnings. He was aware that both had young families and wanted to give them another chance.

[18] Mr Mascelle’s evidence is that he sought the assistance of the Organiser of the union that had coverage of the work, The Australian Workers’ Union (AWU). His evidence is that he was not aware which employees were union members but noted that both the applicant and CC agreed to have the Organiser involved. As it transpired the applicant was not a union member at the time.

[19] On 25 August Mr Mascelle interviewed both the applicant and CC in the presence of the Organiser and Mr Clements. I gather these interviews were conducted separately although this is not entirely clear from the evidence. Mr Mascelle’s evidence is that he considered that the conduct of both employees in the motel room was inappropriate and issued each with a final written warning. The warnings are respectively Attachments LM-4 and LM-5 to Exhibit Respondent 4. The applicant’s warning is also Annexure A to Exhibit Applicant 1.

[20] The AWU Organiser then spoke to both employees. It is Mr Mascelle’s evidence that the employees were encouraged to shake hands and put the issue behind them. They shook hands. The applicant’s evidence is that he didn’t agree with receiving a warning and thought that it was unfair as he had done nothing wrong and was the one who had made the complaint.

[21] There followed an exchange of emails between the applicant and Mr Mascelle in which the applicant challenged his final warning. These emails are at Annexure B to Exhibit Applicant 1 and Attachment LM-6 to Exhibit Respondent 4. Ultimately a meeting was held on 5 September between Mr Mascelle, the applicant and the applicant’s partner. This meeting was recorded by the applicant’s partner without Mr Mascelle’s knowledge. Part of the recording was played during the hearing.

[22] There is some difference in the evidence of the applicant and Mr Mascelle as to whether the latter had agreed to withdraw the final warning letter of 25 August. The applicant says he did. Mr Mascelle says it was more a case of, even if we forget this one you have another final warning already.

[23] The applicant’s evidence is that things became worse for him after this meeting. He says that he was left off at least three Road Crews and had to work in the yard at the depot. He says he was the only employee treated in this manner. The applicant’s evidence is that he saw this as a form of punishment and bullying for reporting “repeated incidents” with CC.

[24] Mr Mascelle denies that the applicant was punished for complaining. He says there was inclement weather at the time, a major project had been completed, there was work to be done in the yard and there was an excess of employees. Mr Mascelle agreed that the applicant had asked to go out on a crew but says he was not the only one to do so.

[25] On 12 September Mr Whitter wrote the words “Arrange Pre-School Activities for Shane Denny” on a magnet and attached it to a whiteboard in the operations office, Attachment D to Exhibit Applicant 1. His evidence is that he and the applicant had a good relationship and used to play practical jokes on each other.

[26] On 15 September the applicant saw the words on the magnet. His evidence is that he was completely humiliated and upset by this as it confirmed in his mind that the bullying was coming from the top. He complained to Mr Mascelle who commenced an investigation. An email from the applicant to Mr Mascelle about the sign and his belief that he was being bullied is Annexure E to Exhibit Applicant 1. Mr Whitter came forward and informed Mr Mascelle that he was responsible for the sign and had done it as a joke. Mr Whitter then informed the applicant.

[27] Also on 15 September the applicant complained about graffiti sprayed in the yard which read “T-Spoon Naughty Corner”, Annexure F to Exhibit Applicant 1. The applicant’s nickname is T-Spoon. The applicant’s evidence is that he was humiliated by the graffiti. He showed the graffiti to Mr Whitter whose evidence is that the applicant seemed a bit shocked and worked up about it. Mr Whitter says that there was a strong smell of paint and he thought the graffiti was fresh.

[28] It is the evidence of Mr Mascelle and Mr Clements that, also on 15 September, a bobcat was damaged by water being put into the exhaust. Mr Clements spoke to the yard employees about this. One of these employees was the applicant. The applicant’s evidence is that Mr Clements spoke to him in an aggressive and intimidating manner and he felt humiliated. He thought this was a further incident of bullying by the company.

[29] Mr Clements denies that he was aggressive or intimidating towards the applicant. He also denies that he spoke to the applicant in front of any other employees. No action was taken against anyone over this incident.

[30] On 17 September the applicant’s solicitor sent a letter to Mr Mascelle. The letter is not in evidence however the applicant says that he wanted to resolve issues between himself and the company. Mr Mascelle’s evidence is that when he received the letter he sent it on to the Human Resources Department (HR) for advice. He denies that the applicant was subject to any mistreatment because of this correspondence. Mr Mascelle notes that the letter was not received until after he became aware of the matter of the applicant leaving early.

[31] This leads to the next, and final, issue which concerns the applicant leaving work before the scheduled finishing time. There is possibly confusion in some of the dates, that is, whether it was 15 and 16 September or 16 and 17 September or indeed all three occasions. Ultimately nothing turns on the dates. The question is whether such a practice was permitted, and if it was, whether the applicant had in fact worked through his lunch breaks so as to have such an “entitlement”.

[32] It is the applicant’s evidence that, on his first day of employment at Rutherford, Mr Dietrich informed him that, if he worked through his lunch break, he could leave at 2pm when he had completed eight hours work. It is also his evidence that he observed other employees working through their lunch break and leaving at 2pm.

[33] Mr Dietrich’s evidence is that he did not meet the applicant until approximately two weeks after the commencement of the applicant’s employment. He denies ever telling the applicant, or any other employee, that it was acceptable to work through the lunch break and go home early. Mr Dietrich also denies that a lot of other employees did this.

[34] Mr Dietrich’s evidence is that, on occasion, an entire crew works through the lunch break in order to complete a job. In that situation they are paid overtime rates for the extra 30 minutes but don’t go home early. Individuals don’t work through the lunch break.

[35] It is Mr O’Lachlan’s evidence that on 9 September he and the applicant were delivering pamphlets on behalf of the company notifying residents of upcoming road works. He says that they finished early and both left work without seeking permission. Mr O’Lachlan denied that there was a practice within the business that employees could work through their lunch breaks and then leave early. However, during cross-examination he agreed with the proposition that, if he had not had lunch, his “knock-off” time was half an hour earlier than usual.

[36] It is Mr Clements’ evidence that he saw the applicant leaving early one day around this time. He challenged the applicant who told him that he had not had his lunch break. Mr Clements gave the applicant permission to leave early because there was not much work on that day.

[37] The applicant’s evidence is that he worked through his lunch break on both 15 and 16 September. He took his lunch home and his partner ate it. Mr Whitter’s evidence is that on 16 September the applicant told him that he intended to leave early that day. His evidence is that he observed the applicant having two breaks that day, one in the lunch room and one in the shed.

[38] Mr Whitter’s evidence is that, around lunch time on that day, he saw the applicant sitting down in the lunchroom with his lunch bag next to him. He is unclear as to whether the applicant was eating or drinking anything at the time. Mr Whitter noted that there is a water fountain in the workshop so there is no need to go to the lunchroom to rehydrate. His evidence is that the applicant had been absent from the work area for some time. Mr Whitter says that the applicant also had a later break of about 30 minutes during which he was talking on his mobile phone while in the asphalt shed.

[39] It is Mr Whitter’s evidence that it is not the normal practice to work through lunch breaks and leave early. He says that in special circumstances an employee can seek prior permission to leave early.

[40] On 17 September the applicant and Mr O’Lachlan were again delivering pamphlets at Wyong. Mr O’Lachlan’s evidence is that he had some issues with the applicant’s approach to his work that day. These included sleeping in the car, not doing his share of the driving and not delivering his share of the pamphlets. The applicant denies the first and third complaints and his evidence is that he thought that, as Mr O’Lachlan had done the pre-start checks on the car, he had to do all the driving.

[41] When they returned to the Rutherford depot it was around 2pm. Both the applicant and Mr O’Lachlan went home. They did not inform anyone that they were leaving.

[42] It is the evidence of Mr Clements that he again spoke to the applicant about leaving the worksite early. The date of this encounter is unclear as there is an inconsistency between paragraph 16 of Exhibit Respondent 5 and the relevant diary note which is Attachment DC-2 to the exhibit. From the context, it appears that the discussion took place on 17 September. In any event Mr Clements told the applicant that he shouldn’t leave early.

[43] Mr Clements’ evidence is that, if an employee works through their lunch break, they receive an overtime payment rather than leave early. He says that normally employees only leave early if wet weather interrupts production and there is nothing else to do at the depot.

[44] The applicant did not attend work on 18 September. Mr Mascelle sent him an email asking him to attend a meeting the following day. In response to the applicant’s request, Mr Mascelle informed him that the meeting concerned the applicant’s absence on 15 and 16 September and his performance on the job at Wyong.

[45] The meeting on 19 September was attended by the applicant, Mr Mascelle and another senior manager who was in Newcastle that day. It is the applicant’s evidence that he wanted to have a representative with him but was told that the meeting couldn’t be postponed. He asked permission to record the meeting and Mr Mascelle agreed. Mr Marscelle’s evidence is that the applicant did not ask to have a representative present at this meeting.

[46] The applicant’s evidence is that when he entered the meeting he saw a letter in an envelope on the desk. In his statement he says that there was a brief discussion after which Mr Mascelle gave him the envelope which contained a letter of dismissal. He also says he was not given the opportunity to explain anything. In cross-examination the applicant agreed that the discussion took 20 to 30 minutes and was followed by a break. When he returned, the envelope was missing from the desk and he was given the letter of dismissal.

[47] Mr Mascelle’s evidence is that during their discussion he asked the applicant to explain why he had left the site early and about the issues which had been raised by Mr O’Lachlan about the applicant’s behaviour at Wyong on 17 September. Mr Mascelle then stopped the meeting in order to get advice from HR. Mr Mascelle’s evidence is that it was his view that the applicant’s conduct and performance was getting worse and that he was either unwilling or unable to improve. Mr Mascelle’s evidence is that leaving work early without permission is against company policy and procedure. He decided to dismiss the applicant.

[48] It is Mr Mascelle’s evidence that it was at that point that he had the termination letter typed. He denies that he had it on the desk at the start of the meeting. The meeting then reconvened, the applicant was informed that he was being dismissed for breach of company procedure in leaving early without permission.

[49] The letter of dismissal is Annexure G to Exhibit Applicant 1. It informs the applicant that the company considered his actions in leaving the workplace without permission to be misconduct. It notes that the applicant’s explanation that he had not had lunch and had worked his full shift was not supported by other evidence. The applicant was informed that this conduct plus his previous warnings justified the termination of his employment as of that date.

[50] Also on 19 September Mr O’Lachlan received a warning letter for leaving early without permission, Attachment DO-1 to Exhibit Respondent 1. Mr O’Lachlan’s evidence is that he later heard that the applicant had been sacked but didn’t know why.

[51] On 13 March 2015 the applicant sent Mr O’Lachlan a message via Facebook. Among other things the message reads: “You cost me my job you low life c...” “Every dog has there day” (sic), Attachment DO-2 to Exhibit Respondent 1. The applicant acknowledged that sending the message was a stupid thing to do. He says that he was rather intoxicated at the time and hadn’t taken his medication. He denied the message was intended to be a threat. The applicant initially said that the message was sent in response to Mr O’Lachlan’s statement but during cross-examination agreed that he had not received the statement at that time.

[52] The applicant had some health issues in the period following his dismissal. Material on the file indicates that he was hospitalised on 9 November 2014, discharged the next day, readmitted on 22 December and discharged on 8 January 2015.

[53] The applicant’s evidence is that he is registered with employment agencies and, as at the date of the hearing, had also personally applied for four positions.

SUBMISSIONS ON BEHALF OF THE APPLICANT

[54] A written outline of submissions was provided prior to the hearing. Mr Gleeson also made oral submissions.

[55] Mr Gleeson submitted that there was no valid reason for the applicant’s dismissal. He noted that the termination letter refers to the applicant’s absence from work without authority. Mr Gleeson submitted that the evidence demonstrated that there was a practice at the worksite that, if an employee worked through their lunch break, they were entitled to leave half an hour early.

[56] Mr Gleeson submitted that the applicant was authorised to leave early on the basis of this practice which was known to management. He submitted that, on the relevant dates, the applicant was with Mr O’Lachlan who also left before his appointed time. Mr Gleeson noted that Mr O’Lachlan had agreed there was a practice which permitted him to do this.

[57] It is noted that the dismissal letter refers to the applicant’s explanation for leaving early being in contrast to other evidence. It is submitted that this other evidence had not been provided to the applicant, nor had he been given an opportunity to respond to it.

[58] Mr Gleeson submitted that the other issue relied on in the letter of dismissal concerned the allegations about the applicant’s behaviour at Wyong on 17 September. He submitted that the evidence of Mr O’Lachlan suggested that these allegations should have been investigated further and the applicant given a proper opportunity to respond to them.

[59] Mr Gleeson submitted that the real reason for the applicant’s dismissal was the fact that he had made complaints. There was a pattern of conduct by the respondent’s managers of punishing the applicant for complaining.

[60] Mr Gleeson noted that, despite CC receiving a warning for his conduct concerning the hot mix, the company failed to resolve the ongoing bullying behaviour towards the applicant. He noted that the applicant had dealt with some of this without complaint but was then faced with having to share a room with CC. Mr Gleeson submitted that the applicant was fearful about this situation and raised it with his manager but nothing was done about it.

[61] Mr Gleeson noted that the investigation into the applicant’s complaint about what took place that night resulted in the applicant himself receiving a warning. Mr Gleeson submitted this was an example of further bullying by the company. This was exacerbated when the applicant took steps to have his warning revoked. He was punished by being placed on yard duties which reduced his income because there was less opportunity for overtime.

[62] Mr Gleeson suggested that the bobcat was not damaged at all. He noted that the respondent had not produced any evidence about such damage.

[63] Mr Gleeson submitted that the applicant had come to the realisation that some form of resolution should occur and had instructed him to send the letter of 17 September. The applicant had not been spoken to about the letter but was dismissed within two days of its receipt by the company.

[64] It is submitted that there had been no consideration given to the applicant’s explanation in relation to the allegations put to him in the final meeting. The dismissal letter had been prepared prior to the meeting.

[65] Mr Gleeson noted that, although the applicant had received warnings for excessive days off, these had been quite some time prior to the events in August and September 2014. There had been no further complaints about this issue or about the applicant’s performance.

[66] Mr Gleeson submitted that the applicant’s dismissal was unfair.

[67] Mr Gleeson submitted that, had the applicant’s complaints been dealt with in an appropriate manner, there was no reason that he would not have continued working for the company for some time to come. He noted that, other than the periods during which the applicant had been hospitalised, he had continued to look for work but had been unsuccessful in those endeavours.

[68] The applicant does not seek reinstatement. It is submitted that, in the circumstances, this would not be appropriate.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

[69] A written outline of submissions was provided prior to the hearing. Mr Fagir also made oral submissions.

[70] Mr Fagir submitted that the applicant had a very unsatisfactory work history which included several warning letters. He submitted that the applicant had taken a substantial amount of unpaid leave which supported the indications in the first two warnings that the applicant had an attendance problem.

[71] Mr Fagir submitted that the evidence also showed that the applicant had difficulties getting on with his fellow workers and some problems with his work ethic. Mr Fagir submitted that the company had taken a commonsense approach to the issue of the incidents in the motel.

[72] Mr Fagir submitted that there was a threshold question as to the relevance of the applicant’s allegations that he was subject to ongoing bullying. He submitted that, in any event, other than the hot mix and motel incidents, the applicant had not identified specific instances of such behaviour nor had he produced any evidence that he had brought it to the attention of his managers.

[73] Mr Fagir noted that the evidence of the applicant himself is that other employees and the supervisor were shocked about the hot mix incident and that it was the supervisor who had reported it. Mr Fagir submitted that this was not consistent with the applicant’s suggestion that he was systematically bullied with the connivance of supervisors and managers.

[74] Mr Fagir submitted that the main issue is whether there was a practice of leaving early of the kind alleged by the applicant. He submitted that it was inherently unlikely that a sensible employer would allow any such practice both for reasons of safety as well as the practical issue of ascertaining whether an employee had actually worked through their lunch break.

[75] Mr Fagir submitted that, in any event, the evidence of the respondent’s witnesses contradicted that of the applicant on this issue. He submitted that, in order to accept the applicant’s evidence, it would be necessary to find that all five witnesses for the respondent had given misleading evidence. Mr Fagir submitted that Mr O’Lachlan’s concession on this point was limited.

[76] Mr Fagir submitted that, even if it is accepted that such a practice existed, Mr Whitter was clear that the applicant took his lunch break on one of the days in question.

[77] Mr Fagir submitted that acceptance of either or both of these propositions amounted to a valid reason for dismissal especially in light of the applicant’s lack of candour. He submitted that the applicant’s credit as a witness was poor as evidenced by his assertion in his witness statement that he did not know who had put the message on the whiteboard as well as his testimony that he had sent the Facebook message to Mr O’Lachlan because he was shocked about the contents of his statement.

[78] Mr Fagir submitted that, in contrast, the respondent’s witnesses gave clear and straight forward evidence which should be accepted. He noted that two of these witnesses were rank and file employees and that Mr Whitter had a good relationship with the applicant and no reason to denigrate him.

[79] Mr Fagir rejected the suggestion that the damage to the bobcat had been invented. He submitted that the fact no action was taken against anyone about the incident was evidence of the company’s bona fides. Mr Fagir submitted that the applicant was not being punished by being kept on yard duties. There were operational reasons for this.

[80] Mr Fagir noted that there was no support for the applicant’s evidence that he had told the company that he had safety concerns over sharing a room with CC.

[81] It is submitted that the applicant had been notified of the reasons for his dismissal and given an opportunity to respond. The applicant’s dismissal was not unfair. It is submitted that, if a contrary conclusion is reached, any award of compensation should be at the lowest end of the scale. The applicant’s employment would have been unlikely to have continued for much longer in light of his history, his period of employment was short, there was scant evidence of his attempts to mitigate his loss and his conduct contributed to his dismissal.

CONCLUSIONS

[82] Section 396 of the Act sets out four matters which must be decided in applications of this type before the merits of a claim are considered. Those matters are:

“(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.”

[83] As will have been apparent from paragraph 1 of this decision the application was made within the period required in subsection 394(2). There is no dispute that the applicant is a person protected from unfair dismissal. Paragraphs (c) and (d) of section 396 have no relevance in the present matter.

[84] Section 385 provides that a person has been unfairly dismissed if the FWC is satisfied that:

“(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.”

[85] Paragraph (a) is clearly met in relation to the applicant. Paragraphs (c) and (d) have no relevance. Consequently it is to paragraph (b) that my attention must be directed. In considering whether the dismissal of the applicant was harsh, unjust or unreasonable it is relevant to refer to the comments of McHugh and Gummow JJ in Byrne & Frew v Australian Airlines Pty Ltd (1995) 61 IR 32 @ 72:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[86] It is necessary to turn to section 387 which sets out the factors which must be taken into account by the FWC in deciding whether a dismissal is harsh, unjust or unreasonable. Those factors are as follows:

“(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 FWC considers relevant.”

[87] The first matter which must be taken into account is whether there was a valid reason for the dismissal. The meaning of valid reason has been the subject of much consideration by the Courts as well as by this Commission and its predecessors. There seems to be general acceptance of the often quoted words of Northrop J in Selvachandran v Peteron Plastics Ltd (1995) 62 IR 371 @373:

“In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ...”.

[88] The reasons relied on for the termination in this matter relate to the alleged misconduct of the applicant. In this regard I have to determine for myself whether the misconduct, or any part of it that is contested, took place and, if so, whether it amounted to a valid reason for the dismissal: King v Freshmore (Vic) Pty Ltd [Print S4213].

[89] The misconduct which is alleged here is that the applicant was absent from the workplace on 15 and 16 September 2014 without authority. The applicant agrees that he left early on each of these dates but says that he was authorised to do so because of the practice that allowed employees to leave early if they had worked through their lunch break.

[90] As outlined in paragraph 35 above, Mr O’Lachlan initially denied such a practice existed but then agreed that if he hadn’t had lunch, his departure time was half an hour earlier than usual. Although this provides some support for the applicant’s position, it does not establish that there was a practice to this effect. I note that Mr O’Lachlan received a warning for leaving early which he appears to have accepted as being justified. If there was a practice as suggested by the applicant it would have been more probable than not that Mr O’Lachlan would have raised it as a defence.

[91] The four remaining respondent witnesses were firm in their evidence that no such practice existed. Whilst it might be said that the three managers, Mr Mascelle, Mr Clements and Mr Dietrich, had a vested interested in giving such evidence, Mr Whitter did not. Mr Whitter impressed me as an honest witness who gave his evidence in a clear and straightforward manner. He had a good relationship with the applicant and had no need to invent evidence to show the applicant in a poor light.

[92] I am satisfied on the basis of this evidence that there was no practice as suggested by the applicant and that, as a consequence, he was absent from the workplace without authority. Further, I accept Mr Whitter’s evidence that, on 16 September, the applicant took a break in the lunch room at around lunch time. It does not matter if the applicant was eating or drinking at the time, the point is whether he had a break. I am satisfied that he did. It follows that, even if the practice described by the applicant did exist, on 16 September at least, he had not worked his full shift in any event.

[93] I consider that the applicant’s conduct amounts to a valid reason for his dismissal. I now turn to what might be termed the “procedural fairness” factors in section 387, paragraphs (b), (c), and (d).

[94] I am satisfied that the applicant was notified of the reasons for his dismissal and provided with an opportunity to respond to them at the meeting on 19 September. I note that, although the applicant had been informed that his performance at Wyong was to be, and apparently was, discussed at the meeting, the respondent did not rely on that as a basis for the dismissal.

[95] It is not clear whether the reference in the dismissal letter to the applicant’s explanation being “in contrast to other evidence we have” is intended to relate to Mr Whitter or Mr O’Lachlan or both. Whilst it appears the applicant was not given all the details during the dismissal meeting I do not consider this led to any fairness. The applicant’s evidence is that he didn’t eat his lunch and, inferentially, he didn’t have his break. I have found to the contrary on the basis of Mr Whitter’s evidence.

[96] There is a conflict in the evidence between the applicant and Mr Mascelle as to whether the applicant asked to have a support person at the meeting of 19 September. I consider that the applicant has not been entirely frank in aspects of his evidence such as his knowledge that Mr Whitter had placed the sign on the whiteboard and his suggestion that he sent the Facebook message to Mr O’Lachlan in response to Mr O’Lachlan’s statement. In the circumstances I prefer the evidence of Mr Mascelle to that of the applicant. It follows that I find there was no unreasonable refusal to allow the applicant to have a support person at the meeting.

[97] The dismissal did not relate to unsatisfactory performance however I note that the applicant had received two warnings which had related to performance.

[98] As mentioned earlier in this decision the respondent is a large employer. It has a Human Resources Department. I note these factors.

[99] There are several matters which I consider are of relevance under paragraph (h). The first is the question of whether the real reason for the dismissal was related to the applicant’s complaints. Although the applicant did not personally complain about CC’s actions in relation to the hot mix, the issue was quite justifiably raised with management and dealt with. Perhaps CC was lucky to have received a warning and not lose his job over the incident, however the point is that the matter was handled and the perpetrator disciplined.

[100] I appreciate that the applicant was not happy with the outcome of the investigation into his complaint about the motel incident, however Mr Mascelle was in a difficult position where both employees accused each other of inappropriate behaviour. I do not consider that issuing warnings to both employees amounted to bullying of the applicant. I note that, although it was unfortunate that the applicant and CC were placed in the same room at the motel, there is no evidence that this was done with malice or to cause harm.

[101] There is no evidence other than the applicant’s statements that he had made any other complaints about CC’s treatment of him. Mr Mascelle expressly denied that any such issues had been raised with him. Given that the company dealt with the hot mix and motel incidents there is nothing to suggest that, if other complaints had been made, they would not have been dealt with. I also refer to my comments in paragraph 96 above as to my preference for the evidence of Mr Mascelle where it conflicts with that of the applicant.

[102] The second matter of relevance is that Mr O’Lachlan received a warning for leaving early whereas the applicant was dismissed. In some circumstances this might be considered to be differential treatment. In this case however there was no evidence that Mr O’Lachlan had received any previous warnings, whereas the applicant had received three. Even if the warning about the motel incident is discounted, the applicant was still on a final warning in which he was put on notice that further issues could lead to his dismissal.

[103] The third matter of relevance is the applicant’s health issues which he says were exacerbated by the dismissal. I also note that the applicant has a young child and has not been employed since his dismissal.

[104] In all of the circumstances of the case and having taken account of each of the factors in section 387 and my findings thereon I have determined that the dismissal of the applicant was not harsh, unjust or unreasonable. It follows from this determination that the dismissal was not unfair. The application for relief is dismissed.

[105] It should be noted that, in deciding this matter, I have given consideration to the need to ensure that a “fair go all round” has been accorded to each of the parties as provided in section 381(2) of the Act.

COMMISSIONER

Appearances:

A. Gleeson, solicitor for the applicant

O. Fagir of Counsel, with G. Selig agent, on behalf of the respondent

Hearing details:

Newcastle.

March, 24

Printed by authority of the Commonwealth Government Printer

<Price code C, PR562967>