Mr Shannon Raymond Thomas Walsh v Fortis Products Pty Ltd T/A Colorguard

[2019] FWC 4770

[2019] FWC 4770

FAIR WORK COMMISSION

DECISION

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

Mr Shannon Raymond Thomas Walsh
v
Fortis Products Pty Ltd T/A Colorguard
(U2019/2158)

DEPUTY PRESIDENT CROSS SYDNEY, 8 AUGUST 2019

Application for an unfair dismissal remedy – dismissal consistent with Small Business Fair Dismissal Code – harsh, unjust or unreasonable – compensation as remedy

BACKGROUND

[1] An application was filed on 28 February, 2019 by Mr Shannon Walsh (the “Applicant”) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the “Act”). Mr Walsh seeks an unfair dismissal remedy following his dismissal by Fortis Products Pty Ltd T/A Colorguard Steel on 28 February, 2019.

[2] The Applicant commenced employment with the Respondent on 9 August, 2017. The Applicant asserted that he had been dismissed on 28 February, 2019, in person, by Mr Cross, the Operations Supervisor of the Respondent, on the basis that he had refused to work an additional two (2) hours of overtime following a ten (10) hour shift the day prior to his dismissal taking effect. This claim was disputed by the Respondent.

[3] In the Respondent’s Form F3 Employer Response Form, Mr Cross raised an objection to the matter being determined by the Fair Work Commission (the “Commission”) on the basis that the Applicant’s dismissal was consistent with the Small Business Fair Dismissal Code (the “Code”) as the Respondent was a small business enterprise.

[4] The Application was listed for conciliation but did not settle at that conciliation, and the matter was then allocated to me for hearing and determination. I issued Directions from my Chambers on 8 May, 2019 to the parties prescribing a timetable for the filing of Outline of Submissions directing both the Applicant and the Respondent to address the Application and the Respondent’s jurisdictional objection, together with any witness statements and other documentary material upon which each party intended to rely. The Directions also indicated that the matter would be listed for Hearing in Newcastle in due course.

[5] The Directions were varied on 7 June, 2019, to allow an additional time for the parties to file their outline of Submissions together with any supporting materials.

[6] In accordance with my Directions, the following material were filed:

(a) The Applicant filed a copy of his Statement dated 27 May, 2019, along with a copy of his Separation Certificate, and an email from the Respondent to his brother, Mr Brendan Walsh, dated 13 March, 2019.

(b) The Respondent filed three (3) witness statements from Mr Efren Atienza, Mr Peter Cross and Mr Ljamo Ivanov, all dated 17 June, 2019.

THE EVIDENCE

[7] Other than in relation to the events of 27 and 28 February, 2019, there existed no significant disputes in relation to the relevant facts to be considered. In particular:

(a) The Applicant and Respondent agreed that the Respondent had less than fifteen (15) employees and so was a small business as defined at s.23 of the Act.

(b) The Applicant commenced employment on 7 August, 2017.

(c) The work at the Respondent involved the pressing and painting of metal or aluminium in a relatively continuous process. The continuous nature of the work can make it such that the production line cannot be stopped mid run. The work environment is noisy. The process involves up to 15 tonnes of metal or aluminium per day, travelling at 40 to 50 metres a minute along the line, and the application of up to twelve paint colours.

(d) “A couple of weeks prior” to ceasing employment, the Applicant received a written warning regarding absenteeism. The Applicant attributed his absenteeism to depression and an anxiety disorder which has become progressively worse over the last six (6) months, but Mr Cross noted there had been numerous instances of absenteeism.

(e) The Applicant was paid two weeks wages in lieu of notice and was provided with a copy of his payslip shortly thereafter. The Applicant obtained alternative employment approximately four (4) weeks after the dismissal.

[8] As to the events of 27 and 28 February, 2019, only the Applicant and Mr Cross provided evidence. In particular:

(a) In his statement, the Applicant recorded:

“On 27 February 2019, I had commenced work at 7.00am and scheduled to finish work at 5.00pm.

Mr Cross made the decision that we were going to continue to work for another 2 hours. Mr Cross did not provide any prior notice of additional work hours.

I felt it was unsafe for me to work an additional two hours, given we have no scheduled breaks in the workplace and we were already due to work a total of 10 hours.

I felt a 12 hour work day was unreasonable without prior notice and would have a negative impact on my safety and wellbeing.

I attempted to raise this concern with Mr Cross.

When I approached Mr Cross on 27 February 2019 I said “Peter can I talk to you about the extra hours”

Mr Cross did not respond and walked off. I followed him repeating I wished to talk to him.

Mr Cross said “Shannon you are dismissed.”

I took this to mean I was dismissed for the day. My Cross did not at any time say he meant I was dismissed from my employment with Fortis.

On Thursday 28 February 2019, Mr Peter Cross demanded I leave the work place.

Mr Cross said “Shannon. Leave and do not come back, you are fired.”

I asked “why am I fired?”

Mr Cross said “Your separation certificate will be sent to you”

Mr Cross further said “there is nothing you can do about because I am a small business and don’t have any laws to follow”.

(b) Mr Cross, in his statement, recorded:

“On the 27th of February 2019, we needed extra hours to finish the run; this was advised to all of the employees towards the end of the shift.

Shannon approached me complaining that he did not agree to work for more than 10 hours on the day. I gave him the opportunity to leave and go home as he appeared agitated; I feared that he might hurt himself or contribute to accidents on the paint line.

It is continuous operation so I cannot have delays at any point. Shannon continued to follow me and argue around the paint line.

I feared that he was going to take my focus off of the safety and operations in the workplace, so I had no other option but to dismiss him and ask him to leave the premises. I had made this decision to protect Shannon, and all other employees of the company.”

(c) In oral evidence before the Commission, Mr Cross stated that:

(i) After he gave the Applicant an opportunity to leave and go home the Applicant continued to follow him around the workshop floor. Mr Cross had no problem with the Applicant, or any other employee, not working more than ten hours a day;

(ii) When being followed, Mr Cross said “go home” twice to the Applicant, but the Applicant kept following him;

(iii) Mr Cross then said to the Applicant “You’re finished. Leave the premises”;

(iv) If the Applicant had left when asked to “go home”, and then returned in the morning, he would still have a job; and

(v) The reason why, on the morning of 28 February, 2018, the response was in the negative to the query from the Applicant of “Am I employed”, was that Mr Cross does “not go back on what [he] says”.

CONSIDERATION

[9] I accept the evidence of Mr Cross that he did not have any concerns with the Applicant leaving work on the 27 February, 2019. It is curious that the Applicant thereafter followed Mr Cross around the workshop floor, however his concerns may have arisen from his written warning some weeks earlier.

[10] It is clear that Mr Cross shortly thereafter terminated the Applicant’s employment by saying “You’re finished. Leave the premises”. I find, however, that the reason for that termination was the, seemingly quite understandable, frustration felt by Mr Cross at being followed by the Applicant while Mr Cross was trying to attend to the continuous processes on the production line, and the Applicant refusing the instruction to “go home”.

[11] While Mr Cross has stated that hefeared that the Applicant was going to “take my focus off the safety and operations in the workplace”, and the decision to terminate the Applicant was taken to protect the Applicant, and all other employees of the company, that assertion is somewhat of an exaggeration. The production line was running and no major events in production were imminent. Clearly the production line could not be stopped to deal with the Applicant, but similarly the Applicant could be dealt with while that line operated.

(a) The Small Business Fair Dismissal Code

[12] The Small Business Fair Dismissal Code provides:

“Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to the Fair Work Commission, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[13] The parties agreed that the Code applied to the Respondent as it had with fewer than fifteen employees at the time of the dismissal. While two (2) weeks pay in lieu of notice was paid, and there had been a previous written warning for poor performance, the circumstances of the dismissal are such that the Applicant’s dismissal would fall under the Summary Dismissal limb of the Code, therefore requiring a “serious misconduct” to have occurred.

[14] The Applicant was dismissed because he posed a threat to the company’s safety procedures, and he was dismissed without notice. That threat, however, could never be appropriately characterised as a serious breach of occupational health and safety procedures, and I do not consider that Mr Cross believed it to be such on reasonable grounds.

[15] The Applicant was no more than a bother to ordinary work. I therefore find that the Respondent has not complied with the Small Business Fair Dismissal Code, and so will proceed to determine whether the dismissal was harsh, unjust or unreasonable according to the factors set out in s.387 of the Act.

(b) Section 387 of the Act

[16] Section 387 of the Act sets out each of the matters the Commission is required to take into account when determining whether the dismissal was unfair. Section 387 provides:

“Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”

[17] I address each of the above considerations below.
(i) Valid Reason
[18] I have found above that the following conduct occurred. The Applicant appeared to be in an agitated state and continued to follow Mr Cross around the worksite. Mr Cross twice asked the Applicant to “go home”. The Applicant had been told he was not required to work any more on the day. The Applicant did not comply with that instruction.

[19] The instruction to “go home” was a lawful and reasonable direction from the Respondent. The continued attendance at the workplace was a distraction that could have had an impact on safety. The failure to comply with that direction, however, was short lived and isolated, and so did not constitute misconduct as defined at Fair Work Regulation 1.07.

[20] Failure to comply with the instruction to “go home” was not a valid reason for the summary termination of the Applicant’s employment.

(ii) Notification of Reason/Opportunity to Respond

[21] The Applicant was at the most only inferentially notified of the reason for dismissal by the temporal proximity of the instruction to “go home” to being told “You’re finished. Leave the premises.” He was given not opportunity to respond, and even when he attended the following day his employment was not continued because Mr Cross does “not go back on what [he] says”.

(iii) Any Unreasonable Refusal to Allow a Support Person

[22] I note that due to the haste in the termination, the Applicant did not have a support person present, nor was there an unreasonable refusal by the Respondent to allow the Applicant to have a support person present.
(iv) Whether the Person had been Warned About Unsatisfactory Performance
[23] While the Applicant had previously received a written warning for his absenteeism, the Applicant did not receive any warnings in respect to breaches of safety by the Respondent.
(v) Size of the Employers Enterprise/Absence of Human Resource Management
[24] Noting that the Respondent had employed fourteen employees (including the Applicant) at the time of the Applicant’s dismissal, I am satisfied that the clear absence of any dedicated human resource management and expertise, and its limited capacity to afford such expertise, was likely to carry a significant impact on the procedures by which the Respondent carried out the Applicant’s dismissal.

(vi) Any Other Matters Relevant

[25] No other matters were submitted to be relevant and I have not considered any other matters as relevant.

CONCLUSION

[26] Having considered each of the matters specified in s. 387, I find that the Applicant’s dismissal to be unfair, unjust and unreasonable.

REMEDY

[27] I now then turn to determine the appropriate remedy to be granted to the Applicant.

[28] Section 390(3) of the Act provides the following:

“(3)  The FWC must not order the payment of compensation to the person unless:

(a)  the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[29] Having consideration of all of the material before me and the evidence presented at the Hearing, I am satisfied that reinstatement would not be appropriate in this case as the Applicant has sourced other employment following his dismissal, and any reinstatement would adversely affect the already strained relationship between the Applicant and the Respondent. For these reasons, I am satisfied that compensation is the appropriate remedy.

[30] Section 392(2) of the Act outlines the manner in which compensation is to be assessed. It provides the following:

“(2)  In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's enterprise; and

(b) the length of the person's service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.”

[31] I considerthat it is appropriate in this matter to make an order for compensation. In determining the amount of compensation, I have:

(a) Given no weight to the effect of an order on the viability of the Respondent’s enterprise as they have presented no evidence or argument in relation to that consideration;

(b) Noted that the duration of the employment was approximately 18 months but have made no reduction to the amount of compensation on the basis of that relatively short period of service;

(c) Contrary to the Applicant’s submission that sixteen weeks compensation (less mitigation) was appropriate, estimated that the Applicant would only have remained in employment for a further four weeks as he was the subject of a recent written warning regarding absenteeism, and his agitation on the 27^th of February, 2019, seemed to be somehow part of his ongoing problems regarding attendance. I note that the Applicant received two weeks pay in lieu of notice;

(d) Made no deduction for contingencies as the anticipated period of a further four weeks employment has already expired;

(e) Noted that the Applicant mitigated his loss by commencing new employment as a groundsman at the University campus four weeks after dismissal; and

(f) Made no reduction for alleged misconduct.

[32] In the circumstances, I consider an amount of two (2) weeks ordinary pay (not including overtime) to be the appropriate order as to compensation.

CONCLUSION

[33] The termination of the Applicant was harsh unjust or unreasonable.

[34] Taking into account all the circumstances, an order of two (2) weeks ordinary pay (not including overtime) to be the appropriate order as to compensation.

DEPUTY PRESIDENT

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