Mr Ty Clarrence Jaques v The McCarroll Motor Group T/A McCarroll

[2014] FWC 5793

[2014] FWC 5793

FAIR WORK COMMISSION

DECISION

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

Mr Ty Clarrence Jaques
v
The McCarroll Motor Group T/A McCarroll
(U2014/4676)

COMMISSIONER CAMBRIDGE SYDNEY, 22 AUGUST 2014

Unfair dismissal - employment established upon inaccurate representations made by employee - employer mislead as to level of formal qualification held by employee - discovery of true position of employee’s absence of qualification - loss of trust and confidence in employee - incapacity to perform inherent requirements of position - 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 Sydney on 14 February 2014. The application was made by Ty Clarrence Jaques(the applicant) and the respondent employer is McCarroll’s of Moss Vale Pty Ltd (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 24 January 2014. 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 at Newcastle on 17 June 2014.

[4] At the Hearing, the applicant was unrepresented and he was the only witness called to provide evidence in support of the claim. The employer was represented by Ms A Soliven, from the Motor Traders’ Association of New South Wales (MTA). Ms Soliven called two witnesses who provided evidence on behalf of the employer.

Factual Background

[5] The applicant had worked for the employer for about 8 months. The applicant was employed in a position described as a Technician. The applicant worked at the employer’s Newcastle Service Department, performing a range of what may be described as motor mechanic duties. The applicant did not hold a trade qualification as a motor mechanic.

[6] The employer conducts a retail motor vehicle sales and service business and trades under the name of McCarroll Automotive Group.

[7] During a pre-employment interview held in April 2013, the applicant advised the employer that he did not hold a formal trade qualification. However, he told the employer that he had substantially completed his relevant training such that he had about six training modules to complete in order to obtain his trade qualification. The applicant subsequently commenced employment on 13 May 2013.

[8] The applicant’s employment progressed without any identified problem or incident until December 2013. In early December 2013, the applicant initiated discussions with the employer regarding a number of workplace issues including the prospect of a wage increase following the completion of his first six months of employment. During these discussions the employer inquired about the completion of the six outstanding modules which would enable the applicant to be formally trade qualified.

[9] The employer had anticipated that the applicant was undertaking the necessary training with the local Technical and Further Education (TAFE) College and assumed that the applicant may have completed the six outstanding modules and either held or be about to obtain his trade certificate. The employer was surprised to discover that the applicant had not completed any of the six outstanding modules and that, in fact, there were apparently nine modules that required completion before the applicant could attain his trade qualification.

[10] The employer was very concerned about the discovery that the applicant was much further away from being trade qualified than it had anticipated. The employer immediately advised the applicant that it could not continue his employment in the absence of a trade qualification. At the time the applicant took this advice to represent his summary dismissal.

[11] However, following further discussions during which the applicant suggested that he be employed as a Trades Assistant, the employment continued on the understanding that the Trades Assistant position was available only until 14 February 2014. The employer insisted that by that time, 14 February, the applicant was required to have completed all of the TAFE modules necessary for him to hold a trade qualification. Consequently, in about late December 2013, the applicant’s position description was changed to that of Trades Assistant, but his wage rate remained unaltered.

[12] As part of the focus which logically followed from the discovery regarding the applicant’s lack of, or distance from, formal qualification, the relevant local TAFE teachers were invited to attend the workplace and examine the circumstances of the applicant’s trade training. The TAFE teachers were asked to comment upon the compressed timeframe for the applicant to attain formal trade qualification and other issues associated with the status of the applicant’s trade training.

[13] On 23 January 2014, the relevant TAFE teachers visited the employer’s premises and during the ensuing discussions with the applicant and the employer, it was revealed that the applicant had 14 modules to complete before he could attain a trade qualification. This revelation alarmed the employer as it now believed that the applicant could not have inadvertently misrepresented the true position of the level of formal attainment.

[14] The employer considered that at the time that the employment was established, the applicant had not been honest in respect to information provided about the number of modules that were required for him to become trade qualified. Further, the applicant simply could not complete the amount of outstanding training required by 14 February 2014.

[15] The employer considered the circumstances as presented by the most recent revelations about the number of modules that the applicant required to become trade qualified and it decided that it would dismiss the applicant from the Trades Assistant position as it had no requirement other than for a trade qualified Technician position.

[16] The applicant was formally advised of his dismissal on the following day, 24 January and he was paid one week’s wage in lieu of notice. The applicant obtained alternative employment within two weeks following his dismissal.

The Case for the Applicant

[17] 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.

[18] The applicant submitted that he had been unfairly dismissed due to the fact that he had never received a contract in respect to the Trades Assistant position. The applicant said that he was told that there would be a contract for that position and instead of getting a contract he got a redundancy letter.

[19] The applicant submitted that he had been dismissed on the spot in December 2013 and that the dismissal was wrong and that he legitimately complained about it. According to the applicant, the subsequent dismissal in January 2014 had been done in the proper way and as a correction to the mistakes which were made with the earlier dismissal in December of 2013.

[20] The applicant said that he would like to see an outcome in his favour and that he did not seek reinstatement because he had found another job. The applicant said that he sought compensation of an amount of one week’s wages.

The Case for the Employer

[21] The employer was represented by Ms Soliven from the MTA who submitted that the dismissal of the applicant was not unfair. Ms Soliven made submissions which elaborated upon documentary material that had been filed on behalf of the employer.

[22] Ms Soliven submitted that there was valid reason for the applicant’s dismissal. Ms Soliven said that the reason for the dismissal related to the misrepresentations made by the applicant regarding the number of incomplete TAFE modules which prohibited the applicant from working as a trade qualified technician.

[23] Ms Soliven made submissions which stressed that the employer had viewed the applicant's misrepresentations as a breach of trust and confidence in the employment relationship. Further, Ms Soliven submitted that the failure of the applicant to complete the modules necessary to obtain trade qualification, created a fundamental inability to perform the inherent requirements of the position. In these circumstances it was submitted that the employer had valid reason to dismiss the applicant.

[24] Ms Soliven also submitted that the employer had properly engaged in meaningful consultation before it arrived at the decision to dismiss the applicant. In this regard Ms Soliven said that the employer had agreed to the applicant's request to move to the Trades Assistant role in an endeavour to assist the applicant obtain the necessary trade qualification.

[25] It was further submitted by Ms Soliven that it had become clear to the employer that the applicant was unqualified to do the job of a Technician and that the applicant had not completed any further training modules as had been reasonably expected when he was employed in the role of a Technician. Ms Soliven said that the applicant had an onus of proof in this matter and that he had produced no evidence to support his claim that he had been in any way unfairly dismissed.

[26] Ms Soliven submitted that in all the circumstances the employer's actions were reasonable and were open to it and therefore the application for unfair dismissal remedy should be dismissed.

Consideration

[27] Section 385 of the Act stipulates that the Commission must be satisfied that four 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.”

[28] 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.

[29] 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

[30] In this instance, the evidence has established that the applicant was dismissed as a direct result of the employer’s discovery of the true position regarding the number of training modules that he needed to complete in order to become trade qualified. The consequences of this discovery were twofold.

[31] Firstly, the discovery created obvious and understandable doubts about the honesty of the applicant. At the commencement of the employment the applicant told the employer that he had “around 6 modules left to complete 1in order to obtain his trade qualification.

[32] There was plainly some significance attached to the applicant obtaining his trade qualification. It was a matter of considerable discussion at the pre-employment interview and an integral foundation upon which the employment was established.

[33] Subsequently, as the number of outstanding training modules grew, firstly to nine, and then ultimately revealed by the local TAFE to be 14, the prospect that the applicant may have mistakenly underestimated the number of training modules became less and less believable.

[34] In December 2013, the employer provided the applicant with the “benefit of the doubt.” At that time, the discovery that nine rather than six training modules were outstanding and that the applicant had not finalised any modules in the preceding six months as would have logically been expected, raised serious concern for the employer. The employer acted with commendable benevolence and clear intention to continue the employment relationship upon the basis that it was established, specifically, that the applicant would obtain the trade qualification within a short period of time.

[35] The discovery in January that the applicant had 14 outstanding training modules which meant that there was no prospect for him to obtain the trade qualification within a short period of time, clearly and understandably demolished the trust and confidence necessary to maintain the employment relationship.

[36] The second consequence which followed from the discovery of the true position regarding the number of the applicant's incomplete training modules, involved the incapacity for the applicant to perform the duties of the position of a Technician. The position to which the applicant had been appointed was clearly that of a qualified Technician, albeit that a short period was anticipated for the trade qualification to be formally attained.

[37] The unqualified Trades Assistant position which was created in December at the suggestion of the applicant, was clearly an interim arrangement designed to assist the applicant obtain the formal qualification which was an inherent requirement of the employment. In January, when it was discovered that the applicant had 14 outstanding training modules, it became clear that the applicant could not satisfy the foundation element of the employment, namely, that he was, or would shortly become, trade qualified. Therefore the discovery established that the applicant could not fulfil the inherent requirements of the position to which he had been appointed.

[38] Consequently, there was valid reason for the dismissal of the applicant related to the loss of trust and confidence and incapacity to fulfil the inherent requirements of the position which were established with the discovery of the number of outstanding training modules that prevented the applicant obtaining the trade qualification.

387 (b) - Notification of reason for dismissal

[39] The employer provided written notification of the reason for the applicant's dismissal. Unfortunately, the employer inaccurately described the reason for the termination of employment to include that the position of Trades Assistant was being made redundant.

[40] It may have been preferable for the employer to have provided a letter of dismissal which more accurately described the circumstances surrounding the dismissal of the applicant. However, it may also have been to the applicant's benefit that the employer did not document the basis upon which it had lost trust and confidence in the applicant to act with fidelity and honesty.

[41] The deficiency in respect to the inaccuracy of the contents of the letter of dismissal 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] In December 2013, when concern was first raised about the applicant's lack of progress regarding his trade qualification, the employer provided the applicant with opportunity to respond and indeed it accepted the applicant's suggestion of converting his employment on a temporary basis, to that of the unqualified Trades Assistant position.

[43] Following the discovery on 23 January 2014, of the true position regarding the number of outstanding training modules, the applicant was not provided with a further opportunity to respond before he was advised of his dismissal on the following day. This is a regrettable procedural deficiency.

[44] However, this procedural deficiency must also be assessed and balanced against the other factors which, when considered in totality, provide the basis upon which any finding is made as to whether the dismissal of the applicant was unfair.

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

[45] There was no evidence that the applicant was refused the assistance of a support person at any stage during the various discussions that were held regarding his employment generally or, in respect to progress, or otherwise, towards the attainment of his trade qualification.

387 (e) - Warning about unsatisfactory performance

[46] This factor is not overtly relevant to the circumstances in this instance. However it should be noted that the temporary nature of the Trades Assistant position was a clear reflection of warning to the applicant that a failure to satisfactorily address the lack of progress, towards attainment of the trade qualification would be fatal to the employment.

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

[47] The size of the employer’s operation would not have been likely to have significant impact on procedures surrounding the dismissal of the applicant.

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

[48] 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. The apparent absence of dedicated employee relations management specialists would probably account for the inaccuracies that were contained in the letter of dismissal.

387 (h) - Other relevant matters

[49] There was no evidence provided about other relevant matters that may have been appropriate aspects of consideration as to whether the dismissal of the applicant was unfair.

Conclusion

[50] The applicant was dismissed when the employer discovered that the applicant had a significantly greater number of outstanding training modules than he had disclosed during a pre-employment interview. The employment of the applicant was established upon understandings about the applicant obtaining a formal trade qualification. The employer's subsequent discovery meant that it lost trust and confidence in the applicant. Further, the applicant’s incapacity to obtain the formal trade qualification within a reasonable period of time, meant that he was unable to fulfil the inherent requirements of the position to which he had been appointed.

[51] The discovery in January 2014, of the true state of incompleteness of the applicant's training in respect of the attainment of the trade qualification, was compounded by the earlier identification that first raised concern about the level of training completed and undertaken by the applicant.

[52] At the time of engagement, the employer understood that the applicant did not hold a formal trade qualification. However, the information provided by the applicant and accepted by the employer, indicated that in a relatively short period of time, the applicant would be able to complete any outstanding training modules and thereby obtain the trade qualification. Understandably the employer was concerned when it first discovered that there were more incomplete training modules than initially mentioned, (nine instead of six), and importantly in the period since the commencement of employment, the applicant had not completed any further training modules.

[53] Notwithstanding these concerns, the decision in December 2013, to continue the employment of the applicant in the unqualified Trades Assistant position, was a reflection of the employer’s genuine desire to maintain the employment of the applicant in accordance with the understanding that the trade qualification would be obtained within a fairly short period. Once the true position had been discovered on 23 January, the employer understandably considered that it had been misled by the words and actions (and inaction) of the applicant.

[54] Consequently, the employer dismissed the applicant for valid reason relating to the applicant's capacity and conduct.

[55] The notification of dismissal of the applicant and later aspects of the procedure that the employer adopted to deal with the dismissal included some deficiencies. These documentary and procedural deficiencies have been considered and balanced against the capacity and conduct issues which provided valid reason for the dismissal.

[56] In totality, the manifest conduct and capacity issues upon which the dismissal of the applicant was based, represent matters which were fundamentally inconsistent with the continuation of the employment relationship and compel me to conclude that the applicant's dismissal was not harsh, unjust or unreasonable.

[57] Therefore the application for unfair dismissal remedy must be dismissed and an Order [PR554542] to that effect will be issued accordingly.

COMMISSIONER

Appearances:

Mr T Jaques, appearing unrepresented.

Ms A Soliven, appearing on behalf of the employer.

Hearing details:

2014.

Newcastle:

June: 17.

 1   Exhibit 1 @ paragraph 1.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR554591>