Nathan Inns v GoingUp Lifts (NSW) Pty Ltd T/A Going Up Elevators

[2018] FWC 1160

[2018] FWC 1160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Inns
v
GoingUp Lifts (NSW) Pty Ltd T/A Going Up Elevators
(U2017/12290)

COMMISSIONER SIMPSON BRISBANE, 23 FEBRUARY 2018

Application for unfair dismissal remedy – Jurisdictional objection that employee resigned – Termination at initiative of employer – Valid reason for dismissal – Not serious misconduct – Dismissal harsh - Employee entitled to notice – compensation ordered.

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Nathan Inns (the applicant) who alleges that his employment with GoingUp Lifts (NSW) Pty Ltd T/A Going Up Elevators (GUE) (the employer) was terminated unfairly.

[2] The applicant was employed as an apprentice electrician on a full time basis. He commenced employment on 1 February 2016 and said he was dismissed 2 November 2017.

[3] The employer indicated in its response to the application that it has 32 employees and was therefore not a small business employer. The employer also maintained even though the applicant had fraudulently completed timesheets and it had prepared a termination letter, the applicant resigned from his employment before he was dismissed.

[4] The applicant said in his initiating Form F2 application he was successful in obtaining other employment almost immediately, and was not seeking reinstatement. The applicant Both parties were self-represented, however the applicant was assisted at the hearing by his father Mr Neil Inns. At the directions hearing on 8 February 2018 Mr Neil Inns, advised his son was no longer employed.

[5] It was agreed at the directions hearing that the matter would proceed as a determinative conference on Monday 12 February 2018. Both parties filed submissions prior to the determinative conference. At the conference the applicant and his father gave evidence in support of the application, and Mr Keith Devitt the Queensland Manager, and Mr Mark Barter the Managing Director gave evidence for the employer.

[6] A number of events led up to a meeting between the applicant and Mr Devitt on 2 November 2017 at which the applicant’s employment came to an end. I will deal with the events in chronological order.

First timesheet discrepancy Wednesday 20 September 2017

[7] The employer said that the applicant submitted a timesheet on 20 September 2017 that recorded that on Wednesday 13 September 2017 he was working at White Street, Southport when in fact he was not at work that day. It was not in dispute that the applicant had sent a text message saying he was sick that day. The applicant accepted that he submitted the timesheet on 20 September 2017 saying he worked at White Street on Wednesday 13 September however claimed it was simply an error.

[8] The employer submitted that the timesheets were provided electronically to a separate part of the business and therefore are not provided to his direct supervision. The employer provided a copy of the timesheets for other weeks the applicant worked to demonstrate that the data entered into the fields on the timesheets varied from week to week on items such as location and hours worked on particular hours. The employer submitted this supported its case that the applicant deliberately entered incorrect data on his timesheets and therefore the discrepancies that appeared for 13 September and subsequent dates were unlikely to be errors but to be deliberately false.

Wednesday 11 October 2017

[9] It was not disputed that on 11 October the applicant sent a text message to Mr Devitt saying he did not want to do call outs using his own vehicle any more. Mr Devitt agreed that he was sent the message by the applicant, which prompted him to make a phone call to Mr Wes Beak, the applicant’s supervisor.

[10] Mr Devitt gave evidence that Mr Beak explained to him that the applicant had refused duties including not performing two different jobs that he directed the applicant to perform including cleaning out a lift pit. Mr Devitt said he subsequently rang the applicant and spoke to him about the job of cleaning out the lift pit that he had been directed to perform. Mr Devitt claimed when he rang the applicant, the applicant responded that he was not going to get in and clean that (the lift pit) out. Mr Devitt said the applicant refused to accept in the phone call that not following the direction of his supervisor was unacceptable.

[11] The applicant accepted Mr Devitt’s version of their phone call, including that he said to Mr Devitt words to the effect of “it’s all bullshit and lies” and “yeah whatever” in the context of a separate issue about Mr Devitt querying him as to why his E-Profiling for TAFE was so far behind.

[12] The applicant and his father Mr Neil Inns submitted that the employer was not providing the applicant with 40 hours of electrical work in order for him to fulfil his apprenticeship requirements and it was false to say he was doing 40 hours of electrical work when he was not. Mr Devitt said none of these issues were raised before the warning. The applicant accepted that he had never raised this issue with Mr Devitt before but said he had raised it with other employees.

[13] Mr Barter said the employer had been training nine apprentices in the last six months. He said in the last 20 years all of the employer’s apprentices had gone through and successfully completed their trade. Mr Barter said the actual trade is electrical mechanic so it was not just about electrical work. It was said that the employer could have made arrangements for more electrical work hours if the applicant had requested it. Mr Neil Inns said the TAFE teacher said his son was one of the best apprentices.

[14] Mr Devitt said the text that the applicant sent about not wanting to be on call was not at all related to the warning. I am inclined to accept Mr Devitt’s evidence that the text message did not play a role in the decision to issue the warning. The evidence is clear that the applicant had refused to follow a lawful direction from his supervisor Mr Beak. Further the applicant appears not to have taken appropriate steps to raise with the employer any concern he may have held about the nature of the work he was performing in order to complete E-Profiling for TAFE.

Official warning Thursday 12 October 2017

[15] On 12 October 2017, the day after Mr Devitt had spoken to the applicant’s supervisor Mr Beak, and then to the applicant, Mr Devitt issued a letter of warning to the applicant as follows;

“Nathan, this letter is a letter of warning that your employment may be terminated if your conduct and performance at work does not improve –

•  Your attitude towards your direct supervisor is not acceptable and needs to improve.

•  Directions need to be followed at all times when instructed to the best of your ability.

•  Your E-Profiling for TAFE is 3 months behind these needs to be rectified ASAP.

•  Your overall conduct and attitude to your daily chores needs to be improved immediately.”

[16] The employer referred to discussions at toolbox talks where clear direction was given to all apprentices that their E-Profiling for their TAFE apprenticeship needs to be kept up to date. The employer submitted it received numerous emails advising the applicant was 13 weeks behind.

[17] The employer submitted that it saw a lack of respect from the applicant, and a disinterest in working for the employer, and this was a reason for the formal warning was issued on 12 October 2017.

[18] Mr Devitt provided what appeared to be a file note in the form of an email to himself on 16 October 2017 which was consistent with his evidence about his conversation he had with the applicant on 11 October. Mr Devitt said in the file note that he saw a complete lack of respect from the applicant and no sign of this changing from the conversation they had.

Further timesheet discrepancy Tuesday 17 October 2017

[19] The employer said that on a timesheet submitted by the applicant on 17 October 2017 the applicant had recorded that on Wednesday 11 October 2017 he was working at Pohlman Street, Southport for eight hours, but the applicant was not at work on this date. It was agreed at the conference that the applicant had requested the day off at the time in order to undertake a test for his motorbike licence and Mr Devitt agreed that he approved the day off. The applicant agreed that the timesheet he submitted on 17 October incorrectly recorded that on Wednesday 11 October he worked at Pohlman Street from 6.30am to 2.30pm. Again the applicant submitted that this was just a mistake.

Thursday 26 October 2017

[20] The evidence was that the applicant had sent a text message to Mr Devitt on Thursday 26 October saying he would be off sick that day. Mr Devitt accepted that was correct.

Monday 30 October 2017

[21] The applicant advised he would be off sick on Monday 30 October and sent a text message with a medical certificate to Mr Devitt. Mr Devitt accepted that he received the text and medical certificate.

Further timesheet discrepancy Tuesday 31 October 2017

The applicant submitted a timesheet in the evening on Tuesday 31 October 2017. The employer submitted the timesheet recorded that on Thursday 26 October the applicant was working at Polhman St, Southport for eight hours, and on Friday 27 October the applicant was at TAFE for eight hours, and also on Monday 30 October that the applicant was working at Polhman St Southport for eight hours. The employer said that all of these hours were inaccurate and he was not at work on Thursday 26 October, not at TAFE on Friday 27 October, and not at work on Monday 30 October contrary to the timesheet submitted. The evidence is clear and not disputed that the timesheet submitted by the applicant on Tuesday 31 October was incorrect for all three days.

1 November 2017 – arrangement of meeting

[22] An email provided to the Commission records that Ms Julie Evans who I understand works in payroll for the employer sent a message to the applicant at 8.13am on 1 November saying as follows;

“Hi Nathan,

Thanks for the timesheet.

We had a message from TAFE on Friday advising you were off. Can you please re-submit to reflect this.

Please do ASAP as I am processing pays now.”

[23] It would appear it was only because TAFE had alerted the employer about the applicant’s nonattendance on the previous Friday that the employer was prompted about the incorrect hours.

[24] At 8.27am on 1 November the applicant sent a reply email to Ms Evans as follows;

“Hi Julie I just thought of that, I sent my time sheet in late last night and forgot to fix up I was off Thursday and Monday I have a doctors cert I don’t have my work phone on me but I can send the doctors cert thank you.”

[25] The applicant provided a copy of the medical certificate which was completed on Monday 30 October, however records that the applicant would be unfit for duty from Thursday 26 October 2017 to Monday 30 October 2017. This was the same medical certificate that the applicant had provided to Mr Devitt on 30 October by text. The employer submitted that this means that the applicant had been unfit for work for 5 days up to Tuesday 31 October but then on the same day he forgot this when he was submitting his hours on his timesheet.

[26] The employer submitted that the excuse the applicant gave was that it was a generic email that he sent through each week. The employer said this is not true as on the same timesheet the applicant adjusted his hours from the previous week.

[27] Mr Devitt said on Wednesday 1 November he spoke to Mr Barter, and also to the General Manager Mr Keith McCracken, Payroll Officer Ms Julie Evans and the Financial Controller Janine Barter. Each was shown the timesheets. The evidence of Mr Devitt and Mr Barter was that all were of the opinion that the applicant deliberately submitted false times on the timesheet. Mr Devitt proceeded to arrange to meet with the applicant the following day. Mr Devitt accepted that a letter advising the applicant of his immediate dismissal was drafted that day, the day before he would meet with the applicant.

[28] The letter that was drafted identified the various timesheet discrepancies and included a final paragraph as follows;

“All of these timesheets are incorrect as you were not at work any of these days. No notice had been given to any staff of an error until it was discovered by payroll. All of these discrepancies constitute fraud and a criminal offence thereafter resulting in immediate dismissal.”

[29] The applicant claimed that on 1 November he was called to the meeting on 2 November by Mr Keith Devitt for the purpose of returning the company mobile phone as he was no longer on call.

[30] Mr Devitt said he rang the applicant on the morning of 1 November to arrange a meeting the next day. The applicant said he was called on someone else’s phone, and was asked to the meeting and the applicant said he knew it was about the timesheets as Mr Devitt was asking him about the timesheets. Mr Devitt said the applicant was right that he was called on someone else’s phone because the applicant did not answer his own company phone. Mr Devitt said he asked for the meeting the next morning about the applicant not being able to be contacted on his company phone, and about the timesheet issue.

[31] The inconsistency between the applicant’s evidence on what was said about the phone issue is assisted by a file note of Mr Devitt’s made on 3 November after the dismissal. The note says that on 31 October the applicant was instructed that his company phone needs to be kept on him and answered during working hours at all times. The note goes on to say that this has been instructed to all staff at toolbox talks and to him personally on numerous occasions. The note further says that on 1 November 2017 the applicant was again uncontactable on his company issued phone and he informed his supervisor that he had forgotten to bring his phone to work.

[32] This apparent inconsistency was ultimately resolved when the applicant gave oral evidence that he accepted that he was not asked to return his company phone at the meeting on 2 November but that he had decided of his own volition to offer the phone back as he was no longer on call.

Meeting of 2 November 2017

[33] It was agreed that the applicant arrived late for the meeting that had been scheduled with Mr Devitt, Mr Devitt saying it was in the order of 30 minutes late. The applicant provided some information to the effect that his delay was caused by an accident on the highway and provided some text messages on the morning to support this.

[34] The applicant said he brought his phone to return. The applicant said he thought the meeting lasted about 20 minutes but he did not have much recollection of the meeting. The applicant said the reason he was given for his dismissal was that he committed fraud concerning the completion of his time sheets.

[35] Mr Devitt said he first asked the applicant why he was late. The Mr Devitt said the conversation then turned to the applicant’s timesheets being submitted falsely for the last five days. Mr Devitt said the applicant shrugged his shoulders and did not have an explanation. Mr Devitt claimed he said words to the effect that the employer believed this was fraudulent and a dismissible offence and the applicant said that’s okay as he was leaving anyway, and he had another job lined up.

[36] The applicant said he was sacked without any warning and no training was given on how to complete a timesheet. He submitted that when he submitted the incorrect timesheets, they were genuine mistakes.

[37] The applicant claimed prior to the conference he was given no opportunity to respond to the allegation, however at the conference he did not dispute that Mr Devitt gave him an opportunity to explain himself in regard to the timesheets at the meeting on 2 November and that he did not have an answer. In fact the applicant generally accepted Mr Devitt’s version of the meeting on 2 November, and also gave evidence that he could not remember the details of the meeting. The applicant disputed that he resigned from his employment at the meeting.

[38] The applicant was given a letter dismissing him with immediate effect. Mr Devitt gave evidence that whilst the termination letter had been prepared beforehand, he gave the applicant an opportunity to explain himself before giving the applicant the letter.

Jurisdictional Issue – Whether the Applicant has resigned

[39] Section 386(1) provides:

“Meaning of dismissed

(1)  A person has been dismissed if:

(a)  the person's employment with his or her employer has been terminated on the employer's initiative; or

(b)  the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[40] The tests for satisfying s.386(1)(a) and (b) as set out in Bupa Aged Care¹:

“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”

[41] Mr Devitt said his view that the applicant resigned was based on firstly, that the applicant brought his phone to return at the meeting when the applicant was never told to bring his phone back, and secondly that the applicant said he was leaving as he had another job lined up anyway. Mr Devitt accepted that he told the applicant that he was going to be dismissed before the applicant made the comment about having another job lined up. The evidence does not support the employer’s submission that the applicant resigned voluntarily. It is clear on the evidence the termination was at the initiative of the employer not the applicant.

3 November 2017

[42] Mr Neil Inns said the next day he sought professional advice on behalf of his son and was advised that there was a good case for unfair dismissal purely on the procedural basis that the applicant had been dismissed by a letter dated 1 November 2017 when he was actually dismissed on 2 November 2017, meaning Mr Nathan Inns had not been given sufficient opportunity to respond to the letter as the decision had already been made to dismiss him which was unreasonable.

[43] Section 387 requires that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission (the Commission) must take into account a range of matters that I will deal with in turn below.

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

[44] I am satisfied that the employer had a valid reason to terminate the applicant. He had been warned on 12 October about his attitude towards his supervisor being unacceptable and needing to improve, about not following lawful directions and about his overall conduct and attitude to his daily chores needing to improve. I have found this warning was justified. I am also not satisfied by the applicant’s evidence that he has provided a reasonable explanation for his E-Profiling for TAFE being so far behind when he had not raised any concerns about the matter with his employer before the warning. If he had a concern about the nature of the duties he was being directed to perform he should have raised the issues well before he did. Despite having been warned about his performance and conduct, he then went on to carelessly and inexplicably make erroneous entries on his timesheets on four separate days.

[45] I am bemused by the applicant’s actions in that it gives the appearance of the applicant having little or no interest in the accuracy of his timesheets. However I am inclined to depart from the employer’s conclusion where it found the applicant was deliberately seeking to mislead the employer. The evidence was that the applicant was engaged as a full time employee and on each occasion that he had incorrectly recorded on his timesheet that he was at work, he had also advised the employer in advance that he was either sick on the relevant day, or on one occasion was granted leave to undertake a test for a motor bike license.

[46] I prefer the applicant’s evidence that he was not engaged in deliberate fraud, as it seems reasonably clear he was not trying to hide from the employer his absence from work. Further there does not appear to have been a financial incentive to falsify the timesheets as he was receiving sick pay for the days he was not at work. I am more inclined to the view that the applicant’s conduct is consistent with the earlier conduct referred to in the employer’s warning of having a poor attitude, and appearing disinterested rather than deliberately deceptive.

[47] It appears to me that it has been principally because of the conclusion reached by the employer that the applicant was engaged in fraud, that the applicant, and more vigorously his father, decided to contest the dismissal. I accept the evidence of the applicant that he was not deliberately submitting false records, however equally, as the employer submitted, at 19 he is now an adult, and his repeated carelessness on top of the earlier warning resulted in the applicant engaging in misconduct, providing the employer with a valid reason for dismissal.

(b) Whether the person was notified of that reason;

[48] The applicant was advised of the reason for his termination at the meeting on 2 November.

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

[49] The applicant accepted that he was given an opportunity at the meeting of 2 November to provide an explanation to Mr Devitt about the timesheets. He was not it appears advised in advance of the meeting that he may be dismissed at the meeting. Mr Devitt said he brought the applicant in to get his explanation. Mr Devitt said if a plausible explanation had been given then he would have taken it back to other management. I accept this evidence of Mr Devitt.

(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;

[50] As stated, the applicant was not notified in advance of the meeting that he may be terminated, however he did not make a request to have a support person present at the meeting.

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

[51] The employer’s reason for was dismissal was for misconduct due to the alleged fraud in connection with the timesheets. The applicant was not warned he may be dismissed specifically because of his previous errors made in submitting timesheets. The applicant had received an earlier warning on 12 October about a range of issues as set out above including his poor attitude generally.

(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;

[52] The employer is not a small business having 32 employees.

(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;

[53] The employer does not have a dedicated human resource management specialist or expert in the enterprise and it is likely this impacted on the procedures the employer followed in effecting the dismissal. The employer is a member of AIG but did not seek specific advice from AIG about this case.

(h) Any other matters that the Commission considers relevant

[54] The applicant’s length of service was not particularly long at approximately 20 months. He was successful in gaining other employment just over a week after his termination. I have concluded the employer had a valid reason for dismissal but have rejected its conclusion that the applicant engaged in misconduct that was serious enough to justify summary dismissal.

Harsh, Unjust or Unreasonable

[55] I have concluded that the dismissal was harsh because the applicant was dismissed without notice on the basis that he engaged in serious misconduct when I have concluded that the valid reason for dismissal was not itself serious misconduct negating his entitlement to be paid notice. I have identified some procedural flaws in the process. The applicant should have received notice of his dismissal. Given the conclusion on harshness I now turn to remedy.

Remedy

[56] The applicant did not seek reinstatement. At the time of dismissal the applicant was earning $880 gross per week. Had the applicant not been dismissed summarily I have concluded he would have in all likelihood been dismissed in any event on 2 November and would have received two weeks’ notice resulting in an amount of $1,760.

[57] The applicant has provided a payslip setting out income of $960 earned between 13 November and 19 November. Assuming the applicant worked a five day week I have estimated he would have earned approximately $768 dollars (or 4/5ths) of that amount before the expiration of the two week notice period on 16 November 2017. In accordance with the approach set out in Sprigg v Paul’s Licensed Festival Supermarket  2 that amount should be deducted from the sum of $1,760 to arrive at a sum of $992.

[58] I make no deduction further deduction for contingencies. There is no evidence an order for the payment of $992 will affect the viability of the business. It is apparent by gaining other employment quickly the applicant made efforts to mitigate his loss and that is not a basis to further reduce the amount. There are no other matters relevant. I will issue an order separately and concurrently with this decision that GoingUp Lifts (NSW) Pty Ltd pay to Nathan Inns the sum of $922 gross taxed according to law.

COMMISSIONER

Appearances:

Mr Neil Inns appearing on behalf of the Applicant

Mr K Devitt appearing on behalf of the Respondent

Hearing details:

Brisbane,

2018:

February 12

Printed by authority of the Commonwealth Government Printer

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1 Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 [35].

 2 (1998) 88 IR 21.