Nathan Stuart Wilson v PumpEng
[2022] FWC 2328
•13 SEPTEMBER 2022
| [2022] FWC 2328 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nathan Stuart Wilson
v
PumpEng
(U2022/1086)
| COMMISSIONER SCHNEIDER | PERTH, 13 SEPTEMBER 2022 |
Application for an unfair dismissal remedy - Application for an unfair dismissal remedy - Serious misconduct resulting in dismissal - Facts acquired after dismissal
On 25 January 2022, Mr Nathan Wilson (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with PumpEng Pty Ltd (the Respondent). The Applicant seeks compensation for his dismissal.
The Applicant filed submissions and evidence in support of the application in the Commission on 20 May 2022. The Respondent filed submissions and evidence in the Commission on 3 June 2022. Reply submissions and evidence were filed by the Applicant on 10 June 2022.
As the matter involved contested facts, the Commission is obliged by section 397 of the Act to conduct a conference or hold a hearing.[1] A Hearing of the matter was held on 22 June 2022.
The following witnesses gave evidence on behalf of the Applicant at the Hearing:
· Mr Nathan Wilson, the Applicant.
· Danielle McMartin (Ms McMartin), the Applicant’s partner and a former employee of the Respondent.
· Steve McMartin (Mr McMartin), the Father-in-Law of the Applicant.
The following witnesses gave evidence on behalf of the Respondent at the Hearing:
· Paul Meneghel (Mr Meneghel), Managing Direction of the Respondent.
· Larrisa Winter (Ms Winter), Financial Controller of the Respondent.
· Daniel Kingston (Mr Kingston), Branch Manager of the Respondent.
The following witnesses, called by the Respondent, had their statements accepted into evidence and were not required for questioning by either party at the Hearing:
· James Trewin, Previous Employee of the Respondent, who held the position of Strategic Business Development Manager.
· Tom Farinola, National Service Centre Manager of the Respondent.
Factual Background
The Applicant commenced employment with the Respondent on 17 December 2018 as a Submersible Pump Technician. The Applicant was promoted in March 2020 to the position of Group Technical Support based in Kalgoorlie.
The Applicant’s partner was also engaged by the Respondent and her employment with the Respondent ceased in November 2021.
The Applicant was displeased with the Respondent’s decision to terminate his partner’s employment with the business.
On 3 January 2022, the Applicant was issued a letter containing 8 allegations of alleged breaches of the Respondent’s Code of Conduct and business policies and procedures. The 8 allegations are outlined below:
“1. On 26 November 2021 you engaged in threatening and aggressive behaviour towards Tom Farinola, National Service Centre Manager of PumpEng by stating words to the effect “you also have a responsibility to act for yourself and not just the direction of the business, I will go after you”.
2. On 30 November 2021 you engaged in threatening behaviour towards Paul Meneghel, Managing Direction of PumpEng, by stating words to the effect of “I will throw the full force of my partner Danielle’s family and mine against you”.
3. In November 2021 you threatened Nick Thompson, General Manager of PumpEng, by stating to another employee of PumpEng words to the effect that “I will come to Perth and beat Nick up”.
4. On 13 December 2021 the workshop was inspected, and numerous occupational health and safety issues were identified, including but not limited to; Incorrect and dangerous storage of chemicals, trip hazards, alteration and removal of guards off grinding tool, failure to maintain clean workshop and storage of waste on high voltage generator, transformer and switch board, leaving an open chlorine tub with brake fluid and oil dangerous oils nearby. At the time of this inspection, you were the only employee working at the premises and you were responsible for maintaining occupational health and safety.
5. Between May 2021 and November 2021, you regularly drove a PumpEng work vehicle in a reckless manner with the potential to cause harm. PumpEng received multiple external calls from a member of the Public regarding this behaviour. Management followed up with communication held on the 14 December 2021. Specifically, it is alleged you mounted a curb near Cavallier Crescent, Boulder and then drove erratically on the incorrect side of the road.
6. That you consume and permitted alcohol to be consumed on the PumpEng premises on a regular basis. Specifically, it is alleged that you have been drinking Bundaberg Rum and Coke, Emu Export, Great Northern, Canadian Club, Vodka, Crown Lager and Carlton beer.
7. On 13 December 2021 it was observed that a PumpEng vehicle in your possession was not kept in an adequate state. It is alleged that you have damaged a tyre on the vehicle and failed to report this damage to anyone and/or rectify leaving the vehicle unsuitable for use.
8. On 23 December 2021 it came to the attention of management, that you have been storing personal items in PumpEng leased demountable at the Pump Eng Kalgoorlie Workshop.”
On 4 January 2022, the Applicant was provided with the opportunity to respond the allegations. A show cause meeting was held via teleconference due to the location of the Applicant.
The Applicant attended the show cause telephone meeting on 4 January 2022. During the course of this meeting, the Respondent claims that the Applicant failed to properly engage.
The Applicant’s response to the allegations consisted largely of him stating they were “unfounded and untrue”. During the meeting, the Applicant was provided with the opportunity to respond and provide an explanation in relation to the allegations however he failed to do so.
Ms Winter explained and articulated to the Applicant that the meeting was his opportunity to “tell his side of the story”. The Applicant provided an explanation to allegation 8 (outlined above). His explanation was that he had previously been provided “permission” to store personal items in the demountable on the Respondent’s site.
In relation to the other 7 allegations, the Applicant continued to repeat his previous position, that the allegations were “unfounded and untrue” and did not provide the Respondent with any information or explanation in response to the allegations.
The Respondent made the decision to give the Applicant the “benefit of the doubt” in relation to allegation 8, despite no member of the management team recalling the Applicant being given permission to store personal items on the worksite.
The Respondent, having considered the “lack of response or explanation and evidence before them”, made the decision that allegations 1 to 7 were sufficiently substantiated. The Respondent asserts that the substantiated allegations warranted the termination of the Applicant.
On 5 January 2022, the Applicant’s employment with the Respondent was terminated for serious misconduct.
Legislation
When can the Commission order a remedy for unfair dismissal?
Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.
Preliminary and Jurisdictional Issues
Under section 389 of the Act, a person’s dismissal was a case of genuine redundancy if:
(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
At the hearing, and in his submissions, the Applicant raised “redundancy” as a form of remedy. At no stage did the Applicant demonstrate that his termination was in fact a redundancy. There is no evidence that supports that the Applicant’s position was redundant and the evidence on hand is that the Respondent terminated the Applicant for serious misconduct.
I also note that, following the termination of the Applicant, the Respondent engaged a new employee to fill the Applicant’s position, further evidencing that the Applicant was not in fact made redundant.
I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise. It appears the Applicant merely raised the issue of redundancy as a proposal for remedy.
I am therefore satisfied that the dismissal was not a case of genuine redundancy.
Consideration
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[2] I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[3] and should not be “capricious, fanciful, spiteful or prejudiced.”[4] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[5]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[6] “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”[7]
Submissions
The Applicant provided the below explanations to the 7 allegations put to him by the Respondent that the Respondent ultimately found to be substantiated and relied upon to terminate the Applicant’s employment. Allegation 8 is excluded, as I agree that this allegation is unsubstantiated and is not in dispute.
· Allegation 1: On 26 November 2021 you engaged in threatening and aggressive behaviour towards Tom Farinola, National Service Centre Manager of PumpEng by stating words to the effect of ‘you also have a responsibility to act for yourself and not just at the direction of the business, I will go after you’.
· Applicant Response: “This is untrue and hearsay, I told Tom in a non threatening manner, that as an employee he has a responsibility to act morally just in regards to bullying in the workplace and unfair treatment and firing Danielle, as a duty of care regardless of the direction of the company. I have never threatened anybody.”
· Allegation 2: On 30 November 2021 you engaged in threatening behaviour towards Paul Meneghel, Managing Director of PumpEng, by stating words to the effect of ‘I will throw the full force of my partner Danielle’s family and mine against you.’
· Applicant Response: “This is also untrue and hearsay. I never threatned Paul. I informed Paul that Danielle has the support of our families in regards to her unfair treatment and dismissal, our families do not possess force”.
· Allegation 3: In November 2021 you threatened Nick Thompson, General Manager of PumpEng, by stating to another employee of PumpEng words to the effect that “I will come to Perth and beat Nick up”.
· Applicant Response: Again hearsay and very untrue, I have never threatened anybody.
· Allegation 4: On 13 December 2021 the workshop was inspected, and numerous occupational safety issues were identified, including but not limited to; Incorrect and dangerous storage of chemicals, trip hazards, alteration and removal of guards off grinding tool, failure to maintain clean workshop and storage of waste on high voltage generator, transformer and switch board, leaving an open chlorine tub with brake fluid and oil dangerous oils nearby. At the time of this inspection, you were the only employee working at the premises and you were responsible for maintaining occupational health and safety standards.
· Applicant Response: “I was on Annual leave when this inspection was conducted, replacement staff had been working on the premises. Previous to the 13th of December all of these hazards were identified, I emailed in regards to all the current safety hazards and the status of getting these rectified, you informed me that PumpEng was willing to assist me in rectifying all the Safety issues at the Kalgoorlie Branch as there had been a lack there of previously. My duty at PumpEng was primarily to repair and service pumps, All additional health and safety requirements and obligations were met and I was working with the “team” to rectify any issues raised. Also Why did PumpEng ignore my requests to get a catchment bund installed around the OIL filled High Voltage Transformer. This is a major hazard raised by myself in quarterly inspections. You have been corresponding with me yourself and through frank and tom about purchasing various Items for workshop safety, including the Grinder that was purchased that I have been unable to install due to my workers compensation restrictions. And due to the fact that I had nobody there to help me with any of the operational duties at all, regardless of my requests to hire a temp or get some help from the Perth Branch.”
· Allegation 5: Between May 2021 and November 2021 you regularly drove a PumpEng work vehicle in a reckless manner with the potential to cause harm. PumpEng received multiple external calls from a member of the Public regarding this behaviour. Management followed up with communication held on the 14 December 2021. Specifically, it is alleged that you mounted a curb near Cavallier Crescent, Boulder and then drove erratically on the incorrect side of the road.
· Applicant Response: “This is also untrue and hearsay, I received a call from Frank in May about this and he agreed that this person that has made the complaint might not have much better things to do with their time. Frank did not present me with any disciplinary action due to this at the time.”
· Allegation 6: That you consume and permitted alcohol to be consumed on the PumpEng premises on a regular basis. Specifically, it is alleged that you have been drinking Bundaburg Rum and Coke, Emu Export, Great Northern, Canadian Club, Vodka, Crown Larger and Carlton beer.
· Applicant Response: “This is a joke right? Firstly this is unfounded and untrue, The “evidence” You speak of is actually a box of cans and bottles that were collected by my father in-law for my Autistic son, and Guessing the Crown Lager that was in the Fridge was Purchased By Nick Thompson Back at Keogh Way when Pete was My boss. Also I am aware that Alcohol is regularly consumed at the Perth premises. I do not drink Alcohol, Also I consider this a deformation of my character.”
· Allegation 7: On 13 December 2021 it was observed that a PumpEng vehicle in your
possession was not kept in an adequate state. It is alleged that you have damaged a tyre on the vehicle and failed to report this damage to anyone and/or rectify leaving the vehicle unsuitable for use.
· Applicant Response: “The Vehicle was taken from my possession without notice, on top of this I have not been able to move the tyre for the vehicle nor wash the vehicle due to my restricted duties at work. There was no formal method of reporting Provided. The Vehicle was in continious use”
The Respondent submitted that there was a valid reason for the dismissal, being the Applicant’s conduct. The Respondent asserts that the Applicant had engaged in serious misconduct which left the Respondent with no alternative but to terminate the employment of the Applicant.
The Respondent submitted that the seriousness of the matters, which included threatening comments to senior management, significant breaches of workplace health and safely policies, and complaints from the general public were valid reasons to terminate the Applicant’s employment.
The Respondent submitted that the Applicant had been provided with the opportunity to responded to the allegations, however had failed to provide any response or explanation to 7 of the 8 allegations. This left the Respondent with no alternative but to terminate the Applicant’s employment.
Evidence
In relation to allegations 1 to 3, which all related to instances of verbal exchanges between the Applicant and management employees of the Respondent, the parties’ evidence conflicts. I find that the evidence of the Respondent regarding those allegations is more accurate and consistent.
The evidence provided by Mr Menghal and Ms Winter under examination and cross examination was consistent and reliable. Ms Winter and Mr Menghal were able to clearly and consistently outline the below information:
The language used by the Applicant, which was not appropriate for the workplace.
The language and tone used by the Applicant was at times, threatening and intimidating towards to staff at the Respondent.
The attitude and general conduct of the Applicant following his partner’s termination by the Respondent became unprofessional and was not conducive to an on-going employment relationship
Ms Winter witnessed the phone calls between the Applicant and Mr Menghal and confirmed that the language used by the Applicant was threating and intimidating.
Mr Menghal, who held himself out to be sensible and reasonable in his dealings, confirmed that the Applicant was not providing frank and honest feedback about the business, but rather the Applicant was unprofessional and intimidating in nature.
I found the Applicant and his partner’s evidence under cross examination to be inconsistent and both, at times, were evasive when answering questions. Neither the Applicant or his partner could provide a consistent version of events that would explain the behavior or why the Respondent’s allegations were incorrect.
Under cross examination, the Applicant’s partner was asked to confirm if the Applicant had a temper or had ever been threatening towards her. The Respondent asked the Applicant’s partner to explain a Facebook post from earlier in 2022, in which the Applicant’s partner had complained about the Applicant’s temper. The Applicant’s partner did not provide any real explanation as to why she would post this on social media and stated that her partner did not have a temper. Generally, I found the Applicant’s partner to be an unreliable witness.
It is understandable that the Applicant was upset and dissatisfied that his partner’s employment with the Respondent came to an end. Based on the evidence provided by the Respondent, the Applicant’s dissatisfaction resulted in discussions between the Applicant and management of the Respondent in November 2021 in which the Applicant’s conduct crossed a line that caused an unrepairable breakdown in the employment relationship.
In relation to allegations 4 and 7, the position the Applicant held at the time of his termination was Group Technical Support. In this position, he was the most senior team member at the Kalgoorlie branch. Accordingly, the Applicant was required to ensure that the workshop was maintained to a safe standard.
The Respondent and Applicant had been in communication about the ways to improve the health and safety compliance at the Kalgoorlie branch between June 2021 and October 2021. The Respondent highlighted that the performance of the branch improved between June 2021 and October 2021.
The Applicant was on light duties from 10 November 2021 until his termination. The Applicant had extended periods of personal leave from late November 2021 until going on pre-approved annual leave for the Christmas and New Year holiday period.
The Respondent conducted a safety audit of the Kalgoorlie branch on 13 December 2021 and outlined that the safety compliance had decreased from the audit in October 2021.
There was evidence provided by the Respondent, showing the standards and enforcement of workplace health and safety policies had been lacking for prolonged duration, including the Applicant’s period of management of the workshop during November 2021.
There were examples of basic workplace health and safety issues which, the Respondent submitted, could have been rectified by the Applicant without further management input, such as:
Incorrect and dangerous storages of chemicals.
Trip hazards.
Alteration and removal of safety guards off equipment (grinding tool).
Storage of waste on a high voltage generator.
Failure to maintain a clean workshop.
The Respondent also submitted that the work vehicle used by the Applicant had a damaged tyre and was found to be unsuitable for use on 13 December 2021. The Applicant had not reported that the vehicle was damaged and not suitable for use.
In relation to allegation 5, the Respondent explained that the business had received calls from a concerned member of the public about the Applicant’s driving of the work vehicle. The complainant claimed they witnessed the Applicant driving the vehicle on the incorrect side of the road.
The Applicant denied that he was driving unsafely during the hearing and explained that as he lived on a corner block he would briefly be on the wrong side of the road when leaving his home address. However, the Applicant could not articulate why a member of the public would report instances of unsafe driving to the Respondent, if his actions were only so minor as he described and done safely.
I found that the evidence provided by Ms Winter in relation to the discussions held with the member of the public to be consistent and reliable. Ms Winter outlined that the member of the public clearly identified the PumpEng vehicle which was issued to the Applicant at the time of the incidents and the location of the incidents were close to the residential address of the Applicant.
I also note that, as included in allegation 7 (discussed above), the Applicant’s work vehicle was returned in a damaged state and was unsuitable for use by the Respondent, further substantiating this allegation.
In relation to allegation 6, the Applicant’s father-in-law, Mr McMartin, provided evidence stating the Applicant did not drink alcohol. Mr McMartin outlined that he would drop off empty cans and bottles which the Applicant collected for his partner’s son. I found Mr McMartin to be a truthful and reliable witness.
When the allegation regarding alcohol consumption was put to the Applicant, he did not explain his habit of collecting cans for pocket money to the Respondent. As a result of the Applicant’s failure to provide this explanation to the Respondent when asked to do so, the Respondent made this decision based on the evidence on hand.
The Applicant was the senior team member at the Kalgoorlie branch and there was empty alcohol cans and bottles being stored on the site. It was reasonable for the Respondent to conclude that the Applicant either himself drank or allowed others to drink at the workplace, which was contrary to the Respondent’s policies.
Findings
The Respondent highlighted that “it was more reasonable than not” to find that the Applicant engaged in the conduct highlighted in allegations 1 to 7. However, the Commission’s determination is whether there is a valid reason, considering the evidence before the Commission relating to facts in existence at the time of the dismissal.
Based on the totality and reliability of the evidence presented by the Respondent in support of allegations 1, 2, 3, 4, 5 and 7, I find that the Applicant engaged in serious misconduct which formed a valid reason for his employment being terminated by the Respondent.
The Applicant failed to provide any reason or explanation to the above allegations prior to the Respondent making the decision to terminate his employment. As highlighted by the Respondent, the Applicant simply replied “unfounded and untrue” to the 7 allegations.
Regarding allegation 4, I note that the Applicant’s lack of compliance with health and safety procedures has been considered in the context of the Applicant holding a position where he was responsible for such compliance.[8]
In relation to allegations 1,2,3,4,5 and 7, the Applicant was unable to provide any solid evidence to counter the submissions of the Respondent. I find that the conduct of the Applicant, outlined in allegations 1,2,3,4,5 and 7, on the balance of probabilities, occurred. I find that this conduct amounts to serious misconduct.
On the evidence of Mr McMartin, I find that there was a reasonable explanation in defense of allegation 6. I find that allegation 6 was not misconduct and does not form part of the valid reason for dismissal. Despite this, the Applicant’s misconduct in the other substantiated allegations are serious misconduct, and amount to a valid reason for his dismissal.
The Respondent conducted a full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances. I find that the Respondent honestly and genuinely believed it had reasonable grounds for believing on the information available at that time, that the Applicant was guilty of the misconduct alleged. Having followed an appropriate process, such misconduct justified a valid reason for dismissal.
I find that there was a valid reason for the Respondent to terminate the Applicant’s employment, being that allegations 1,2,3,4,5 and 7 were substantiated, and that the Applicant did not provide any reasonable explanation in response to these allegations.
Was the Applicant notified of the valid reason?
Proper consideration of section 387(b) of the Act requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under section 387(a) of the Act.[9]
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[10] and must be in explicit,[11]plain, and clear terms.[12]
The Respondent submitted that the Applicant was notified of the valid reason on the basis that the Applicant was provided with a letter, sent by email, from the Respondent on 3 January 2022.
The Respondent, in the letter outlining the 8 allegations sent to the Applicant, included the below notification that they were considering termination.
“If the above allegations are substantiated, disciplinary action may be taken against you, up to and including termination of your employment”.
Having regard to the matters referred to above, I find that the Applicant was notified of the reason for his dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[13]
The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[14] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[15]
The Applicant made no submissions that he was not provided with an opportunity to respond to the Respondent’s allegations.
The Respondent submitted that the Applicant did have an opportunity to respond to the reason when the Applicant attended a telephone conference on 4 January 2022 in which he was provided with the opportunity to respond to the 8 allegations.
The Respondent confirmed that during the show cause meeting the Applicant largely responded with the words “unfounded” and “untrue”.
The only allegation which the Applicant provided a detailed response to was allegation 8. This was the allegation which related to the Applicant and his partner storing personal belongings inside the demountable leased by the Respondent at the Kalgoorlie premises. The Applicant stated that previous management were aware of this and had permitted this to occur.
Ms Winter, whom I found to be a reliable witness, confirmed that during the meeting between the Applicant and the Respondent she encouraged the Applicant to provide detailed responses to the allegations that were being put to him but that the Applicant failed to provide any meaningful explanations or responses to the allegations.
In all the circumstances, I find that the Applicant was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
Where an employee, protected from unfair dismissal, has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. There is no positive obligation on an employer to offer an employee the opportunity to have a support person. [16]
The Applicant acknowledged that he was provided the opportunity to have a support person present at the meeting on 4 January 2022. The Respondent submitted that it provided the Applicant with the opportunity to have a support person and the Applicant declined this offer.
The Applicant confirmed, in cross examination, that he was offered the opportunity to have a support person present for the teleconference on 4 January 2022. The letter of allegations provided by the Respondent to the Applicant on 3 January 2022 stated, “please be advised that you are entitled to be accompanied to the meeting by a support person”.
In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.
Was the Applicant warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise and the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.
The Respondent submitted that the business did not have a dedicated human resource management specialist at the time of the Applicant’s employment being terminated. Ms Winter, who dealt with the Applicant’s termination, was employed as the Financial Controller at the Respondent.
I find that, the Respondent did not, at the time of the dismissal, have a dedicated human resource management specialist. Despite lacking dedicated Human Resources specialists, the Respondent followed an appropriate termination process. The Applicant was provided with a procedurally fair process leading up to the dismissal.
What other matters are relevant?
Section 387(h) of the Act requires the Commission to take into account any other matters that the Commission considers relevant.
The Respondent submitted that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust, or unreasonable:
· Further information had come to light after the termination of the Applicant’s employment, which the Respondent submitted would have constituted further allegations of serious misconduct by the Applicant.
· The Allegations of further misconduct related to several text messages that the Applicant’s work issued mobile had received in late 2021 and early 2022. The text messages read:
a.“hey bro got bigs if you need”
b.“Hey mate just got some really nice bud and can do any size if ya need”
c.“Hey bro got some buds if ya need any”
· The Respondent submitted a call log, detailing calls on the Applicant’s work phone from June to November 2021. The call log confirmed that, over that period, the Applicant made 17 phone calls to the number that sent the above text messages on the company provided phone.
· The Respondent also provided a copy of the Respondent’s employment policies, including the Respondent’s phone use policy. This policy restricted personal use of work phone and limited use of work issued phones to legal, responsible, and professional purposes.
· The Respondent submits that, had it been able to fully investigate this matter and substantiate that the Applicant had been using his work phone to purchase drugs, this conduct would have been another occurrence of serious misconduct and would have further warranted the terminated of the Applicant’s employment with the Respondent.
As outlined above, the Respondent provided phone records of the Applicant’s work mobile phone to demonstrate that the Applicant had previously called the number in question 17 times between June and November 2021.
The Respondent had also entered evidence that the Applicant had previously been convicted of charges relating to the possession of large quantities of marijuana.
The Respondent asked the Applicant (during cross examination) if the Applicant understood the reference to the term “bigs” and “buds” and if he knew the owner of the mobile phone that had sent the messages to his work phone.
The Applicant outlined that he did not know what “bigs” or “buds” are and that he did not know the number that had sent his work phone the messages in question. The Applicant could not provide any reason as to why he had contacted the number 17 times between June and November 2021 or why the phone number had sent the above text messages to his phone.
Findings
In cross examination, the Applicant and his partner were evasive and gave evidence inconsistent with other objective evidence. I do not find their evidence regarding the phone use and text messages reliable or entirely truthful. I find, on the balance of probabilities, that the Applicant had used the company issued phone for inappropriate uses during his employment. I find that the phone use, on the balance of probabilities, breached the Respondent’s policies.
When determining the overall credibility of the Applicant as a witness in the proceedings, his evasive, non-committal and less than convincing answers when answering these questions must be considered. The Applicant’s unwillingness to answer very direct and basic questions from the Respondent in relation to this matter further eroded his credibility as a witness.
The inference that the Applicant had engaged in the dealing of drugs on the company phone would have profound consequences for the Applicant if substantiated. The text messages, call log, and unreliability of the Applicant when questioned regarding the phone use indeed paints an unfavourable picture. However, I note the absence of compelling proof in the affirmative of serious misconduct. There was also an absence of evidence, other than by inference, relating to the content of the of the Applicant’s conversations with the unknown number.
On the balance of probabilities, and considering the test in Briginshaw,[17] I am not satisfied that the Applicant engaged in serious misconduct through this phone use.
In addition to the substantiated allegations, this breach of policy strengthens the valid reason for dismissal and overall seriousness of the misconduct. However, I note that this matter did not form part of the Respondent’s decision to terminate the Applicant, and therefore the Applicant did not have any opportunity to respond to this allegation prior to his dismissal.[18]
The revelation of this misconduct would also cause issues with the granting of any remedy.[19]
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 of the Act as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable.[20]
Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable. The Applicant engaged in serious misconduct that warranted the termination of his employment with the Respondent.
Conclusion
Not being satisfied that the dismissal was harsh, unjust, or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act. The application is therefore dismissed. An Order to that effect will be issued concurrently.[21]
COMMISSIONER
Appearances:
N Wilson, Applicant.
C Van Der Plas of CV Legal and Consulting for the Respondent.
Hearing details:
2022.
Perth:
June 22.
[1] section 397 of the Act.
[2] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[3] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[4] Ibid.
[5] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[6] Edwards v Justice Giudice [1999] FCA 1836, [7].
[7] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[8] [2010] FWA 640, at [27].
[9] [2020] FWCFB 6429, at [19]; and [2020] FWCFB 533, at [55].
[10] (2000) 98 IR 137, at 151.
[11] Previsic v Australian Quarantine Inspection Services Print Q3730.
[12] Ibid.
[13] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print, at [75].
[14] (2010) 194 IR 1, at 14 to 15.
[15] (1995) 60 IR 1, at 7.
[16] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[17] Briginshaw v Briginshaw [1938] HCA 34 [(1938) 60 CLR 336]; cited in [2011] FWA 4092.
[18] [2011] FWAFB 5230, at [51].
[19] [2014] FWCFB 7198, at [17].
[20] (2002) 117 IR 357, at [51]. See also Smith v Moore Paragon Australia Ltd PR915674, at [92]; and [1999] FCA 1836, at [6] to [7].
[21] [PR745418].
Printed by authority of the Commonwealth Government Printer
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