Nigel MacLachlan v Site Environmental and Remediation Services (WA) Pty Ltd
[2024] FWC 2273
•26 SEPTEMBER 2024
| [2024] FWC 2273 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nigel MacLachlan
v
Site Environmental and Remediation Services (WA) Pty Ltd
(U2024/5968)
| DEPUTY PRESIDENT LAKE | BRISBANE, 26 SEPTEMBER 2024 |
Application for an unfair dismissal remedy – serious misconduct – time fraud – summary dismissal – poor performance – remedy granted – compensation awarded.
Mr Nigel MacLachlan (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that he was unfairly dismissed from his employment with Site Environmental and Remediation Services (WA) Pty Ltd (the Respondent).
A conciliation was held on 18 July 2024 and the matter was not resolved. The matter was listed for an in-person hearing on 21 August 2024. The Applicant was self-represented, appearing with his support person, Mrs Karen MacLachlan. The Respondent was represented by Ms Jodie Beeson from Beeson HR Consulting. Leave was granted for the Respondent to be represented under s.596 of the Act.
Section 396 of the Act requires satisfaction of four matters before considering the merits. I am satisfied that the Applicant made his application within the 21-day period required by s.394(2) of the Act, earned less than the high-income threshold, is a person protected from unfair dismissal, that his dismissal was not a case of genuine redundancy, and the Small Business Fair Dismissal Code is not applicable as a business with more than 15 employees.
Background
The Applicant commenced work for the Respondent on 28 February 2020 as an environmental technician.
On 25 March 2023 to 26 April 2023, the Applicant took approved leave. On 27 March 2023, the Applicant was provided a warning letter about his performance by Mr Matt Campbell (Director of Respondent). In the warning letter, the Applicant was reminded to ensure:
All monitoring systems are calibrated in a timely manner.
Checklists are updated at the end of every day.
Faults on monitors are rectified in a timely manner. [1]
The Applicant was made aware of the warning letter on 26 April 2023 when he returned from leave.[2]
The Applicant took leave from 26 February 2024 to 19 March 2024. On 20 March 2024, the Applicant was provided another warning letter. The warning letter noted the following:
An audit of all monitoring systems in the last fortnight across the country both administered and, in the field, the following deficiencies were noted in Brisbane.
Svan units were separated from what is represented on their calibration certificates in correlation between transducers and sensor recorders.
Checklists were not accurate.
Brisbane office had sent unmatched svan units to other officers, which triggered an audit.
Field deployed systems were poorly set up and require constant maintenance. The rate at which faults were identified and units not working or recording data which was 5 times higher than the Western Australian average.
The set ups within field deployed units were not in accordance with what was explicitly asked and demonstrated to the Applicant in April 2023.
No batteries were on charge at the Brisbane office.
Transducers and microphones were not stored correctly and sitting on his desk.
Overall storage of all items was not in order after being demonstrated to the Applicant in April 2023.[3]
Mr Campbell set up a meeting with the Applicant to discuss these performance issues on 21 March 2024. The Applicant and Respondent attended the meeting and discussed these performance issues.
On 8 April 2024 to 12 April 2024, the Applicant was on sick leave and provided a medical certificate.
On 12 April 2024, the Respondent sent an email to the Applicant outlining issues surrounding the monitors. The Applicant had not been maintaining the monitors correctly and had not been updating the monitor spreadsheet. The Applicant had also not been updating the checklist in a timely manner. The Respondent provided the following information regarding faults per state:
Western Australia: 8
New South Wales: 22
Queensland: 47[4]
The Applicant was warned in this email that there had been no change or improvement in monitor performance from the meeting on 21 March 2024 to 5 April 2024 and that this was an unacceptable standard of workmanship and care of SERS equipment and client service. Mr Campbell provided further instructions to rectify these issues immediately and gave the Applicant three working days to make these corrections.
Furthermore, Mr Campbell required the Applicant to answer some questions regarding process to ensure that the Applicant knew how the monitor installation works, along with a daily email at the conclusion of each worked day which required the tasks completed, tasks planned for the next day, travel requirements, a daily timesheet and any issue of monitors that will be enacted. The Applicant’s performance would be reviewed on the week commencing 15 April 2024.[5]
On 17 April 2024, the Applicant produced a Workcover medical certificate which stated that the Applicant had acute stress disorder. The Applicant lodged a claim for compensation with Workcover.
On 30 April 2024, the Applicant sent the Respondent a medical certificate. The Respondent replied that the Applicant was not to communicate with the Respondent directly and the matter should be communicated to Workcover.[6]
On 8 May 2024, the Applicant’s Workcover claim for acute stress disorder was denied.[7]
On the same day, Mr Campbell sent the Applicant a termination letter based on his misconduct. The Applicant was summarily dismissed. The Respondent states that the Applicant had been fraudulently submitted timesheets for hours that he did not work from GPS data in his company vehicle, electronic “clock in” and “clock out” data, and log ins to company computer portals. The Respondent also commenced an audit of site monitoring boxes and as at 7 May 2024, the following feedback was provided by another employee:
DT23 – 100W panel facing due west. Zer cal in site box, not attached. Box looked like shit, replaced. Chained
DT26 – 110W panel facing due west. Zero cal attached. Box average. Chained
DT43 – 110W panel facing due south. Zero cal in site Box, not attached. Box average. Not Chained to anything. Offhired today.[8]
The Applicant lodged his unfair dismissal application on 26 May 2024.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides the criteria and considerations the Commission must take into account when deciding if the dismissal was harsh, unjust or unreasonable. As required by the Act, I consider the following:
(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);
A valid reason for dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”[9] As summarised by Deputy President Asbury in Smith v Bank of Queensland Ltd a “dismissal must be a justifiable response to the relevant conduct or issue of capacity”.[10] The Commission must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.[11]
The Respondent raised two reasons for dismissal. The first reason for dismissal was the fraudulently submitted timesheets. This data was collected from his GPS data from a company owned vehicle, electronic “clock in” and “clock out” data, and a preliminary view of log ins to the company computer portals. The Respondent then put this data in an excel spreadsheet to determine the time discrepancies. The Respondent alleges that the Applicant engaged in 44.65 hours’ worth of time fraud in the span of 6 months.
Even if the Applicant were given the benefit of the doubt regarding the time theft allegation, the second reason for dismissal was the issue of the Applicant’s poor performance. The Applicant’s poor performance resulted in the Respondent having to undertake an audit of the Applicant to uncover the issues, and during the audit, the time discrepancies were a potential issue arising from the poor performance.
The Respondent had records of the faults per state and identified that Queensland had a significant number of faults compared to other states. This triggered the Respondent to investigate why the faults were high. Upon an audit, it was clear that the Applicant was not performing his duties to a standard that were acceptable and was warned about this on 3 occasions.
The performance issues were well substantiated with evidence including the termination letter. The allegations of time fraud are more contentious which will be considered in other factors. However, considering the entire factual matrix of the poor performance, there was a valid reason for dismissal. This weighs against finding that the dismissal was harsh, unjust or unreasonable.
(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
The Applicant was notified of the reasons for dismissal on 8 May 2024. However, the Applicant was not given an opportunity to respond as he was summarily dismissed.
This weighs in favour of finding that the dismissal was harsh, unjust and or unreasonable.
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and
The Applicant could not have requested to have a support person present and therefore there was no unreasonable refusal by the employer to request a support person. Accordingly, this factor is a neutral consideration.
(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
The Applicant had been notified of his poor performance in specific detail on 27 March 2023, 20 March 2024 and 12 April 2024.
On 27 March 2023, the Applicant’s checklist was reviewed and was asked on a consistent basis on email to update the whereabouts of all monitoring equipment. In this instance there was no dismissal, and the Applicant was given the formal opportunity to respond.
On 20 March 2024, the Respondent arranged a meeting with the Applicant to discuss his performance. The Applicant was made aware of the specific issues that needed improvement and was given a timeframe to rectify these issues. The Applicant was also invited to have a support person present in this meeting.
On 12 April 2024, the Applicant was notified that his work was at an unacceptable standard. There would be a further performance meeting, however the Applicant had sent a Workcover certificate in claiming that the Respondent’s actions had resulted in acute stress disorder which was rejected by Workcover.
The Applicant attributes some of these notices to sick leave. However, the Applicant was given sufficient time beside the periods that he was on leave to correct these issues with specific instructions.
The performance issues were still prevalent to his date of dismissal on 8 May 2024, with photographic evidence of the systems not being well maintained. This weights against a finding that the dismissal was harsh, unjust or unreasonable.
(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
The parties did not submit 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 did not have an impact.
(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
The Respondent does not have dedicated human resource management specialists or expertise. Neither party submitted that the absence of such expertise impacted on the procedures followed in effecting the dismissal. I find that the absence of such expertise did not impact on the procedures followed in effecting the dismissal.
(h) any other matters that the FWC considers relevant.
The Applicant did raise other factors such as bullying by Mr Campbell. However, I do not consider this to be relevant.
A relevant factor I consider is determining whether summary dismissal was a proportionate response to the Applicant’s conduct.[12]
The Applicant raised some issues with the timestamps stating that many employees did not use the app, the payslip that he had worked was consistent with the NES, it did not take into account when a workday would start and finish given that sometimes he would directly drive onsite rather than drive to the office, may leave earlier as part of his lunchbreak or if he would be taking calls or receiving emails and would rely on Mr Richard Southam to know when a day would start and end.
The Applicant’s allegation of time fraud amounted to 44.65 hours or about 1 weeks’ worth of pay in the span of 6 months.
Upon analysis of the GPS tracker, and the timesheets, and the amount of time that was alleged to have been taken from the employer, it would have been appropriate at least for the Applicant to have the opportunity to address these issues, and the Respondent to have been clear with the expectations of record-keeping.
However, the Applicant was given multiple warnings regarding performance and therefore had been sufficiently warned. The Applicant should have been dismissed based on his performance rather than the allegation of time fraud. Upon the show cause meeting, if there were indications that the fraud was intentional, this may have supported the dismissal.
Conclusion
The dismissal was harsh given that the Applicant was summarily dismissed, the dismissal was unjust given that the time theft discrepancy of 44 hours should have prompted the Respondent to at least inquire with the Applicant regarding how he had completed his timesheets. However, the dismissal is not unreasonable given that the Applicant was made aware of the importance of taking care of the monitoring equipment, to update his checklist, and to provide accurate information about his checklists and tasks before his dismissal. The Respondent provided the Applicant a year to improve these issues, however these issues were not rectified despite being given specific instructions on how to perform these tasks.
The dismissal was harsh and unjust. Therefore, the Applicant is entitled to an unfair dismissal remedy. I now consider remedy.
Remedy
Given that I have found that the Applicant’s dismissal was unfair, it is necessary to consider the question of remedy. The Applicant has made an application under s. 394 of the Act seeking remedy for unfair dismissal.
Pursuant to section 390 of the Act, this Commission may order:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(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.”
The Applicant did not wish to consider reinstatement as a remedy. Given the matter history and the breakdown of the parties’ relationship, I do not find this to be an appropriate remedy.
Section 392 sets out the considerations for awarding compensation:
“Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(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.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled; (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
The established approach to assessing compensation in unfair dismissal cases was set out in Sprigg v Paul Licensed Festival Supermarket,[13] and has been applied and developed by Full Benches of the Commission.[14]
The assessment of compensation involves a four-step process. however, this is not a substitute for the words in the Act:
“Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost). I am also required to consider the length of service with the employer[15] and the ability to find a new role as a relevant factor in calculating compensation per s392(2).
Step 2: Deduct monies earned since termination.[16]
Step 3: Discount the remaining amount for contingencies.[17]
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount they would have received if they had continued in their employment.”
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
The Applicant worked with the Respondent for four years. The Respondent would have grounds to dismiss the Applicant on performance. The Applicant would have remained employed for 1 week if a show cause process was provided.
Furthermore, the Applicant was not paid his notice on the basis that he was dismissed on serious misconduct. If the Applicant was dismissed on performance, he would have been paid his notice. As a result, he would have been entitled to 3 weeks of notice given that he was employed for four years, and a 1 week of additional notice given that he was over 45 years old.
Thus, I find that the maximum compensation that the Applicants would have received is 5 weeks which amounts to $6,596.00.
Step 2: Deduct monies earned since termination.
The Applicant obtained casual employment on 20 June 2024. Given that the Applicant found employment after 5 weeks, I will not make any deductions under this step.
Step 3: Discount the remaining amount for contingencies.
Although the show cause meeting regarding the timesheet discrepancies may have changed the outcome of the investigation, the Applicant’s poor performance was a persistent issue and his employment would not have continued. As a result, I have made no deduction for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.”
In Bowden v Ottrey Homes Cobram and District Retirement Villages,[18] the Full Bench noted that in relation to the fourth step, the usual practice is to settle a gross amount and leave taxation for determination. I will leave the issue of taxation for determination by the Respondent.
Viability
No issues of viability were raised by the Respondent.
Order
The Applicant has raised that he was seeking unpaid leave, a statement of service which is converted to a resignation. These are not matters that can be addressed in an unfair dismissal claim. The Respondent is ordered to pay the sum of $6,596.00 gross within 21 days upon issuing this Order to the Applicant’s nominated bank account that was on payroll. I Order accordingly.
DEPUTY PRESIDENT
Appearances:
N. MacLachlan appearing self-represented as the Applicant.
J. Beeson appearing for the Respondent from Beeson HR Consulting.
Hearing details:
21 August 2024
Brisbane
Hearing via Microsoft Teams
[1] Statement of Nigel MacLachlan – Annexure A3.
[2] Applicant’s Outline of Submissions 6.
[3] Respondent’s Outline of Submissions - Annexure E.
[4] Ibid.
[5] Ibid.
[6] Applicant’s Outline of Submissions 17.
[7] Ibid.
[8] Applicant’s Form F2 – Attachment ‘Termination letter’
[9] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[10] [2021] FWC 4 at 118.
[11] Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185, [46], citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.
[12] Sydney Trains v Hilder [2020] FWCFB 1373 at [32].
[13] (1998) 88 IR 21.
[14] Bank of Sydney Ltd T/A Bank of Sydney v Repici [2015] FWCFB 7939.
[15] Fair Work Act 2009 (Cth) s392(2)(b) -(c) and s392(2)(g).
[16] Ibid s392(2)(e).
[17] Ibid s392(2)(a), (d) and (f).
[18] [2013] FWCFB 431.
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