Patrick Evison v CanDo Building Services Pty Ltd ATF the ATH Family Trust T/A CanDo Building
[2022] FWC 1493
•14 JUNE 2022
| [2022] FWC 1493 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Patrick Evison
v
CanDo Building Services Pty Ltd ATF The ATH Family Trust T/A CanDo Building
(U2021/10661)
| COMMISSIONER SIMPSON | BRISBANE, 14 JUNE 2022 |
Application for an unfair dismissal remedy
On 22 November 2021, Mr Patrick Evison (Mr Evison/ the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Mr Kevin Jury (Mr Jury).
On 17 January 2022, Mr Jury filed a Form F3 Employer’s response objecting to the application on the jurisdictional grounds that the Applicant had not met the minimum employment period and that the dismissal was in accordance with the Small Business Fair Dismissal Code. Mr Jury also raised that there was a name discrepancy in that he was named as the Respondent, when it should have been CanDo Building Services Pty Ltd ATF The ATH Family Trust t/as CanDo Building.
The matter was listed for a conciliation before a Commission Conciliator on 21 January 2022 but did not settle. The matter was then allocated to me to determine the Respondent’s jurisdictional objections and the additional issue of the Respondent name discrepancy. I listed the matter for a Directions Hearing on 8 March 2022.
In the Directions Hearing on 8 March 2022, the Applicant consented to the application being amended to reflect the Respondent as CanDo Building Services Pty Ltd ATF The ATH Family Trust t/as CanDo Building (the Respondent). At this Directions Hearing, I also set dates for the filing of material relating to the jurisdictional issues. The matter was then listed for a Jurisdictional Hearing on 25 March 2022.
For reasons given in the Jurisdictional Hearing, I dismissed the jurisdictional objections and set dates for the filing of material relating to the merits of the case.
The Hearing then occurred on 23 May 2022 by telephone. Mr Evison represented himself, and the Respondent was represented by Mr Jury and Mr Darren Crowe (Mr Crowe). Mr Robert Bentley (Mr Bentley) also made a statement on behalf of the Respondent and appeared at the Hearing.
BACKGROUND
Mr Evison began working for the Respondent on 16 April 2021 and was terminated effective immediately on 22 November 2021.
Mr Evison was dismissed for forcefully entering a property via a window and drinking on site. Mr Evison’s termination letter reads:
“Dear Pat,
Unfortunately, your employment with CanDo Building Service will cease as of 22/11/2021. Previously there has been issues surrounding how you have represented CanDo on worksites.
One of these, as discussed at the time, was forcefully entering a property via a window and looking around inside the house. This was all caught on CCTV footage.
Friday 19/11 we have had complaints regarding drinking on site, which the painters have seen. As the leading hand on site, you are required to lead by example. It is a requirement from you, that you ensure yourself and no-one else drinks on site.
It is extremely important that the CanDo reputation is not affected by behaviour on site. We wish you well in your future endeavours.”
When the Applicant commenced employment with the Respondent, he completed and signed a ‘New Employee Contact Details’ form and ‘Terms and Conditional of Employment’ form, both of which reference the company drug and alcohol policy. In particular, the ‘New Employee Contact Details’ form reads:
“CANDO BUILDING SERVICES HAS A ZERO TOLERANCE POLICY REGARDING USE AND/OR POSSESSION OF ALCOHOL AND DRUGS AT ALL TIMES IN THE WORKPLACE, VEHICLES OR ON WORKSITES”
[Original text and formatting kept]
Further, the ‘Terms and Conditional of Employment’ document signed by the Applicant states:
“Drug Alcohol & Smoking Policy. CanDo Building Services has a zero tolerance policy regarding use and/or possession of alcohol and drugs at all times in the workplace, vehicles or on worksites. Random drug testing can be carried out at any time. Smoking is not permitted in any Company Vehicle at all times.”
[Original text and formatting kept]
The Applicant maintains that he entered the property via an unlocked sliding door to look for a toilet, and when he released the toilet was duct taped shut, he left. Additionally, Mr Evison denies the allegations that he was drinking on site.
EVIDENCE AND SUBMISSIONS
Forcefully Entering a Property
Mr Evison stated that the accusations of forcefully entering a property are false. Mr Evison stated that he had informed another Manager that there was no outside portaloo on site, and that the house wasn't finished meaning the back sliding door was open. Mr Evison’s evidence was that he walked inside to look for a toilet and when he had found the toilet it was duct taped shut, so he didn't use it and walked straight out. Mr Evison stated that this was submitted to the builder of that particular site and he had agreed with Mr Evison’s statement as it was clearly shown on CCTV footage.
Mr Evison stated in the hearing that he did not get a warning from this incident, but was told in the future if there was not a portaloo on site, to call up and say he needed to leave site to go find the toilet, and if there was no building manager on site to ask, to just not go in to avoid future problems. Mr Evison said this conversation happened a week after the incident occurred.
Mr Crowe stated that he spoke to the owner of a client, being Queensland Heritage Restorations, who said that there were signs of forced entry on some of the doors, and additionally, that it was pretty clear the person in the video was walking around all the rooms and scoping out looking for something. Mr Crowe stated that obviously it can be said that he was looking for the toilet, but you can clearly see from the footage and from the photos that it doesn’t look very good.
I asked the parties about the email from the Director of Queensland Heritage Restorations on Monday 27 September 2021 which reads as follows:
“Hi Elliot,
These images were captured inside the house at 8:09 today.
We are very concerned at what we can see on the video and make a request to formally provide us with personal identification including any drivers licence images with a residential address.
His telephone number as well.
He has moved / bent an MDF block on the rear cedar bifolding doors to gain entry and gone to both levels.
Please ask what his intention was and what he did while inside the house and we will confirm.
Since he is the driver of the truck we have had to change the padlock code.
At this point in time we won’t be notifying the owners but I do want his details on our file.”
The parties agreed that this event was indeed in September given the date stamp on the email.
I asked the parties about the warning the Respondent says was given to the Applicant. Mr Jury said he was not aware of the incident at the time as he was in New Zealand and ‘Kelly’ was managing the business. Mr Jury said that at the time the Applicant was dismissed for the other matter, he was made aware of this earlier incident, which he understood that ‘Kelly’ gave him a verbal warning about that incident.
Mr Jury said that they lost Queensland Heritage Restorations as a customer as a result of this incident. I asked Mr Jury if Queensland Heritage Restorations expressly said they were not going to use the business anymore, and he said that they just stopped using them and haven’t requested any further quotes for work. Mr Jury stated that they did work for Queensland Heritage Restorations regularly over the last three years, and they probably would have done $50,000 per annum turnover with them.
I asked the parties if there was a protocol about entering buildings on construction sites. Mr Evison stated that there wasn’t a general rule about this, but if it was a finished home and there were people living in the home, you would clearly knock on the door and asked politely if you could use their toilet. Mr Evison further stated that at the site of the incident in question, there was actually a toilet roll that he mentioned to ‘Kelly’ on the back verandah or a toilet roll sitting right next to the sliding door, so he assumed that there would be a toilet that they could use inside, but maintained that as he found the toilet and it was duct tape shut, he had left the building and closed the door.
I asked the parties about the doors, as the email of 27 September 2021 which is reproduced above, notes that the MDF block was moved/bent near the rear cedar bifolding doors to gain entry, but the Applicant’s evidence noted that it was a sliding door. The Applicant stated that he meant that the doors fold together as they open. Mr Evison said there were no locks on the doors, so the door was slightly ajar.
Stealing and Drinking
Marijuana allegation – July/August 2021
Mr Bentley made a statement in this matter and alleged that the Applicant was smoking Marijuana ‘on the truck’. Mr Bentley couldn’t remember a precise date, and stated that he just didn't take much notice, but was then approached by some supervisors about the drugs and alcohol on site. In the hearing, Mr Bentley said it happened around July or August 2021.
Mr Evison stated that he definitely wasn’t smoking marijuana as he smoked rollies at the time. Mr Evison stated that he could imagine that Mr Bentley might have thought it was but didn’t recall Mr Bentley ever asking him to put anything out. Mr Evison said that the day Mr Bentley came and picked them up from site on 19 November 2021, he was with two other employees, and he was smoking a cigarette out the front while waiting for Mr Bentley to come. When Mr Bentley pulled up in the truck, he said Mr Bentley asked Mr Evison to put it out and so he put it out. They then hopped in the truck and drove back to the CanDo yard.
The drinking/stealing allegation – 19 November 2021
Mr Evison submitted that he was accused of stealing and drinking on site on Friday 19 November 2021.
In the hearing, Mr Crowe stated that he received a call on 19 November 2022 from the owner of the house Mr Evision was working at about behaviour on site, and on the following Monday, the following email was received:
“Hi Kevin, I am writing in relation to the Scaffold ordered and placed around the perimeter of the property at [redacted]. Specifically I would like to notify you of the events transpired during the erection of the scaffold. It was noticed by myself, my wife and various tradespeople also onsite, alcohol was being consumed. This consumption of alcohol was condoned and encouraged by who appeared to be in a supervisory role. This lead to some very rowdy behaviour, inappropriate for family environments including the use of profanities in front of children and neighbours.
I am also unhappy to report the incidents of theft. 2 batteries and 2 chargers for a 36v Ryobi system were stolen from the garage during the final day of scaffold erection. These items were accessed through a side door directly adjacent to where the final scaffold was being built.
I am also unhappy to report the incidents of damage to tiles as a result of improper care in placement of scaffold around the perimeter of the property. Some outriggers lacked any wooden blocks underneath. Some if used were placed on edging of tile work, resulting in breaks.
I am disappointed that your crew has let you down to this extent, I am aware this is not within normal policy of CanDo scaffold and not encouraged by senior management.”
On Friday 19 November 2021 when they had completed the job, Mr Evison stated that they were picked up by Mr Bentley, as they had earlier been dropped off to the site in the morning because the truck was needed for another job. Mr Evison stated that when they arrived back to the CanDo yard he notified Mr Crowe that Mr Nick Sawtell (Mr Sawtell), another leading hand who had left the job before they did that day, was drinking on site. In the hearing Mr Evison accepted alcohol was being consumed but said it wasn’t him, it was another employee who he talked to about it. Mr Evison said that he definitely didn’t condone the behaviour. Mr Evison said that Mr Sawtell is always rowdy as he is half deaf and talks loudly as well as being a bit ‘rough’ with language that was a bit ‘all over the shop’.
In the hearing, Mr Crowe stated that the allegation of Mr Sawtell drinking was ‘absolute garbage’. I asked Mr Crowe if he had any conversation with Mr Evison on the Friday and he said ‘zero’. In response to this, Mr Evison stated that they did have a conversation, because when they arrived back to the yard, Mr Crowe had bought cases of beers for the other employees, and they were drinking in the CanDo yard in shed. Mr Evison stated that he and Mr Crowe did have a lengthy discussion before they left. Mr Crowe said he was pretty sure it was ‘Kelly’ that brought the beer back to the yard at the end of the shift. Mr Evison said either way who ever brought them, he and Mr Crowe had a lengthy conversation as they were leaving the yard.
Mr Jury stated that they have six trucks and one small truck, which is the one referred to as the twin cab and could be driven under a car license. As the Applicant didn’t have a truck license, when he took a team out, they used that twin cab. Mr Jury said there were always empty beer cans and empty Jack Daniels bottles behind the seats in that truck, and that truck was the truck that Mr Evison used to take his team out.
In response to this, Mr Evison stated he probably used that dual cab once a week if he was lucky. On other occasions he wouldn’t actually be the driver due to not having a license and he would be in one of the other trucks. The dual cab was a truck that was heavily passed around depending on jobs specifics, so they needed to take more men.
Mr Crowe stated that Jack Daniels was Mr Evison’s drink of choice, and that Wild Turkey was Mr Sawtell’s drink of choice. Mr Crowe said that in the photos sent by the owner of the house it was a can of Wild Turkey and a bottle of Jack Daniels and so he knew who was responsible.
Leading hand – 19 November 2021
The Respondent submitted that Mr Evison was the leading hand on the Friday 19 November and it wasn’t Mr Sawtell as claimed by Mr Evison, because leading hands were permanent employees as Mr Evison was, and Mr Sawtell was a casual.
Mr Jury stated that if Mr Evison was aware that guys were drinking on site, he should have immediately advised the supervisor and they would have been removed from the site because that breaches workplace health and safety. Mr Evison stated that Mr Sawtell ran crews of his own and was paid leading hand wages even though he wasn’t permanent.
The meeting/dismissal - 22 November 2021
Mr Evison accepted that he was brought into the office on the Monday 22 November 2021, with Mr Crowe and told that some batteries went missing from site on the previous Friday. Mr Evison submitted that he stated that he had no idea where they had gone, and that he did not touch any batteries. Mr Evison then stated that he was told that they knew that he had taken them and that he was fired from that day and not to return to work. Mr Evison stated that he said again that he hadn't taken anything from site and that they could have the police search his vehicle and his house. Mr Evison stated that Mr Crowe refused and told him to leave grabbing his shoulder and escorting him out the office.
I asked Mr Crowe how he concluded Mr Evison had been drinking on site and he stated that Mr Evison told him. Mr Crowe said on Monday 22 November 2022, the first thing he questioned Mr Evison about was in relation to the disappearance of the Ryobi batteries and chargers. In the hearing, Mr Crowe stated that they’ve since discovered a drill had also gone missing. Mr Crowe stated that he knew who else was on that job site, and who was capable of stealing things, and he knows who’s not and this was the reason Mr Evison was questioned on it. Mr Crowe said regarding the allegation of stealing, the Applicant denied this so Mr Crowe left it alone.
Mr Crowe stated that he then questioned the Applicant about the drinking allegation and the Applicant admitted to drinking. Mr Crowe then stated that he said to Mr Evison “well, that's it. That's it throughout the door and you know, you can't, you simply can't drink.” Mr Crowe gave further evidence that it was an accumulation of things leading up to this and he has a zero tolerance with this type of thing when doing a job that requires heavy duty labour because it is very dangerous.
Mr Evison stated he never admitted to drinking on site as he hadn’t been drinking. Mr Evison further gave evidence that there were other leading hands that were heavy drinkers.
Mr Crowe stated that Mr Evison wasn’t dismissed for stealing as it was still under investigation, but he was dismissed for drinking on site due to a second warning of unduly behaviour.
CONSIDERATION
In considering whether it is satisfied that a dismissal is harsh, unjust or unreasonable, the Commission must take into account the considerations under section 387 of the Act.
(a) Whether there was a valid reason for dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
A valid reason was described in Selvachandran v Petron Plastics Pty Ltd[1] as one which is “…sound defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based on the operational requirements of the employer’s business.”
When the Applicant commenced employment with the Respondent, he completed and signed a ‘New Employee Contact Details’ form and ‘Terms and Conditional of Employment’ form, both of which reference the company drug and alcohol policy.
I am satisfied on the evidence that the Applicant was aware of the Drug and Alcohol policy and given the operational requirements of the employer’s business, they had a duty to enforce this policy.
There are a number of factual contests between Mr Evision and Mr Crowe, including whether Mr Evison did or did not raise with Mr Crowe on the afternoon of Friday 19 November 2021, that a work colleague had been drinking on site that day, and also about whether Mr Evison had admitted to Mr Crowe during their meeting on Monday 22 November that he had been drinking on site on the previous Friday. Ultimately the Commission must arrive at a finding on the balance of probability whose evidence to prefer on both these disputes facts.
Having listened to both witnesses, I am more inclined to prefer the evidence of Mr Crowe because I found him to be direct and clear in his evidence. It is uncontroversial that the Respondent received the complaint from its client about conduct on site on the Friday 19 November as demonstrated by the email received by the Respondent on the following Monday and produced by the Respondent. Mr Crowe also said he received a phone call from the client on the day itself. I find Mr Crowe’s description of the manner in which the meeting with Mr Evison proceeded on the Monday as the more likely version. There is no dispute that Mr Crowe raised the allegation of items having been stolen by Mr Evison. What is in dispute is what was said about the allegation of drinking on site.
I find it unlikely that Mr Crowe would invent the claim that Mr Evison had admitted to drinking on site, or that Mr Evison admitted to it during the meeting. I find the version of events as provided by Mr Evison to be less likely. The email on the Monday 22 November from the client makes clear that the client was complaining about drinking on site and about property being stolen.
It is logical that Mr Crowe would raise both issues with Mr Evison at the meeting. It is also logical that Mr Crowe would have been likely to understand that he was not in a position as at the time of the meeting on Monday 22 November to be able to reach any kind of conclusion regarding the allegation of theft without further investigation.
Mr Evison claimed at the hearing that he had already raised with Mr Crowe the previous Friday his concern that another employee had been drinking on site that day. Mr Crowe was emphatic that this did not occur. Whilst findings of this nature cannot be made with absolute certainty, I am inclined to believe him. I am inclined to view Mr Evison’s evidence on this point as self-serving.
I am inclined to the view that given it is highly likely that both issues would have been raised at the Monday meeting, it is also logical to conclude that Mr Evison would have regarded the allegation of drinking on site as less serious than the allegation of theft and this view would tend to favour Mr Crowe’s version of the evidence that Mr Evison denied the allegation that he took items from the site, but admitted to the allegation of drinking, and it was that allegation that led to his dismissal, and not the allegation of theft as Mr Evison has maintained. This is consistent with the termination letter.
Given I have concluded it is more likely than not that Mr Evison admitted to drinking on site in the course of the meeting on Monday 22 November, in circumstances where the evidence is clear that the Respondent had a clear and unambiguous policy of zero tolerance of such behaviour on safety grounds, I am satisfied that the Respondent had a valid reason for dismissal.
(b) Whether the person was notified of the reason
I am satisfied that during the conversation during the afternoon of 22 November 2022, Mr Evison was notified that the alcohol consumption on site was the reason for the termination, which was further corroborated by the termination letter dated 22 November 2022.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
An employee must be given an opportunity to respond to a reason related to their capacity or conduct, and allowed an opportunity to explain their capacity or conduct throughout the process and before the termination occurs.
I have already preferred Mr Crowe’s evidence regarding what was said in the course of the meeting on 22 November and on that basis, I conclude that Mr Evison was given the opportunity to respond, and he admitted to the alleged conduct regarding drinking on site.
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist in any discussions relating to dismissal
This consideration will only be relevant where an employee seeks to have a support person present to assist in discussions in relation to dismissal and the employer refuses. The evidence does not establish that Mr Evison requested a support person and therefore, this is a neutral consideration.
(e) Was the Applicant warned about unsatisfactory performance before dismissal
Whilst the evidence on this point is conflicting as well, in the end it is moot as the reason for dismissal was not related to unsatisfactory performance but misconduct and therefore it is a neutral consideration.
(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
Whilst I have made an earlier finding that the Respondent is not a small business for the purposes of the Act, it is very close to falling within that category. The Respondent did not have a dedicated human resource management specialist or expertise in the enterprise. I am satisfied that the considerations in both section 387(f) and (g) are both matters have likely impacted on the procedures followed in effecting the dismissal.
(h) Any other matters that the FWC considers relevant
Mr Evison gave evidence at the hearing that he started working for a different employer four days after being terminated, getting paid more than he was working with the Respondent.
CONCLUSION
I have made findings in relation to each of the considerations under section 387 of the Act and have weighed those findings including that the Respondent had a valid reason for dismissal. On the basis of those findings, I am satisfied the dismissal of Mr Evison was not harsh, unjust or unreasonable. Accordingly, the application is dismissed.
COMMISSIONER
Appearances:
Mr Patrick Evison on his own behalf.
Mr Kevin Jury and Mr Darren Crowe for the Respondent.
Hearing details:
2022
Brisbane (by Telephone)
23 May
[1] (1995) 62 IR 371 at 373.
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