Paul Lewis v MML Civil Construction Pty Ltd
[2023] FWC 2624
•10 OCTOBER 2023
| [2023] FWC 2624 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Paul Lewis
v
MML Civil Construction Pty Ltd
(U2023/5177)
| COMMISSIONER SIMPSON | BRISBANE, 10 OCTOBER 2023 |
Application for an unfair dismissal remedy
On 12 June 2023, Mr Paul Lewis (Mr Lewis /the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with MML Civil Construction Pty Ltd (the Respondent).
I listed the matter for a directions hearing by telephone on 23 August 2023. The matter was listed for Hearing by Microsoft Teams on 9 October 2023. At the commencement of the proceedings both parties agreed for the matter to proceed as a determinative conference.
The Applicant relied on his Form F2 – Application for an Unfair Dismissal Remedy filed on 12 June 2023, a payslip submitted on 14 September 2023, oral evidence and closing oral submissions. The Respondent relied on the Form F3 – Employer Response, Form F4 – Objection to Unfair Dismissal Application and associated documents filed on 23 June 2023, oral evidence from Mr Shawn Rogers, the Director of the Respondent, and witness statements and oral evidence from Mr Lloyd Armansin, a Machine Operator and Truck Driver, Mr Caleb Warton the Supervisor on Site and Ms Teah Calvert a labourer on site and the step daughter of Mr Rogers, and its closing oral submissions.
The Applicant was dismissed from his employment on the Respondent’s initiative on 1 June 2023. The application was filed on 12 June 2023, within 21 days of the date of the dismissal. The Respondent raised three jurisdictional objections to the application:
· Minimum employment period not being met;
· Compliance with the Small Business Fair Dismissal Code (SBFDC/ the Code);
· Other – serious breaches of occupational health and safety.
In line with the decision in Herc v Hayes[1] the order in which jurisdictional objections must be considered is dependent on their impact on the Applicant’s eligibility to make the application and whether he is protected from unfair dismissal in the first place. As such, minimum employment period is considered first, and if met, compliance with the Code is considered next. The third jurisdictional objection raised by the Respondent is not one considered separately, and instead forms part of the consideration of whether the dismissal was in compliance with the Code.
SUBMISSIONS AND EVIDENCE
Background
Minimum employment period
The Applicant did not contest the Respondent’s claim that it was a small business employer. The Respondent said it had eight employees at the time of the Applicant’s dismissal. I am satisfied on the basis of the material before the Commission that the Respondent employed a total of 8 employees at the time of termination, making it a small business in accordance with section 23 of the Act. As per section 383(b) of the Act, the minimum employment period for small business employees is 12 months.
The Respondent raised an objection that the Applicant had not completed the minimum employment period on the basis of its understanding of the Applicant’s commencement date as a casual with the previous owner of the business. The Applicant said he commenced employment with the Respondent on 25 May 2022 in a casual position, and on 14 September 2023, the Applicant provided his first payslip as evidence of his commencement date. The Respondent subsequently did not refute this in their email correspondence to Chambers on 15 September 2023, in which they indicated they did not intend to make further submissions. The Respondent confirmed at the determinative conference that it no longer pressed the minimum employment period jurisdictional objection. As I am satisfied that the Applicant commenced employment on 25 May 2022 and the Applicant’s dismissal took effect on 1 June 2023, the Applicant satisfied the minimum employment period.
At the time of the dismissal, the Applicant was employed as a Civil Construction Worker - Labourer by the Respondent, under the Building and Construction General On-site Award 2020.
Termination Letter
It was common ground that the Applicant’s termination of employment was communicated to him at a face to face meeting between Mr Rogers and the Applicant on 1 June 2023. In the course of the meeting the Applicant was handed a termination letter which included the following:
“……
Dear Paul,
I am writing to you about the termination of your employment with MML Civil Construction.
On numerous occasions I have met with you and you were advised that your performance and conduct was less than satisfactory and you were advised on the expected level of output or performance, and the expected conduct at work. Your behaviour discussed was but not limited to:
·Your unwillingness to engage in work tasks and even avoidance of work tasks resulting in frustrated co-workers and co-workers having to perform more than their share of the work load to make up for your non-performance and risking not achieving the work task in a reasonable allocated time, resulting in physical exhaustion of your co-workers and excessive labour costs in overtime to complete the tasks causing damage to the viability of the business.
·Your constant use of negative vocabulary and poor attitude in the workplace resulting in bringing down the moral of co-workers resulting in the diminishing of positive team environment and safe concentration levels on the job site.
Further to the behaviour previously addressed above, yesterday and on this day, Thursday 1 June 2023 I have received multiple reports from your co-workers of serious misconduct on the night shift beginning 6.00pm on Tuesday 30 May 2023 and finishing at 3.00am on Wednesday 31 May 2023 that your conduct consisted of:
·Intentionally refusing work,
·Intentional avoidance of the tasks requested by co-workers
·When addressed about your conduct you gave verbal provocation and argumentative in dressing down co-workers frustrated with your unsatisfactory conduct and failure to engage in the work tasks.
I consider that your performance and conduct is serious and I have decided to terminate your employment for the following reasons.
·Your unwillingness to work together and cooperate with your co-workers to perform the tasks required to complete the work was intentional behaviour that goes against the terms of your employment
·Your unwillingness to work together and cooperate with your coworkers to perform the tasks required poses a significant and immediate risk to the health and safety of all individuals in the immediate work zone and larger radius of the job site and surrounding public.
·Has resulted in your coworkers reporting anxiety and unwillingness to work on the same shift as you and advising that should they continue to be asked to work with you that they would seriously consider resigning, this in turn causes harm to MML Civil Construction.
Your employment will end immediately. Based on your length of service, your notice period is 1 week plus in the essence of good faith and to assist you in your transition forward we have agreed to an additional 1week notice. In lieu of receiving that notice, you will be paid the sum of $3,116.00 gross wages before tax.
You will also be paid your outstanding pay to date and accrued entitlements, up to and including your last day of employment this includes any superannuation entitlements which will be paid to your nominated fund within the current quarterly reporting period due date.
Kind regards
Steve Rogers
DIRECTOR
MML CIVIL CONSTRUCTION PTY LTD”
Small Business Code
In this case the Respondent submits that the dismissal was for serious misconduct and the dismissal was a summary dismissal issued without notice, although as the termination letter states the employer paid one weeks’ notice and an additional week. The relevant part of SBFDC is the part of the Code that pertains to dismissal for serious misconduct. That part of the Code reads as follows:
“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”
It is well settled that the Commission does not have to make a finding, on the evidence, whether the conduct occurred.[2] The Commission needs to find whether the employer had a reasonable belief that the conduct of the employee was serious enough to warrant immediate dismissal.[3] It is not necessary for the Commission to determine whether the employer was correct in the belief that it held.[4]
For an employer to believe on reasonable grounds that the conduct of the employee was serious enough to justify immediate dismissal, the employer must establish that they did in fact hold the belief that:
· the conduct was by the employee
· the conduct was serious, and
· the conduct justified immediate dismissal.[5]
The employer must establish that they had reasonable grounds to hold the belief, which could be established by providing evidence of inquiries or investigations the employer undertook to establish their belief.[6]
Witness Evidence
The Applicant did not submit a witness statement, noting in email correspondence on 14 September 2023:
“As the only witnesses to the incident, and the time surrounding it, are employees or employers of MML Civil, I find witness statements on my behalf to be pointless.”
Further, in relation to the 4 statements submitted by the Respondent, the Applicant raised concerns, noting:
“In response to the witness statements submitted by the respondent, I disagree strongly, but would have written something similar if requested to by my boss.”
Mr Rogers as the Director of the Respondent also did not provide a witness statement. He gave oral evidence that in different situations he had showed Mr Lewis pictures of work and said they couldn’t do work like this, and he also had discussed with Mr Lewis about his behaviour on site. Mr Rogers said this had happened on numerous occasions however he accepted on previous occasions he had not told the Applicant that his employment was in jeopardy. Mr Lewis agreed that on occasions that Mr Rogers had spoken to him about the way he had done work, and said he had wanted it done a different way, however Mr Lewis said he disputed that there were earlier discussions about his conduct. Mr Rogers responded that Mr Lewis should know that he spoke to Mr Lewis previously about misbehaving on site and to stop and concentrate on what they were doing, which is what creates the safety issue on site.
Mr Rogers said the Respondent is a small business that contracts to Energex and the work involves live infrastructure and it is all 11,000 and 33,000 volt live cables. Mr Rogers said Mr Lewis several times had just disappeared and he ‘hangs out’ with the traffic controllers. Mr Rogers said he is not on site all of the time, however when the other workers would come back to the yard they would report that it would be nice if Mr Lewis gave them more of a hand because they were there stuck alone. Mr Lewis said that he felt the time Mr Rogers was talking about was a time when one of the workers found one of the traffic controllers attractive and he was trying to be a match maker.
Mr Rogers said there were a number of occasions where workers had complained to him about Mr Lewis and it was constant issue. Mr Rogers said all three of the witnesses had complained to him about it, and Mr Armansin had threatened to leave if he had to work with Mr Lewis again. Mr Rogers said the supervisor Mr Warton had told him that Mr Armansin had told him this, and Ms Calvert was totally frustrated with the situation Mr Lewis had put her in. Mr Lewis said he did not have an issue with any of the workers (who were going to give evidence) however he said if Ms Calvert became frustrated with him, he believed it was because Ms Calvert was attracted to the worker that he was attempting to “match make” with the traffic controller, and that’s all he could put it down to.
In reference to the issue in the termination letter concerning negative vocabulary and poor attitude, he said he witnessed this first hand and Mr Lewis’ attitude was Mr Rogers was out to rip the staff off. Mr Lewis said he had no issue with the income he was paid. Mr Lewis said his objective was to make money for the company and it was only a one-off comment. Mr Rogers responded that it was a constant issue, and he believed Mr Lewis was driving the workers to think that the workers were just making money for Mr Rogers. Mr Lewis said he was told by others including Mr Rogers his attitude to work was uplifting and he was blindsided by the termination and he did not know it was an ongoing concern.
On the evening shift starting at 6pm on Tuesday 30 May 2023 and ending at 3.00am on Wednesday 31 May 2023 it was asserted that Mr Lewis intentionally refused to work, intentionally avoided tasks requested by co-workers, and was argumentative. It was asserted this behaviour was intentional and was a significant risk to the health and safety of individuals in the immediate work zone and larger radius of the job site and surrounding public.
I asked Mr Lewis if he could respond to the three witness statements provided as part of the Respondent’s case. He said initially he did not read them all because he “he put it off as a joke”. He said he did not agree with what was said and he believed some of what was said was provoked by Mr Rogers and he disregarded it. I indicated to Mr Lewis he should respond to each or them while he was giving sworn evidence.
Mr Warton, the Supervisor, said that he has worked for the Respondent for three years and he has worked alongside Mr Lewis for the entirety of his employment. Mr Warton said that on 30 May Mr Armansin approached him as the site supervisor and said that if he had to work with Mr Lewis again, he would be leaving the company as he was sick of Mr Lewis’ childish behaviour and lack of work ethic. Mr Warton said on the same shift Mr Lewis proceeded to spend the majority of his time standing around talking to the traffic controllers and he then continued to act childish when asked to do a task which resulted in infuriating another employee Ms Calvert. Mr Warton said in his oral evidence the task he was referring to was to cut a bit of timber and Mr Lewis just stood there with the drop saw half in the bit of timber for a while, while they were waiting for it. Mr Warton said Mr Lewis held it there for about 30 seconds, just playing around.
Mr Warton said he also witnessed Mr Rogers give Mr Lewis multiple verbal warnings about his substandard work and work ethic. Mr Warton said there was an incident where Mr Lewis did a lid and there was bitumen up against it and Mr Rogers told him they couldn’t leave jobs looking like that. Mr Lewis said he thought that Mr Warton was a ‘top bloke’ and Mr Warton had told Mr Lewis that he intended to continue to work for Mr Rogers.
Mr Lewis said he did not hear any conversation between Mr Armansin. Mr Lewis said Mr Warton was mainly responding to something he was told, and in response to the claim that he had been given multiple verbal warnings he disputed that had occurred. In relation to the allegation that he spent the majority of his time standing and talking to traffic controllers, Mr Lewis said he thought it was a different night, however Mr Rogers said it was definitely the night they were working on the pit, and that was 30 May shift. Mr Lewis said he and Ms Calvert had a disagreement and he couldn’t remember what it was about, and that Mr Rogers and Ms Calvert had not been talking to him, and he claimed he said to Mr Rogers he couldn’t work for the Respondent if he would not talk to him.
Mr Lewis was referred to the statement of Mr Armansin where Mr Armansin said that during the nine months he had worked alongside Mr Lewis he and his colleagues have witnessed an exceptional amount of disrespectful behaviour and disregard to the workplace tasks required to be performed. Mr Armansin said Mr Lewis’ lack of enthusiasm and unwillingness to cooperate and work as a team had pushed himself to request that he no longer work alongside Mr Lewis.
Mr Armansin said Mr Lewis’ inappropriate jokes, bad behaviour and carelessness towards workplace health and safety encouraged Mr Armansin to make the request. Mr Armansin said working around the live power network requires adequate training and tickets, and Mr Lewis’s lack of ability to abide by the Respondent’s Safety Work Method Statements (SWMS) had caused several near misses with the other workers and utilities.
Mr Armansin said as the Respondent’s only ticketed machine operator and truck driver he had responsibilities himself and on a number of occasions Mr Lewis would interfere with Mr Armansin by approaching his machine from his blind side without making positive contact before doing so. Mr Armansin said on one occasion this nearly caused a serious injury with another worker when Mr Lewis decided to reach through the cab and move the controls whilst Mr Armansin’s ground crew were unhooking chains. Mr Lewis said he knew what Mr Armansin was talking about. Mr Lewis accepted he was at fault in the specific incident referred to. He said he was distracted with work when he had gone to speak to Mr Armansin about something. Mr Lewis said he didn’t touch any controls but he had touched Mr Armansin’s hand and in the act of Mr Lewis touching Mr Armansin’s hand, Mr Armansin moved the controls. Mr Lewis denied reaching through the cab or touching the controls.
Mr Lewis put to Mr Armansin that he didn’t touch the controls but he agreed he touched Mr Armansin’s hand. Mr Armansin said he didn’t understand how you could reach through and touch a hand without touching the joy stick. Mr Armansin said it could have been a really, really serious incident. Mr Armansin said the co worker could have lost a hand or a finger, if he was in front of the boom unhooking the chains it could have led to a death. Mr Lewis said all of that was fair enough, however he said he went back to his original point that Mr Armansin’s hand was on the control, and he touched Mr Armansin’s hand. Mr Armansin said Mr Lewis grabbed his hand which was on the control of the machine and Mr Lewis should not have been within that zone at all. Mr Armansin said no one should be in that zone unless instructed by him. Mr Armansin said the machine was a five tonne excavator. Mr Armansin said the general work practice is there is a three metre exclusion zone from the machine, or the booms swing area unless an employees comes around to the front of the machine where it is working and makes contact with the operator. Mr Lewis said they were working in a cramped fenced off area and Mr Armansin had the door open and he approached the machine from his left hand side where the door was open. Mr Armansin said Mr Lewis approached the machine from where he couldn’t see Mr Lewis because his is looking at his dogman unhooking chains directly in from of him.
Mr Armansin said there has been multiple verbal warnings given on site whilst working. Mr Armansin said Mr Lewis proceeded to ignore and continue with his disregard. Mr Armansin said the other staff would be required to pick up the extra work that Mr Lewis did not complete, therefore costing the Respondent not only lost time but loss of income due to overtime being given. Mr Lewis said all he really had to say about this was that it sounded like an echo of what Mr Rogers said and he rejected it.
Ms Calvert said that Mr Lewis is the kind of person who pushes boundaries with others constantly, just to see how far he can take it. Ms Calvert said from very early on Mr Lewis was always mucking around on site and did not take the job or the boss seriously. Ms Calvert said she witnessed Mr Rogers say to Mr Lewis that he needed to pay attention to what was happening on the job and to stop distracting other workers. Mr Lewis said he has a lighthearted attitude to work and you can have a laugh at work and that does not take away from safety.
Ms Calvert said one of the things Mr Lewis would do regularly, almost every day, was to come up behind someone standing by the pit and grab their shoulders and jolt them and shout something like “Saved your life!”, “Don’t fall in!”, “Whoops, Gotcha!” essentially just to startle them because he found it funny. Mr Lewis said that he disagreed with this paragraph, and he didn’t know where it came from. Mr Lewis put to Ms Calvert that her evidence was false. Ms Calvert said he started with that the first hole they dug and Mr Lewis did it a lot and they would all be on edge waiting for him to startle them.
Ms Calvert said that another thing was that whenever Mr Lewis would start a task, he’d stand there and take a deliberately unreasonable amount of time to put his gloves on before starting to do anything, and then when they’d already be done by the time he was ‘ready’ he’d go “oh, no, I missed it, that’s a shame”. Ms Calvert said she recalled a few times Mr Rogers and Mr Warton called Mr Lewis out on this habit in a serious way, and he’d say “safety first!”. Mr Lewis said that he strongly disagreed with this statement from Ms Calvert.
Ms Calvert said Mr Lewis would not finish concrete the way Mr Rogers had instructed him to or use the tools Mr Rogers provided. Ms Calvert said this resulted in work that looked sloppy and careless. Ms Calvert said it did not matter how many times Mr Rogers instructed Mr Lewis to use a specific concrete edger for finishing, Mr Lewis would say yes to Mr Rogers face, and then refuse to change the way he was doing the concrete anyway. Mr Lewis agreed he brought his own tools and said he did not force people to use his tools. Mr Lewis said he wouldn’t have been employed for a year if he was not doing the edging properly. Mr Rogers said on several occasions he spoke to Mr Lewis about the way he wanted the edges done, that they were too high and created a trip hazard and he constantly went back to using the larger edger. Mr Lewis said there is an outside edge and an inside edge around the metal lids. Mr Rogers disagreed, and said he was constantly showing Mr Lewis where edges had not been done correctly.
Ms Calvert said Mr Lewis spent as much time as he could either eating, taking phone calls, or talking to traffic controllers. Ms Calvert said it was a constant problem for everyone working with him, because he put in so little, everyone else had to pick up the slack.
In reference to the evening shift of 30 May, Ms Calvert said it was the end of a very long night, forming up walls of a pit, Mr Warton had asked for a length of timber to be cut. Ms Calvert said Mr Lewis picked up some timber and started cutting, and kept cutting, and kept cutting. Ms Calvert said Mr Lewis was holding the spinning drop saw in the middle of a piece of timber, looking around, making eye contact with everyone as they slowly realised what was taking so long. Ms Calvert said as she looked on, someone asked “what’s going on?” Ms Calvert said Mr Lewis started saying “oh nothing I’m just watching people get pissed off by something that doesn’t affect them at all, especially Teah (being a reference to Ms Calvert) look how worked up ---” Ms Calvert said she cut him off saying “Oh come ON, Paul”. Mr Lewis said he recalled the incident but it did not happen as Ms Calvert recalled, however it was that long ago that he cannot remember the specifics. Mr Lewis accepted he took longer than normal to cut it but he did not agree it took 30 seconds. Ms Calvert said Mr Lewis was holding the blade in the timber, just holding it and looking around and looking at everyone on the site and waiting for a reaction, and then he got it and did not like it. Mr Lewis said he strongly disagreed.
Ms Calvert went on to say that Mr Lewis threw/flipped the timber away from the drop saw at the ground in her direction. Ms Calvert said Mr Lewis was throwing an adult tantrum. Ms Calvert said she shouted “Grow Up!” at Mr Lewis and Mr Lewis looked at her shocked and said “did you seriously just tell me to grow up?”. Ms Calvert said she replied “Yeah. Seriously. Grow Up.” Mr Lewis said he could remember cutting the timber, and Ms Calvert yelling at her, and Ms Calvert and him had not been speaking for three nights before that.
Mr Rogers said this was the incident that pushed him to the point where he had to dismiss Mr Lewis because of the safety factor. Mr Rogers said Mr Lewis was holding a power saw halfway through a bit of timber with it running and looking around and not concentrating on what he was doing. Mr Rogers said if he had cut his own hand off Mr Rogers as the director of the company would be in all sorts of trouble and really his concern was the safety factor of it all. Mr Rogers said also the throwing of the timber does not only affect his co-workers, there are also live cables and pedestrians and when he got the statement he had to act as the director of the company. Mr Lewis said that when he was dismissed that incident was not brought up and he believes that Mr Rogers would have spoken about it if it was the reason for the dismissal. Mr Lewis said where it normally takes 2 second to cut through the timber he said he might have taken four to five seconds.
Mr Lewis said that as Ms Calvert is the stepdaughter of Mr Rogers he did not believe her evidence should be admitted.
In lieu of submissions the Respondent made the following statements in email correspondence of 15 September 2023:
“Under the WHS Regulations as a place of business of carrying out high risk construction work we have a duty to comply with the obligations under WHS Regulations to provide a safe workplace. Under the Construction Work code of practice, workers must also always comply with the (Construction White Card) duties and obligations under the WHS Regulations.
In this incident it was found that Paul was at serious breach of occupational health and safety procedures and we believe that in this situation it was fair to dismiss Paul without further notice.”
It was common ground that Mr Lewis was paid two weeks’ notice pay. Mr Lewis said he had about four weeks off after parting ways with the Respondent and then he worked for a couple of different places and is settled in where he is now. He said the income in the new employment is about half and he is basically doing 40 hours a week as he got a lot of overtime, or night shift work at the Respondent. He said working on day shift he gets paid more now than he did at the Respondent, but he received more on night shift at the Respondent than he does now.
Mr Lewis said in closing that he was not given verbal or written warnings, and he recently sold his own work Ute because he was working for the Respondent. Mr Lewis said the excavator incident was weeks before the termination, and the issue about him startling people standing next to a pit were alleged to be incidents that happened over a period of time and if they are said to be serious misconduct on the basis of safety breaches, they should have been addressed at the time, and they should not be able to be relied on afterwards as justification for summary dismissal.
Mr Rogers said in closing he doesn’t like letting people go, and he doesn’t like reemploying people as he has to retrain them and the Respondent is only a small employer that does specific projects and retraining is painful for the Respondent. Mr Rogers said however, the events leading up to the 30 May incident, and the 30 May incident itself led Mr Rogers to the point where he felt that he had to dismiss Mr Lewis for the betterment of the Respondent and its employees.
CONSIDERATION
On the basis of the evidence I am satisfied that Mr Rogers held a reasonable belief that the conduct of Mr Lewis was serious enough to warrant immediate dismissal. It is not necessary for the Commission to determine whether Mr Rogers was correct in the belief that he held, however he was met with a series of reports made to him by employees who worked with Mr Lewis on the evening shift of 30 May about him negligently handling a drop saw whilst attempting to provoke a response from his work colleagues on his crew. This is in the context of earlier incidents concerning Mr Lewis reaching into the cab of a five-tonne excavator and touching the same hand of its operator Mr Armansin who was operating the joy stick controlling the machine at the time. It was apparent from observing Mr Armansin whilst giving his evidence that he found this seriously concerning, as it was his evidence, and I accept that Mr Lewis approached him from a position where he did not see Mr Lewis, and such action could have potentially caused serious injury of even death to a dogman at the end of a chain.
The incident on the evening of 30 May also occurred in the context of other safety incidents involving Mr Lewis. I have considered the evidence of Ms Calvert, and I accept on balance that Mr Lewis had been fairly regularly in the practice of attempting to startle fellow employees if they were standing near the edge of a pit, by grabbing them by their shoulders and jolting them and saying words to the effect of “Saved your life!”, “Don’t fall in!”, “Whoops, Gotcha!” Whilst Mr Lewis maintained that he liked to take a light-hearted approach to his work, each of the examples of his conduct set out above, which I accept Mr Rogers had a reasonable basis to conclude had occurred as reported to him, are out of place in a high-risk environment which commonly involved working in and around pits with 11,000 and 33,000 volt live cables. I am satisfied that Mr Rogers did have a reasonable basis to conclude that Mr Lewis’ conduct on the evening of 30 May 2023, particularly in the context of his earlier conduct, did represent a serious safety risk and did justify immediately dismissal.
I also accept on the evidence that Mr Rogers was faced with a situation where the Respondents’ only ticketed machine operator, Mr Armansin, had advised the Site Supervisor Mr Warton, who then relayed to Mr Rogers that if Mr Armansin was required to work with Mr Lewis again he would leave the company.
CONCLUSION
On that basis of the above conclusions, I am satisfied that the Respondent has complied with the Small Business Fair Dismissal Code. On that basis the Commission has no jurisdiction to deal with the application any further and it is dismissed. An order will be issued separately and concurrently this with decision to that effect.
Having determined the jurisdictional objection in the Respondent’s favour resulting in the dismissal of the application, I would add that even if the conclusion in relation the jurisdictional objection were to be wrong and there was not a proper basis for summary dismissal, I would still not have found that the dismissal was unfair taking into account the considerations in section 387. I would have been satisfied that the Applicant had a valid reason for dismissal. The Applicant was paid notice pay and, in my view, whatever procedural deficiencies may have arisen as a result of the summary dismissal would be outweighed by the seriousness of the conduct in relation to safety and other issues that were the subject of evidence at the hearing which are not necessary to set out in detail.
It is noted that Mr Lewis’ length of service was not particularly lengthy and he was successful in gaining other employment in a short period of time after the expiration of the period covered by the notice pay received.
COMMISSIONER
Appearances:
Mr Paul Lewis for himself.
Mr Shawn Rogers for the Respondent.
Hearing details:
2023
By Microsoft Teams Video
9 October
[1] [2022] FWCFB 234.
[2] Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe[2010] FWA 7891 (Bartel DP, 14 October 2010) at para. 60, [(2010) 204 IR 39]; cited with approval in Pinawin T/A RoseVi.Hair.Face.Body v Domingo[2012] FWAFB 1359 (Watson VP, Richards SDP, Cloghan C, 21 March 2012) at paras 27, 29, [(2012) 219 IR 128]; Steri-Flow Filtration (Aust) Pty Ltd v Erskine [2013] FWCFB 1943 (Acton SDP, Smith DP, Roe C, 24 April 2013.
[3] ibid.
[4] Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 (Watson VP, Richards SDP, Cloghan C, 21 March 2012) at para. 29, [(2012) 219 IR 128];.
[5] Harley v Rosecrest Asset Pty Ltd T/A Can Do International[2011] FWA 3922 (McCarthy DP, 21 June 2011) at para. 8; cited with approval in Pinawin T/A RoseVi.Hair.Face.Body v Domingo[2012] FWAFB 1359 (Watson VP, Richards SDP, Cloghan C, 21 March 2012) at paras 28–29, [(2012) 219 IR 128].
[6] Harley v Rosecrest Asset Pty Ltd T/A Can Do International[2011] FWA 3922 (McCarthy DP, 21 June 2011) at para. 9; cited with approval in Pinawin T/A RoseVi.Hair.Face.Body v Domingo[2012] FWAFB 1359 (Watson VP, Richards SDP, Cloghan C, 21 March 2012) at paras 28–29, [(2012) 219 IR 128].
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