Ric Belic v DNA Construction Pty Ltd
[2025] FWC 496
•7 MARCH 2025
| [2025] FWC 496 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ric Belic
v
DNA Construction Pty Ltd
(U2024/2691)
| COMMISSIONER FOX | MELBOURNE, 7 MARCH 2025 |
Application for an unfair dismissal remedy – Allegations of misconduct made – Misconduct found to have occurred – Dismissal found not to be unfair – Application dismissed.
On 7 March 2024, Mr Ric Belic (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging that he had been unfairly dismissed from his employment with DNA Construction Pty Ltd (DNA).
The application was made within the required 21-day period after the dismissal took effect (s.396(a) of the Act). Mr Belic is protected from unfair dismissal; at the time of his dismissal his gross annual salary was below the high-income threshold; he had completed the minimum employment period; and the DNA Construction Pty Ltd On-Site Enterprise Agreement 2021-2025 (the Agreement) applied to his employment (s.396(b)). The Small Business Fair Dismissal Code did not apply to the dismissal because DNA is not a small business employer. Finally, it has not been claimed by DNA, and nor does the material before me suggest, that the dismissal was a case of genuine redundancy (s.396(d)).
Mr Ric Belic was employed by DNA on a full-time basis as a site supervisor and commenced his employment on 29 August 2022. Mr Belic was terminated for misconduct on 16 February 2024. DNA submitted that there were a series of discussions and warnings given to Mr Belic throughout the course of his employment, which ultimately resulted in the termination of his employment for misconduct.
The question I need to answer is whether Mr Belic’s dismissal was harsh, unjust or unreasonable.
The matter proceeded to a Determinative Conference. The parties filed material in accordance with Directions and this material was compiled into a Digital Hearing Book. At the Determinative Conference, I determined to accept the entirety of the Digital Hearing Book into evidence. DNA objected to the statements of Mr Joe Gresh and Mr James Dura being admitted into evidence on the basis that their evidence was not material to the issues in dispute. Mr Belic said that this was character evidence. I determined to accept the entirety of the Digital Hearing Book into evidence and advised the parties that I would give the statements of Mr Gresh and Mr Dura the appropriate weight, noting the characterisation of the evidence.
For the reasons given below, I am satisfied that Mr Belic’s dismissal was not harsh, unjust or unreasonable.
Was the Dismissal harsh, unjust or unreasonable?
Deciding whether a dismissal is harsh, unjust or unreasonable requires an assessment of all relevant facts and circumstances, including the matters set out in s.387 of the Act. I am required to consider each of these, to the extent they are relevant to the factual circumstances before me.[1]
DNA says Mr Belic was dismissed due to misconduct. The termination letter dated 16 February 2024 specifies the reason for dismissal as deliberately recording incorrect start and finish times, in breach of Mr Belic’s employment contract.[2] Further to this conduct, DNA relies on previous warnings given to Mr Belic on 7 February 2024, 8 January 2024 and a letter of concern given to him on 22 September 2023.[3]
Mr Belic submits that his dismissal was harsh, unjust and unreasonable because:[4]
of an email I sent to Jason Stokes on 29 May 2023 outlining my ‘Concerns’ regarding DNA staff not adhering to company policy and procedures. Ever since that email, there was a ‘Wit[c]h Hunt’ to get rid of me.
8 September 2023 I felt pressured into resigning.
22 December 2023 my employment was [t]erminated.
15 February 2024 my employment was [t]erminated once again.
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 dismissal should be “sound, defensible or well-founded”[5] and should not be “capricious, fanciful, spiteful or prejudiced.”[6] 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.[7]
Where the reason for the dismissal relates to conduct, the Commission must find that the conduct occurred and that the conduct justified dismissal. Whether the conduct relied upon as a reason for dismissal actually occurred is to be determined based on the evidence,[8] and it is to be assessed on the balance of probabilities,[9] taking into account the gravity of the allegations.[10]
In cases relating to alleged conduct, the Commission must make a finding on the evidence provided whether, on the balance of probabilities, the conduct occurred. It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.
Recording of start and finish times and taking sick leave
Pursuant to the termination letter dated 16 February 2024, in addition to the previous warnings for misconduct issued, Mr Belic was terminated for a failure to accurately record his start and finish times. With respect to the allegation of incorrectly recording starting and finishing times, DNA alleges that on 5, 6 and 7 February 2024, Mr Belic arrived late for work and deliberately recorded an incorrect starting time.[11]
DNA also says that on 9 February 2024, Mr Belic requested sick leave and provided no evidence to support this request, in breach of the company’s policies.[12] Mr Belic’s response to this allegation was that he had requested a medical certificate and was waiting for it to be provided.[13] At the Determinative Conference, Mr Belic confirmed that he had not provided DNA with a medical certificate. However, I am not convinced that the failure to provide a medical certificate, on what appears to be one occasion, would constitute misconduct. The normal consequence for such a failure is the non-payment of personal leave.
With regards to the incorrect recording of hours, Mr Belic, at the Determinative Conference, admitted that he did not record his start and finish times correctly.[14] Mr Belic says that when he first commenced his employment, he had accurately recorded his starting and finishing times but then stopped because the accounts manager told him that this was going to ‘confuse issues with payment’.[15] Mr Belic also says that it was standard practice for hours to be recorded as from 7AM to 3:30PM and that ‘everyone puts 7.00 to 3.30 regardless what time they start or finish’.[16] However, no evidence was provided to support this contention. Mr Belic also says that he informed Mr Jason Stokes, Chief Operating Officer of DNA, of this at his disciplinary meeting.
I find Mr Belic’s explanation unsatisfactory regarding the recording of incorrect timesheets. DNA’s handbook is clear about recording an employee’s start and finish times. Mr Belic, as someone in a position of responsibility as a site supervisor, should have known better. I find, on the balance of probabilities, that Mr Belic failed to accurately record his working hours and that this constitutes misconduct.
Client complaints
Mr Stokes says that on 5 September 2024 he received a phone call from an operations manager who had concerns with Mr Belic’s conduct, in that he was being intimidating on site and was also accessing areas he was not allowed to.[17]
Mr Belic was aggrieved that he was not provided with a copy of the complaint itself and says that this demonstrates that the complaint was not genuine. Mr Stokes says the complaint was first made to him over the phone, with the client subsequently following it up in writing some days later – after he had spoken to Mr Belic about it.
Whilst these written concerns were not provided to Mr Belic at the time, DNA filed the written complaints as part of their evidence. I appreciate that Mr Belic was not provided with this correspondence, but I find that it was not necessary for Mr Belic to have been given a copy of the complaint itself. I find that it is enough that Mr Belic was advised of the nature of the complaint and given an opportunity to respond.
With regards to the complaint itself, I find them to be genuine concerns regarding Mr Belic’s conduct on site in accessing areas he did not have permission to enter.[18] At the Determinative Conference, Mr Belic was asked about the complaints and gave the following evidence as to what he was told on site: ‘They kept saying, 'Ric, just keep in mind you can't go into this room', or, 'Just keep in mind you can't' - 'Yes, yes, we understand all that', but nothing was ever said …’[19]
It is clear that from the evidence that the operations manager had concerns around Mr Belic’s conduct on site, raising them with Mr Stokes verbally and then detailing the complaints in writing. It was Mr Belic’s evidence that did not regard their comments as concerns about his conduct.
A meeting occurred between Mr Belic and Mr Stokes on 8 September 2023, in which Mr Belic was given the opportunity to respond to these allegations. On 22 September 2023, DNA issued Mr Belic with a ‘letter of concern’ outlining the discussion and noted the following: ‘I am also concerned by your response to this feedback in both consideration (sic) given and contacting clients and trades about this matter.’[20] The letter went on to state: ‘this letter confirms that you have been formally issued with a verbal warning which forms part of the Company’s disciplinary process.’[21]
Mr Belic also says that Mr Stokes forced him into resigning at this meeting. However, there is no evidence of any kind to support a finding that Mr Belic was forced to resign, nor did Mr Belic resign.
On balance, I find the client complaints to be legitimate and that Mr Belic did engage in misconduct
Plastic barrier incident
DNA alleges that on 23 November 2024, Mr Belic was negligent in the performance of his duties by failing to follow verbal and written instructions and drawings, which required that old and new plastic barriers be lapped and taped. DNA alleges that this was in breach of Mr Belic’s employment obligations to act faithfully, honestly and diligently, and to carry out his work with care and competence. Mr Stuart Milke, project manager at DNA, provided evidence about this incident.
Mr Milke says that Mr Belic had read the drawings and confirmed that he understood them and the work that was needed to be done. He says that prior to the work commencing, he had anticipated that connecting the new and old vapour barriers would be an issue, and so therefore had a discussion with Mr Belic to go over the plans in details.[22] He says when he viewed the finished works, he saw that the work had not been done properly, in that the new vapour barrier was not overlapping the old one.[23] Mr Milke says that the initial inspection of the site failed because the plastic needed to be extended.[24]
Mr Belic says he did nothing wrong. He says it was not his area of expertise, and that other contractors on site were responsible for the error. At the Determinative Conference, Mr Belic gave the following evidence: ‘To me plastic is plastic. Vapour is something that you breathe. I didn't understand until Stuart pointed it out to me, what a vapour is.’[25] Mr Belic denies that Mr Milke had spoken to him previously about the barrier and says that it all worked out in the end, as the job was signed off at inspection. Mr Belic was the site supervisor, and the error had the potential to be significant. The fact that the error was able to be remedied, and the inspection was ultimately signed off, does not negate Mr. Belic’s conduct in failing to follow the instructions given to him.
I prefer the evidence of Mr Milke over that of Mr Belic in relation to the events surrounding the plastic barrier. I found Mr Milke to be a credible and honest witness in describing the incident. I accept the evidence of Mr Milke that he had a conversation with Mr Belic about how the vapour barrier needed to be done, and that Mr Belic did not follow those instructions.
On balance, I find that Mr Belic did engage in the conduct alleged by DNA in failing to follow the verbal and written instructions he was given in relation to the lapping and taping of the vapour barrier.
Confidential disciplinary meeting
On 20 December 2023, Mr Stokes invited Mr Belic to a disciplinary meeting in relation to Mr Belic’s conduct regarding the plastic barrier. Mr Belic was given a letter via email regarding his requirement to attend a disciplinary meeting on 21 December 2023.[26]
This email stated that Mr Belic was to keep ‘all matters and information relating to [the] allegation’ confidential and he was directed not to discuss them with any other person without Mr Stokes’ express prior consent.[27] DNA says Mr Belic then showed this email to a co-worker who then called Mr Stokes on 21 December quite angrily saying ‘there are nicer ways to invite someone to a meeting, … Ric showed me the email you sent him.’[28]
Mr Belic says he showed the co-worker the email only to indicate to his co-worker that he needed to leave the site early to attend the disciplinary meeting.[29]
Mr Stokes says that the co-worker in question had a more detailed knowledge of the purpose of the meeting than just merely the time that it was scheduled to occur. Having seen the email in question, the details of the meeting are contained within the middle of the email, following the allegations.[30] It would be difficult to find that the co-worker in question would know of the details of the meetings without also seeing the allegations against Mr Belic. I find, on the balance of probabilities, that Mr Belic did show his co-worker the email, despite being advised not to without express permission from Mr Stokes.
Mr Stokes raised Mr Milke’s concerns about the incident with Mr Belic and then issued him with a written warning on 8 January 2024, which included the following statement: ‘[y]ou are reminded that any further misconduct may result in more serious disciplinary action, up to and including termination of your employment.’[31]
I find that the requirement to keep the matter confidential, and the direction not to speak to anyone about the matter to be lawful and reasonable. Discussions regarding performance can be sensitive and whilst Mr Belic may have had course to discuss the matter with a support person, I do not find he acted reasonably in showing the email to a co-worker, when Mr Stokes had directed that the contents of the email not be disclosed without his express consent.
I do not find Mr Belic’s explanation credible, as there was no reason he needed to show his co-worker the correspondence in order to be allowed to leave the site early to attend the meeting. Mr Belic need only to have informed his co-worker that he was leaving early to attend a meeting with Mr Stokes.
On balance, I find that Mr Belic did show his co-worker the correspondence despite being expressly told not to by DNA.
Attendance of steel contractors
DNA alleges that on 16 January 2024, Mr Belic turned away steel contractors from the site and then acted dishonestly by telling Mr Milke that the contractors had not turned up.[32] Mr Belic says that the contractors came to site, but that he had to turn them away as the flooding on site meant that it would be an occupational health and safety hazard for them to be working, although he says he did not advise Mr Milke of this safety risk.[33]
Mr Stokes gave evidence that he had viewed the photographs of the site on the site diary, ‘Procore’, which showed that parts of the site were not underwater. Mr Stokes says that the flooded parts of the site could have been cleaned up or that the contractors could have worked on other areas of the site that were not subject to flooding.[34]
Mr Stokes also says that DNA’s attendance system had recorded that the contractors did come to site.[35] Mr Milke says that the steel contractors had phoned him to tell him that they had been turned away from site.
DNA submitted evidence of a text message exchange between Mr Milke and Mr Belic on the day in question, 16 January 2024. This text message exchange shows that at 5.29PM Mr Milke writes ‘Okay. Did the steel guys turn up?’. Mr Belic replies: ‘No’.[36]
At the Determinative Conference, it was Mr Belic’s evidence that when he informed Mr Milke that the contractors did not turn up, he was instead referring to a previous incident in which the contractors had dropped their material off and then not returned to site.[37] However, I do not find this to be a convincing explanation, as the text message exchange on 16 January occurred almost a week after the incident Mr Belic appears to be referring to.
From the evidence, I find that the steel contractors did turn up to site and Mr Belic turned them away. I find that Mr Belic advised Mr Milke that the contractors had not turned up, when he knew that they had. If Mr Belic had a genuine belief that the work was not able to continue because it was unsafe due to the flooding, he should have notified Mr Milke of this. He did not. Instead, he chose to advise Mr Milke that the contractors had not turned up to site when he knew they had.
I find on the balance of probabilities that Mr Belic acted dishonestly when he advised Mr Milke that the steel contractors had not turned up, when in fact, he knew that they had.
Conclusions on Valid Reason
On balance, for the reasons I have outlined above, I am satisfied that there was a valid reason for Mr Belic’s dismissal and his conduct justifies the termination of his employment. I also note that throughout the various discussions had with Mr Belic about his conduct, he has at all times remained steadfast in his unwillingness to acknowledge any wrongdoing or show remorse. In the circumstances, it was open to DNA to consider that Mr Belic’s conduct was unlikely to change and may be repeated.
Having found that there were valid reasons for Mr Belic’s dismissal, I now turn to the remaining factors under s.387 of the Act to consider the harshness of the dismissal.
Was the Applicant notified of the reason and given an opportunity to respond to any valid reason related to their capacity or conduct?
An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[38] 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.[39] 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.[40]
DNA had several discussions, both informal and formal, with Mr Belic about his conduct between September 2023 and February 2024. Mr Belic was issued with a letter of concern on 22 September 2023, a written warning on 8 January 2024, a final written warning on 6 February 2024 and an invitation to a disciplinary meeting on 15 February 2024.[41]
It is evident, and Mr Belic has not suggested otherwise, that he was, on each occasion, given the opportunity to respond to misconduct allegations.
In all the circumstances, I find that Mr Belic was notified and given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.
Did DNA unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
An employer should not unreasonably refuse a support person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.[42]
It was Mr Belic’s evidence that he did not ask to have a support person present at the meeting of 15 February 2024, nor did he contend that he was unreasonably refused the opportunity to have a support person. He also says that he had a support person for other discussions which occurred during his employment with DNA.
I find that DNA 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?
DNA says that it dismissed Mr Belic for misconduct and not for unsatisfactory performance. I therefore consider this factor to be neutral.
To what degree would the size of DNA’s enterprise be likely to impact on the procedures followed in effecting the dismissal and would the absence of dedicated human resource management specialists or expertise in DNA’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Neither party made any substantive submissions that the size of DNA’s enterprise was likely to impact on the procedures followed in effecting the dismissal nor did they file any submissions regarding whether the absence of dedicated human resources expertise impacted the procedures followed in the dismissal. DNA says that it relied on external human resources advisors.[43] I find that the size of DNA’s enterprise had no impact on the procedures followed in effecting the dismissal.
I do not find this to be a relevant factor in this matter.
What other matters are relevant?
Section 387(h) requires the Commission to consider any other relevant matters.
Mr Belic asserts that the reason for his dismissal was because of a complaint he made in May 2023 (the May complaint). Mr Belic also asserts that his employment was terminated on 22 December 2023.
The May complaint
Mr Belic says that the real reason he was dismissed was because he made a complaint about other employees not following company policies in an email to Mr Stokes in May 2023. Mr Belic says that despite him raising these concerns, no assistance was provided by DNA.
Mr Stokes says that he took a number of steps to address Mr Belic’s concerns, including a lengthy telephone conversation to Mr Belic. In an email on 29 May acknowledging Mr Belic’s email, Mr Stokes advised Mr Belic that his concerns would be addressed and he encouraged Mr Belic to continue recording issues.[44] Mr Stokes subsequently addressed the issues raised by Mr Belic at a staff meeting.[45] He says that he considered the concerns raised by Mr Belic as addressed, resolved and closed.[46] Mr Belic says that he was not present for the entirety of the staff meeting so could not say whether the issues had been raised with staff.[47] Mr Belic is of the view that more should have been done in response to his complaint.
Having reviewed the correspondence sent from Mr Stokes to Mr Belic on 29 May, and having heard the evidence of Mr Stokes, I find that he did genuinely act to resolve Mr Belic’s complaints. From the material filed and the evidence at the Determinative Conference, Mr Stokes acknowledged Mr Belic’s concerns, committed to addressing them at the staff meeting, and then confirmed that he would deal with any concerns at a company performance level. Mr Stokes also invited Mr Belic to coffee the following week to discuss ‘anything further’. Mr Belic replied saying ‘I don’t think there is anything we need to discuss, unless you can think of anything.’[48]
It is unclear what more Mr Stokes could have done to demonstrate that he took Mr Belic’s concerns seriously. I find there is no basis for Mr Belic to assert that no assistance was given to him about his complaint of 29 May 2023. Further, I find no evidence of any causal link between making the complaint and the subsequent conduct matters which occurred between September 2023 and February 2024. Simply making a complaint does not prevent conduct or performance issues from being raised with an employee. While, in some cases, it may be that a complaint is the catalyst for a retaliatory response, couched as ‘performance’ issues, there is no evidence of that here.
I find there is no nexus between Mr Belic’s complaint and him being dismissed some eight months later. The May complaint was acknowledged and addressed by Mr Stokes appropriately and Mr Belic was given the opportunity to raise any further concerns. He did not.
It is evident that Mr Belic simply does not believe that any of the conduct matters raised with him between September 2023 and February 2024 are genuine. However, there is no evidence that his May complaint resulted in a ‘witch hunt’ which ultimately led to his dismissal.
I do not consider Mr Belic was dismissed because he made a complaint in May 2023.
Alleged termination in December 2023
In Mr Belic’s submissions he says that he was terminated by DNA on 22 December 2023. Mr Belic does not advance as a matter of fact that he was terminated on 22 December but rather appears to raise it as some context to the employment history with DNA. I note that neither party contest that Mr Belic was dismissed on 16 February 2023. Further, DNA did not raise a jurisdictional objection that the application was out of time, which would be the case if the date of dismissal was 22 December 2023.
However, discussions did take place between Mr Belic and Mr Stokes, about the employment relationship ending, in late December 2023. These discussions resulted in Mr Belic returning company property, including a car, and Mr Stokes sending Mr Belic a Deed of Release. From the evidence of the parties, it appears that on 27 December 2023, when Mr Belic was returning the company car, he told Mr Stokes he would not be signing the Deed of Release.[49] Mr Stokes says he told him that if he didn’t sign it or resign, then he would be required back at work after the shutdown.[50] Mr Belic then said that he wanted his solicitor to review the Deed and Mr Stokes agreed to give him more time. Mr Belic never returned the Deed.[51] When the holiday shutdown period ended, Mr Stokes contacted Mr Belic to find out why he was not back at work. He told Mr Belic that if he was not signing the Deed or resigning, then he would be required back at work. Mr Stokes says Mr Belic picked up his work belongings the next day.
There is no evidence to support Mr Belic’s assertion that he was terminated in December, and any such assertion is clearly contradictory to the parties’ subsequent conduct, as Mr Belic returned to work after the holiday shutdown. He continued to attend work, except for some periods of personal leave, up until he was dismissed on 16 February.
I do not consider the events of 22 December to be a relevant consideration in Mr Belic’s dismissal.
Conclusion
On balance, taking into account all the circumstances, I consider that the dismissal of Mr Belic was not harsh, unjust or unreasonable. I am also satisfied that DNA’s decision to terminate Mr Belic’s employment because of misconduct was not unfair. Mr Belic’s application is therefore dismissed.
An Order to this effect[52] will be issued with this Decision.
COMMISSIONER
Appearances:
R Belic on his own behalf.
M Noorzai of Irwell Law for the Respondent.
Determinative Conference details:
2024.
Melbourne:
12 December.
[1] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 [69].
[2] Digital Hearing Book (DHB) page 85.
[3] Ibid.
[4] Ibid page 30.
[5] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[6] Ibid.
[7] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[8] King v Freshmore (Vic) Pty Ltd[2000] AIRC 1019 [24].
[9] Edwards v Justice Giudice [1999] FCA 1836 [6]–[7].
[10] Briginshaw v Briginshaw (1938) 60 CLR 336.
[11] DHB page 30.
[12] Ibid page 71.
[13] Transcript PN248-PN253.
[14] Ibid.
[15] Ibid PN248.
[16] Ibid PN253, PN255.
[17] DHB page 171 [26].
[18] Ibid page 251.
[19] Transcript PN275.
[20] DHB page 68.
[21] Ibid.
[22] Transcript PN83.
[23] Ibid PN110.
[24] DHB page 166.
[25] Transcript PN213.
[26] DHB page 69.
[27] Ibid.
[28] DHB page 173.
[29] Ibid page 103.
[30] Ibid page 69.
[31] Ibid.
[32] Ibid page 166-167.
[33] DHB page 91; Transcript PN315.
[34] Transcript PN493.
[35] Ibid PN49.
[36] DHB page 168.
[37] Transcript PN235.
[38] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) [75].
[39] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[40] RMIT v Asher (2010) 194 IR 1, 14-15.
[41] DHB page 100.
[42] Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542].
[43] DHB page 162.
[44] Ibid page 65.
[45] Ibid page 171.
[46] Ibid.
[47] Transcript PN300.
[48] DHB page 65.
[49] Transcript PN484-PN485.
[50] Ibid.
[51] Ibid.
[52] PR785011.
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