Richard Mecklenburgh v Nibecca Pty Ltd T/A Howards Storage World

[2013] FWC 8348

[2013] FWC 8348

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard Mecklenburgh
v
Nibecca Pty Ltd T/A Howards Storage World
(U2013/6830)

COMMISSIONER DEEGAN CANBERRA, 24 OCTOBER 2013

Application for unfair dismissal remedy - jurisdictional objection - termination at the initiative of the employer - dismissal unfair - compensation ordered.

[1] This decision concerns an application made under s.394 of the Fair Work Act 2009 (the Act) for relief in respect of an alleged unfair dismissal made by Richard Mecklenburgh (the applicant) against his former employer, Nibecca Pty Ltd trading as Howards Storage World (the employer).

[2] The application was lodged on 25 February 2013 and was the subject of an unsuccessful conciliation on 15 March 2013. The matter was listed for hearing in September 2013 as an earlier date was not available due to the employer’s representative, who was also the employer’s only witness, absence overseas for an extended period of time.

[3] At the hearing the applicant was self-represented and the employer was represented by Mr Shane Anderson, a director of the employer.

[4] It was the applicant’s claim that his employment was terminated by the employer on 18 February 2013. The employer denied that any termination of employment had taken place.

The Applicant’s Case

[5] The applicant lodged a witness statement in support of his application. At the hearing the applicant gave oral evidence which differed in some respects from claims made in the statement. For the most part I rely on the evidence given by the applicant at the hearing.

[6] The applicant was employed on a casual basis to perform book-keeping services for the employer from July 2010. Generally those services were performed on one day, usually Monday, each week. On occasions the day altered or the applicant performed some of his work from his home.

[7] According to his evidence at about 8.30am on Monday 18 February 2013 he received a telephone call from Mr Stuart Smee, who worked in the employer’s business and who, at the time, the applicant believed to be a director of the employer. The applicant noted that he had since discovered that Mr Smee had resigned his director position some time earlier. Mr Smee informed the applicant that Mr Anderson was not happy with some aspects of his work and no longer required him to perform his duties. Mr Smee mentioned some areas of the applicant’s work (specifically reconciliations of the MYOB sales records and the till receipts) about which Mr Anderson had indicated some concern. Mr Smee then asked the applicant if he would come to work that day and carry out the payroll function. The applicant agreed and informed Mr Smee that he would bring with him all the employer’s paperwork that he had been working with at home.

[8] The applicant attended work that morning and completed the payroll. He then tidied up some accounts. As he left he said goodbye to the other staff and informed them he would not be back the following week. It was his evidence that they indicated that they already knew that this would be the case.

[9] The applicant denied that he resigned his position. He noted that prior to leaving the business on 18 February he raised with Mr Smee the possibility that he would take the matter of his dismissal to Fair Work.

[10] Finally it was the applicant’s evidence that about the time of the conciliation conference, Mr Anderson had offered him work which entailed him being responsible to Mr Anderson, commencing at 7am each day, and a commitment to undergo retraining. His request for further information about the position received no response.

[11] Under cross-examination, the applicant explained that during the telephone conversation on 18 February, Mr Smee had said that Mr Anderson (Shane) was continuing to plague him about certain aspects of the accounting reports and MYOB records and that Mr Anderson was not happy with the applicant’s inability to do certain reconciliations. Further, Mr Smee had said that Mr Anderson did not want him doing the work any longer and was going to replace him.

[12] When it was put to the applicant that Mr Smee had not said that the applicant was dismissed, the applicant responded that Mr Smee had told him that Mr Anderson was going to replace him and, given that there was no offer of alternative employment made, he took it as ‘relatively terminal’ 1.

[13] The applicant was questioned about his bookkeeping practices and whether he had actually performed the work as instructed by Mr Darren Wrey, the accountant. The applicant replied that he had been performing his tasks as instructed by the previous bookkeeper but when advised by Mr Wrey how to transcribe the till records to MYOB he followed those instructions. When Mr Anderson had advised him of the practice he wanted followed the applicant had accepted that advice, but needed to perform some other steps before he could adopt the required approach. He had commenced, but not finished, that process.

[14] At this point the cross-examination deteriorated into an argument about the applicant’s bookkeeping approach and whether or not Mr Anderson had sufficient knowledge of bookkeeping practices generally to question the applicant’s practices.

[15] Mr Anderson then put to the applicant that during his conversation with Mr Smee he had not told the applicant that he had been replaced, but given him a friendly warning in light of the applicant’s request for a pay increase. The applicant denied that Mr Smee was warning him and asserted that Mr Smee was telling him that he was being replaced. The applicant also stated that he had not been seeking a pay increase but recognition of the fact that he was working more than 5 hours per week. He claimed that he would have been happy to have been paid for one additional hour, despite putting in far more. It was his evidence that he received no response to his request.

[16] Mr Anderson then questioned the applicant about an email he had sent in early February stating that he was changing his hours of work. The applicant explained that his email had informed the employer that he needed to change his work hours for the ensuing two weeks for personal reasons.

[17] It was the applicant’s evidence that since leaving his employment he had not been able to secure replacement employment.

The Employer’s Case

[18] The employer’s evidence consisted of a number of statements and documents filed in the proceedings and oral evidence of Mr Shane Anderson given at the hearing. When asked why Mr Smee was not giving evidence for the employer, Mr Anderson stated that Mr Smee was more friendly with the applicant than with him and, in any event, was overseas.

[19] It was Mr Anderson’s evidence that he had issues with the applicant’s bookkeeping practices since October 2012. He had tried to get him to correct the problems and enter the figures correctly. He was concerned when the applicant started to take large volumes of paperwork from the office to his home, and did not believe that he was entering the data as he had been advised to do. He had discovered discrepancies in the bank statements and had to work through a large volume of paperwork to determine the correct information in order to complete the tax return for the 2011 - 2012 financial year. At this time, Mr Anderson believed that he could work through the problems with the applicant but had difficulty catching up with him for meetings as his hours at work varied.

[20] According to Mr Anderson, he did not ask Mr Smee to talk to the applicant but had discussed with him the email sent by the applicant in early February concerning his intention to change his working hours. He agreed that he had sent an email to the applicant advising him to talk to Mr Smee about his hours. He stated that this had been a delaying tactic he had adopted as he was trying to get from the applicant the paperwork he had taken home.

[21] When questioned by the applicant about the alternative employment he purported to offer him around the time of the conciliation, Mr Anderson explained that it had involved ‘counting stock in’ as the applicant ‘obviously...weren’t..., after what’s happened -be able to do entries into MYOB’ 2. He stated that the applicant would need to be retrained to count the stock.

[22] Under cross-examination, Mr Anderson agreed that he was not in the office on 18 February but had been told by Mr Smee that the applicant had left them ‘in the lurch and walked out in a huff’ 3. Mr Anderson also denied having any knowledge of the earlier phone call between the applicant and Mr Smee. He then stated that Mr Smee did not ‘contact (the applicant) and fire (him)’4. When the question of the phone call was put to him again Mr Anderson said he could not remember if he knew about it.

[23] According to Mr Anderson he was trying to catch up with the applicant to get the paperwork back and secure it in the store. He was unaware if Mr Smee had rung the applicant and could not recall whether he, Mr Anderson, had ever rung to ask to meet the applicant. Attached to the Employer’s Response filed in the matter were two emails sent by the applicant in the days after the alleged termination. Mr Anderson was copied into the email the applicant sent to Mr Smee on 20 February 5 and was forwarded a second email he sent to Mr Smee on 21 February.

[24] Mr Anderson put that it was the employer’s position, which was supported by the evidence of the applicant, that Mr Smee had not told him that anyone else had been employed or that Mr Anderson had fired him. He maintained that he had offered the applicant alternative work in the store. He conceded that another person had been employed to do the MYOB work.

Consideration

[25] Section 386 of the Act provides as follows:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[26] The applicant has maintained throughout these proceedings that he did not resign his employment with the employer. His evidence is that Mr Smee informed him on the morning of 18 February 2013 that Mr Anderson was not happy with aspects of his work and was going to replace him. The applicant understood Mr Smee to have informed him that his services were no longer required. He was reinforced in this view by Mr Smee’s request that he still go in that day and do the payroll. It was also his evidence that when he later left the store the other staff already knew he would not be returning. The employer failed to provide credible evidence to refute the claims made by the applicant about the content of the conversation that took place between Mr Smee and the applicant on 18 February, or the reaction of staff on the applicant’s last day of work. In the absence of such evidence, I accept the applicant’s version of events.

[27] All the evidence supports the applicant’s contention that he had grounds to believe that Mr Smee was a person of authority in a position to advise him of the decision taken to terminate his employment. I note that both emails sent to Mr Smee on 20 and 21 February clearly stated that the applicant considered himself to have been dismissed by Mr Smee at the direction of Mr Anderson. Mr Anderson took no action to persuade the applicant that his conclusion was incorrect.

[28] I am satisfied, on all the evidence, that the applicant did not resign from his employment but that his employment was terminated at the initiative of the employer.

Was the dismissal unfair?

[29] The only objection made to the jurisdiction of the Commission in relation to this application is that there was no dismissal at the initiative of the employer. The applicant was a casual employee of the employer who had been employed on a regular and systematic basis for a period of 32 months. I am therefore satisfied, on the basis of all the information supplied by the applicant and the employer, that the applicant is a person protected from unfair dismissal and that the termination of the applicant’s employment was not for reasons of genuine redundancy.

[30] Although there was no dispute that the employer is a small business subject to the provisions of s.386(2) of the Act, no claim was made that the employer complied with the Small Business Fair Dismissal Code.

[31] I now turn to those matters set out in s.387 of the Act.

[32] I am satisfied that Mr Anderson had a number of concerns about the manner in which the applicant was carrying the bookkeeping tasks assigned to him. I also accept the applicant’s explanation that he initially performed those tasks exactly as trained by the previous employee who had responsibility for the work. Clearly the applicant accepted that Mr Anderson and the accountant preferred him to perform his duties in a particular manner and was attempting to comply with those instructions. I accept his evidence that he had taken paperwork home in order to be able to carry out certain remedial action required before the new processes could be implemented. I also accept his evidence that the employer had not indicated any concern with him performing work at home, or taking the documentation home, in the past.

[33] While Mr Anderson gave evidence about his concerns about the manner in which the applicant carried out his tasks and the fact that he had company paperwork at his home, there is no evidence that he raised any of these concerns with the applicant prior to the termination. The evidence was that a request was made to the applicant to perform his work in a particular manner. The applicant claimed to be complying with that request. Mr Anderson’s evidence was that he suspected the applicant was not so complying. No documentary evidence was provided in support of Mr Anderson’s position.

[34] In the absence of any compelling evidence that the applicant was not complying with the directions given concerning the entering of data into the MYOB system, or of any direction to the applicant about taking paperwork home, I am unable to find that there was a valid reason for the termination.

[35] It is apparent from the manner in which the termination of the applicant’s employment was effected that

• The applicant was notified of the reason for the termination;



• The applicant was not given any proper opportunity to respond to the reason; and



• There was no unreasonable refusal by the employer to allow the applicant a support person during discussions relating to the termination given the manner in which these discussions occurred.

[36] So far as the matters at s.387(f) and (g) of the Act are concerned, I am satisfied that the size of the respondent’s business and the lack of human resources expertise impacted on the procedures followed in effecting the dismissal. It is apparent that no director of the employer appreciated that the applicant should have been provided with procedural fairness and given an opportunity to respond to the concerns about his work.

[37] Given all those matters set out above, I find that the termination of the applicant’s employment, particularly the manner in which it was effected, was harsh, unjust and unreasonable.

[38] The dismissal was unfair.

Remedy

[39] The applicant does not seek reinstatement. Given the size of the employer and the close working relationship that exists between the director and its employees I would, in any case, not consider reinstatement an appropriate remedy.

[40] I do consider that it is appropriate to compensate the applicant in lieu of reinstatement.

[41] No submission was put that any award of compensation would affect the viability of the respondent’s business.

[42] The applicant had been employed by the respondent for a period less than 3 years. The position was for only a few hours each week and was casual. The applicant was not entitled to any notice of termination.

[43] The applicant has not obtained other employment but little evidence was provided concerning any efforts to find other employment. I accept that opportunities for alternative employment may have been limited given the applicant’s age and the nature and hours for which employment was sought.

[44] I take into account that it is unlikely that the applicant would have remained employed for more than one further month had the termination not occurred in the manner it did. It was clear that Mr Anderson was concerned about the procedures adopted by the applicant in performing his tasks. Even had the applicant been afforded procedural fairness in responding to Mr Anderson’s concerns it is unlikely that the applicant’s employment would have continued as both men were convinced of the validity of their own position in relation to the book keeping matters in dispute.

[45] I intend to order that, in lieu of reinstatement, the respondent pay to the applicant the amount of $500 (gross, taxed appropriately). This represents four weeks’ wages. An order [PR543709] to this effect is published separately.

Appearances:

The Applicant in person.

Mr S. Anderson, for the Respondent.

Hearing details:

2013.

Hobart:

September 11.

 1   Transcript PN119.

 2   Transcript PN399.

 3   Transcript PN495.

 4   Transcript PN507.

 5   Attached to Form F3 Employer’s Response filed on 9 March 2013.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR543708>