Robert Bednarski v Summit Coatings Pty Ltd
[2023] FWC 1288
•9 JUNE 2023
| [2023] FWC 1288 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert Bednarski
v
Summit Coatings Pty Ltd
(U2022/12083)
| COMMISSIONER MCKENNA | SYDNEY, 9 JUNE 2023 |
Application for an unfair dismissal remedy
Robert Bednarski (“applicant”) has made an application, pursuant to s.394 of the Fair Work Act 2009 (“Act”), in which he seeks an unfair dismissal remedy in relation to his termination of employment by Summit Coatings Pty Ltd (“respondent”).
Preliminary matters
As to the initial matters to be considered, as set out in s.396 of the Act: the application was made within time; the applicant is a person who was protected from unfair dismissal; and the termination of employment did not involve a genuine redundancy. The respondent is a small business, with the result that consideration of the Small Business Fair Dismissal Code (“Code”) arises. Moreover, the respondent has raised an objection to the application on the basis that the dismissal was Code-compliant – which will be decided, as required by the Act, as an initial matter.
Background
The respondent is a small business that operates a professional painting business specialising in strata, commercial and residential painting. The applicant was initially employed as a full-time painter in February 2014. At the time of the dismissal on 30 November 2022, the applicant was employed as a foreman as he had been promoted some years earlier to that role. The evidence in the respondent’s case was that the respondent had eight employees at the time the applicant was dismissed (and five regular contractors). Ms Cornelia “Conny” Ottowa is the respondent’s Business Manager and Mr Robin Ottowa is the respondent’s sole director. The Ottowas are married to each other. Unless otherwise indicated in the decision, I will refer to actions, decision-making, concerns, and the like, by Ms Ottowa and/or Mr Ottowa collectively as those of the respondent - albeit it was Ms Ottowa who was more directly involved in matters concerning the applicant (with Mr Ottowa’s evidence being, for example, that he was “generally aware” of the applicant’s decline in performance and communication issues).
While there was a good working relationship between the applicant and the respondent over many years, the respondent began to develop concerns about the applicant around 2019, when there was a personal circumstance which may have been having an impact on the applicant’s work. Then, around the time of the COVID-19 pandemic, there were intermittent shut-downs and JobKeeper payments. From 19 July to 7 September 2021, the applicant took a period of personal leave – explaining to the respondent that he needed the time off work because of his mental health. The respondent hoped that the applicant could return to work and be a productive member of the team again. Ms Ottowa described matters in the following way:
“28. In around October 2021, Robert was scheduled to work a job in Annandale, NSW, which was close to his home. From this time, Robert stopped coming into the office and his communication really dropped. I also noticed that Robert’s performance and behaviour started to decline. Specifically, his communication and attendance became very poor. I received reports from other workers that Robert was not attending the job sites as required and was frequently absent. It was very difficult for us to monitor Robert’s attendance and performance as we were only relying on the App to see if he was in attendance, but that only meant his phone was on site. We had reports of him sleeping in his car from co-workers and leaving the site, but leaving the phone behind. I believed that he was very unreliable at this time.
29. On 27 January 2022, I emailed Robert a letter of concern regarding issues concerning his employment… . In particular, I was concerned about Robert’s attendance, performance, quality of his work, his communication towards his co-workers and the Company’s employees (including myself).
30. After our Letter of Concern, Robert’s performance and communication improved somewhat. Though the improvement was short-lived.”
The respondent initially effectively let matters of concern pass, but was later to take more formal steps – including with the assistance of representatives from a firm named Employsure Pty Ltd t/as Employsure (“Employsure”), which the respondent engages to help carry out the employment functions relating to the business because the respondent is too small to employ someone to carry out these functions. In the end, and after a number of intervening developments, including with the involvement of representatives from Employsure in dealing with disciplinary-related processes such as conducting meetings, the respondent dismissed the applicant on 30 November 2022. The dismissal was effected with a payment in lieu of notice.
By way of a short procedural background to the proceedings before the Commission in relation to the application, it least appeared that the matter had resolved at the pre-hearing conference and/or directions proceeding that was listed before me on 14 February 2023 – but as the applicant was concerned, among other matters, about preserving rights to pursue other avenues in relation to his period of employment with the respondent, that settlement did not come to fruition. It is unnecessary to detail all the procedural matters in the ensuing Commission-related chronology associated with the application, other than to note two matters: (a) I took steps to cause information to be provided to the applicant so that he might seek assistance from the Commission’s Workplace Advice Service, a service by which eligible applicants/respondents can obtain free legal advice - including seeking advice on the respondent’s further offer to settle the matter on the basis that there would be a carve-out for the applicant to pursue alleged underpayments etc; and (b) the initial hearing date that was scheduled for 18 April 2023 was adjourned to a later date, over the objection of the respondent, due to the applicant’s submissions that day (and my observation of his demeanour in such respects) about, in effect, being medically incapable of proceeding due to matters including the effect of various medications he was taking.
In the rescheduled hearing which took place on 2 May 2023, the applicant appeared on his own behalf (and was the only witness in his own case) and the respondent was represented by Ms J Pescud, solicitor, of Employsure Law Pty Ltd (as distinct from the similarly-named Employsure Pty Ltd t/as Employsure). The evidence in the case was received from the following witnesses and was the subject of cross-examination:
· the applicant;
· Mrs Ottowa;
· Mr Ottowa;
· Kirsty Muir, Face2 Face Lead Field Consultant with Employsure;
· Simon Gray, Face2 Face Consultant with Employsure;
· David Torres, sub-contractor/sole trader, who performed work at a site or sites at which the applicant also worked (relevantly, a Newport site in November 2022); and
· Cathryn Hargreaves, (formerly) a Face2 Face Consultant with Employsure.
While the applicant put on detailed materials in support of his application for an unfair dismissal remedy, in some ways, aspects of relevant matters concerning his case about the dismissal being unfair were encapsulated in the Form F2 initiating process. In response to Question 3.2 in the Form F2 (which asks, “Why was the dismissal unfair?”), the applicant wrote as follows (as written; uppercase in original):
“[ ] 22nd OF NOVEMBER [2022] RECIEVED EMAIL FROM EMPLOYER WITH ALLEGATIONS TOWARD ME, THIS WAS SENT WITHOUT ANY GROUNDS 3 TIMES PRIOR TO TERMINATION (STILL THE EMPLOYER NEVER ALLOWED FOR ANY PLATFORM OF MEDIATION)
[ ] I WAS THEN SUSPENDED (STOOD DOWN) FORMALLY (EMAIL) 28TH NOVEMBER [2022]
[ ] DURING THIS PERIOD MY WAGES WERE COMPROMISED AND I WAS NOT GIVEN ANY FURTHER INFORMATION TO ENTITLEMENTS RENDERING ME FINANCIALLY VULNERABLE UNTIL TODAY.
[ ] HOWEVER WHEN I WAS INVITED TO MEDIATION WITH INTENTION TO DISCUSS, MY EMPLOYER WAS NOT PRESENT, NO EVIDENCE WAS PROVIDED TO ME AND THE MEDIATION INVITATION WAS WRITTEN AS "SERIOUS MISCONDUCT" WITH A HR REP ENGAGED BY THE EMPLOYER IN AN ATTEMPT TO INCRIMINATE ME WITH QUESTIONS POSED TO ME AS FACT OF MATTER, HOWEVER WERE HEARSAY AND UNTRUE. (THIS MEETING HAS BEEN DOCUMENTED AND CAN BE PROVIDED UPON THE COMMISSIONERS REQUEST.)
[ ] WITH THESE ALLEGATIONS THE EMPLOYER FAILED TO PROVIDE ANY FORM OF PERFORMANCE IMPROVEMENT OR UNDERSTANDING OF WHAT TOOK PLACE. STIPPED ME OF MY VOICE THEN ABRUPTLY DISMISSED ME ON UNSUBSTANTIATED BUT ALSO UNMEDIATED GROUNDS.
[ ] THE EMPLOYER NEVER PROVIDED FACTUAL EVIDENCE, AND FAILED TO KEEP MY HEALTH AND SAFETY IN MIND ALL OF WHICH TOOK PLACE SIMULTANEOUSLY WITH A PERSONAL RELATIONSHIP BREAKDOWN, MOVING HOMES WHILE ENDURING A MENTAL ILLNESS, OF WHICH TIME MY THEN EMPLOYER CONNY OTTAWA WAS VERY WELL AWARE.
[ ] I ASKED FOR THE EVIDENCE OF THE EVENTS THAT ARE ALLEGED AND THE HR REPRESENTATIVE THEN DECIDED TO TERMINATE THE MEETING ON GROUNDS THAT IT WOULD BE RESCHEDULED DUE TO THE LACK OF FACT TO THE MATTER. (DOCUMENTED UPON COMMISSIONERS REQUEST)
[ ] WITHIN 1 HOUR I WAS SENT AN EMAIL OF TERMINATION BY MY EMPLOYER (CONNY OTTOWA) WHO WAS NOT PRESENT IN THE MEETINGS.”
The applicant filed and served materials including a statement, together with other things such as the transcript of a meeting from a recording that was not authorised. Among matters addressed in the applicant’s statement were that his “statements made in a private email” to Ms Ottowa in no way damaged the reputation of the company, so one of the dismissal allegations “was unproven”. The applicant addressed his absence from work on a particular day, and considered that particular absence had been resolved through a negotiated adjustment to hours – with the result that also “was unproven”. In addressing the matters concerning email communications, the applicant considered that he was “being ‘fitted up’ using any excuse available to be dismissed”; and it was “ridiculous” that private communications to Ms Ottowa were considered to be in breach of his employment contract and/or damaging to the reputation or operation of the company. In particular, the applicant’s position was that the reasons given for his dismissal at the time of the workplace performance meetings in late-2022 “have now suddenly been substituted by wholly different objections and accusations” which were not raised at the time and, hence, the applicant did not have the opportunity to defend himself, which was unconscionable conduct by the respondent and its Employsure representatives. The applicant’s concluding remarks were:
“What is clear is that it amounts to a capitulation by Summit regarding each of the baseless grounds provided at first instance to justify its case against me during 2022, and upon which I was unjustly dismissed. It also proves my point – Summit had an unsupported case regarding the first instance allegations of non-performance, and by their lack of evidence, still does.”
The respondent also put on detailed materials in opposing the applicant’s application for an unfair dismissal remedy. Again, in some ways, aspects of relevant matters concerning the respondent’s case were also encapsulated in the respondent’s Form F3 employer response. The Form F3 noted its Code-related objection to the application and, in my much-abbreviated form, set out matters including the following. The respondent wrote in the Form F3 that the applicant persistently performed below the standard expected in recent years, which was particularly disappointing given the applicant had been a successful and reliable foreman for many years. As a result, the applicant was informally and formally warned on numerous occasions regarding his performance, particularly in respect of his communication with others, his attitude, his commitment, his performance and his quality of work. The following matters were then set out in the Form F3[1]:
· On 27 January 2022, the respondent issued to the applicant a letter of concern regarding his: attendance; painting performance in respect of quality of work and time taken to complete jobs; and communication with co-workers, including rudeness.
· On 21 June 2022, the respondent issued to the applicant a letter of expectation regarding the respondent’s expectation in relation to taking personal leave, work standards and attendance. The respondent considered that the applicant’s performance and adherence to policies and procedures was lacking in all three areas.
· On 15 July 2022, the respondent issued a further letter of concern regarding the applicant’s failure to follow company policies and procedures in relation providing appropriate notice of his intention to leave the workplace. The applicant had left site without warning or authorisation to take care of his personal motor vehicle.
· On 9 September 2022, the respondent sent an email to the applicant regarding his lack of communication with the business and requesting that it improve. Specifically, the respondent requested that the applicant communicate better regarding start and finish times, job run times, job delays and weather impacts.
· In early October 2022, the respondent became aware that the applicant had exhibited inappropriate and disrespectful behaviour in the workplace, particularly engaging with his manager in a rude and inappropriate manner. Further, the applicant had been absent without authorisation on 29 September 2022. The respondent wrote to the Applicant regarding the allegations on 20 October 2022.
· On 24 October 2022, the respondent then conducted a disciplinary meeting in relation to the allegations. Following the meeting, the respondent determined that the allegations were substantiated and, as result, the applicant was issued with a first written warning on 25 October 2022.
· On 25 October 2022, the respondent also sent an email to the applicant reminding him of his working hours, including start/finish times and break times. The respondent was aware that the applicant was not correctly reporting his start and finish times and was persistently absent from site and took extended lunch breaks.
· In late-October 2022, the respondent became aware that the applicant had exhibited further inappropriate and disrespectful behaviour in the workplace, particularly engaging with his manager in a rude and inappropriate manner. The respondent wrote to the applicant regarding the allegations on 2 November 2022.
· On 9 November 2022, the respondent conducted a disciplinary meeting in relation to the allegations. Following the meeting, the respondent determined that the allegations were substantiated and, as a result, the applicant was issued with a final written warning on 9 November 2022 . The Applicant was advised that any further misconduct could result in further disciplinary action, including termination of his employment.
Against the background of the foregoing matters, the following developments then occurred. In November 2022, the respondent became aware of further allegations that the applicant had engaged in “deceptive and dishonest” behaviour relating to his working hours, in that he had incorrectly reported his working hours. It was alleged that the applicant had asked a sub-contractor colleague, Mr Torres, not to wait for him to attend site and that the applicant did not attend site on 21 November 2022. Further allegations arose concerning disparaging comments (allegedly) made by the applicant about the respondent to other workers.
The respondent considered that the applicant’s failure to attend work, deceptive conduct in misreporting his hours, and his disparaging comments: had the ability to affect, and did affect, the respondent’s reputation, visibility and profitability; amounted to a breach of the applicant’s obligations under the contract of employment; and amounted to persistent misconduct given the prior warnings and letters of concern issued to the applicant.
The respondent referred to what it characterised as “Fair Process”, in describing that a meeting was convened for 23 November 2022 concerning the most recent round of allegations. As to that:
· The respondent invited the applicant to attend a meeting concerning the most recent allegations on 23 November 2022.
· On 28 November 2022, the applicant was suspended with pay pending the outcome of the disciplinary process.
· A disciplinary meeting was held on 30 November 2022. The applicant was given the opportunity to bring a support person to the meeting.
· At the meeting, the applicant denied the allegations and requested further evidence of the most recent allegations.
The respondent determined that, in all the circumstances, it was appropriate to terminate the applicant’s employment for persistent misconduct, as was communicated to the applicant/ confirmed in writing on 30 November 2022.
Ms Ottowa set out a closely-detailed chronology of matters preceding the dismissal to the date of the dismissal at paragraphs 31-67 of her statement of evidence, together with supporting documents. As noted earlier, evidence was also given by various Employsure representatives and Mr Torres. The respondent’s outline of submissions that was filed pursuant to the directions contended that “By late 2022, the Applicant’s performance, communication and demeanour had deteriorated to such an extent that the working relationship was no longer tenable” notwithstanding an employment relationship which “had been historically harmonious”.
The Code
The Code provides as follows:
“The Code
Summary Dismissal
…Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
Given the respondent is a small business employer and the dismissal was effected with a payment in lieu of notice, the “Other dismissal” provisions of the Code are relevant.
Code-related considerations in this case
Given that the respondent contends the dismissal was Code-compliant, I turn to an overview of its case on the objection in such respects – which is drawn from its outline of closing submissions. The respondent submitted that it had not only met but exceeded the requirements of the Code relating to “Other dismissals”, in “navigating a confusing and unsettled area of law”.
The respondent advanced its submissions by reference to the decision of Asbury DP (as she then was) in Brittain v Teewah Power Co[2021] FWC 5451 (“Brittain”). That decision contains the following passages (references not reproduced):
“[63] The requirements in the Code that there be a valid reason for dismissal and that the employee is informed of that reason before dismissal also imply that any response provided by the employee is required to be considered by the employer before deciding to dismiss the employee. Where an employer cannot provide evidence that the response was considered, there may be difficulty in establishing the validity of a reason for dismissal particularly where the response provides an explanation for the conduct or capacity which led to the dismissal. This is also consistent with the provisions of the Code in relation to warnings which state that any response to a warning made by the employee should be a matter to which the employer has regard.
[64] I proceed on the basis that the provisions of the Code relating to “Other Dismissal” require that:
1. Before dismissing an employee for reasons of conduct or capacity (other than those justifying summary dismissal) the employer must give the employee a reason why he or she is at risk of being dismissed.
2. The reason must be a valid reason (in the sense that it is sound, defensible and well founded and justifies dismissal) based on the employee’s conduct or capacity.
3. Conduct includes an omission and capacity is the employee’s ability to do the job as required by the employer and also includes the employee’s ability to do the work he or she was employed to do.
4. The employer must give the employee an opportunity to respond to the reason for dismissal before dismissing the employee.
5. The requirement that there be a valid reason for dismissal means that some consideration should be given to the response the employee provides. This will generally be required when the Commission is assessing whether the reason for dismissal was valid.
6. The employee must have been warned that he or she is at risk of being dismissed either for similar conduct or capacity issues or that the issue that is the subject of the warning has generally placed the employee’s employment at risk and that any repetition or further conduct or capacity issues will result in dismissal.
7. If the employee has previously engaged in conduct that has placed his or her employment at risk and has been warned in relation to it there is no requirement that a further warning be given and it will be sufficient if the employee is notified that the employer believes that the same conduct or further conduct that places the employee’s employment at risk has occurred and gives the employee an opportunity to respond before dismissing the employee.
8. The employee must have been given a reasonable opportunity to improve his or her performance prior to the dismissal being effected which may include the employer providing additional training and ensuring that the employee knows the employer’s job expectations.
9. An employee may request to have another person present to assist in discussions in circumstances where dismissal is possible provided that person is not a lawyer acting in a professional capacity. The employer is not required to offer a support person.
[65] If a dismissal was consistent with the Code then the dismissal is not unfair and does not fall to be considered against the criteria in s. 387 of the Act. If the Commission is not satisfied that the dismissal was consistent with the Code, the Commission must then consider whether the dismissal was unfair because it was harsh, unjust or unreasonable on the basis of the criteria in s.387 of the Act …”.
The respondent made reference in its closing submissions to the descriptions of the operation of the Code as set out in Brittain at [64], referring to those matters as “Checklist” items numbered 1-9. To avoid doubt, the references to Checklist items in the respondent’s submissions are not references to the checklist questions in the Small Business Fair Dismissal Code Checklist tool that is associated with the Code. Rather, what the respondent described as Checklist items replicated the matters or descriptions set out in Brittain.
While I will return later in the decision to the respondent’s submissions concerning the operation of the Code and the evidence in the case, I should note the following. Among other documents, the applicant provided a statutory declaration in support of his case in which he said, for example, that the certain impugned emailed comments to Ms Ottowa (“Conny sky is the limit for your greednes [sic]” and “You are also highly arrogant and you don’t respect people”) had, for example, been taken “completely out of context” in circumstances where there had been a payments issue and the comments had been made out of “frustration” rather than being said or meant in an aggressive or disrespectful way. The applicant’s closing remarks in the statutory declaration emphasised his long period of employment with the company as a trusted employee; and that he had not been given “a real and fair opportunity to improve our working relationship”, for example, by way of a performance improvement plan.
The applicant’s oral closing submissions were (at PN1235):
“… I don’t have too much to say, basically maybe that I made a mistake. My boss was right, employees have no right in Australia[2]. That’s it. Thank you very much.”
Moreover, when asked by me whether there was anything that he wanted to say in reply to the respondent’s closing submissions, the applicant indicated (at PN1267) that there was nothing he wanted to say in reply.
It is apposite to note that, on 4 May 2023, the applicant filed and served a further written submission attaching a photograph of himself. In deference to the fact the applicant was self-representing, I have considered the applicant’s further submission for the purposes of this decision even though it was filed and served after the decision was already reserved. Due to its brevity, the submission made by the applicant is reproduced in full (as written):
“Dear Associate.
Although Commissioner was asking me for final words and im thankful for that after the trial i couldn't say anything.
The reason for that was that i was really angry on myself due to be unable say what i want, too many new challenges in once.
I don’t really have much negative thoughts about the respondent I already past most of this and definitely not on her lawyers in the end of the day it's their job I get it.
However, need to clarify something,
This dismissal was first dismissal in my whole life since i started work as a adult men,
in my country I was working only in one company 13 years .
Not goanna say unfair, because its too mild word and I'm never pompously rude, I might be sarcastic but not rude unless I don’t fully understand meaning of used by me words.
Communication between me and respondent.
I didn’t receive even one email before she fire me where Conny Ottawa directly respond to me.
That I’m offending her or her husband,
touching her private life,
commenting who is the boss in her relationship with Robbin [Ottowa]
I also don’t complain behind boss back that I don’t earn in their company enough money
i asking him if he has time to talk and I’m telling him about this.
I’m straight forward person,
When is a problem or I’m not ok with something I deal with this almost instantly.
Confabulation about no spine boss.
It would the last thing what I would say about him.
He HAS bigger spine then 2 normal men’s, when I had conversation with him about money and employees without rights in Australia,
although he knew that I could easy with one hand snap his spine he said that without any fear, he has courage and I never took this from him.
HR workers.
When I left in 2008 my country there wasn’t such a thing like disciplinary meeting with HR, what we had back then was public, government inspectors but they usually was shooting down company,
boss was the person who was dealing with any issue related to the worker and although I never been fired before through all those years I’ve seen few people who were fired and remember that before boss ask them to talk about their problem they knew weeks or even months before this happened
not 37 days before,
and all others workers around them .
When I had my first meeting with Kristy M [Kirsty Muir] I actually thought that she is independent, from government I even asked her if she has a acces to all emails because I thought that my boss is not showing her everything I never said that because I felt like idiot.
I apologise for such late time when I sending this but insomnia is new standard for me I also attached one photo of me before all this mess, I remember Commissioner on the beginning asked me if I got any injury in my ex company,
photo explain grounds of my unfair dismissal application.
Thank you.”
As noted earlier, the respondent’s submissions referenced matters set out in sub-paragraphs 1-9 of paragraph [64] of Brittain. As to the first matter addressed in the respondent’s submissions, related to giving the employee a reason why he or she is at risk of being dismissed, the respondent submitted that the evidence of Ms Ottowa and Ms Hargreaves shows that “before dismissing the Applicant for his conduct, the Respondent gave the Applicant a reason as to why he was at risk of being dismissed on multiple occasions including in writing on 23 November 2022 in an invitation to a disciplinary meeting and again verbally on 30 November 2023 during the disciplinary meeting.”
I accept the respondent’s submissions concerning the first matter. The evidence shows that the respondent gave the applicant a reason or reasons why he was at risk of being dismissed.
As to the second matter, related to a valid reason based on the employee’s conduct or capacity, the respondent submitted that the evidence of Ms Ottowa shows there was a valid reason for the applicant’s dismissal. The respondent submitted, first, that: (a) the applicant persistently communicated with Ms Ottowa and others in the respondent’s business in a rude, disrespectful, and entirely unprofessional manner; and (b) the applicant frequently failed to notify the respondent of his absences from work as well as deceptively advising Ms Ottowa that he was performing work when he had not been. Second, Mr Torres’ evidence shows that: (a) the applicant was not present at the site performing the work that he was being paid to do; and (b) when at work, the applicant was constantly talking poorly about either the business or Ms Ottowa, and Mr Torres had to leave the workplace to get away from (what Mr Torres characterised in an email to the respondent as) the applicant’s “incessant berating” about certain matters concerning the business and the Ottowas personally. These matters, the respondent’s submissions continued, went “to the heart of the employment relationship” in that: (a) the applicant simply was not performing work in exchange for wages; and (b) the applicant was not speaking to, or about, his employer in a professional and courteous manner. The respondent submitted that it was important to highlight that Ms Ottowa’s evidence shows that, throughout 2022 and even as early as January 2021, the respondent regularly directed the applicant to communicate in a civil and professional manner, and to follow its policy by advising of absences from work; yet, despite these regular directions from the respondent, the applicant continued to engage in same conduct.
In its written outline, the respondent submitted that the evidence was that applicant did not deny the allegation concerning the-then most recent unauthorised absence from the worksite; rather, the applicant repeatedly asked to be provided evidence of the allegations. The submissions continued:
“30. The respondent decided that on balance it believed the allegations were substantiated (or proven), give the Applicant’s history of leaving the workplace without authorisation and his rude and disrespectful behaviour towards the Respondent [Ms Ottowa] to date. The fact that the Applicant did not deny the allegations weighed in favour of them being substantiated (or proven).”
I accept the respondent’s submissions around the applicant’s unauthorised and/or unreported failure to attend for work on various occasions, including the-then most recent absence preceding the dismissal. In and of itself, the attendance issues would ground a valid reason for dismissal. Specifically, because this was the last absence from work which was, in effect, one of the determining matters for the respondent, it is necessary to make a finding concerning this contested matter. I find that the applicant did absent himself from work on 21 November 2022. I find, on the balance of probabilities, including having regard to the evidence of both the applicant and Mr Torres about what unfolded that day, that the applicant absented himself from work in an unauthorised way. In reaching that conclusion, I have considered those parts of the applicant’s case which contended that Mr Torres had engaged in retribution-type reporting to the respondent. I also accept that the tenor and contents of some of the applicant’s communications to his manager, Ms Ottowa, were quite inappropriate when read objectively - notwithstanding my consideration of the applicant’s case which referenced his frustration in the emailed comments. The tenor and contents of some of the communications sent by the applicant to Ms Ottowa would again ground a valid reason for dismissal.
As to the third matter, related to conduct including an omission, the respondent submitted that Ms Ottowa’s evidence shows that the valid reason also relates to the applicant’s omission in failing to notify the respondent of his intended absence from work on 21 November 2022 and, earlier, on 29 September 2022. I accept the respondent’s submissions in this regard.
As to the fourth matter, related to giving the employee an opportunity to respond to the reason for dismissal before dismissal, I accept the respondent’s submission that Ms Hargreaves’ evidence shows that the applicant was given an opportunity to respond to the reason for dismissal during a meeting on 30 November 2022.
As to the fifth matter, related to consideration being given to the response the employee provides, I accept the respondent’s submission that Ms Hargreaves’ evidence shows that it was the applicant who chose not to relevantly respond to the reason for dismissal during the meeting on 30 November 2022 - despite having the opportunity to respond.
As to the sixth matter, related to prior warning/s, the respondent submitted – being submissions I accept – that the evidence of Mr Ottowa and Ms Ottowa shows that the applicant was warned that his employment was at risk of being terminated. The evidence of the correspondence speaks for itself in such respects. Added to the documentary record of formal warnings, Ms Ottowa’s evidence shows the respondent had periodically warned the applicant over the course of 2022, and as early as January 2021, that his conduct was unacceptable and/or needed improvement.
The seventh matter is related to the following: “If the employee has previously engaged in conduct that has placed his or her employment at risk and has been warned in relation to it there is no requirement that a further warning be given and it will be sufficient if the employee is notified that the employer believes that the same conduct or further conduct that places the employee’s employment at risk has occurred and gives the employee an opportunity to respond before dismissing the employee.” The respondent submitted that the evidence in its case, particularly the evidence of Ms Ottowa, shows that: the applicant was continuously warned, either verbally or in writing, throughout 2022 that his employment was at risk of being terminated due to his persistent misconduct; the applicant was notified on 23 November 2022 that he had yet again engaged in the same conduct, which placed his employment at risk; and the respondent gave the applicant the opportunity to respond on 30 November 2022 to that conduct prior to dismissing him. The respondent further submitted that, as a small business employer, “it went out of its way” to afford the applicant procedural fairness - and so much so as to be in a way that exceeded the Code’s requirements. I accept the respondent’s submissions in such respects, notwithstanding the applicant’s contentions to the contrary.
As to the eighth matter, related to having been given a reasonable opportunity to improve performance prior to the dismissal, I accept the respondent’s submission that Ms Ottowa’s evidence shows that she communicated the employer’s expectations and the applicant was given an opportunity to improve his performance over the course of 2022 and, more specifically, after the first and second written warnings.
Last, as to the ninth matter, related to an employee having another person present to assist in relevant discussions, the applicant was provided the opportunity to have a support person present at all meetings (and chose to have a support person present at some meetings).
Conclusion
On a consideration of the matters advanced by way of evidence and submissions, I am satisfied that the dismissal was Code-complaint. As such, it is unnecessary to consider the other elements as to an unfair dismissal. The application is dismissed. An order in such respects will issue in conjunction with these reasons.
The proceedings are concluded.
COMMISSIONER
Appearances:
R Bednarski on his own behalf.
J Pescud of Employsure Law for the respondent.
Hearing details:
2023.
Sydney
May 2.
Final written submissions:
4 May 2023.
[1] Note: the respondent’s outline of submissions (at paragraph 11) appears to rely on its written communications regarding its concerns dated 27 January, 21 June, 15 July, 12 September and 20 September 2022.
[2] The evidence around this matter was contested. The applicant’s evidence was that Mr Ottowa relevantly said words to the effect that employees have no rights in Australia, whereas Mr Ottowa’s evidence was that he relevantly said words to the effect that employers have no rights in Australia. It is unnecessary to decide whose version is to be preferred, because whatever may have been said in such respects is not relevant to the determination of the Code-related objection.
Printed by authority of the Commonwealth Government Printer
<PR762685>
0