Robert Campbell John Hunter v Wentworth Financial Services Pty Ltd (Mills+Brown)
[2023] FWC 737
•21 APRIL 2023
| [2023] FWC 737 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert Campbell John Hunter
v
Wentworth Financial Services Pty Ltd (Mills+Brown)
(U2022/7179)
| DEPUTY PRESIDENT LAKE | BRISBANE, 21 APRIL 2023 |
Application for an unfair dismissal remedy– application dismissed.
Mr Robert Campbell John Hunter (the Applicant) brought an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in which he contended that he had been unfairly dismissed by Mills+Brown (the Respondent).
The Applicant commenced working for the Respondent on 11 October 2021. The Applicant was a permanent, full-time employee providing financial advice. On 4 July 2022, the Applicant was summarily dismissed on the basis that he had engaged in serious misconduct by presenting to work intoxicated on 1 July 2022.
Section 396 of the Act requires that I am satisfied of four matters before considering the merits of the Applicant’s application. It is not in dispute that the application was made within the 21-day period required by s.394(2) of the Act and that the Applicant’s dismissal was not a case of genuine redundancy. I am satisfied that the Applicant was a person protected from unfair dismissal as he earned less than the high-income threshold and a decision was issued finding that the Respondent is not a small business to whom the Small Business Dismissal Code applies.
The matter for determination is therefore whether the Applicant’s dismissal was harsh, unjust or unreasonable.
I determined the matter for hearing before me on 21 March 2022. The Applicant appeared on his own behalf. Mr Darren Edden-Brown as the Managing Director appeared on behalf of the Respondent.
Background
The Applicant worked for the Respondent for 9 months where he provided financial advice. The Applicant states that there were no warnings were provided at any stage of his employment with the Respondent. The Applicant had stated that there were no formal feedback or reviews conducted by the Respondent prior to the incident regarding being drunk and disorderly on 1 July 2022 but had received positive feedback from other staff including from Mr Edden-Brown.
The Respondent states that the Applicant was allegedly drunk and disorderly on 1 July 2022 through appearing hungover and being intoxicated, lacked coordination, had bloodshot glossy looking eyes, slow pupil response, his inability to complete his work on this day and slurring of speech.
The Respondent had requested the Applicant to take an independent drug and alcohol test which the Applicant had refused upon the strong smell of alcohol from the Directors, Mr Edden-Brown and Ms Sarah Mills. According to Ms Mills, Mr Edden-Brown repeated his direction three times. Both Mr Edden-Brown and Ms Mills stated that the Applicant refused to comply with the direction, which the Respondent considered a lawful and reasonable direction. Mr Edden-Brown said that he then instructed the Applicant to return home and present at work on the following Monday, 4 July 2022 at 10:00am.
The Applicant states that he was not drunk and disorderly and disorderly, and that the smell of alcohol was from a result of the lingering scent of alcohol he had consumed on the previous night. The Applicant stated that he was not afforded a suitable opportunity to respond to the Respondent’s direction. He said that he was instructed to return home before being given time to contemplate Mr Edden-Brown’s request.
On 4 July 2022, the Respondent states the Applicant denied the allegations of being intoxicated and the reason for the smell of alcohol was from a ‘big night on the booze the night before.’ After this meeting, the Applicant was dismissed.
The Applicant states that he was instantly dismissed without any warning because he was being drunk and disorderly on 1 July 2022. The Applicant denies that he was drunk, and that he drove home each and every day including the day he was dismissed on 4 July 2022.
The Respondent’s reason for summarily dismissing the Applicant was on the basis that he engaged in serious misconduct, which was a health and safety risk, inconsistent with the contract of employment, caused a serious and imminent risk to the reputation, viability or profitability of the Respondent’s business, that he was unfit to be entrusted with duties, and his failure to undertake an alcohol breath test when requested.
Mr Edden-Brown states that he did not dismiss the Applicant due to any concerns with the Applicant personally or with his performance at work. The Respondent maintained that the Applicant’s dismissal was brought about solely by the Applicant’s conduct on the relevant date, which it says amounted to serious misconduct.
Consideration
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in the effecting the dismissal; and
(h) any other matters the FWC considers relevant.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[1]
(a) whether there was a valid reason for the dismissal
To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced.”[3] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.
In cases relating to alleged misconduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the employee engaged in the impugned conduct.[4] Although the employer bears the evidentiary onus of proof, it need only satisfy the Commission that it is ‘more probable than not’ that the relevant conduct occurred.[5] The Commission is required to assess whether there was ‘a’ valid reason for dismissal, based on the evidence led at any hearing. It does this by reference to any valid reason(s) sought to be relied upon by the employer.[6]
The Respondent submits that they had a valid reason for summarily dismissing the Applicant on 4 July 2022 because he was intoxicated at work on 1 July 2022. In order for the Respondent to summarily dismiss an Applicant, they must establish that there was serious misconduct.
Serious misconduct takes into account intoxication at work per regulation 1.07 of the Fair Work Regulations 2009 (Cth).
FAIR WORK REGULATIONS 2009 - REG 1.07
Meaning of serious misconduct
(1)For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2)For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or(ii) the reputation, viability or profitability of the employer's business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee's employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault; or
(iv) sexual harassment;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee's faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee's duties or with any duty that the employee may be called upon to perform.
The Respondent’s note in their submission that the request for alcohol and drug testing “consistent with [the Applicant’s] contract of employment and [the Respondent’s] company policy toward alcohol”.[7]
I am satisfied that the Respondent had a valid reason for the dismissal. There is contending evidence on whether the Applicant was intoxicated or not. On balance, I am satisfied that the Applicant was intoxicated as there was an acknowledgement from the Applicant that he had a least one or two drinks at lunch and/or he had intoxicated himself last night in which the effects were so significant that the Respondents had raised this as a concern when he attended work on 1 July 2022.
The Applicant was in a position of providing financial analysis which would be an input to the provision of financial advice to various clients whilst intoxicated. Further he may have had direct contact with clients when undertaking his duties.
The Respondent had intervened in the situation by requesting the Applicant take a drug and alcohol test. When the Applicant failed to undertake this request, the Respondent sent the Applicant home. The Applicant may have caused serious and imminent risk to the reputation of the Respondent’s business in terms of profitability and reputation had poor advice been given, given that he was impaired to the point that the employer did not feel that they could be entrusted with his duties.
On the balance of probabilities, I find that the Respondent had a valid reason for dismissal.
(b) whether the person was notified of the reason; (c) whether the person was given an opportunity to respond
The Respondent had given the Applicant an opportunity to respond the allegations of his intoxication and failure to undertake a drug and alcohol test when requested. The Applicant was notified of his reasons for dismissal through an email sent asking him to attend a meeting on 4 July 2022 after the incident.
I am satisfied that notice and an opportunity to respond was given.
(d) any unreasonable refusal by the employer to allow the person to have a support person
The Applicant did not seek a support person, but the nature of the boardroom meeting on the dismissal date meant that the Applicant was not provided an opportunity to request one.
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal
I am satisfied that the Respondent dismissed the Applicant for reasons relating to conduct, not performance. This criterion is not relevant.
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; (g) absence of dedicated human resource management specialists or expertise
The Respondent is a smaller sized business in which there is one Human Resources staff member that has been outsourced. I regard this factor as neutral.
(h) any other matters considered relevant.
The Applicant has sought to mitigate his financial loss by working in Traffic Control a few days after his dismissal. However, because he has not been employed since 4 August 2022 because of an injury that prevents him from working as a traffic controller. The Applicant is 58 years old and has had difficulties in seeking a position back in the same industry despite his degree and qualifications. The Applicant had only been employed with the Respondent for 10 months.
I acknowledge that the Applicant may have had arising difficulties arising from the dismissal considering his age and injuries. There may be some harshness arising from his limitations in work and ability to seek other roles but not enough to render the dismissal harsh unjust or unreasonable.
Conclusion
Having made findings in relation to each matter specified in s.387 of the Act, I am not satisfied that the Applicant’s dismissal was harsh, unjust or unreasonable.
Accordingly, I order that the application be dismissed.
DEPUTY PRESIDENT
[1] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) [69].
[2] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[3] Ibid.
[4] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].
[5] Law v Groote Eylandt Mining Company Pty Ltd T/A GEMCO[2018] FWC 1824.
[6] Livingstones Australia v ICF (Aust) Pty Ltd [2014] FWCFC 1276; (2014) 240 IR 448 at [64]-[66], Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at [10] and [14], King v Freshmore (Vic) Pty Ltd (Print S4213); [2000] AIRC 1019 at [24] and B, C and D v Australian Postal Corporation[2013] FWCFB 6191; (2013) 238 IR 1 at [34].
[7] Respondent’s Outline of Submissions, 1.
Printed by authority of the Commonwealth Government Printer
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