Roland Zotti v Hall Industries Australia Pty Ltd
[2018] FWC 5620
•11 SEPTEMBER 2018
| [2018] FWC 5620 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Roland Zotti
v
Hall Industries Australia Pty Ltd
(U2017/13809)
| COMMISSIONER CAMBRIDGE | SYDNEY, 11 SEPTEMBER 2018 |
Unfair dismissal - Small Business Fair Dismissal Code - dismissal with payment in lieu of notice - serious misconduct - refusal to carry out lawful and reasonable instruction that is consistent with contract of employment - SBFD Code applied and consequently dismissal deemed fair - application dismissed.
This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 22 December 2017. The application was made by Roland Zotti (the applicant) and the respondent employer is Hall Industries Australia Pty Ltd (the employer).
The application indicated that the date that the applicant’s dismissal took effect was 18 December 2017. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
The matter was not resolved at conciliation and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 17 April, 8, 9 and 31 May 2018. The proceedings on 31 May concluded the Hearing of the evidence in the matter, and the Parties requested that a timetable be provided for the provision of written submissions which concluded with final submissions in reply from the applicant being provided on or before 6 July 2018.
At the Hearing, Mr D Taylor, solicitor, initially appeared for the applicant, and subsequently Ms T Leculier, solicitor, replaced Mr Taylor as the representative on record for the applicant. The applicant and two other witnesses, one of whom was Mr Taylor, were called to provide evidence in support of the claim. The employer was represented by Ms V Bulut, a barrister, instructed by Mr A Martin from Wotton Kearney lawyers. Ms Bulut called a total of three witnesses who provided evidence on behalf of the employer.
Factual Background
The applicant is an Italian citizen who was sponsored by the employer under a Temporary Work (Skilled) (subclass 457) Visa (457 Visa), to work in the nominated occupation of Fitter-Welder. The applicant’s 457 Visa was granted by the Department of Immigration and Border Protection on 12 December 2014, and it has a specified stay period until 12 December 2018. The applicant undertook a work trial on 7 October 2014, whereupon he demonstrated his competencies as a skilled welder to the satisfaction of the employer.
The applicant said that following the successful completion of the work trial on 7 October, the employer requested that he return to work on the following day, 8 October 2014. The applicant said that he worked from 8 October 2014 until 19 December 2014, and that during this period he performed welding work for the employer for which he was not paid wages or any other remuneration. Conversely, and somewhat unusually, the employer stated that the applicant did not work in the period between October 2014 to January 2015 as he had alleged. The employer acknowledged that the applicant performed a work trial on 7 October 2014. However, the employer maintained that the applicant did not commence employment until 14 January 2015.
Consequently, at the time of the applicant’s dismissal in December 2017, he had worked for the employer for at least almost three years, or alternatively, about three years and two months. It should be noted that during the period that the applicant alleged that he had worked for the employer and had not received any payment, October to December 2014, he had been granted a Bridging A (subclass 010) Visa (010 Visa) from 23 October 2014, up until his 457 Visa was granted on 12 December 2014. However the 010 Visa stipulated that; “This bridging visa is not in effect because your E-visitor visa is currently in effect.”[1]
Although a matter of some contest, the evidence has established that the employer is a small business, and at the time of the applicant’s dismissal it employed seven people. The employer operates a manufacturing business conducted from a warehouse and workshop located in the Sydney suburb of Seven Hills. The employer manufactures meat processing machines which are made primarily out of stainless steel, and generally sold to butchers and meat processors in Australia and overseas. The manufacture of the meat processing machines involves a requirement for specialised welding of the stainless steel components. The applicant performed this specialised welding work for the employer.
The applicant secured the employment under the 457 Visa sponsored by the employer with the paid assistance of Mr Daniels Obiokolie from the Global Education and Migration Agency. Mr Obiokolie acted as a migration agent for the applicant, and he was also engaged by the employer to provide migration related services on a fee for service basis.
In about mid 2017 the applicant sought the further assistance of Mr Obiokolie to have the employer act as sponsor for the applicant to obtain permanent resident status in Australia. Mr Obiokolie advised the applicant that he was not prepared to assist him in respect to any pursuit of permanent resident status, and the applicant engaged the services of another migration agent and solicitor, Mr Daniel Robert Taylor.
In August 2017, Mr Taylor engaged in discussions with the employer which involved, inter alia, inquiries as to the possibility that the employer would sponsor the applicant’s pursuit of permanent resident status. Further, Mr Taylor raised issues with the employer about; (a) certain training obligations that related to sponsorship of the applicant’s 457 Visa and which had apparently not been met by the employer, and (b) payment in respect of the asserted period of employment of the applicant between October and December 2014. These discussions did not result in any agreement being reached regarding either future sponsorship for the applicant’s permanent residence, or resolution of the asserted underpayments in respect to the applicant’s alleged earlier period of employment.
In about mid 2017, Mr Taylor advised the applicant that he was not permitted to undertake work that was not within the job description of the work for which he had been provided with the 457 Visa. Since about April 2015, the applicant had undertaken a range of duties that may be described as being ancillary to his role as a Fitter-Welder. These ancillary duties which included certain polishing, acid washing, and painting, were tasks that had apparently been, in large part, performed by another employee who left the employment of the employer. In addition, the applicant claimed that he had been required to drive a forklift from time to time.
Following the advice that he had received from his lawyer in mid 2017 about the 457 Visa restrictions applicable to his work as a Fitter-Welder, in late 2017 the applicant refused to perform any of the ancillary duties that he had undertaken since about April 2015. The work performance and conduct of the applicant as a specialised Fitter-Welder was not the subject of any significant, identified criticism prior to December 2017.
On 6 December 2017, the applicant was questioned by the employer about some incorrectly welded paddles. The employer’s inquiry led to an agitated and animated discussion during which the applicant invited the employer to dismiss him, and he indicated that he was troubled by difficulties associated with being unable to pursue his permanent resident status.
On the following day, 7 December, the applicant’s foreman asked him to weld a lid on a mincer mixer. The applicant undertook this welding. However he did not complete the job by performing the ancillary tasks of acid washing and polishing. When the employer inquired as to why the applicant had not acid washed and polished the lids of the mincer mixer, the applicant informed the foreman that “from today” he would do only his specific welding and grinding work, and that he would not undertake any of the ancillary tasks such as painting, polishing, acid washing, or driving the forklift.
On the next day, 8 December 2017, one of the employer’s Directors approached the applicant and politely requested that the applicant provide some clarification of the applicant’s conduct on the preceding days. The applicant provided an agitated and impolite response. However, he subsequently calmed down and clarified that he was dissatisfied with his work arrangements including that he would refuse to do the ancillary tasks. The employer advised the applicant that his refusal to undertake the full range of tasks that he had been performing was unacceptable, and that upon the return of one of the other Directors further discussion would be undertaken.
On Friday, 15 December 2017, the applicant had been required to weld paddles on a 600 L mincer mixer. The applicant finished the welding and he performed some associated grinding. However he did not acid wash or polish the completed welded paddle. The employer inquired as to why the applicant had not completed the work on the paddles and he restated his refusal to do what he saw as being tasks that were not a direct component of his job as a Fitter-Welder. The employer indicated that it had no further work for the applicant on that afternoon but indicated that on the following Monday it would discuss the applicant’s refusal to perform the full range of tasks that he had previously undertaken.
On Monday, 18 December 2017, the applicant was called into the office of one of the Directors of the employer for a meeting involving discussion about his refusal to perform the full range of tasks that he had previously undertaken. During this discussion the employer requested that the applicant recognise that he worked for a small business which needed to have employees perform a wide range of duties from time to time. The employer urged that the applicant reconsider his position regarding his refusal to undertake the full range of tasks that he had previously performed. The applicant steadfastly rejected the requests of the employer, and he asked to be provided with a list of the tasks that he was to perform. The applicant told the employer’s Directors that he would not reconsider his position and that he would not do extra jobs that were not part of his specific position as a Fitter-Welder.
After some extensive discussion, the employer adjourned the meeting and asked the applicant to wait outside so that it could consider its position. After approximately 20 minutes the two Directors of the employer who were present during the meeting came out of the office and provided the applicant with advice that his employment had been terminated.
At this time, the applicant was provided with a letter of dismissal which advised that he had been dismissed because of his refusal to undertake the full range of tasks as directed by the employer, and because of the serious misconduct associated with the applicant’s rude and disrespectful behaviour. The letter of dismissal also included a document entitled “WARNING NOTICES” which recounted the events of, inter alia, 6, 8 and 15 December 2017. Further, the applicant was advised that he was to be paid an amount of two weeks’ notice although the employer indicated that it did not believe that it was obliged to provide such payment.
Since his dismissal the applicant has unsuccessfully applied for one alternative job. The submissions of the applicant sought reinstatement or alternatively compensation of 26 weeks’ pay as remedy for his alleged unfair dismissal.
The Case for the Applicant
There were a number of submission documents provided on behalf of the applicant. The primary documentary material was that filed on 18 June, and reply material was also filed on 6 July 2018. These materials asserted that the applicant had been unfairly dismissed.
The submissions made on behalf of the applicant included an array of issues related to alleged breaches of the Migration Act 1958 and associated Regulations, which arose from the employment circumstances of the applicant with the employer as sponsor for his 457 Visa. These migration related matters focused upon an assertion that the various tasks that the employer required of the applicant and which the applicant had performed up until December 2017, breached the requirements of the 457 Visa conditions applicable to the work of a Fitter-Welder. The submissions made on behalf of the applicant asserted that the range of ancillary tasks that the applicant refused to perform were inconsistent with the position and occupation for which the 457 Visa had been granted. Consequently, it was submitted that the applicant was entitled to refuse to perform the ancillary tasks, and that the requirement for him to do so represented an unreasonable and unlawful direction.
There were further migration related issues raised in the submissions made on behalf of the applicant. These additional migration related issues included, inter alia, that the employer had entered into unlawful arrangements which involved the applicant paying considerable amounts of money to Mr Obiokolie in order to secure sponsorship for his 457 Visa, and which involved the applicant providing the employer with unpaid work in the period between October and December 2014. Further, it was also asserted that the employer had not made payments in respect to certain training obligations that were connected with its sponsorship for the applicant’s 457 Visa.
The submissions of the applicant also raised assertions that the applicant was entitled to refuse to perform certain work on the basis that health and safety concerns raised by the applicant had not been properly addressed by the employer. In particular, the applicant submitted that he had been directed to operate a forklift for which he had no relevant license. Further, the applicant submitted that the acid washing task involved a high-risk activity for which the employer did not provide proper protective clothing or other safe work methods, including the assertion that the workstation of the applicant was not properly ventilated.
The submissions made on behalf of the applicant then provided a detailed analysis of the events of 6, 8, 15, and 18 December 2017 whereby it was asserted that the applicant had exercised his professional assessment to decline to undertake any tasks that were outside of his primary responsibility. It was submitted that the applicant refused these tasks as he had formed the view, upon advice from his solicitor, that the continued performance of those tasks was in breach of the terms of his 457 Visa. Additionally, it was submitted that the refusal of these tasks was appropriate as the continued performance of those tasks would be unlawful, unsafe, and inconsistent with his role as a Fitter-Welder working under a 457 Visa.
The applicant’s submissions also asserted that the real reason for dismissal involved the employer’s response to the applicant raising allegations regarding his period of unpaid work in October to December 2014. Further, it was submitted that the dismissal of the applicant was in response to the applicant raising various other grievances relating to bullying at work, and unsafe work practices including the failure to provide appropriate personal protective equipment.
It was further submitted on behalf of the applicant that he had not been provided with any warning that his refusal to perform the ancillary tasks may lead to his dismissal from employment. It was submitted that the applicant had requested a written statement of the tasks that the employer required of him and instead he was provided with a letter of dismissal.
The submissions made by the applicant asserted that in the circumstances, the directions from the employer were unlawful, unsafe, and unreasonable, and termination of the applicant’s employment was unjust and unreasonable. Further, the impact of the dismissal was said to have been harsh in the circumstances where the work of the applicant was undertaken via the sponsorship provided for his 457 Visa.
The submissions made on behalf of the applicant also addressed the operation and application of the Small Business Fair Dismissal Code (the SBFD Code). The applicant submitted that it had not been established that the employer was a small business. Further, the submissions for the applicant asserted that if the employer was a small business the dismissal of the applicant was not consistent with the SBFD Code. It was submitted that the dismissal was not a summary dismissal and that the employer did not have reasonable grounds to believe that dismissal was justified.
In summary, the submissions of the applicant asserted that the basis for his dismissal which involved the applicant refusing to perform certain tasks which was said to have involved serious misconduct together with rude and disrespectful behaviour, could not be substantiated. It was submitted that the directions of the employer were not lawful or reasonable, and the applicant’s conduct was not serious misconduct. It was also submitted that the employer had mischaracterised the applicant’s behaviour and conduct in December 2017, including that it had wrongly considered that the applicant had deliberately spat on one of the employer’s Directors during the heated and animated discussion that occurred on 6 December 2017.
Consequently, the applicant submitted that the Commission should find that his dismissal was unfair. The applicant asked for Orders to be made for his reinstatement, continuity of employment, and for lost remuneration. Alternatively, the applicant sought compensation as remedy for his alleged unfair dismissal.
The Case for the Employer
Submissions on behalf of the employer were provided by way of documentary materials respectively dated 10 April and 28 June 2018. The employer submitted that the dismissal of the applicant on 18 December 2017 was not unfair. The submissions of the employer asserted that the applicant’s dismissal could not be found to have been unfair because the employer was a small business and the dismissal was consistent with the SBFD Code.
The employer’s submissions asserted that it had established that it was a small business with only seven employees. Therefore it submitted that it was entitled to rely upon the SBFD Code and in particular, subsection 385 (c) of the Act was relevant. According to the submissions made on behalf of the employer, the dismissal of the applicant was consistent with the SBFD Code and therefore subsection 385 (c) of the Act meant that the applicant was not unfairly dismissed.
The submissions made on behalf of the employer asserted that the various tasks that the applicant was required to undertake were directly related to the performance of his work as a Fitter-Welder. The tasks performed by the applicant included welding, grinding of the welding joints, filling any blowholes, sanding back, acid washing and some polishing of the welded surfaces but not industrial polishing which was outsourced. The employer submitted that this range of tasks was comprehended by the work of a Fitter-Welder and that from time to time the applicant undertook some minor painting work.
Upon analysis of the range of tasks that the applicant had performed, the employer submitted that there was nothing unreasonable or unlawful about the employer’s direction for the applicant to continue to perform the full range of tasks including the acid washing and sanding/polishing work. The employer submitted that the various tasks required of the applicant were either directly related to his welding work or incidental to that work. Consequently, the employer rejected the applicant’s assertion that the tasks that it required him to perform were outside of the accepted requirements of the work of a Fitter-Welder.
The submissions made by the employer asserted that the evidence had established that the employer was clearly a small business for the purposes of s. 23 of the Act. Therefore the employer submitted that the SBFD Code applied to the employer and to the dismissal of the applicant.
The employer submitted that the dismissal of the applicant was summary for the purposes of the application of the SBFD Code. The employer rejected any suggestion that the payment to the applicant of an amount equivalent to a two week notice period altered the summary nature of the dismissal of the applicant for the purposes of the SBFD Code. In support of this proposition the employer referred to the Full Bench Decision in the case of Ryman v Thrash Pty Ltd (Thrash)[2].
The employer submitted that the applicant was dismissed summarily and the employer had a reasonable belief that there was proper basis upon which the applicant’s employment could be terminated summarily. The basis for the reasonable belief of the employer was, according to the submissions of the employer, the applicant’s refusal to undertake the range of tasks as directed, and this refusal represented serious misconduct as set out in Regulation 1.07 (3) (c) of the Fair Work Regulations 2009, being “the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.”
The primary submissions made on behalf of the employer asserted that the dismissal of the applicant was consistent with the summary dismissal component of the SBFD Code. However, the employer made further alternative submissions which contemplated circumstances in the event that the Commission did not accept that the circumstances surrounding the dismissal of the applicant were consistent with the summary dismissal component of the SBFD. In this regard, the employer submitted that the dismissal of the applicant was consistent with the other dismissal section of the SBFD Code.
The employer submitted that the dismissal of the applicant was consistent with the other dismissal provisions of the SBFD Code because the conduct of the applicant established a valid reason for dismissal. According to the employer’s submissions, the applicant’s conduct involved his rude and aggressive behaviour towards one of the Directors of the employer, in combination with his refusal to do certain tasks. It was submitted that the applicant was clearly warned that he would lose his job if he continued to behave as he did, and despite such warning, and after he was given an opportunity to reconsider his position, he maintained his steadfast refusal to perform tasks as directed by the employer.
Accordingly, the employer submitted that to the extent that the Commission may not accept that the dismissal of the applicant satisfied the summary dismissal component of the SBFD Code, it nonetheless dismissed the applicant’s employment in a manner consistent with the other dismissal provisions of the SBFD Code. The employer submitted that the dismissal of the applicant was consistent with either or both of the summary dismissal and other dismissal components of the SBFD Code.
The employer’s submissions concluded upon the assertion that the dismissal of the applicant was not an unfair dismissal for the purposes of s. 385 of the Act because it was a dismissal that was consistent with the SBFD Code. The employer urged that the Commission dismiss the application accordingly.
Consideration
Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
In this instance there was no dispute that the applicant had been dismissed, and that the dismissal was not a case of genuine redundancy. Consequently, only the provisions of subsections (b) and (c) of section 385 of the Act have any relevance.
Small Business Fair Dismissal Code
The applicant submitted that it had not been established that the employer was a small business employer. However, there was no basis for the Commission to reject the employer’s evidence that at the time of the dismissal of the applicant the employer had seven employees. Further, even if directorships of related corporations were included in any calculation of the number of employees, at most, the evidence established the potential for there to be a total of 11 employees of the employer and related corporations.
Consequently, the evidence has established that the employer was a small business employer as comprehended by the meaning of small business employer stipulated by the terms of s. 23 of the Act. Therefore, the provisions of subsection 385 (c) of the Act require consideration. Specifically, by way of operation of s. 388 of the Act, it is necessary to determine whether the dismissal of the applicant was or was not consistent with the Small Business Fair Dismissal Code (referred to as “the SBFD Code”).
Logically a determination of any application of the SBFD Code should precede any more general contemplation of whether the dismissal could have been considered to have been harsh, unjust or unreasonable. Further, in the event that the dismissal of the applicant is found to have been consistent with the SBFD Code, any further consideration as to whether the dismissal was harsh, unjust or unreasonable would become otiose.
The SBFD Code is in the following terms:
“Small Business Fair Dismissal Code
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
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.”
In this case the applicant was dismissed for reason of alleged serious misconduct and that part of the SBFD Code relating to summary dismissal has required examination and application to the particular circumstances surrounding the dismissal of the applicant. The first sentence of the SBFD Code is particularly relevant and is repeated: “It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.”
In this instance, upon termination of employment, the employer paid the applicant an amount equivalent to two weeks’ notice. However, apart from this payment, the dismissal contained all of the elements usually associated with a summary dismissal. In particular, the reasons for the dismissal involved serious misconduct and the implementation of the dismissal was summary in nature. That is, the applicant was advised of his dismissal without there being any contemplation of further explanation or defence by way of a show cause process.
The applicant’s solicitor argued that because there had been payment of a period of notice, the dismissal was not a summary dismissal and should not be assessed against those terms of the SBFD Code that are relevant to summary dismissal. In my view this proposition would impose an unrealistic and unintended rigidity on any application of the SBFD Code.
A dismissal which is for reason of serious misconduct and which might appropriately justify termination without notice or warning, should still be properly assessed as a summary dismissal notwithstanding that an employer, for whatever reason, decided to make payment of an amount in respect to a putative period of notice. Broadly speaking, the SBFD Code establishes requirements for dismissal without notice or warning which represent a less stringent evidentiary basis upon which any serious misconduct is established when compared to the evidentiary basis that applies for a medium/large business. Similarly, the SBFD Code sets out less stringent requirements for other dismissals than those which apply to a medium/large business.
That part of the SBFD Code which deals with summary dismissal is concerned with the evidentiary basis upon which a small business employer establishes serious misconduct. While the other dismissals part of the SBFD Code introduces a less stringent set of procedural requirements than applies to a medium/large business. The requirements that are mentioned in the SBFD Code as being relevant to cases of other than summary dismissal will invariably have little or no relevance to circumstances where a dismissal is made without notice or warning and is based upon serious misconduct. It would be contrary to the spirit and intent of the SBFD Code if, when a small business employer decided to pay an amount in lieu of notice in respect to a dismissal for serious misconduct, it was required to satisfy the procedural requirements of the other dismissals part of the SBFD Code.
Therefore, although the dismissal of the applicant was not, in a strict legal sense, a summary dismissal because an amount was paid in lieu of notice, in all other respects the dismissal was manifestly in the character of a summary dismissal. In particular the dismissal was, in the employer’s view, for reasons of serious misconduct justifying the immediate termination of employment invoked at the earliest opportunity. Consequently, it is appropriate to apply that part of the SBFD Code which relates to summary dismissal to the circumstances of the dismissal of the applicant.
There are three primary operative components contained in the first sentence of the summary dismissal part of the SBFD Code, which, if in combination are satisfied, have the effect of rendering any summary dismissal to be fair. The first component involves the existence of a belief on the part of the employer. The second component requires that the belief of the employer was made on reasonable grounds. The third component requires that the employer’s belief be that the conduct was sufficiently serious to justify immediate dismissal.
Existence of Belief
The first component, the existence of a belief, represents a conscious acceptance on the part of the employer of a fact or facts to be true. In most instances, it would be unlikely that there would be great contest about the existence of the belief in the mind of the employer. Unless there was evidence to establish that there was some reason for dismissal that was not connected with the reason(s) that were stated by the employer, it would seem that the existence of the belief would usually be easily established.
In this case the letter of dismissal that was provided to the applicant relevantly described the reasons for dismissal as “... Non-Performance and refusal to do the tasks as directed by the directors” and “Serious misconduct, rude and disrespectful behaviour.” There were two aspects that formed the basis of the reasons for the dismissal of the applicant. One aspect involved the applicant’s refusal to do the full range of tasks that he had been undertaking since about April 2015. The other aspect was concerned with his behaviour during incidents that occurred on 6, 7, 8 and 15 December 2017, during unpleasant exchanges with two of the employer’s Directors.
Both aspects of the reasons for dismissal of the applicant involved conduct that was directly witnessed by the employer’s Directors who subsequently made the decision to dismiss the applicant. Consequently, the evidence confirms that the employer did hold the belief that the conduct for which the applicant was dismissed did actually occur as a matter of fact.
Belief Made on Reasonable Grounds
The second component identified in the first sentence of the SBFD Code is that aspect involving whether the belief of the employer was made on reasonable grounds. This particular component of the Code is an issue which in other instances has led to significant contest and argument, and has often occupied the substantial amount of consideration in various decided cases.
Importantly, the Full Bench Decision in the case of John Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo [2012] FWAFB 1359[3] (Pinawin) articulated that there was a distinction to be made between the application of the SBFD Code and a determination of whether summary dismissal was warranted. The Full Bench at [29], endorsed the “approach and observations” made in two other Decisions, one of Bartel DP in Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Café [4] and the other of McCarthy DP in Harley v Rosecrest Asset Pty Ltd T/A Can Do International [5].
I am of course obliged to follow the authority established by the Full Bench determination made in Pinawin. Consequently, the approach to assessment as to whether the employer’s belief was established on reasonable grounds does not involve a requirement to be satisfied that the employer had properly established grounds to justify summary dismissal.
It seems to me that the SBFD Code, as interpreted by the authority established in Pinawin, provides small business employers with significantly less stringent requirements in respect to the basis and procedure upon which to implement a summary dismissal than would otherwise apply. In Pinawin, the Full Bench stated: “It is not necessary to determine whether the employer was correct in the belief that it held.”[6] The corollary of these less stringent requirements leads to the prospect that a small business employer could have arrived at an erroneous belief, but if it held that belief on reasonable grounds the decision to dismiss would be consistent with the SBFD Code and rendered to be fair.
In the circumstances of this case, the employer did not need to conduct an investigation into the particular conduct of the applicant that formed the basis for the reasons for dismissal as they were direct witnesses to the conduct. The only issue of potential for some erroneous consideration of the applicant’s conduct involved the spitting aspect of the incident that occurred on 6 December 2017. In this incident, the employer’s Director, Mr Sanjeev Kapoor, recorded that during the applicant’s animated and agitated outburst that “you even spit on me.”[7] However, the evidence established that the applicant did not deliberately spit during this incident, and his immediate apology for the uncontrolled spitting action arising from a medical condition, was acknowledged and accepted by Mr Sanjeev Kapoor.
Consequently, in this case, which involved circumstances where the employer’s Directors who made the decision to dismiss witnessed the particular misconduct upon which the reasons for dismissal were established, there can be little alternative other than to conclude that for the purposes of the SBFD Code, the belief of the employer as to the serious misconduct of the applicant was established upon reasonable grounds. In short, the relevant decision makers where direct witnesses to the conduct that formed the basis for the decision to dismiss, and their direct knowledge must logically represent reasonable grounds for their belief.
Sufficiently Serious to Justify Immediate Dismissal
The third component that can be identified in the application of the SBFD Code in instances of summary dismissal, involves the question of whether the employer believed that the conduct of the applicant was sufficiently serious to justify immediate dismissal. It is important to recognise that the wording of the SBFD Code is directed towards the belief that the employer had, as opposed to any independent, objective assessment about whether the particular conduct was sufficiently serious to justify immediate dismissal. The SBFD Code would have little practical purpose if its operation was subject to the Commission's assessment as to whether the nature of the misconduct was sufficiently serious to justify summary dismissal. That assessment would occur as part of the routine processing of an unfair dismissal claim for circumstances other than a small business employer.
In this case there was an abundance of evidence that demonstrated that the employer had an underlying practical disposition against any dismissal of the applicant. For example, during his cross-examination, the employer’s Director, Mr Sanjeev Kapoor, relevantly stated, inter alia, that:
“… we can’t afford to lose a welder, it is a very important job for us, welding job is very important to manufacture the machinery.”[8]
and
“We wanted to keep him.”[9]
and
“If that was the case and if he refused, then you would have had the right to dismiss him straightaway, wouldn’t you?--- We mentioned that we had a lot of targets and we had to get the welding done and the vessel done, so we were very patient and we wanted – we never wanted to terminate him, actually.”[10]
In the context of circumstances where the employer was clearly reluctant to dismiss the applicant, the evidence revealed that during the meeting with the applicant on 18 December 2017, which lasted for more than two hours, the employer almost pleaded with the applicant to have him agree to perform the range of tasks that he had been undertaking since about April 2015. Further, the applicant confirmed that his failure to agree to perform the full range of tasks would likely lead to dismissal.[11] The applicant’s steadfast refusal to reconsider the restrictions that he had decided to impose upon the tasks that he would perform created a crisis for the employer such that the position adopted by the applicant amounted to misconduct that the employer believed to be sufficiently serious to justify immediate dismissal.
The crisis that the applicant created for the employer on 18 December 2017, can be recognised from the applicant’s own evidence about the detail of the concluding remarks made towards the end of the extensive meeting. The applicant recalled the conclusion of the meeting in the following terms:
“Mr Gupta: Don’t put us in this uncomfortable position. You have to do these tasks. We are only a small company and the previous welder always did these jobs and you have always done these jobs. It is part of your job. Please reconsider your position.
Me: I will not reconsider. I am still firm. I would not do extra jobs that are not part of my job.
Mr Gupta: You don’t give us any other choice. Please can you go outside and wait for our response.”[12]
Upon analysis of all of the evidence surrounding the circumstances that the employer was presented with by the actions of the applicant leading up to and including the crisis that emerged during the meeting on 18 December 2017, it was clear that the employer believed that the position adopted by the applicant represented misconduct that was sufficiently serious to justify his immediate dismissal. The practical reality was that the consequences of the applicant’s actions had created a crisis which the employer was forced to deal with immediately. The prospect suggested by the applicant that a list of tasks be prepared so that he could contemplate which of those tasks he might be prepared to perform, did not represent a viable solution because the employer required the applicant to continue to perform work in accordance with the terms of the employment that had been established by his extensive past conduct.
Consequently, I am satisfied that when the employer made the decision to dismiss the applicant, it genuinely believed, on reasonable grounds, that the applicant had committed misconduct that was sufficiently serious to justify immediate dismissal.
Conclusion
This unfair dismissal claim has involved consideration of the application of the Small Business Fair Dismissal Code (the SBFD Code). Although the applicant was paid an amount that was putatively in lieu of notice all other aspects of the dismissal characterise it as a summary dismissal on the basis of serious misconduct.
In such circumstances I have determined that the summary dismissal provisions of the SBFD Code are applicable. The SBFD Code declares that it is fair for a small business employer to summarily dismiss if it believes, on reasonable grounds, that the employee’s conduct was sufficiently serious to justify immediate dismissal.
I have examined the specific requirements which arise from the wording contained in the SBFD Code. Further, I have approached consideration of the circumstances in this case with due regard for the Full Bench authority establish by the Decisions in Pinawin and Thrash.
In this instance, upon careful examination of the evidence, I have found that; (a) the employer genuinely held a belief which represented the basis for the dismissal, (b) the belief of the employer was established upon reasonable grounds, and (c), the employer genuinely believed that the conduct of the applicant was sufficiently serious to justify immediate dismissal.
Consequently, in view of the findings that I have made, the dismissal of the applicant must be held to have been consistent with the SBFD Code. Therefore the dismissal of the applicant is rendered by the SBFD Code to have been fair, and the application for unfair dismissal remedy must be dismissed.
As the dismissal of the applicant was consistent with the SBFD Code the application for unfair dismissal remedy must be dismissed and an Order to that effect will be issued accordingly.
COMMISSIONER
Appearances:
Mr D Taylor of Sydney West Legal and Migration and Ms T Leculier of Sydney Solicitors appeared for the applicant.
Ms V Bulut of Counsel, instructed by Mr A Martin of Wotton & Kearney Lawyers appeared for the employer.
Hearing details:
2018.
Sydney:
April, 17.
May, 8, 9 & 31.
<PR700152>
[1] Exhibit 1 @ page 28.
[2] Jeremy Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services [2015] FWCFB 5264.
[3] John Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo [2012] FWAFB 1359.
[4] Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Café [2010] FWA 7891.
[5] Harley v Rosecrest Asset Pty Ltd T/A Can Do International [2011] FWA 3922.
[6] John Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo [2012] FWAFB 1359 @ Para [29].
[7] Exhibit 11 @ page 16.
[8] Transcript @ PN3173.
[9] Transcript @ PN3584.
[10] Transcript @ PN3722.
[11] Transcript @ PN1060.
[12] Exhibit 1 @ paragraph 63.
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