Ronnie Marcham v FX Services Australia Pty Ltd T/A FX Services Australia Pty Ltd

[2018] FWC 7818

[2018] FWC 7818

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ronnie Marcham
v
FX Services Australia Pty Ltd T/A FX Services Australia Pty Ltd
(U2018/3967)

COMMISSIONER GREGORY MELBOURNE, 21 DECEMBER 2018

Application for an unfair dismissal remedy – termination of employment – jurisdictional objection – Small Business Fair Dismissal Code – misconduct.

Introduction

[1] Mr Ronnie Marcham began working with FX Services Australia Pty Ltd T/A FX Services Australia Pty Ltd (“FX Services”) in 2009 and was employed as a Workshop Service Technician. However, he was dismissed from his employment on 27 March of this year after allegedly refusing to carry out tasks allocated to him. He subsequently lodged an unfair dismissal application.

[2] FX Services submits in response that it is a small business as defined by section 23 of Fair Work Act2009 (Cth) (“the Act”) and the dismissal was carried out in accordance with the Small Business Fair Dismissal Code and there is therefore no case of unfair dismissal.

[3] Ms L. Kefford from Melbourne Lawyers & Mediators was given permission to appear on behalf of Mr Marcham under s. 596(2)(b) of the Act as the Commission was satisfied it would be unfair not to allow him to be represented as he was otherwise unable to represent himself effectively. Mr Marcham was also assisted by an interpreter. Mr Tim Holland, the Managing Director of FX Services, appeared on behalf of the Respondent.

The Issue to be Determined

[4] Section 385 of the Act states the following:

A person has been unfairly dismissed if the FWC is satisfied that:

(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.” 1

[5] Section 388 of the Act continues to indicate that the Minister may declare a Small Business Fair Dismissal Code, and the dismissal of an employee is consistent with the Code if immediately before the time of dismissal the employer was a small business employer, and complied with the Code in relation to the dismissal. Section 23 of the Act defines a small business employer as an employer employing fewer than 15 employees at the time of the dismissal.

[6] The Code established under s.388 states, in part:

“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.” 2

[7] The parties acknowledge that FX Services is a small business employer in terms of the definition in s.23 of the Act. The Commission is accordingly required to determine whether Mr Marcham’s summary dismissal on grounds of serious misconduct was carried out in a manner consistent with the Code. If it was then he has not been unfairly dismissed. However, if his dismissal was not carried out in a manner consistent with the Code then the Commission is required to determine whether he has been unfairly dismissed.

The Submissions and Evidence

The Applicant’s Submissions and Evidence

Mr Ronnie Marcham

[8] Mr Marcham commenced employment with FX Services on 5 May 2009 and worked with the business until his employment was terminated earlier this year on 27 March. FX Services is involved in servicing and maintaining fire services equipment. Mr Marcham indicated in his evidence in chief that his role involved servicing fire extinguishers and testing fire hoses and fire equipment. He continued to state that he had never received a warning of any kind in the time he was employed, and to his knowledge there had never been a complaint made about his work performance. However, he did acknowledge that on two occasions he had returned from a period of annual leave after the scheduled date of his return. On the second occasion in January of this year he had been accused of abandoning his employment. He also indicated that Mr Tim Holland was the Managing Director of FX Services throughout the entire time Mr Marcham was employed by the business, although Mr Holland was based in Sydney.

[9] Mr Marcham’s evidence indicated that he was terminated without warning in a telephone phone conversation with Mr Holland, who was in Sydney at the time. He said he was given no opportunity in that conversation to provide any explanation about the circumstances involved, and Mr Holland continually interrupted and spoke over him during their discussion.

[10] On the day prior to his termination Mr Marcham had been working with another employee, Mr Paul Walford, servicing fire safety hoses. Mr Walford had only been with FX Services for a period of around 4 months at the time. The wet weather had made the task difficult and it was agreed to defer that work at the time and complete it on the following day.

[11] Mr Marcham arrived at work at 7.00 am on the following morning and began to prepare the fire hoses for testing. Mr Walford was not present as he had gone to the airport to collect some other materials. After commencing work Mr Marcham felt a pain in his neck and decided to wait until Mr Walford returned so he could complete testing the fire hoses without further aggravating his neck injury. He had experienced similar neck pain in October last year. In the meantime he continued to carry out some other duties, including pressure testing of fire extinguishers.

[12] Mr Walford then returned at around 10.30 am and asked why the work on the fire hoses had not been completed. Mr Marcham told him that he understood it had been agreed they would complete the work together and in the meantime he was dealing with an urgent refill job. However, Mr Walford did not give him the chance to provide a further explanation and simply told him to do it or leave. Mr Marcham was shocked by this response and walked to his car. He then received a phone call from Mr Holland. He told him that Mr Walford had called him to say that Mr Marcham was refusing to complete the required tasks, and if he continued to do so his employment would be terminated immediately. Mr Marcham attempted to explain what had occurred but Mr Holland simply responded by indicating that his employment was to be terminated. Mr Marcham again tried to tell Mr Holland what had happened but he would not listen. He also made no mention of Mr Marcham being able to have a support person with him, given that the discussions concerned the termination of his employment. The situation was made more difficult by the fact that English is Mr Marcham’s second language and he was having difficulty comprehending what was being said. He continued to indicate that he did not make any mention of his neck injury to Mr Holland or Mr Walford in those discussions because he was shocked and upset by the aggressive and abusive behaviour he was being subjected to.

[13] Mr Marcham rejects the evidence of Mr Holland that he had made the application vexatiously, and was not committed to the job at FX Services. He also rejected the suggestion that he had often left the workplace on other occasions to deal with various personal matters. He is also aged sixty-nine years and believes it would be difficult for him to find work elsewhere. He also rejected any suggestion he had been lazy at work and had never been warned about laziness or any other work performance issues. He also claimed to have not received accrued long service leave payments he was entitled to.

[14] Mr Marcham also indicated in cross examination that he had taken annual leave in December last year with the intention of returning to work on 8 January. However, due to some personal issues to do with his travel arrangements he was not able to return to work on that day. He also denied that he had often been absent from work for personal reasons apart from an arrangement that had been agreed to that allowed him to attend a local mosque each Friday. He also denied that he had been planning to retire from work in February/March of this year.

[15] Mr Marcham also acknowledged in cross examination that in the separate phone calls with Mr Holland at 9.30 am on the morning of 27 March, and then again later that morning, he made no mention in those conversations of any issues to do with soreness in his neck. This was despite the fact that Mr Holland asked him whether everything was okay, and whether there was anything else he needed to discuss. Mr Marcham said he did not make mention of his neck soreness because he was confused about what was going on, and then “overwhelmed by the communication that I received about the dismissal, about the language that I received.” 3 He also acknowledged that he did not make any reference to Mr Walford about any issues to do with his neck. He also made no mention of the neck injury in the subsequent emails he sent to Mr Holland following his termination, because at that point he was primarily concerned about obtaining his long service leave entitlements. However, he did attend an appointment with his GP on 3 April in regard to his neck injury.

[16] He also acknowledged that it was not unreasonable for him to be involved in testing the fire hoses on his own, and he had done this many times before. However, on this occasion he and Mr Walford had agreed on the previous day that they would carry out this work together. He also acknowledged that Mr Holland had informed him previously that Mr Walford was now his immediate Supervisor, and he was required to work as directed by Mr Walford.

[17] Mr Marcham also indicated that in the discussion with Mr Holland on the morning of his dismissal he had been warned that if he did not carry out the required tasks then his employment would be terminated. He stated, “Yes, I understood and because I was so upset that all my explanations were cut off and you were not interested, I reached the point where I simply gave up and let you decide whatever you wanted to do with me.” 4

Ms Maya Marcham

[18] Ms Maya Marcham is Mr Marcham’s daughter. Mr Marcham visited her immediately after his employment was terminated and he appeared to be in a state of shock. Her partner subsequently wrote to Mr Holland, who indicated in response that Mr Marcham had refused to carry out his designated duties and had earlier abandoned the workplace. This apparently related to an earlier occasion when her father booked an overseas holiday in circumstances where he did not have sufficient accumulated annual leave at the time.

Ms Dorothy Palmer

[19] Ms Dorothy Palmer is a delivery driver for MRAD and transports fire extinguishers to FX Services on one or two occasions each week for servicing and compliance checks. This work was carried out by Mr Marcham. Ms Palmer indicated that he always provided excellent service and customer support and at no time did MRAD have any problems with his workmanship, attitude or efficiency. She was not aware that Mr Marcham had been provided with a warning at any time about his work performance while employed by FX Services. However, she was aware that on one occasion he had returned from holidays after the expected date of his return.

[20] Ms Palmer said that she called at the FX Services site on the morning of the day that Mr Marcham was dismissed. He told her at that time that he had been told to work on the fire hoses but wanted to wait until Mr Walford returned, as the hoses were heavy and he had a sore back and neck and didn’t want to do the lifting on his own. Ms Palmer also indicated in her evidence that since Mr Marcham had left the business MRAD has had a number of complaints and concerns about the quality of the workmanship being provided by FX Services and Mr Walford has since apologised in regard to these matters.

[21] However, Ms Palmer also acknowledged in cross examination that when she called at FX Services premises she was generally only there for approximately five minutes, and had no real idea about the workflow in the business, or about its processes and procedures. She also was not aware about the priority attaching to each of the jobs that the business had at any point in time. She also acknowledged that Mr Marcham did not carry out all the work for MRAD, and another employee was also involved. She also acknowledged that much of the content of her witness statement simply reflected what she had been told by Mr Marcham. Her witness statement had been prepared by Mr Marcham’s solicitor, rather than by herself.

Mr Marcham’s submissions

[22] Mr Marcham submits in conclusion that he was dismissed without being provided with a warning after working for FX Services for more than 9 years. He continues to submit that he sustained an injury to his neck at work, which made it difficult to carry out some of the required tasks, including testing of the fire hoses. However, he acknowledged in his submissions that the business only became aware he had sustained an injury after he had left his employment. He continues to submit, in summary, that any issues to do with his alleged poor behaviour appear to have been accepted during the time he was employed by FX Services, and he was never warned about any issues to do with his work performance during the time he was employed. He therefore submits in conclusion that he was unfairly dismissed.

[23] Mr Marcham also states that he attempted to provide an explanation for his behaviour in the discussions with Mr Holland on 27 March, but Mr Holland talked over him in an aggressive manner. In addition, as Mr Marcham only has limited English language skills he was not able to translate what was being said in order to be able to provide an appropriate response. He also submits that he and Mr Walford had agreed on the previous day to work together on testing the fire hoses and he was accordingly waiting on Mr Walford to return from making some deliveries so they could both begin work on the fire hoses.

[24] Mr Marcham does not take issue with the fact of FX Services being a small business, as defined in the Fair Work Act. However, he rejects the suggestion that his dismissal was carried out in accordance with the Small Business Fair Dismissal Code because the circumstances of his dismissal did not involve theft, fraud, violence or serious breaches of occupational health & safety procedures. In addition, he was not provided with an adequate warning, and was not provided with an adequate opportunity to provide an explanation in regard to his behaviour.

The Respondent’s Submissions and Evidence

Mr Tim Holland

[25] Mr Tim Holland is a Director of FX Services and indicated that Mr Marcham has been employed by the business since 4 May 2009. He was employed as a Workshop Service Technician in its Melbourne workshop, and his role in that capacity was to service and test various pieces of fire equipment including fire extinguishers, and to lay flat canvas fire hoses in accordance with relevant Australian standards.

[26] Mr Marcham was allocated tasks each day by his Supervisor, but needed to be “micro managed in order to ensure he stuck to the allocated task. His current and previous supervisor over the years have had to regularly have stern words with Ronnie in order for him to carry out the task required.” 5 Mr Marcham also worked alone on Tuesday and Thursday each week while the other employee in the Melbourne workshop was carrying out deliveries and collections. He would often not complete his required tasks on these days and this would have a flow on effect across the rest of the jobs that were required to be carried out.

[27] In September last year Mr Marcham applied for annual leave over the December/January period and was told he would be required to return to work by Monday, 8 January 2018. However, he did not return to work until 17 January and indicated that he had previously booked flights with the intention of returning on that day.

[28] Mr Holland also stated in his evidence that at no time did Mr Marcham indicate to him that he did not want to test the fire hoses because of a recurrence of a previous injury. He also did not make any mention of this injury in subsequent emails that were forwarded to the business following his dismissal.

[29] On the morning of 27 March Mr Marcham had been instructed to carry out testing on a batch of fire hoses. However, at 9.30 am on that morning Mr Holland received a phone call from Mr Marcham asking who was in charge in the Melbourne workshop. Mr Holland told Mr Marcham that Mr Walford was in charge and he needed to work in accordance with his instructions. Mr Marcham did not raise any other concerns in that conversation but Mr Holland was concerned about why he had called and called him back a short time later. Mr Marcham again assured him in that conversation that everything was all right.

[30] Mr Holland then received another phone call from Mr Walford at 11.30 am on the same morning, and was told that Mr Marcham would not carry out testing work on the fire hoses. Mr Holland asked to speak to Mr Marcham and again told him that he needed to do what Mr Walford had directed. He then received a further phone call from Mr Walford at 11.45 am and was again told that Mr Marcham was continuing to not listen to him, and was ignoring his instructions.

[31] Mr Holland again asked to speak to Mr Marcham and reiterated that he needed to do what Mr Walford was directing him to do and not what he wanted to do. Mr Marcham responded by indicating that he needed to work on some fire extinguishers and then told Mr Holland that he did not want to work on the fire hoses. Mr Holland again directed him to work on the fire hoses but Mr Marcham indicated in response that he was not going to listen to what Mr Walford was saying. Mr Holland then asked him whether he was refusing to test the hoses and Mr Marcham indicated that was the case. He said he then stated, “Do you want me to go.” 6 Mr Holland said he responded by indicating that he did not want Mr Marcham to go, but did want him to test the fire hoses. He also told him that if he refused to do that work then he was refusing to do a task that was part of his job and his continued refusal would result in his employment being terminated on grounds of misconduct. Mr Holland said Mr Marcham responded with words to the effect of, “Yes I understand, I am not going to do them.”7

[32] Mr Holland then told Mr Marcham that his employment with FX Services was terminated with immediate effect, and he was asked to collect his belongings and return the keys to the workshop to Mr Walford. Mr Holland then had a further discussion with Mr Walford and explained what had just occurred.

[33] Mr Holland confirmed in cross examination that Mr Marcham had never been given a written warning during the time he was employed, however, he was spoken to on an almost weekly basis about issues to do with his work performance. These matters generally concerned his failure to follow appropriate procedures, and his failure to properly prioritise the work required to be performed. He also indicated that “…he never actually crossed that line. It got very close to it quite a few times.” 8 In addition, Mr Marcham’s Supervisor had generally been prepared to work around the issues associated with his work performance. He also stated that while English might be Mr Marcham’s second language he was not aware of him ever having any problems communicating with customers, or discussing matters over the telephone.

[34] He also stated that he did not believe a written warning was sufficient on the day that Mr Marcham was dismissed, “because he actually well and truly crossed that line and that was his complete refusal to do a job that was part of his normal day duties.” 9 He accordingly made the decision instead that his employment should be terminated.

[35] He also confirmed that he had no idea that Mr Marcham had a problem with his neck until a week after he had been terminated, and Mr Marcham made no mention of any issues to do with his neck in the various discussions that were had with him on 27 March. He also denied he had spoken in an aggressive manner to Mr Marcham and denied him the opportunity to speak. He considered instead that Mr Marcham’s behaviour constituted serious misconduct and action needed “to be taken then and there.” 10 He also indicated that he believed it was serious misconduct because he was refusing to carry out work which was clearly part of his normal duties.

[36] In addition, Mr Marcham had not been paid his long service leave entitlements because his service had not been continuous, and there had instead been periods of unapproved leave which broke his continuous service. However, he also acknowledged that this break in service has not been communicated to Mr Marcham in writing.

Mr Paul Walford

[37] Mr Paul Walford is the Workshop Supervisor in FX Services’ Melbourne workshop. On the morning of 27 March he spoke to Mr Marcham about what was required to be done on that day, which mainly involved work on a number of fire hoses. He then left to carry out some deliveries and returned to the workshop at around 11.30 am.

[38] However, the fire hoses were still in the same place when he returned and he went and found Mr Marcham, who was working on some fire extinguishers. Mr Marcham told him that they were urgent, but Mr Walford indicated in response that they could wait and he needed to commence work on the fire hoses. He also told Mr Marcham that if he was not prepared to do that work he would find someone else who would. He then decided to ring Mr Holland to inform him about what was happening and Mr Holland then had a discussion with Mr Marcham. Mr Marcham told him that Mr Holland had directed him to do what Mr Walford asked, but Mr Marcham again refused to work on the fire hoses. Mr Walford then rang Mr Holland again and understood that if he was not prepared to do that work that he was being terminated. At that point Mr Marcham packed up his belongings and left.

[39] Mr Walford confirmed in cross examination that he had worked with Mr Marcham for a period of four months as his Supervisor. He found him to be lazy and confused, and he appeared unable to understand how the work needed to be prioritised. He had, however, been prepared to tolerate this situation for a period of time because he was new to the job and his initial priority in taking on the role was to look after the interests of the customers of the business.

[40] He also stated that he had not gone to the airport on the morning of the day that Mr Marcham was terminated, and indicated instead that he had gone to the workshop that morning and told Mr Marcham to make a start on the hoses because that was the only task in the workshop that needed to be completed on that day. He had also explained why the work needed to be done given the priority placed on it by the customers, who included the prison services. It was a situation where that work was the urgent requirement on that day and “nothing else mattered.” 11 Mr Walford then left to carry out some deliveries and when he returned Mr Marcham told him that he didn’t want to work on the hoses, and he was instead doing something else. He admitted at this point that he had sworn at Mr Marcham and told him that if he didn’t want to do the job he would get someone else in who could.

[41] Mr Walford indicated in cross examination that he had initially encouraged Mr Marcham to try and do the work that was required because he was concerned about him, and understood that a person of his age would find it difficult to get work elsewhere. He also denied that Mr Marcham would have found him to be intimidating, given that the two of them have worked together every day over a period of four months and Mr Marcham had not indicated at any time during that period that he found his behaviour to be intimidating. He considered instead that they generally had a good relationship.

Mr Bari Whitehouse

[42] Mr Whitehouse commenced work with FX Services in 2009 as the Supervisor in the Melbourne workshop. The Melbourne workshop only ever involved a two person operation and he worked with Mr Marcham throughout that time.

[43] When Mr Marcham returned from annual leave in January of this year Mr Whitehouse told him that he was retiring and Mr Marcham indicated in response that he also intended to retire some time in February or March.

[44] Mr Whitehouse also indicated that Mr Marcham was always interested in performing the work that he wanted to do rather than necessarily working on work that had been given a particular priority. He would also often ignore standard procedures and would often ignore the guarantees made to customers about the quoted prices. He also needed to be continually supervised to make sure he was carrying out the required work.

[45] Mr Whitehouse also indicated in cross examination that he considered Mr Marcham to be a “plodder” 12 who “just cruised along.”13 This had been a source of frustration at different times but he had become accustomed to working around these circumstances in order to make sure they never became an issue as far as the customers were concerned. He also indicated that he had discussed these issues with Mr Holland on occasions. He also stated in cross examination that, “Look, if it was up to me I'd have fired him five years ago and ended it there and then.”14 He also stated that it was easier just to put his head down and get on with the job rather than go through the long-winded process of trying to get rid of Mr Marcham.

[46] He also indicated in his re–examination that Mr Marcham had a “pretty good” 15 understanding of the English language and he had never experienced a situation where he was talking to a customer on the phone or otherwise and they were having difficulty understanding what he was saying.

FX Services’ submissions

[47] FX Services submits, in conclusion, that Mr Marcham’s approach to his work had recently changed and his approach was not consistent with someone who was planning to remain at work for much longer. It points in this context to his refusal to carry out certain tasks; his discussion with another employee about his pending retirement; and his failure to return to work on time after a period of annual leave. It also emphasises that he did not previously make any mention of the injury he claims to have sustained at work, which he now relies upon to explain his inability to carry out certain tasks.

[48] It continues to submit that in the face of Mr Marcham’s continued refusal to carry out his normal duties it was left with no option but to dismiss him in circumstances where he had previously been provided with every opportunity to provide an explanation for his behaviour, but failed to do so. It emphasises in this context that he was initially asked in the telephone conversations with Mr Holland on 27 March whether he was refusing to do the work associated with testing the fire hoses and he confirmed that this was the case. He was then told that if he continued to refuse to perform this work then his employment would be terminated. Despite this warning, and despite being provided with the opportunity to explain his behaviour, FX Services submits that Mr Marcham did not take up this opportunity, and it was accordingly left with no option but to terminate his employment on the basis of his unreasonable refusal to carry out a reasonable direction to carry out work that clearly fell within his duties.

[49] It also rejects any suggestion that the work associated with testing the fire hoses involved heavy work for Mr Marcham which he was incapable of performing on his own as he had previously performed this work on many occasions in the past. In addition, he continued to work on testing fire extinguishers which weigh around twice the weight of the fire hoses. It also rejects the suggestion that it had been agreed that he would perform this work in conjunction with Mr Walford. While they had been prevented on the previous day from working together on the fire hoses because of inclement weather, Mr Marcham had instead been clearly instructed on the following day to begin work on testing the fire hoses himself.

[50] It also submits that Mr Marcham demonstrated in the witness box, and by his behaviour during the time that he was employed by the business, that he has good English language skills. It accordingly rejects any suggestion that he was not able to understand what he was being told in the discussions with Mr Holland on 27 March. It submits instead that he was provided with a reasonable opportunity to respond to what was being said to him by Mr Holland, including the fact that he was being given a warning, during the course of the discussions on 27 March.

[51] FX Services submits, in conclusion, that it is a small business, having only 8 employees including Mr Marcham, and his dismissal was carried out in accordance with the Small Business Fair Dismissal Code.

Consideration

[52] Mr Marcham is understandably upset that his employment was terminated without notice after having been employed by FX Services for a period of more than nine years. However, it submits that in all the circumstances it was left with no option but to take the action it did.

[53] Mr Marcham is also concerned that he has not received the long service leave entitlements he claims are due to him. It is understood that FX Services believes he is not entitled to these payments because breaks in his employment mean he does not have the appropriate amount of continuous service to entitle him to long service leave. However, this is not something that falls to be determined in the context of the present application.

[54] As indicated, FX Services submits that Mr Marcham was summarily dismissed on grounds of serious misconduct in a manner consistent with the Small Business Fair Dismissal Code. The Commission is accordingly required to consider whether his dismissal was carried out in a manner consistent with the Code. If it finds that it was, then Mr Marcham has not been unfairly dismissed. However, if the Commission finds that his dismissal was not carried out in a manner consistent with the Code then it is required to consider whether he has been unfairly dismissed.

[55] Neither party made reference to what must be established in order to conclude that “serious misconduct” has occurred in the context of the Small Business Fair Dismissal Code. However, previous Commission decisions have given consideration to this requirement. In the Full Bench decision in JohnPinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo (‘Pinawin’) 16 the Commission came to the following conclusions:

“[29] We believe that the approach and observations in these two decisions are correct. There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.” 17

[56] The decision was cited with approval by a Full Bench in Steri-Flow Filtration Systems (Aust) Pty Ltd v Erskine. 18 It concluded:

“[26] Section 396 of the FW Act requires the FWC to decide whether a dismissal was consistent with the Code before considering the merits of an unfair dismissal remedy application.” 19

[57] It continued at [29]:

“As we have indicated, the Code provides that 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 Pinawin a Full Bench of FWA held that this involves consideration of:

•  whether the employer held a belief at the time of the dismissal that the employee’s conduct was sufficiently serious to justify immediate dismissal, and

•  whether the belief was based on reasonable grounds, which incorporates the concept that the employer has carried out a reasonable investigation into the matter.” 20

[58] I have adopted this approach in determining this matter.

[59] As indicated, this matter involves a case of termination without notice. The Small Business Fair Dismissal Code states under the heading “Summary Dismissal” that:

“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.” 21

[60] The decision in Pinawin makes clear that this first requires that the employer has a belief that the conduct of the employee was sufficiently serious to justify immediate dismissal. However, it is also necessary to establish whether that belief was based on reasonable grounds. This ultimately does not require the employee to be correct in the belief that it held, but it does require, for example, that a reasonable investigation has been carried out before the employer took the decision that it did.

[61] The relevant circumstances in the present matter have been detailed already. In summary, on the morning of 27 March 2018 Mr Holland received a phone call from Mr Marcham, who was at FX Services’ Melbourne workshop. Mr Holland was in Sydney at the time. Mr Marcham asked Mr Holland who was in charge in the Melbourne workshop. Mr Holland indicated in response that Mr Walford was in charge and he needed to work in accordance with his instructions.

[62] Mr Holland indicated in his evidence that after that conversation he was concerned about why Mr Marcham had made the phone call and decided to call him back a short time later in order to clarify the situation. However, Mr Marcham then assured him in that conversation that everything was all right.

[63] Mr Holland then received a phone call from Mr Walford at around 11.30 am. He told Mr Holland that Mr Marcham was refusing to carry out some necessary testing work on fire hoses that was required to be completed as a matter of urgency. Mr Holland then asked to speak to Mr Marcham and again told him that he needed to work in accordance with Mr Walford’s instructions.

[64] Mr Holland then received a further phone call from Mr Walford a short time later at around 11.45 am. Mr Walford told him that Mr Marcham was continuing to ignore his instructions. Mr Holland again asked to speak to Mr Marcham and again told him that he needed to work in accordance with Mr Walford’s instructions. Mr Holland indicated in his evidence that Mr Marcham told him that he needed to work on some fire extinguishers, and he then told Mr Holland that he did not want to carry out the testing work on the fire hoses. He also told him that he was not going to listen to what Mr Walford was saying.

[65] Mr Holland then asked again whether he was refusing to carry out the testing work on the fire hoses and Mr Marcham responded by indicating that this was the case. Mr Holland said Mr Marcham also stated, “Do you want me to go.” 22 Mr Holland responded by indicating that he did not, but he did want the work on the fire hoses to be completed. He also told Mr Marcham that if he refused to do that work then his continued refusal would result in his employment being terminated on grounds of misconduct. Mr Holland indicated in his evidence that Mr Marcham responded by stating, “Yes I understand, I am not going to do them.”23 Mr Holland’s evidence was confirmed by the evidence provided by Mr Walford.

[66] Mr Marcham did not make reference in his evidence to his phone call to Mr Holland at 9.30 am on the morning of 27 March. He indicated instead that he received a phone call later that morning from Mr Holland in which he indicated that he understood Mr Marcham was refusing to complete certain required tasks, and therefore his employment was to be terminated. Mr Marcham indicated in his evidence that he tried to explain during the course of that conversation what had happened, but he was given no chance to provide his explanation. He also stated that this situation was compounded by his limited English language skills, which made it difficult to comprehend what Mr Holland was saying to him.

[67] Mr Marcham’s evidence in this regard is difficult to accept. He was assisted during the course of the proceedings by an interpreter. However, during the course of cross examination he was often prepared to provide responses in English before the questions being put to him had been translated. He also provided detailed and lengthy responses to questions at different times in a relatively robust and forceful manner. Mr Holland and Mr Whitehouse also indicated in their evidence that Mr Marcham had not experienced any difficulty in communicating with customers and other people that he was required to deal with during the time that he was employed. It is accordingly difficult to conclude that Mr Marcham was unable to understand what was being said to him in the discussions with Mr Holland, or that he was not able to provide an adequate response.

[68] Mr Marcham also relies on the fact that he had previously sustained an injury at work and this was why he was unable to carry out the tasks associated with testing the fire hoses. However, he acknowledged in cross examination that he did not make any mention of his neck soreness at work at any time prior to him being dismissed. This included the various discussions with Mr Walford and Mr Holland on 27 March. Mr Marcham said this was because he was confused and then “overwhelmed” 24 after being told that his employment was to be terminated. In addition, no mention was made about his neck soreness in emails that were sent to the business on his behalf immediately after his termination. The issue in fact only came to light after Mr Marcham attended with his General Practitioner on 3 April and a copy of that medical report was then provided to FX Services.

[69] Mr Marcham’s reliance on the neck soreness he claims to have sustained at work as the reason for his inability to carry out the work associated with testing the fire hoses is again difficult to accept. If Mr Marcham was being restricted in this way it seems inconceivable that he would not have made mention of this in his various discussions with Mr Walford, or in his subsequent discussions with Mr Holland in the telephone conversations that occurred on his last day at work.

[70] Mr Marcham indicated in his evidence that he did not have a chance to raise the matter with Mr Holland because of the aggressive nature of the conversation with him on 27 March. However, it is again noted that Mr Marcham’s demeanour in the witness box suggests that he is evidently capable of speaking up on his own behalf. It is also noted that he could have raised the issue with Mr Holland when Mr Marcham called him at 9.30 am on the morning of 27 March. He could also have raised the matter with him when Mr Holland called back a short time later to ask whether everything was all right.

[71] Mr Marcham also had every opportunity to raise the issue with Mr Walford at any time in the period leading up to the events that occurred on his last day at work. However, his evidence indicates that he did not.

[72] A series of emails were then sent to the business by Mr Marcham’s son in law after he was dismissed. They again made no mention of issues associated with his neck soreness. It was submitted that this was because those emails were concerned with issues to do with his long service leave entitlements. However, it again seems unusual that no reference was made to his neck soreness in those exchanges.

Conclusion

[73] As indicated already the Small Business Fair Dismissal Code provides that it is fair for an employer to dismiss an employee without notice when the employer believes, on reasonable grounds, that the employee’s conduct is sufficiently serious to justify immediate dismissal. It has been established previously that this involves consideration of whether the employer held a belief at the time of the dismissal that the employee’s conduct was sufficiently serious to justify immediate dismissal, and whether that belief was based on reasonable grounds.

[74] I am satisfied in response that Mr Holland held a belief at the time that Mr Marcham’s conduct was sufficiently serious to justify his immediate dismissal. These circumstances have been detailed already. After a series of discussions, first with Mr Walford and then with Mr Marcham, Mr Holland concluded that Mr Marcham was refusing to work as directed, with no explanation being provided as to why this was the case.

[75] I am also satisfied that Mr Holland had come to this conclusion on reasonable grounds. He had first been informed by Mr Walford that Mr Marcham was refusing to work as directed. He then had a series of direct discussions with Mr Marcham and in those discussions Mr Marcham indicated that he was not prepared to carry out testing work on the fire hoses, as required. I am accordingly satisfied that Mr Holland took reasonable steps to clarify what was occurring before deciding to terminate Mr Marcham’s employment.

[76] I am satisfied in conclusion that Mr Marcham was terminated in accordance with the Small Business Fair Dismissal Code. Therefore, having regard to the provisions contained in s.385 of the Act, it follows that Mr Marcham has not been unfairly dismissed. His application is accordingly dismissed.

COMMISSIONER

Appearances:

L Kefford for the Applicant.

T Holland for FX Services Australia Pty Ltd.

Hearing details:

2018.

Melbourne:

July 19.

Printed by authority of the Commonwealth Government Printer

<PR703459>

 1   Fair Work Act 2009 (Cth) s 385.

 2   Small Business Fair Dismissal Code.

 3   Transcript, PN107.

 4   Transcript, PN136.

 5   Witness Statement of Tim Holland, filed on 2 June 2018.

 6   Ibid.

 7   Ibid.

 8   Transcript, PN526.

 9   Transcript, PN534.

 10   Transcript, PN543.

 11   Transcript, PN698.

 12   Transcript, PN761.

 13   Ibid.

 14   Transcript, PN785.

 15   Transcript, PN817.

 16   John Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo[2012] FWAFB 1359 (‘Pinawin’).

 17 Ibid, [29]-[30].

 18   [2013] FWCFB 1943.

 19   Steri-Flow Filtration Systems (Aust) Pty Ltd v Erskine[2013] FWCFB 1943, [26].

 20   Ibid, [29].

 21   Small Business Fair Dismissal Code.

 22   Witness Statement of Tim Holland, filed on 2 June 2018.

 23   Ibid.

 24   Transcript, PN107.