Rooney v Pickles Auctions

[2016] FWC 858

[2016] FWC 858

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Todd Allan Rooney
v
Pickles Auctions Pty Ltd
(U2015/9046)
COMMISSIONER CAMBRIDGE	SYDNEY, 9 FEBRUARY 2016

Unfair dismissal - repeated lateness in attendance and misconduct - valid reason for

dismissal - satisfactory warning - reasonable opportunity provided for improvement -

dismissal not harsh, unjust or unreasonable - application dismissed.

[1]        This matter involves an application for unfair dismissal remedy made pursuant to s.

394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 2 July

2015. The application was made by Todd Allan Rooney (the applicant) and the respondent

employer is Pickles Auctions Pty Ltd (the employer).

[2]        The application indicated that the date that the applicant’s dismissal took effect was 17

June 2015. Consequently, the application was made within the 21 day time limit prescribed by

subsection 394 (2) of the Act.

[3]         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 28

September 2015.

[4]        At the Hearing, the applicant represented himself. The applicant called a total of four

witnesses (including himself, his mother, and his father), who each provided evidence in

support of the unfair dismissal claim. The employer was represented by Mr J Palumbo who is

the employer’s legal counsel. Mr Palumbo called three witnesses who provided evidence on

behalf of the employer.

Factual Background

[5]         The applicant had worked for the employer for about 6 years and 8 months. The

applicant was employed in a position described as Detailer/Floor Staff. The applicant worked

at the employer’s premises located in the Sydney suburb of Milperra. The applicant

performed a range of what may be described as general duties involving motor vehicle

cleaning/preparation and associated activities connected with the commercial auction of

trucks, machinery and similar heavy vehicles.
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[6]        The employer is one of the largest auto and equipment auctioneer and valuation

businesses in Australia and it trades under the name of Pickles Auctions. The employer has in

excess of 680 employees.

[7]        The employment history of the applicant reveals an inconsistent level of performance,

particularly relating to what can be described as his habitual lateness in attendance for work.

On occasions, the applicant’s work performance was considered to be praiseworthy, however

his persistent lateness was coupled with some unsatisfactory conduct incidents.

[8]        The applicant was issued with written warnings which were respectively dated; 8

February 2011, 7 February 2013, 11 September 2013, 18 February 2015, 27 March 2015 and

4 May 2015. The employer provided evidence that in addition to the written warnings, the

applicant was frequently verbally warned about his failure to attend for work at the scheduled

commencement time of 8 am, and without any prior telephone advice to his Supervisor.

[9]        On the morning of 17 June 2015, the applicant slept through his alarm and at 8:52 am

he telephoned his Supervisor to advise that he would be late for work. The applicant arrived at

work at about 9:05 am. At about 2:30 pm, the employer convened a meeting with the

applicant seeking an explanation for his late arrival to work and the failure to provide prior

notification of his lateness. The applicant could not provide any explanation for his late arrival

and his failure to advise the employer before the scheduled start time of 8 am, other than that

he thought “the time was earlier than it was.” The applicant was told that his employment

was in jeopardy because of his continued poor attendance. The applicant was given an

opportunity to offer further comment. The meeting was adjourned in order to allow the

employer to consider the circumstances of the applicant’s employment.

[10]      Following the adjournment of the meeting with the applicant, the employer consulted

with its relevant personnel management staff, and it considered the applicant’s explanation for

his late arrival and his failure to provide any notification of lateness prior to 8 am. The work

history of the applicant, including his previous written and verbal warnings, were reviewed by

the employer, who decided that it would proceed with the termination of the employment of

the applicant.

[11]      At approximately 3:30 pm, the applicant was called into a further meeting with the

employer and he was advised verbally and in writing of his dismissal. The applicant was

provided with a letter that set out the basis for dismissal, which referred to the previous

warnings and included mention that the applicant had been given an opportunity to improve

his attendance, but there had been no adequate improvement. The applicant was paid all

accrued entitlements together with an amount representing 4 weeks’ notice.

[12]      The applicant reacted angrily to his dismissal. He swore at the managers in attendance

at the termination meeting and told them, inter alia, “I’ll see you in Court”. The applicant has

not sought nor obtained alternative employment following his dismissal.

The Case for the Applicant

[13]      The applicant was self-represented and unfortunately his case suffered from a

surprising absence of basic preparation. Particularly in the case of self-represented Parties, the

Commission generally adopts a practical, informal and flexible approach to the provision of

material upon which an unfair dismissal case may be advanced or defended. However, there is
[2016] FWC 858

a fundamental requirement for an applicant to produce some documentary material which

asserts the factual circumstances which make out the basis for the claim, and upon which a

respondent would be required to reply.

[14]      Regrettably, the applicant did not provide a witness statement from himself and he

stated that he was advised by staff of the Commission that he did not need to do so. The

applicant did provide short, hand written statements from both his mother and his father and

one or the other, or both, of these statements may have been inadvertently considered to have

been made by the applicant. The applicant did not provide written submissions or other

documentation. In the absence of a witness statement from the applicant, and any written

submissions, the employer requested that a second conciliation be arranged, to which the

applicant agreed. Regrettably, the request for further conciliation was refused by Commission

staff.

[15]      At the Hearing, the applicant gave evidence as a witness and he introduced a telephone

account record into evidence. The applicant made some brief verbal submissions during the

Hearing. The applicant submitted that he had been unfairly dismissed. The applicant said that

the employer did not seem to have a problem with his work, except for him turning up late.

The applicant said that he liked his job and that he didn’t seem to have a problem with other

employees.

[16]      The applicant submitted that it was really unjust that the evidence that the employer

relied upon was concerned with him turning up late for work. The applicant said that he

would like the Commission to get him reinstated. As an alternative, he suggested that he

could get a bit of a “pay out” to get himself back into work.

[17]      The applicant made mention that on the day of his dismissal, 17 June 2015, he was

unwell, and that he should have gone to the doctors and got a sick certificate, but instead he

went into work to help out as best as he could. The applicant complained that, on the day of

his dismissal, the employer had waited until most of the work for the day had been completed

and then met with him, and subsequently dismissed him from his employment.

[18]      The applicant said that if he was reinstated he would go back to work and do the best

that he could and that he would be a happy worker.

The Case for the Employer

[19]      The employer was represented by Mr Palumbo who submitted that the dismissal of the

applicant was not unfair. Mr Palumbo made submissions which elaborated upon documentary

material that had been filed on behalf of the employer.

[20]      Mr Palumbo firstly referred to s. 385 of the Act and he submitted that the only

question which was in dispute related to subsection 385 (b), namely, the issue of whether the

dismissal of the applicant was harsh, unjust or unreasonable. Consequently, according to the

submissions made by Mr Palumbo, any consideration as to whether the dismissal was harsh,

unjust or unreasonable required an examination of the various provisions of s. 387 of the Act.

Mr Palumbo then made submissions which addressed the various factors which are contained

in s. 387 of the Act.
[2016] FWC 858

[21]      Mr Palumbo submitted that there was valid reason for the applicant’s dismissal which

related to the person’s capacity or conduct. Mr Palumbo said that the reason for the dismissal

related to the applicant being repeatedly late for work, and failing to follow a company policy

of notifying his Supervisor that he would be late prior to commencement time. Further, Mr

Palumbo submitted that there was valid reason for the applicant’s dismissal relating to

incidents of misconduct, whereby he spoke disparagingly to his Supervisor and further, he

failed to adhere to the company’s uniform policy when he attended for work and was sent

home because he was unshaven.

[22]      Mr Palumbo made submissions which stressed that the employer had relied upon both

the informal warnings given to the applicant on many occasions, and the warning letters

which included three relevant documents provided to the applicant in the six months prior to

the termination of employment. In these circumstances, it was submitted that the employer

had valid reason to dismiss the applicant.

[23]      Mr Palumbo also submitted that the employer had properly notified the applicant of

the reason for dismissal and the applicant had been invited to bring a support person with him

to the various meetings which had been held to discuss his attendance and performance issues.

Mr Palumbo submitted that the applicant had been given ample opportunity to address the

clear concerns of the employer.

[24]      It was further submitted by Mr Palumbo that the applicant had been given proper

opportunity to provide an explanation in respect to his lateness and failure to notify on 17

June. The applicant had provided no adequate explanation for this event. Further, according to

the submissions made by Mr Palumbo, the particular unsatisfactory performance of the

applicant which involved his repeated late attendance without prior notification being

provided, was a matter that he was made aware of in both the written warnings and numerous

verbal reprimands.

[25]      Mr Palumbo submitted that in all the circumstances, the employer's actions were

reasonable and were open to it, and therefore, the application for unfair dismissal remedy

should be dismissed.

Consideration

[26]       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.”

[27]      In this case, it was clear that the matter was confined to a determination of that

element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the

applicant was harsh, unjust or unreasonable.

[28]      Section 387 of the Act contains criteria that the Commission must take into account in

any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

[2016] FWC 858

“(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 effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

387 (a) - Valid reason for the dismissal related to capacity or conduct

[29]      In this instance, the evidence has established that the applicant was dismissed for

reasons relating to poor/late attendance and misconduct. In particular, the reason for the

applicant’s dismissal involved his repeated failure to attend for work at the scheduled starting

time of 8 am without providing prior telephone advice of any lateness.

[30]      Even if one of the misconduct incidents relating to the applicant attending for work in

an allegedly unshaven/un-presentable state was disregarded, the documented incidences of

late attendance without prior notification in the six months up to and including the late

attendance on 17 June 2015, establish valid reason for dismissal. In this regard, the applicant

signed and acknowledged the first warning for poor attendance and misconduct dated 18

February 2015, and the second and final warning letter for poor attendance dated 27 March

2015. In addition, there was a further second and final warning letter for misconduct dated 4

May 2015, which related to the applicant attending for work in an allegedly unshaven/un-

presentable state.

[31]      Consequently, there was valid reason for the dismissal of the applicant related to the

repeated failure of the applicant to attend for work at the appointed starting time and without

prior notification of lateness. Further, the employer was entitled to also rely upon documented

incidents of misconduct of the applicant as additional, valid basis for dismissal.

387 (b) - Notification of reason for dismissal
[2016] FWC 858

[32]      The employer provided both verbal and written notification of the reason for the

applicant's dismissal. During the period of the applicant’s employment the employer had

provided numerous written notifications of its dissatisfaction with the applicant’s late

attendance and his failure to notify his Supervisor of any lateness. It should have come as no

surprise to the applicant that his late attendance without prior notification on 17 June 2015

might represent “the straw that broke the camel’s back”.

387 (c) - Opportunity to respond to any reason related to capacity or conduct

[33]      The evidence clearly established that on each occasion that the employer formally

raised complaint about either the applicant’s lateness or misconduct, he was provided with an

opportunity to respond to the particular circumstances. Further, in respect to the events

leading directly to dismissal on 17 June, the employer provided the applicant with an

opportunity to explain his lateness and failure to provide prior notification on that day. The

applicant simply could not provide any reasonable explanation.

[34]      The approach that the employer adopted for dealing with the circumstances of the

applicant’s lateness and failure to notify on 17 June was commendable. The employer called

the applicant into the first meeting at 2:30 pm and advised of the seriousness with which it

was treating the matter, and it gave the applicant every opportunity to offer an explanation or

make out a defence. Rather than make any immediate decision, the employer adjourned the

meeting, it then took advice and considered the circumstances carefully before arriving at the

decision to terminate the applicant’s employment.

[35]      Consequently, the employer’s approach was measured and considered. The evidence

strongly supported the genuine concern that the employer had about making a decision with

the obvious ramifications that accompany a dismissal from employment. In many respects,

the employer reluctantly came to the view that it simply could no longer tolerate the habitual

lateness of the applicant and it was, quite genuinely, left with no alternative but to implement

dismissal.

387 (d) - Unreasonable refusal to allow a support person to assist

[36]      There was some contest in the evidence as to whether the applicant was offered the

assistance of a support person during the various discussions that were held regarding his

employment. The evidence of the various witnesses from the employer maintained that the

applicant was offered a support person on all occasions that his employment was the subject

of formal meetings and that the applicant refused the offer on each occasion. The applicant

appeared to suggest that he was not offered the assistance of a support person.

[37]      On balance, the evidence of the witnesses for the employer must be preferred. The

applicant may not have a clear memory of being offered the assistance of a support person,

and in any event there was no evidence that the applicant requested a support person and that

the employer refused that request.

387 (e) - Warning about unsatisfactory performance

[38]      To the extent that the applicant’s failure to attend for work on time represents

unsatisfactory performance, there was ample evidence of warning to the applicant. The

applicant had been provided with at least six formal written warnings, three of which were
[2016] FWC 858

issued in the six months prior to dismissal. In addition, there was unchallenged evidence that

the applicant had numerous verbal warnings and reprimands about his failure to attend for

work on time.

387 (f) - Size of enterprise likely to impact on procedures

[39]      The size of the employer’s operation would not have been likely to have significant

impact on procedures surrounding the dismissal of the applicant.

387 (g) - Absence of management specialists or expertise likely to impact on procedures

[40]      The employer did have dedicated employee relations management specialists and as

mentioned earlier in this Decision, there was evidence that the involvement of these

specialists contributed to a proper and just process regarding the dismissal of the applicant.

387 (h) - Other relevant matters

[41]      There was no evidence provided about other relevant matters that may have been

appropriate aspects of consideration as to whether the dismissal of the applicant was unfair.

Conclusion

[42]      The applicant was dismissed on the afternoon of 17 June 2015 because earlier that day

he had failed to attend for work at or before the scheduled commencement time and without

prior notification of his lateness. The applicant had a history of poor attendance, primarily

involving his failure to attend at or before the scheduled commencement time. The applicant

had been provided with numerous verbal and written warnings regarding his poor attendance.

[43]      The employer provided the applicant with an opportunity to explain or make out a

defence for his late attendance and failure to provide prior notification on 17 June. The

applicant could not provide any satisfactory explanation. The employer carefully considered

the circumstances and reluctantly decided that, in view of the applicant’s demonstrated

inability to be able to improve his attendance conduct, the applicant’s employment should be

terminated.

[44]      Consequently, the employer dismissed the applicant for valid reason relating to the

applicant's capacity and conduct.

[45]      The notification of dismissal of the applicant and other aspects of the procedure that

the employer adopted to deal with the dismissal contained no identifiable deficiency. There

was valid substantive basis for the dismissal of the applicant. Further, the procedural aspects

of the employer’s approach to the dismissal of the applicant were proper and just, and should

be properly recognised as commendable.

[46]      Therefore, having considered the various factors contained in s. 387 of the Act, the

evidence presented in this instance provides a compelling basis upon which to conclude that

the applicant's dismissal was not harsh, unjust or unreasonable.
[2016] FWC 858

[47]      Consequently, the application for unfair dismissal remedy must be dismissed and an

Order to that effect will be issued accordingly.

COMMISSIONER

Appearances:

Mr T Rooney representing himself.

Mr J Palumbo appeared for Pickles Auctions Pty Ltd.

Hearing details:

2015.

Sydney:

September, 28.

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<Price code C, PR576875>