Samisoni Matanisiga v Lovitts Group Pty Ltd

[2012] FWA 9682

[2012] FWA 9682

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samisoni Matanisiga
v
Lovitts Group Pty Ltd
(U2012/8476)

COMMISSIONER GOOLEY MELBOURNE, 15 NOVEMBER 2012

Application for unfair dismissal remedy.

[1] Mr Samisoni Matanisiga (the Applicant) was employed by Lovitts Group Pty Ltd (the Respondent) from 21 March 2010 until his employment was terminated on 15 May 2012. The Applicant had worked for the predecessor employer from 12 March 2008.

[2] The Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed. The application was referred to conciliation on 21 June 2012, and then for hearing on 12 November 2012.

[3] On 16 October 2012 the Respondent filed an application that the unfair dismissal application be dismissed on the grounds that the application was frivolous and vexatious. This application was heard at the same time as the unfair dismissal application.

[4] The Applicant appeared on his own behalf and Mr Lee Ganley, the General Manager and Director of the Respondent appeared for the Respondent.

[5] The application proceeded by way of conference with both the Applicant and Mr Ganley giving sworn evidence.

Jurisdiction of Fair Work Australia

[6] There is no dispute that the Applicant is a person who was protected from unfair dismissal.

Was the termination of employment harsh, unjust or unreasonable?

[7] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, Fair Work Australia must take into account the following:

s387(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);

[8] The Respondent terminated the Applicant’s employment on 15 May 2012 after he had been counselled on a number of separate occasions about his failure to notify his employer that he would not be attending work, as well as his attitude to his supervisors and his work.

[9] On 14 May 2012 the Applicant did not attend work because he had been told on the Saturday that his ex partner wanted him to pay his child support by direct debit and he decided he needed to see a lawyer. In fact the Applicant did not have an appointment with a lawyer on 14 May 2012. He gave evidence that he went to a number of law firms but did not make an appointment due to the costs. The Applicant told a fellow worker that he would not be coming to work and asked him to let the employer know. That worker sent the Respondent a text message as he also did not attend work that day.

[10] For the Respondent this was the “last straw”. The Applicant did not give them any prior notice that he had an appointment with a lawyer or needed to see lawyer. The Respondent submitted that the Applicant should have come to work and if he needed to attend a lawyer’s appointment that could have been accommodated without the Applicant being absent for the whole day. The Applicant’s explanation of why he did not attend work and try to make an appointment over the phone was that he did not think of doing that.

[11] This was not the first time the Applicant had not attended work or not attended work on time.

[12] The Respondent said that the Applicant was given a warning about not attending work in July 2010. On that occasion two employees including the Applicant failed to attend work when their fellow worker and driver did not come to work. Mr Ganley said the Applicant was given a written warning, but he did not have a copy of the warning at the hearing and neither was a copy attached to his statement. The Applicant could not recall getting this warning.

[13] The Applicant received a letter dated 6 June 2011 about not attending work. This letter referred to earlier conversations in which Mr Greg Bethell, the production manager, had spoken to the Applicant about the need to be at work on time. The Applicant was warned that if it occurred again without a satisfactory reason “disciplinary action will be taken, which may include termination of employment.”

[14] The Applicant was late for work on 2 September 2011. He initially said this was because his bus was late and that he had phoned work while he was on the train to tell them he would be late. When it became clear that he was on the train before he caught the bus he said that both the train and the bus were late. While there is some dispute about whether the Applicant was one hour late or 45 minutes late, there is no dispute that he was late for work again. At the end of the day the Applicant was asked to make up the time he had lost and he refused. It was his evidence that this was because he had to go to a funeral at 3.30 pm. When it was pointed out that the funeral notice said the funeral was at 2.00 pm he said the time of the funeral had been changed.

[15] The Applicant was given a letter of warning about being late for work and for refusing to make up the time. That letter referred back to the earlier warning and said “your refusal to make up the time for reporting late today, gives me no other alternative than to give you a final warning, and that one further occurrence will result in the termination of employment.” The Respondent disputed that this incident occurred on the day of the funeral but could not explain why the letter of warning was dated 2 September 2011.

[16] The Applicant was further spoken to about turning up for work late on 1 December 2011 but he could not recall this event. Mr Bethell had placed a file note on the Applicant’s file.

[17] Mr Ganley gave evidence that he became concerned about the Applicant’s approach to his job in mid 2011 after Mr Bethell spoke to him about the Applicant’s attendance and attitude to work. He told Mr Bethell to ensure that the Applicant “was aware that his actions were having a negative impact on the business and other employees.” Mr Bethell was told to give the Applicant written instructions so he knew the matter was serious.

[18] On 6 March 2012 in light of the feedback he had from Mr Bethell he met with the Applicant’s supervisors who raised concerns about the Applicant’s behaviour and lateness back from breaks. Mr Ganley met with the Applicant to discuss these issues. Notes of the meeting were signed by Mr Chris Williams, the Applicant’s witness, but the Applicant only acknowledged that he had been given a copy and read the notes.

[19] In that meeting the Applicant was told that there was an issue with him not following his supervisors’ instructions. It was said that the Applicant had stood around for 20 minutes not working because there were pallets in his work station. The Applicant claimed that the pallets breached occupational health and safety laws and should not have been where they were and that WorkSafe had said they were illegal. Mr Ganley had no knowledge of this and while he acknowledged that there had been health and safety issues at the workplace they had been rectified and did not involve the pallets.

[20] The Applicant denied standing around for 20 minutes and claimed that he had in fact moved pallets.

[21] It was further alleged that he was late returning from his tea breaks and that he used inappropriate language. The Applicant denied both of these allegations. The Applicant complained to Mr Ganley about his supervisors, who he thought were untrained, and he also raised his health and safety concerns.

[22] The Applicant also said that his supervisors could not know he was late back from his breaks as he could only go on his breaks when he was replaced and therefore he did not have a fixed time when he was required to be back. Further the Applicant said he often started work early.

[23] The Applicant was given a warning about his behaviour and his performance.

[24] There was insufficient evidence before me to conclude that the Applicant failed to follow the directions of his supervisors. Mr Ganley had received complaints about this but the supervisors were not called to give evidence and Mr Ganley had not observed these incidents himself. However I accept that Mr Ganley was sufficiently concerned about the reports he had received about the Applicant that he raised his concerns directly with the Applicant and put the Applicant on notice that his job was at risk.

[25] I am left to decide whether the Applicant’s failure to attend work on time or on some occasions at all were a valid reason for the termination of his employment.

[26] The Applicant explained that he had difficulty getting to work as the work place had relocated and was now further away and the Respondent did not provide employees with any financial compensation for the additional distance they had to travel to work.

[27] However in questioning the Applicant, the Applicant accepted that it was his responsibility to get to work on time. It is clearly his responsibility to attend work and only be absent from work either with the consent of his employer or for the purpose of taking personal/carer’s leave or annual leave. I accept the evidence of the Respondent that the Applicant was often late for work or failed to attend work without reasonable excuse. This is reflected in the letters of warning the Applicant had received and the counselling he had received.

[28] On 14 May 2012 he chose not to attend work so he could see if he could make an appointment with a lawyer. He did not contact the Respondent, though the Respondent did not deny that they received a text message from the Applicant’s co-worker. He did not discuss his reason for not coming to work with the Respondent and he did not explore other ways he could have arranged an appointment with a lawyer without missing a day’s work.

[29] The Applicant alleged that his employment was terminated because he raised occupational health and safety issues and other complaints. There was no evidence to support these allegations.

[30] I find that the Applicant’s failure to attend work on time or at all on occasions was a valid reason for the termination of his employment.

s387(b) whether the Applicant was notified of that reason;

[31] The Applicant was notified of the reason for his termination at a meeting with Mr Ganley on 15 May 2012. Mr Ganley frankly admitted that he had decided to terminate the Applicant’s employment prior to this meeting but also said that had the Applicant provided an acceptable explanation he would have changed his mind.

s387(c) whether the Applicant was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[32] The Applicant was provided with an opportunity to respond to the reasons given by the Respondent and did respond.

s387(d) any unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to dismissal;

[33] The Applicant was allowed a support person with him at the meeting.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether the Applicant had been warned about that unsatisfactory performance before the dismissal;

[34] The Applicant had received written and verbal warnings that his lateness and failure to attend work without good reason could lead to the termination of his employment.

s387(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;

[35] At the time of the termination the Respondent had 15 full time employees and some regular casual employees. It is a relatively small business and consequently, its record keeping in relation to the Applicant’s time keeping was not complete.

s387(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;

[36] It is not clear there would have been any impact on the procedures adopted other than there may have been better record keeping.

s387(h) any other matters that FWA considers relevant.

[37] The Applicant submitted that his employment was terminated because he raised health and safety concerns and other complaints. However there was insufficient evidence to support such a finding. The Respondent denied the allegations and said that they had responded to health and safety complaints when they were raised.

[38] The Respondent complained that the Applicant had put allegations about his employer and his termination, as well as allegations about his supervisors, on his Facebook page.

[39] The Applicant was paid five weeks pay in lieu of notice.

Conclusion

[40] The Applicant was late for work or failed to attend work without a reasonable explanation on a number of occasions over the two years he was employed by the Respondent. He was given a number of written warnings that this could lead to the termination of his employment. His final warning about other matters was given to him on 6 March 2012 and while this warning was expressly not about attendance issues, those issues were raised at the meeting. Despite this, on 14 May 2012, the Applicant did not attend work. He was not on personal or carer’s leave that day. He did not contact the Respondent but left it to a fellow worker to advise the Respondent. He could have dealt with the matter he needed to attend to in another way, but he did not. The Respondent is a relatively small business which had repeatedly tried to get the Applicant to understand that he was required to be at work and to be on time. He did not heed these warnings.

[41] The Respondent had applied to have the application dismissed and this application was heard at the same time as the substantive application.

[42] Section 587 of the FW Act provides Fair Work Australia with the power to dismiss an application.

“587 Dismissing applications

(1) Without limiting when FWA may dismiss an application, FWA may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[43] The term “vexatious” goes to the motive or intention of the party making or responding to the application:

Goldberg J said “I do not consider that there is any basis for a finding that the proceeding was instituted “vexatiously”. This concept directs attention towards the motive or intention of the Union in instituting the proceeding rather than the reasonableness of the basis for it. In the present circumstance there were factual disputes between the parties which needed to be resolved. The Union may have been mistaken initially as to the award pursuant to which the claims should be brought, but such mistaken view was not vexatious.” 1

North J said “A proceeding will be instituted vexatiously where the predominant purpose in instituting the proceeding is to harass or embarrass the other party, or to gain a collateral advantage.” 2

[44] There was no evidence that the Applicant brought the proceedings for any reason other than he considered he had been unfairly dismissed.

[45] Wilcox CJ considered the expression without reasonable cause 3:

“It seems to me that one way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.”

[46] I am unable to conclude that the application was instituted without reasonable cause. There were factual disagreements between the parties, particularly about the warning given to the Applicant about his conduct towards his supervisors and his work. It is not clear, on the facts put forward by the Applicant, that his application was bound to fail. For example, if it had been established that the Respondent was motivated by the Applicant’s raising of health and safety issues, then this would have affected the outcome.

[47] I am unable therefore to conclude that the application was frivolous or vexatious or had no reasonable prospects of success.

[48] However for the reasons set out above, I find that the termination of the Applicant’s employment was not harsh, unjust and unreasonable and the application is dismissed.

COMMISSIONER

Appearances:

S Matanisiga on his own behalf.

L Ganley for the Respondent.

Hearing details:

2012.

Melbourne:

12 November.

 1   Textile, Clothing and Footwear Union of Australia v Givoni Pty Limited [2002] FCA 1406, 15 November 2002

 2   Nilsen v Loyal Orange Trust [1997] IRCA 267 (11 September 1997)

 3   Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 157, at 264-265

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