Scott Kneebone v Stuart Wines Company Pty Ltd T/A White Box Vineyard
[2011] FWA 2350
•15 APRIL 2011
Note: An appeal pursuant to s.604 (C2011/4258) was lodged against this decision - refer to Full Bench decision dated 11 August 2011 [[2011] FWAFB 5479] for result of appeal.
[2011] FWA 2350 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Scott Kneebone
v
Stuart Wines Company Pty Ltd T/A White Box Vineyard
(U2010/14125)
COMMISSIONER RYAN | MELBOURNE, 15 APRIL 2011 |
Termination of employment - dismissal not consistent with Small Business Fair Dismissal Code - dismissal not harsh, unjust or unreasonable - application dismissed.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section s.394 of the Fair Work Act 2009 (the Act). The application was filed with FWA on 15 November 2010.
[2] The Applicant was employed by the Respondent between February 2004 and 9 November 2010 when his employment was terminated summarily for serious misconduct. Termination was effected by a telephone call from Mr Yunanto Widjaja, Winery Manager to the Applicant. The Applicant was not at work on the 9 November. No written notice of termination was given to the Applicant when he was terminated.
[3] The Respondent filed an Employer’s Response to Application for Unfair Dismissal on 1 December 2010. The Respondent’s response was prepared and filed by Mr Yunanto Widjaja and included the comment that “Scott was a great worker and did some amazing work throughout his 7 years with us and I thank him for that...”.
[4] In giving oral evidence in this matter, Mr Yunanto Widjaja expressed his reluctance at having dismissed the Applicant:
“You see, it's very difficult to find a person like Scott Kneebone because we have actually spent a lot of time training him to become a good grape harvester and also specifically to be able to use our special units, the spraying unit. So in a long time - I have actually putting a consideration to keep him for quite a long time,...” 1
and further he was asked the following:
“You didn't want to lose Mr Kneebone, did you?---Nor Mr Barber. I don't want to lose both of them because they are perfect match in terms of their qualifications.” 2
[5] When asked about the Applicant’s employability in the region Mr Widjaja said:
“Yes, there should be plenty of jobs for him with his classification. We are training him with very rare skills to be able to drive a grape harvester machine and then to use a spray unit that practically only a couple of us have, a very unique spray unit, so I'm sure there's no problem for his qualification to get a job.” 3
[6] It was put by the Applicant and conceded by the Respondent that the Applicant was a person who was protected from unfair dismissal and that the application in this matter had been filed in time. I agree and so find.
[7] The Respondent claimed and the Applicant conceded that the Respondent is a small business within the meaning of s.23 of the Act. I agree and so find. This means that the Small Business Fair Dismissal Code (the Code) applies to the Respondent and that as a preliminary manner I must decide under s.396 of the Act whether the dismissal was consistent with the Code.
[8] The Small Business Fair Dismissal Code provides as follows:
“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.”
[9] The Respondent relied upon the decision of DP Bartels in the Banana Tree Cafe case 4 where she said:
“[60]At the outset it is appropriate to note that unlike a consideration of the dismissal of an employee of a business that is not a small business employer, the function of FWA is not to determine on the evidence whether there was a valid reason for dismissal. That is, the exercise in the present matter does not involve a finding on the evidence as to whether the applicant did or did not steal the money. The application of the Small Business Fair Dismissal Code involves a determination as to whether there were reasonable grounds on which the respondent reached the view that the applicant’s conduct was serious enough to justify immediate dismissal. As such, the determination is to be based on the knowledge available to the employer at the time of the dismissal, and necessarily involves an assessment of the reasonableness of the steps taken by the employer to gather relevant information on which the decision to dismiss was based.”
[10] The Respondent urged the Tribunal to find that the dismissal was consistent with the Code and this submission was based upon the conduct of the Applicant in relation to an instruction given to him by Mr Yunanto Widjaja. 5
[11] The Applicant responded that the Respondent simply had not met the requirements of the Code and that the reason for dismissal as conveyed to the Applicant at the time of dismissal was for conduct relating to the relationship between the Applicant and Mr Barber and that the dismissal did not relate to the conduct of the Applicant in relation to an instruction given to him by Mr Yunanto Widjaja. 6
[12] Mr Yunanto Widjaja acknowledged that he was under instructions from Mr Hendra Widjaj, a Director of the Respondent, to dismiss both Mr Barber and the Applicant. 7
[13] Mr Yunanto Widjaja gave evidence that he came to the view that the Applicant had engaged in serious misconduct in his relations with Mr Barber because of the conclusion that Mr Yunanto Widjaja drew concerning the conduct of the Applicant in relation to an instruction given to him by Mr Yunanto Widjaja to convey certain information about contractors to Mr Barber. The conclusion was that the Applicant lied to Mr Yunanto Widjaja. 8
[14] Whilst Mr Yunanto Widjaja telephoned the Applicant to dismiss him from his employment at about 2pm on 9 November 2010 it is apparent that the decision of the Respondent to dismiss the Applicant was influenced by the instructions given to him by Mr Hendra Widjaja to terminate both Mr Barber and the Applicant. Importantly, the last instruction given by Mr Hendra Widjaja to Mr Yunanto Widjaja to terminate the Applicant was given sometime in the morning of the 9 November 2010 and was given because of Mr Hendra Widjaja’s view that the Applicant was responsible for leaving a shed door open on the previous day, 8 November 2010.
[15] Having considered all of the evidence and the respective submissions I find that the Respondent did not have reasonable grounds to form the view that the conduct of the Applicant was sufficiently serious to justify instant dismissal.
[16] In particular I find that the Respondent did not have reasonable grounds to draw the conclusion that the Applicant had lied to Mr Widjaja about contacting Mr Barber over the contractors. In fact as the evidence of both Mr Yunanto Widjaja and the Applicant show the Applicant didn’t lie to Mr Widjaja. 9 The Applicant made clear to Mr Widjaja that he rang Mr Barber but that he terminated the call when his call was not answered immediately and that he did not leave a message. This falls short of the Applicant lying to Mr Widjaja.
[17] Mr Widjaja made clear that he only formed the view that allegations made by Mr Barber against the Applicant were true because of the “lie” told by the Applicant.
[18] Mr Widjaja has simply drawn conclusions on the basis of not having carefully considered the material he had available to him and without taking reasonable steps to gather more or better information on which to base his decisions.
[19] Thus it follows that Mr Widjaja did not have reasonable grounds to form the view that the conduct of the Applicant in relation to Mr Barber was serious enough to justify instant dismissal.
[20] I find that the dismissal was not consistent with the Code.
Unfair Dismissal - s.385
[21] Whilst the requirement to consider whether the dismissal was consistent with the Code is a threshold matter for consideration under s.396 of the Act the finding is relevant to determining whether or not the dismissal is unfair under s.385(c) of the Act.
[22] Section 385(d) is not relevant to this matter and no challenge was made that the requirement in s.385(a) had been met.
[23] Thus the issue arising under s.385 is whether under s.385(b) the dismissal was harsh, unjust or unreasonable.
Is the Dismissal Harsh, Unjust or Unreasonable - s.387
[24] Section 387 sets out the matters that FWA must take into account in order to be satisfied that a dismissal is or is not harsh, unjust or unreasonable. I have carefully considered all of the evidence in this matter and the submissions made by both parties and I have done so having regard to all of the criteria enumerated in s.387.
[25] I find that there was a valid reason for the dismissal which related to the Applicant’s conduct. Two specific issues were identified by the Respondent. The first concerned the conduct of the Applicant in carrying out a direction to notify Mr Barber of the arrival of contractors. Whilst I have already concluded that the Applicant did not lie to Mr Widjaja in relation to this issue I am satisfied that the conduct of the Applicant constitutes a valid reason for dismissal. The conduct of the Applicant as described by him 10 and as conceded by him11 falls so far short of proper compliance with the direction given to him as to amount to misconduct. The second issue concerned the relationship between the Applicant and Mr Barber. I prefer the evidence of Mr Barber to that of the Applicant. In particular I accept the evidence of Mr Barber at paragraphs 5- 16 of ExhibitR1. I also accept the evidence of Mr Barber at PN883 to 887 inclusive.
[26] I note that Mr Barber was permitted to resign his employment on 9 November 2010 rather than being summarily dismissed for serious misconduct against the Applicant. I accept that Mr Barber was permitted to resign rather than be dismissed on the basis that he both admitted to Mr Widjaja that he had engaged in the serious misconduct and that he accepted that he should not have engaged in that conduct. The admissions by Mr Barber strengthen the weight of his evidence insofar as it relates to the conduct of the Applicant.
[27] The evidence on whether the Applicant was notified of the reason for the dismissal is contradictory - para 58 of Exhibit R2 and PN456. I prefer the evidence of Mr Widjaja and am satisfied that the Applicant was given a reason for the dismissal.
[28] The evidence of both Mr Widjaja and the Applicant discloses that in the lead up to the telephone call in which the Applicant was dismissed that the Applicant was given an opportunity to respond to the reasons for the dismissal.
[29] I am satisfied that there was no unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to the dismissal. Whilst there was no unreasonable refusal there also no effective opportunity given to the Applicant to have a support person assist in discussions about the dismissal.
[30] To the extent that each of the reasons for dismissal involved unsatisfactory performance by the Applicant it is clear that in relation to the issue concerning the relationship between the Applicant and Mr Barber that the Applicant had been warned about his unsatisfactory performance. However in relation to the issue concerning the conduct of the Applicant in carrying out a direction to notify Mr Barber of the arrival of contractors, the Applicant was not warned about his unsatisfactory performance before the dismissal took effect.
[31] The size of the Respondent’s business and the lack of HR expertise certainly affected the way in which both Mr Yunanto Widjaja and Mr Hendra Widjaja dealt with issues concerning both Mr Barber and the Applicant. Whilst the processes for dealing with the conduct of the Applicant could have been better I do not consider that the outcome would have been different even if a different and better process had been applied.
[32] I have also taken into account the nature of the serious misconduct of Mr Barber and that he was permitted to resign and then within 2 weeks of his resignation was re-engaged by the Respondent. This contrasts with the dismissal of the Applicant for less than serious misconduct and the refusal of the Respondent to consider re-employment of the Applicant.
[33] Having considered all of the matters that I am required to consider I find that the dismissal was not harsh, nor was it unjust nor was it unreasonable.
[34] The application in this matter is dismissed.
Observations
[35] I make the following observations but they do not form part of the decision in this matter.
[36] I observe that there is a dispute between the Applicant and the Respondent over the ownership of diaries used by the Applicant and over the possession and control of an item of machinery. Both the diaries and the item of machinery are currently in the possession of the Applicant but where the Respondent both claims ownership and wants actual possession. In addition the Respondent has made admissions that certain monies owed to the Applicant have not been paid. Finally I observe that one effect of the decision in this matter is that payment in lieu of notice will need to be made by the Respondent to the Applicant.
[37] I would urge the parties to take a pragmatic and commercial approach to resolving the issues in dispute rather than any quick resort to the courts. I am available to assist the parties in relation to the issues in dispute between them if both parties consider that such assistance would be of value.
COMMISSIONER
Appearances:
Mr P Cahill for the Applicant
Ms R Sweet, of Counsel, for the Respondent
Hearing details:
2011
Bendigo
16, 17 March
1 Transcript of proceedings at PN1079
2 PN1096
3 PN990
4 Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe[2010] FWA 7891
5 PN1477 to PN1512
6 PN1691 to PN1693 inclusive, and PN1709
7 para 51 and 55 of Exhibit R2
8 PN1158
9 PN316 and PN1147 to PN1156.
10 PN316
11 PN1153
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