Sean Mamo v Robjan Pty Ltd t/a Yarrawonga Toyota

[2019] FWC 7900

[2019] FWC 7900

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sean Mamo
v
Robjan Pty Ltd t/a Yarrawonga Toyota
(U2019/8041)

DEPUTY PRESIDENT COLMAN MELBOURNE, 22 NOVEMBER 2019

Application for an unfair dismissal remedy – personal leave claimed to care for sick child – leave used to attend concert with child – dismissal not unfair – application dismissed

[1] This decision concerns an application made by Mr Sean Mamo under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. From 7 November 2018 until 2 July 2019, Mr Mamo was employed as a car detailer by Robjan Pty Ltd (company) at its Toyota dealership in Yarrawonga.

[2] It is not in dispute that on 28 June 2019 Mr Mamo purported to take personal leave to care for his son, when in fact Mr Mamo and his son attended a Wiggles concert. A photograph of them appeared on social media and was brought to the company’s attention. Mr Mamo was interviewed some days later and ultimately admitted that he had falsely claimed personal leave. Mr Mamo was dismissed and paid one week’s pay in lieu of notice.

[3] Mr Mamo’s application contended that the company had no valid reason to dismiss him, and that his dismissal was unfair. He said that his false claim for personal leave was not serious enough to warrant dismissal. The company’s response was that Mr Mamo had committed misconduct by falsely taking personal leave, and that this was a serious matter which justified dismissal. The parties participated in two conciliation conferences, but the matter remained unresolved.

[4] The application was listed for hearing on 8 November 2019 in Wangaratta. Mr Mamo did not attend. My associate attempted to contact him but was unable to do so. Three representatives of the company attended the hearing: Mr Robin Brewer, the owner of the business; Mr Steven Zandt, the general manager of the Yarrawonga dealership; and Mrs Janice Brewer, customer relations manager. They affirmed their witness statements and gave brief oral evidence. After the proceeding, my associate wrote to Mr Mamo and advised that he was required within seven days to explain his failure to attend the hearing, and that in the absence of any explanation I would determine the application on the material before the Commission. I have received no communication from Mr Mamo. The matter is determined as follows.

[5] Each of the four matters in s 396 requiring preliminary determination is satisfied: Mr Mamo’s application was made within the required 21-day period; he was a person protected from unfair dismissal; the dismissal was not a case of genuine redundancy; and the company is not a small business for the purposes of the Act.

[6] The factual background to this matter is largely uncontested and can be briefly stated. On 28 June 2019, Mr Mamo telephoned Mr Zandt and told him that he would not be coming to work as he needed to look after his son, who was ill. Later that day, a member of staff showed Mr Zandt a photograph posted on social media showing Mr Mamo and his son attending a Wiggles concert that day. On 2 July 2019, Mr Zandt and Mr Brewer met with Mr Mamo and told him that they believed he had falsely claimed personal leave the previous Friday. Mr Mamo denied this. Mr Zandt and Mr Brewer told Mr Mamo that they had seen the photograph of him at the Wiggles concert. Mr Mamo then admitted that he had attended the concert. He said that he had not requested a day of annual leave because he did not think that it would be granted. He did not apologise. Mr Brewer told Mr Mamo that the company had lost trust in him, and that, taking into account his past poor performance, his employment was terminated.

[7] Although in his F2 application Mr Mamo stated that he had taken personal leave because his son was unwell, his subsequent written material acknowledged that he had falsely claimed personal leave and that he had been wrong to do so. Mr Mamo disputed the company’s contention that his work performance had been poor.

[8] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable. In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387.

Valid reason for dismissal (s 387(a))

[9] The Act directs consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct. A valid reason is one that is sound, defensible and well-founded. In this case, there is no dispute that Mr Mamo told the company that he was taking personal leave to care for his sick son, and that this was not true. Instead, he attended a Wiggles concert with his son. Mr Mamo acknowledged his wrongdoing only when confronted with irrefutable proof.

[10] That falsely claiming personal leave amounts to misconduct scarcely requires an explanation however I will provide one. First, claiming personal leave to which one is not entitled is dishonest, and therefore a breach of the employee’s duty of good faith. Secondly, it seeks to obtain financial advantage by deception, by claiming payment for an absence on the basis of a false assertion. Thirdly, it asserts a legitimate right to be absent from work when none in fact exists.

[11] Mr Mamo’s conduct is a clear case of misconduct giving rise to a valid reason for dismissal. He misled his employer in order to take a paid day off. He did not do what he ought to have done – ask to take a day of annual leave – because he did not think it would be granted. Mr Mamo decided that he was going to take the day off regardless, by providing a false reason for his absence, one which would ensure he was paid for that day.

[12] The company’s stated reasons for dismissing Mr Mamo made reference to his past poor performance. The termination letter described his misconduct as the ‘final act of inappropriate behaviour’. However, it is sufficient for the Commission to ascertain whether there was one valid reason for dismissal. It is not necessary for me to consider whether Mr Mamo’s performance constituted a further valid reason.

Notification of reasons for dismissal, opportunity to respond (s 387(b) and (c))

[13] In considering whether a dismissal was unfair the Commission must take into account whether an employee has been notified of the reason for dismissal and afforded an opportunity to respond to any reason related to capacity or conduct. The company put to Mr Mamo the allegation of misconduct. He ultimately admitted it. The company did not specifically give Mr Mamo an opportunity to respond to its view that his performance had been poor, but I do not consider this to be significant. Mr Mamo was told that the company no longer had trust in him following his false claim for personal leave. The misconduct was obviously the immediate reason for his dismissal and a reasonable person in Mr Mamo’s position would have understood that. I find that Mr Mamo was notified of the valid reason for dismissal and had an opportunity to respond to it.

Support person (s 387(d))

[14] The Act requires the Commission to consider whether there was any unreasonable refusal by the employer to allow a support person to assist at discussions relating to dismissal. There was no such refusal in this case.

Warning about unsatisfactory performance (s 387(e))

[15] If the dismissal relates to unsatisfactory performance, the Commission must consider whether the person has been warned about it. The valid reason for dismissal in this matter was Mr Mamo’s misconduct. Whether he was warned is therefore not strictly relevant, but if this were a relevant consideration (for example, under s 387(h)), I consider that an employee should not have to be warned not to take make false claims for personal leave. To the extent that the dismissal might be considered to relate partially to unsatisfactory performance, I would attribute minimal weight to the absence of a warning in relation to it, given the seriousness of the conduct that was the valid reason for dismissal.

Size of the enterprise, dedicated human resources (s 387(f) and (g))

[16] The Commission must consider the degree to which the size of the employer’s enterprise, and the absence of dedicated human resources specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal. In my view, these considerations do not carry weight in the present matter.

Any other matters the Commission considers relevant (s 387(h))

[17] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it considers relevant. One relevant matter is the proportionality of dismissal to the conduct in question. In my view Mr Mamo’s misconduct was of sufficient gravity to warrant dismissal. He deliberately misled the company about his reason for not coming to work and thereby claimed a payment to which he was not entitled. No extenuating circumstances have been brought to my attention.

[18] I take into account Mr Mamo’s contention that the dismissal took a toll on his personal life. He had to relocate to Melbourne to look for work, his relationship broke down, and he was out of work from 2 July 2019 to 23 September 2019. As to Mr Mamo’s contention that at various times during his employment Mr Zandt spoke to him rudely, I find it to be unsubstantiated. I am prepared to accept Mr Mamo’s written contention that he did not actually receive the termination letter until 15 August 2019. I reject his assertion that the letter was in some way a ‘fake’. I accept Mrs Brewer’s evidence that she prepared the letter herself. I take into account that at the meeting on 2 July 2019, Mr Mamo did not immediately admit to his conduct, or offer any apology.

Conclusion

[19] Taking into account all of the circumstances, I consider that the dismissal of Mr Mamo was not harsh, unjust or unreasonable and that accordingly his dismissal was not unfair. Mr Mamo’s application for an unfair dismissal remedy is therefore dismissed.

[20] Finally, I note that the company representatives were understandably frustrated when they arrived at the Wangaratta courthouse to discover that Mr Mamo had not appeared. They bore their frustration graciously. It is unacceptable that an applicant should fail to appear at the hearing of the application without offering any explanation or apology. There was some suggestion that Mr Mamo might have been unwell at the time however this has not been established and he has made no contact with the Commission or the company regarding his failure to attend the hearing. For the Brewers and Mr Zandt, who worked on the company’s case themselves and were not represented before the Commission, these proceedings have been a regrettable distraction from running their business, however lost time is not compensable under the costs provisions in the Act. 1

DEPUTY PRESIDENT

Appearances:

No appearance for Mr Mamo

Mr Brewer, Ms Brewer and Mr Zandt for the respondent

Hearing details:

2019

Wangaratta

8 November

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 1   See Porteous v Yarra Glen Pharmacy[2019] FWC 6264 at [19]