Shadie Najjar v Paul Andrew Hunt T/A P&H Heating and Cooling

[2012] FWA 7487

[2012] FWA 7487

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shadie Najjar
v
Paul Andrew Hunt T/A P&H Heating and Cooling
(U2012/7161)

COMMISSIONER GOOLEY MELBOURNE, 5 SEPTEMBER 2012

Application for unfair dismissal remedy.

[1] Mr Shadie Najjar (the Applicant) was employed by Mr Paul Andrew Hunt trading as P&H Heating and Cooling (the Respondent) from July 2010 until his employment ended on 5 April 2012. The Applicant had previously worked for the Respondent from September 2007 until he resigned in June 2010.

[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.

[3] Directions were issued to both parties to file witness statements and submissions. While the Applicant filed a brief statement which outlined how his employment came to an end, he did not provide any submissions. The Respondent did not file any material.

[4] Both the Applicant and the Respondent appeared in person and it was agreed that the matter would proceed by way of conference. Both the Applicant and the Respondent were sworn in so that any evidence given was under oath.

[5] The Respondent was a subcontractor to Mr Mark Binns, who was also sworn in to give evidence.

Jurisdiction of Fair Work Australia

[6] There is no dispute that the Applicant is a person who was protected from unfair dismissal. Further it is not disputed that the Respondent was, at the time of the termination of Applicant’s employment, a small business. Fair Work Australia has the jurisdiction to determine the application.

The Evidence of the Applicant

[7] The Applicant was employed as a mechanical plumber by the Respondent. He attended work on 4 April 2012. He had a dispute with the apprentice about how the apprentice was performing his work. He said the apprentice made mistakes and he had raised this with him repeatedly.

[8] The Applicant attended work on 5 April 2012 and met with the Respondent. While the Respondent was telling him about his job for the day the Respondent asked him if he had said that he didn’t care about the business. He replied that he had said it but he was saying it mate to mate. He told the Respondent he was taking his statement the wrong way. He told the Respondent he did care about the business and that he was only telling the apprentice that his poor work couldn’t continue happening.

[9] The Applicant asked who had told the Respondent but the Respondent walked away, which the Applicant found disrespectful.

[10] The Applicant continued to load his van and as he was missing material for the job he went into the office to ask the Respondent what he wanted him to do and the Respondent said “just go home mate.” The Applicant asked the Respondent what he meant. He said “just go home you don’t want to work here.” The Applicant said “don’t put words in my mouth I never said I didn’t want to work here.”

[11] The Respondent said “take your tools out of the van and I will call you a taxi”. The Applicant did not think he could reason with the Respondent so he unpacked the van and left the job.

[12] The Applicant said he became depressed as a result of this and was not able to start looking for work until mid July 2012. Three weeks prior to the hearing, he got a job.

The Evidence of the Respondent

[13] The Respondent said that for the last two years the Applicant had been regularly late for work. The Applicant was spoken to about this by the Respondent who told him he was required to be at work on time.

[14] The Applicant’s performance in the weeks leading up to the end of his employment was not satisfactory. He didn’t finish jobs, he was abusive and no one wanted to work with him. He didn’t care about his work. The Respondent said he was moody and had “a didn’t care attitude”.

[15] The Respondent said that he had found out that the Applicant had abused him and the company and that the Applicant had done this quite often. He said the Applicant didn’t care about his job and he was only there to get paid.

[16] The Applicant had previously been caught speeding in a company vehicle and he also had had a few accidents in the company vehicle. The last accident had cost the Respondent $7,000.

[17] The Respondent had given the Applicant many warnings about being late and abusive.

[18] On 5 April 2012 the Applicant was again late for work. The Respondent, having been told that the Applicant had been abusive towards him and his company the day before, said that he confronted the Applicant about what he had said. The Respondent said to the Applicant “if you don’t want to work here, don’t work here” and the Applicant packed up his stuff and left.

[19] The Respondent accepted that he told the Applicant to leave because he couldn’t reason with him.

[20] The Respondent considered the Applicant’s abuse of him and his company to be the last straw. The Respondent had been told that the Applicant had said he was an idiot and his company was stupid.

[21] The Respondent accepted that he told the Applicant to leave and that the Applicant did not abandon his employment. However, the Respondent said that he did not sack the Applicant and he thought that the Applicant would come back because he had done it before.

[22] The Respondent did not pay the Applicant pay in lieu of notice because he did not think that he had sacked him.

[23] The Respondent had given the Applicant verbal warnings and he had constantly been told that if he didn’t improve and turn up for work, he would lose his job.

[24] Mr Binns gave evidence that the Applicant worked on his jobs and that in the last six months he regularly received complaints about the Applicant’s work. His customers complained about the Applicant’s swearing, attitude on the job and his failure to turn up on time. His work was often not up to standard. The Applicant made many mistakes which meant that Mr Binns had disputes with clients over the bills. The clients would demand a reduction in the bill because of the mistakes. There was one job in summer where, when told by Mr Binns that he had to complete the job, the Applicant said he “didn’t give a “f...” about the job all I do is turn up and get paid.” Mr Binns said that this was the Applicant’s attitude towards the work. Mr Binns told the Respondent about this incident who then spoke to the Applicant about it.

[25] The Respondent had constantly received complaints from supervisors about the Applicant. In response to my question about how had the Applicant remained in employment as long as he did, the Respondent said “he liked him, he needed him, he had never sacked anyone. They are kids and sooner or later they grow out of it and they are fine. I gave him every chance.”

[26] The Applicant rang the Respondent on the afternoon he was sent home and told the Respondent that he was owed holiday pay. The Respondent paid him three additional days pay for the rest of the week, which the Applicant did not work, and another week as holiday pay. The Respondent said he in fact only owed the Applicant three days annual leave.

[27] When he did not turn up for work the Respondent said he assumed the Applicant was not coming back. This evidence was misleading as the Applicant had told the Respondent on 5 April 2012 that he was going to take the matter to Fair Work Australia and he had phoned him about his entitlements. The Respondent knew on 5 April 2012 that the Applicant considered that his employment was over.

The Evidence of the Applicant in Reply

[28] The Applicant denied that he did not do his job properly. He claimed that he worked overtime without being paid for it.

[29] The Applicant denied that he was late for work. He said he asked for a key to the factory because the Respondent did not arrive for work on time and he had to wait for him to get in. The Respondent said that if the Applicant had turned up at 7am, the other employees would be there and he would have been able to get in. The only reason he wanted a key was because he did not arrive at 7am which was his starting time.

[30] The Applicant admitted he was regularly a half an hour late for work two days a week. He said the Respondent did not warn him about this because he worked late to make up the time.

[31] He denied that he did not get on with others. He accepted that he did not get on with his supervisor. He said his workmanship was fine.

[32] The Applicant denied that he ever left the job for no reason. He said he was never warned that his job was a risk.

If a small business

[33] At the time the Applicant’s employment ended the Respondent employed ten employees. This was not disputed by the Applicant.

[34] The FW Act at section 385 provides that a person has been unfairly dismissed if Fair Work Australia 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.”

[35] It is not disputed that the Small Business Fair Dismissal Code (the Code) applies.

“The Code

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.”

[36] While the Respondent did not consider that he had sacked the Applicant I find that the Respondent did in fact terminate the Applicant’s employment when he told him to go home.

[37] The Applicant’s employment was terminated without notice. The Applicant’s employment was not terminated because the Respondent believed on reasonable grounds that the Applicant’s conduct was sufficiently serious to justify immediate dismissal.

[38] As the Code was not complied with it is necessary to determine if the termination of the Applicant’s employment was harsh, unjust or unreasonable.

Was the termination of employment harsh, unjust or unreasonable?

[39] 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);

[40] I accept the evidence of the Respondent that the Applicant was late for work on a regular basis. The Applicant himself admitted that he was a half an hour late for work two days a week. I also accept that at times the Respondent spoke to the Applicant about this and told him his job was at risk. I also accept that other times the Respondent did not object to the Applicant being late for work because he made up the time. Be that as it may, continual lateness to work can constitute a valid reason for the termination of employment. However that was not the immediate reason the Respondent terminated the Applicant’s employment.

[41] On balance, I accept the Respondent’s evidence about the Applicant’s work performance and attitude to his job. The Respondent’s evidence was supported by Mr Binns. I also accept the Respondent’s evidence that he had spoken to the Applicant about this. Again this was not the immediate reason the Respondent terminated the Applicant’s employment.

[42] The reason the Respondent told the Applicant to go home was because he was sick of his attitude as expressed by the comments he had made the day before.

[43] The statement that he didn’t care about his job summed up for the Respondent the approach the Applicant took towards his work. The comments that the Applicant had made about the Respondent were the straw that broke the camel’s back. The words were consistent with the Applicant’s continued disregard for his obligations to attend work on time, perform his work with care and work cooperatively with other employees. That was the real reason for the termination of the Applicant’s employment. His continued disregard for these obligations means there was a valid reason for the termination of the Applicant’s employment.

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

[44] The Respondents asked the Applicant about the comments he had made the day before. The Applicant admitted making the comments but told the Respondent that he was taking the statement out of context. However the Respondent did not advise the Applicant that, having regard to the history of his employment, he was considering terminating his employment. I therefore find that the Applicant was not notified of the reasons for his dismissal.

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

[45] The Applicant was given an opportunity to respond to the specific allegations.

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;

[46] The Applicant did not ask for a support person however this is unsurprising as the Applicant did not know that his employment was at risk.

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

[47] The Applicant had been warned about his performance, his lateness and his attitude and warned that he could lose his job. The Applicant had been given a significant period of time to change his work performance and attitude.

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;

[48] This is a small business and this clearly had a impact on the procedures followed in effecting the dismissal.

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;

[49] There was no dedicated human resource management specialists or expertise in the enterprise.

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

[50] The Applicant was not paid in lieu of notice.

Conclusion

[51] While the Respondent could have approached his obligations as an employer with more formality and not tolerated for so long the failure of the Applicant to fulfil his obligations as an employee, I accept that he did so because he liked the Applicant and expected him to grow out of his bad work habits. Unfortunately the Applicant did not take advantage of his employer’s approach and develop a more mature attitude to his responsibilities. He disregarded the warnings and his behaviour did not change.

[52] On balance I have decided that the termination of the Applicant’s employment was harsh, unjust or unreasonable. While I accept that the Respondent had had enough and that the decision to terminate the Applicant’s employment was a reasonable decision in all the circumstances, the decision to terminate the Applicant’s employment summarily was unfair.

Remedy

[53] The Applicant is not seeking reinstatement of his employment.

[54] In assessing an amount in lieu of reinstatement, Fair Work Australia is required to have regard to the following:

(a) the effect of the order on the viability of the employer’s enterprise;

[55] The business is a small business and it does not make a large profit. The Respondent submitted that if he was ordered to pay the compensation sought by the Applicant he would close his business.

(b) the length of the person’s service with the employer;

[56] The Applicant had worked for the Respondent for two years. He had previously worked for the Respondent for three years but his resignation broke the continuity of his employment.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;

[57] I have concluded that it would have been fair to terminate the Applicant’s employment with notice. Had the Respondent given the Applicant notice or paid him in lieu of notice he would have received another two weeks pay.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;

[58] Given my decision about the amount of compensation payable this is not a relevant criteria.

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation;

[59] The Applicant was paid by the Respondent three days pay for days he did not work.

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation;

[60] Given my decision about the amount of compensation payable this is not a relevant criteria.

(g) any other matter that FWA considers relevant.

[61] There are no other relevant matters. As there was no misconduct, the amount of compensation will not be reduced.

Conclusion

[62] In all the circumstances I find that the Applicant is entitled to compensation equivalent to seven days (53.2 hours) pay plus superannuation and an order [PR528814] to this effect will be issued with this decision.

COMMISSIONER

Appearances:

N Shadie on his own behalf.

P Hunt on his own behalf.

Hearing details:

2012.

Melbourne.

9 August.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR528570>