Shane Di Gioacchino v Kmercial Contractors Pty Ltd
[2017] FWC 5289
•12 OCTOBER 2017
| [2017] FWC 5289 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shane Di Gioacchino
v
Kmercial Contractors Pty Ltd
(U2017/5209)
COMMISSIONER MCKINNON | MELBOURNE, 12 OCTOBER 2017 |
Application for an unfair dismissal remedy – application granted.
[1] Mr Shane Di Gioacchino (the Applicant)was employed by Kmercial Contractors Pty Ltd (the Respondent) as a Roof Plumber from 17 April 2015 until 15 May 2017. On 15 May 2017, his employment was terminated for serious misconduct on the grounds that he was working for a competitor on days he called in sick.
[2] On the same day, the Applicant applied to the Commission for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (FW Act). The Applicant submits that the dismissal was unfair because he was not guilty of the conduct alleged.
[3] On 1 June 2017, the Respondent filed a response to the unfair dismissal application denying the dismissal was unfair.
[4] The matter was conciliated on 7 June 2017 and 21 July 2017 and was not settled. After the views of the parties were sought, the matter was listed for hearing on 4 August 2017 in Melbourne.
[5] On 4 August 2017, I granted permission for each of the parties to be represented by a lawyer or paid agent under section 596 of the FW Act. Taking into account the complexity of the matter, I was satisfied that representation would enable the matter to be dealt with more efficiently.
[6] At the hearing, the Applicant was represented by Just Relations and gave evidence on his own behalf. He called a colleague and friend, Mr Brent Pattison, as a witness. The Respondent was represented by Lander & Rogers and called three witnesses: Mr Charlie Balais (Director), Ms Soula Koutkos (Office Manager) and Mr Harris Skliros (Apprentice).
[7] Evidence and submissions were filed on behalf of the Applicant on 26 June 2017, 21 July 2017, 24 July 2017, 2 August 2017, 28 August 2017 and 4 September 2017. Evidence and submissions on behalf of the Respondent were filed on 18 July 2017, 28 July 2017, 30 August 2017 and 6 September 2017.
Preliminary matters
[8] There is no dispute that the dismissal occurred on 15 May 2017 and that the application was filed the same day. I find that that the Applicant was dismissed on 15 May 2017 and that his application was filed within the standard 21 day time limit required by the FW Act.
[9] Under the FW Act, a person who is “protected from unfair dismissal” 1 has been unfairly dismissed if the Commission is satisfied that:
a) the person has been dismissed;
b) the dismissal was harsh, unjust or unreasonable;
c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
d) the dismissal was not a case of genuine redundancy. 2
[10] A person is protected from unfair dismissal if, at the relevant time:
a) they have completed at least the minimum employment period; and
b) they are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the “high income threshold”.
[11] As to the minimum employment period, the Applicant said he was employed from 30 January 2014 to 15 May 2017. 3 The Applicant’s signed offer of employment4 identified a commencement date of 16 April 2015. The Form F3 Employer Response to the application stated that the period of employment was 17 April 2015 to 15 May 2017. Notwithstanding the discrepancy as to commencement dates, on any view, the period of employment was more than two years. I am satisfied that the Applicant had completed the minimum employment period at the time of his dismissal.
[12] The Applicant was employed as a roof plumber and his employment was covered by the Plumbing and Fire Sprinklers Award 2010. I am satisfied that the Applicant is a person protected from unfair dismissal under the FW Act.
[13] At the time of dismissal, the Respondent says it employed 32 employees. 5 This was not challenged by the Applicant. I am satisfied that the dismissal could not have been consistent with the Small Business Fair Dismissal Code6, as the Respondent was not a small business employer at the time of the dismissal.7
[14] No issue of redundancy arose and I am satisfied the dismissal was not a case of genuine redundancy.
[15] I now turn to consider whether the dismissal was harsh, unjust or unreasonable.
Matters agreed or not in dispute
[16] The following facts are either agreed or not in dispute:
a) The Applicant is a registered Roof Plumber.
b) The Applicant was on workers compensation from February 2017 until 5 May 2017.
c) Mr Cliff Hickson is a former employee of the Respondent, a family friend of the Applicant and the Director of Prime Roofing, a competitor of the Respondent;
d) On 10 May 2017 the Applicant finished work for the Respondent and went to Mr Hickson’s house before going out later that evening for dinner.
e) From 10-12 May 2017, Mr Hickson’s house was under construction, and roof plumbing work was being done on the house.
f) On 11 May 2017, the Applicant sent a text message to the Respondent advising that he was “not coming in” because he was sick.
g) On 12 May 2017 the Applicant did not attend work.
h) From approximately 12.15pm until 1.30pm on 12 May 2017, Ms Koutkos attended Mr Hickson’s house and took photographs of people on the roof of the house.
i) At 1.15pm on 12 May 2017, Ms Koutkos rang the Applicant. The Applicant did not answer the call.
j) At 2.58pm on 12 May 2017, Mr Balais sent the Applicant a letter alleging serious misconduct and seeking a response by 12.00pm on Monday 15 May 2017.
k) At 4.17pm on 12 May 2017, the Applicant attended Westgate Medical Centre and obtained a medical certificate for 11 and 12 May 2017.
l) At approximately 4.30pm on 12 May 2017 the Applicant returned Ms Koutkos’s call.
m) On 14 and 15 May 2017, the Applicant sent emails to Mr Balais denying the alleged misconduct. The second email provided medical certificates for 11 and 12 May 2017 respectively.
n) On 15 May 2017, after receiving the emails from the Applicant, the Respondent sent the Applicant a letter of termination on the grounds of serious misconduct.
Was the dismissal harsh, unjust or unreasonable?
[17] The phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 8 as follows:
“....It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[18] In determining whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the following criteria in section 387 of the FW Act:
(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.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[19] The reasons given to the Applicant for dismissal were:
1. Breaching his obligation of good faith and fidelity by working with a direct competitor;
2. Acting dishonestly by informing the Respondent that he was sick and taking personal leave, while working for a competitor; and
3. Acting dishonestly by disputing the allegations of 12 May 2017 and denying working for a competitor on 11 and 12 May 2017.
[20] In essence, the Applicant was dismissed for claiming sick leave while working for Prime Roofing on 11 and/or 12 May 2017. The Respondent presented a fair circumstantial case in support of its position. However, for the reasons set out below, I am not satisfied on the evidence that the Applicant was guilty of the conduct alleged.
[21] The Applicant said he called in sick on 11 May 2017 because he had a stomach bug, and was too sick to go to the doctor. 9 The evidence is scarce about how his condition the following day, except that eventually he felt well enough to go to the doctor and obtain medical certificates for both 11 and 12 May 2017. Medical certificates were produced in support of the Applicant’s case.10
[22] The Respondent said it became concerned about the validity of the Applicant’s sick leave claim after receiving information from other employees of the business that the Applicant had been working for Prime Roofing. The Respondent says it then became aware of an Instagram post of 11 May 2017, showing two men on the roof of Mr Hickson’s house, one of which “could” have been the Applicant. 11
[23] Allegations that the Applicant was working for Prime Roofing were put to the Applicant in a text message from his supervisor, Mr Delaney, on the morning of 11 May 2017 and then formally in a letter of 12 May 2017. After giving the Applicant an opportunity to respond, the Respondent terminated his employment for serious misconduct on 15 May 2017.
[24] In support of its position, the Respondent relied on the Instagram post of 11 May 2017 12, eyewitness accounts from Ms Koutkos and Mr Skliros on 12 May 2017 as well as video and photographic evidence collected by Ms Koutkos on 12 May 2017.
[25] There are three photographs in the Instagram post. Two appear to show two people working on Mr Hickson’s roof. The third shows the frame of Mr Hickson’s house without the roof on. As Mr Balais conceded, the quality of the photographs was “not good”. In the reproductions produced to the Commission, the photographs are blurry and from a distance. They confirm the presence of two people on the roof, but they do not confirm the identity of either. The Applicant expressed an opinion that one of them was Mr Pattison. 13 More probative, but not conclusive, is Mr Pattison’s direct evidence that it was him on the roof, working with another person called “Dillon”.14
[26] The Applicant challenged the Instagram post on the basis that there was no way of knowing when the photographs were actually taken. Mr Pattison was unable to say when it was. In my view, it is at least arguable that one or more of the 3 photographs was taken on a day before 11 May 2017, as in one picture, the roof is not yet on. It follows that the Instagram post does not establish the presence of the Applicant on the roof of Mr Hickson’s house on 11 May 2017. Nor was there any other evidence to support such a finding.
[27] Mr Koutkos and Mr Skliros both attested to seeing the Applicant on the roof of Mr Hickson’s house on 12 May 2017. 15 Mr Skliros attended Mr Hickson’s house in the morning of 12 May 2017, not long after he had commenced work. He said he saw “two men working on the roof” from approximately 20-30 metres away and recognised one of them as the Applicant. He said he saw his sleeve tattoos and could “clearly see and recognise his face”. He did not recognise the other person on the roof.16 In the hearing, he confirmed there was no doubt in his mind that the Applicant was on the roof on 12 May 2017.17 He did not recognize Mr Pattison, who was also present in the courtroom.18
[28] Ms Koutkos said that when she went to the site around lunch time, she saw “two males working on the roof”. She recognised one of them as the Applicant from ground level approximately 40 metres away. She referred specifically to his voice, build, tattoos and haircut. She did not recognise the other person, although she later referred to him as Mr Pattison. 19 She took photos of both men.20
[29] The evidence of both Mr Skliros and Ms Koutkos was at odds with the evidence of Mr Pattison, who said he was the only person at the work site for “the whole day” of 12 May 2017. 21 I prefer the evidence of Ms Koutkos and Mr Skliros as to how many people were on the roof, for reasons discussed later in this decision. It raises the question of why Mr Pattison would deny there was anyone else at the site on 12 May 2017.
[30] Ms Koutkos said that at 1.15pm, she called the Applicant’s phone and watched a person on the roof take out their phone, look at it and put it back in his pocket. She called out “Hey Digga” (the Applicant’s nickname) and saw him turn around to face her. She said the person responded “I’m not Digga”. 22
[31] Mr Pattison said he was the one Ms Koutkos called out to on the roof on 12 May 2017 and gave a detailed account of what happened. 23 He said a lady in a white Mercedes was “screaming at him” and that he responded. After their exchange, he called the Applicant to let him know what had happened, because he “found it rather funny” she thought he was the Applicant.24 I accept Mr Pattison’s evidence on this issue.
[32] The Applicant agreed he received a phone call from Ms Koutkos at approximately 1.15pm on 12 May 2017, and did not answer as he was in bed at home, sick. He conceded he was using his phone that day, but that he was not using it to “talk to people”. I do not accept the Applicant’s evidence on this issue. The Applicant was well enough to take a call from Mr Pattison in the same timeframe. He also gave evidence that both Mr Hickson and Mr Pattison told him about Ms Koutkos coming to the work site before he called her later in the day, after he had obtained medical certificates to cover his absence. 25 In my view, it is more likely that the Applicant was being selective in who he did and did not speak to on 12 May 2017.
[33] The video evidence taken from Ms Koutkos’ phone confirms that a person on the roof turned his head in the direction of the camera when Ms Koutkos called out “Hey Digga”. The footage does not establish the identity of either person on the roof. No faces or other identifiable features are discernible from the footage.
[34] The critical photographic evidence was each of Attachments SK3 and SK5 to Exhibit R3 (“SK3” and “SK5”). Ms Koutkos identified these as photographs she took on 12 May 2017 while at Mr Hickson’s house. She identified the person in “SK5” as the Applicant. Mr Skliros also expressed the opinion that “SK5” was a picture of the Applicant. The Applicant consistently denied “SK5” was a picture of him. Mr Pattison said he was the person in “SK5”.
[35] Ms Koutkos was unable to identify the person in “SK3” except to say that he was “the other guy”. 26 Mr Skliros expressed the strong opinion that “SK3” was the Applicant.27 The Applicant denied it was him. Mr Pattison said he was also the person in “SK3”.28
[36] There was a contest in evidence about the fact that “SK3” and “SK5” showed tattoos on the arms of the individuals. In my observation, the photographic evidence is not conclusive and it is as likely that in each case the arms were in the shadow of the sun.
[37] I do not accept the evidence of Mr Skliros in relation to the photographic evidence. They were not his photographs, and he did not see them on the day he identified the Applicant as being on the roof. I also do not accept Mr Pattison’s evidence that he was the person in “SK3”. In my view, “SK3” and “SK5” are photographs of different people.
[38] Mr Skliros’s evidence about who he saw on the roof 12 May 2017 was not successfully challenged, but nor was it corroborated. In the circumstances, I am unable to give it much weight where his observation was made from ground level, some distance away.
[39] I accept that Ms Koutkos believed the person in “SK5” was the Applicant, but in my view she was mistaken. I accept Mr Pattison’s evidence that it was him, and that after Ms Koutkos came to the site, he called the Applicant to tell him about what had happened. My observation of Mr Pattison’s physical appearance in the hearing on 4 August 2017 reinforces my view that Mr Pattison is the person in “SK5”.
[40] The identity of the person in SK3 has not been established on the balance of probabilities. It is possible that it is the Applicant, or Mr Hickson, who appears to have been there at least in the morning of 12 May 2017, or someone else. 29 . The evidence that both Mr Hickson and Mr Pattison told the Applicant about Ms Koutkos coming to the work site that day is hard to explain unless Mr Hickson had some direct knowledge of the event. It is also possible that the Applicant was at the site at some point during the day, but not when Ms Koutkos was there taking photographs. Unfortunately, the evidence does not allow me to reach a final conclusion on the issue.
[41] It follows that I am not satisfied that the Applicant was on the roof on 12 May 2017. The reason for dismissal was not a valid reason related to the Applicant’s capacity or conduct on 11 and 12 May 2017. I so find.
[42] For completeness, I note that a photograph of a dark Audi parked near Mr Hickson’s house on 12 May 2017 was tendered as evidence that the Applicant was on the roof as alleged, because it was said to be his car. 30 The Applicant challenged this evidence and said contrary photographic evidence showed a different, dark coloured Audi, belonging to his sister, as the Audi he used from time to time. Each of the cars are similar in appearance, but have different rear lights and number plates. In cross-examination, witnesses for the Respondent conceded that the Audi they saw on 12 May 2017 may not have been the Applicant’s. I have not given the evidence about the car significant weight.
Was the Applicant notified of the reason for dismissal?
[43] By way of a letter dated 15 May 2017, the Applicant was notified of the reasons for his dismissal related to his capacity or conduct. 31 There was no dispute that the Applicant received the letter the same day, and the fact that he filed his application to the Commission the same afternoon supports this conclusion. I am satisfied that the Applicant was notified of the reasons for dismissal relating to his capacity or conduct on 11 and 12 May 2017.
Was the Applicant given an opportunity to respond?
[44] The Applicant was sent a letter by email at 2.58pm on 12 May 2017 alleging misconduct and seeking his response by noon on Monday 15 May 2017. The Applicant took up that opportunity by providing email responses to the allegations on 14 and 15 May 2017. 32 I am satisfied the Applicant was given an opportunity to respond to the reasons for dismissal.
Did the Respondent unreasonably refuse to allow a support person to assist with discussions relating to the dismissal?
[45] There was no evidence that a support person was sought or refused in connection with the events leading to the Applicant’s dismissal. I am satisfied that there was no unreasonable refusal to allow the Applicant to have a support person assist him in discussions about his dismissal.
Was the Applicant warned about unsatisfactory performance?
[46] The Applicant’s dismissal was not related to his unsatisfactory performance, but rather to his conduct on 11 and 12 May 2017. This criteria is not relevant in the present case.
Effect of the size of the employer’s business on the procedures followed in effecting the dismissal
[47] At the time of the dismissal, the Respondent asserted that it employed 32 employees. The assertion was unchallenged.
[48] The procedures followed in effecting the dismissal were in my view what one would expect of a small to medium sized business. Concerns about the Applicant’s conduct were communicated by his supervisor to the owner of the business, who put the Applicant on notice of the concerns and made arrangements for the matter to be investigated. The Respondent acted promptly on the report he was given, again detailing its findings in writing to the Applicant. In the circumstances, the decision to act promptly was understandable, notwithstanding my conclusion that the evidence relied upon was ultimately insufficient and in key respects, mistaken.
[49] I find that the size of the Respondent’s business was likely to influence the procedures leading to termination of employment in a positive way, because it meant that the Respondent had access to resources to support it in following due process.
Access to dedicated human resources management specialists or expertise
[50] There was no evidence that the Respondent employed dedicated human resource management specialists or expertise in its business. While there was evidence that the Respondent sought assistance from its lawyers after the dismissal 33, this criterion is only concerned with the procedures followed in effecting the dismissal. In this case, I find that the absence of dedicated human resources expertise did not impact on the procedures followed by the Respondent in effecting the dismissal.
Other relevant matters
[51] What limited communication there was between the Applicant and the Respondent on the days in question is unlikely to have assisted either in ensuring that the matter was resolved in any other way. The Applicant knew there was a concern about his absence on 11 May 2017 but it was not until the end of the following day, once he knew his employment was at risk, that he obtained medical certificates for each of the days. In the intervening period, he did not answer his phone when the Respondent called. In my view, and fairly or otherwise, these actions are likely to have encouraged, rather than allayed, the Respondent’s concerns.
[52] The Applicant’s subsequent emails to the owner of the business, such as “shows what you think of your workers”, indicated a level of disaffection with the Respondent and did nothing to assist his cause. 34 Similarly, the decision of the Respondent to communicate with the Applicant only in writing may have limited its opportunity to engage meaningfully with the Applicant on the issues of concern.
Conclusion
[53] Having considered the evidence and submissions in this matter and having regard to each of the matters in section 387, I am satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable. Accordingly, I find that the Applicant’s dismissal was unfair.
Remedy
[54] It is necessary to consider what, if any, remedy should be granted to the Applicant.
[55] Reinstatement is the primary remedy available under the FW Act. However, I am satisfied on the material before me that reinstatement would be inappropriate in this case because the effect would be to disrupt an existing employment relationship to the disadvantage of the Applicant.
[56] In all the circumstances, I consider that some compensation is appropriate.
[57] Directions will be issued requiring the Applicant to file details of remuneration earned in the period from 15 May 2017 to the date of this decision prior to assessing compensation in the matter.
[58] Liberty to apply is granted to the parties on the question of remedy.
COMMISSIONER
Appearances:
G Dircks for the Applicant.
W Spargo for the Respondent.
Hearing details:
2017.
Melbourne:
August 4.
1 Fair Work Act 2009 (Cth), s.382.
2 Fair Work Act 2009 (Cth), s.385.
3 Exhibit A1
4 Exhibit R1, Attachment CB2
5 Form F3 Employer Response
6 Fair Work Act 2009 (Cth), s.388.
7 Fair Work Act 2009 (Cth), s.23.
8 [1995] HCA 24; (1995) 185 CLR 410 at 465.
9 PN359-PN366.
10 PN368
11 Exhibit R1
12 Exhibit R1, Attachment CB3
13 PN588
14 PN851
15 Exhibits R2 and R3
16 Exhibit R2, PN1282-1289
17 PN1324
18 PN1326
19 PN1482-1533
20 Exhibit R3, PN1443- PN1452
21 PN781
22 Exhibit R2
23 PN755
24 Exhibit A9
25 Exhibit A2 at paragraph 28
26 As noted above, in evidence on transcript she referred to him as “Brent”.
27 PN1311
28 PN828 - PN833
29 PN821
30 Exhibit R3, Attachment SK2
31 Exhibit R1, Attachment CB8
32 Exhibit R1, Attachments CB4, CB5, CB6, CB7
33 Exhibit R1, Attachment CB9
34 Exhibit R1, Attachment CB7
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