Shea Fitzgerald v The Sugarless Company Pty Ltd

[2014] FWC 8919

[2014] FWC 8919

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shea Fitzgerald
v
The Sugarless Company Pty Ltd
(U2014/11030)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 19 DECEMBER 2014

Application for relief from unfair dismissal.

[1] On 21 July 2014 Mr Shea Fitzgerald made an application under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to the termination of his employment on 30 June 2014. He was dismissed with one week’s pay in lieu of notice.

[2] The matter was conciliated and no settlement was reached.

[3] It is a matter of agreement and I am satisfied of the various jurisdictional matters set out under ss394-396 of the Fair Work Act 2009 (the Act). The remaining issue to be determined is whether or not Mr Fitzgerald’s termination was harsh, unjust or unreasonable having regard to the factors set out in section 387 of the Act.

[4] On 8 December 2014, I issued a decision in transcript and reserved the right to provide further reasons for decision, I now do so. This is an edited version of the decision already given.

[5] I note that Mr Fitzgerald is self-represented. The role of the commission in such circumstances was discussed in a full bench decision in John Holland v Salazar 1. I will not repeat those observations but I adopt them. I note also that Mr Fitzgerald has represented himself in unfair dismissal proceedings in 2001 before the Queensland Industrial Relations Commission and in previous proceedings in this matter. I also note that he has a medical condition. I also note that he was able to put submissions, ask questions and respond to questions.

[6] Mr Fitzgerald did not address the grounds for his dismissal put in the employer’s termination letter of 30 June 2014 in his written submissions. I asked for his evidence on these allegations and he provided sworn evidence of his version of events. Much of that evidence was contradicted by the employer witnesses. In relation to the issue of the conflict of evidence, I firstly note that Mr Fitzgerald’s resume dated 2010 was somewhat incomplete. I’m not sure what to make of that issue. However, it is difficult to place weight on the various references that he tendered given some of the shortcomings. Some are not signed and in one case, the reference appears not to be accurate. On his own evidence, Mr Fitzgerald was dismissed. He did not leave the employment of Mr Darryl Mappin of his “own volition” as claimed in the alleged and unsigned reference.

[7] I also note that the dismissal has had a substantial impact on Mr Fitzgerald and his family, although he was now able to provide an address when giving evidence. Nevertheless, I have taken into account the hardship caused to Mr Fitzgerald and his family by these unfortunate events.

Section 387 Criteria for considering harshness etc.

[8] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, section 387 of the Act requires me to take into account various matters.

(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)

[9] First of all, I must take into account section 387(a), whether there was a valid reason for the dismissal relating to the person’s capacity or conduct, including its effect on the safety and welfare of other employees. I note that the Commission in Selvachandran 2 made a number of observations about the equivalent of section 387(a) and I adopt those observations.

[10] In the termination letter of 30 June 2014, the employer alleges that Mr Fitzgerald engaged in conduct which it described as follows:

Causing damage to our plants and gardens due to carelessness when dealing with chemicals used for the swimming pool.

[11] In relation to that issue, Ms Hulm 3 said:

On another occasion during the absence of Mr Vasseur and Ms Basile, Shea admitted to me that he had mixed hydrochloric acid with pool chlorine, causing it to explode. He told me that he had accidentally inhaled the fumes and had had to seek medical attention. He later showed me the damage that had been caused, not only to our employer’s front garden but also to the neighbour’s garden as well. He told me that the plants died when a toxic cloud wafted over the two front yards.

[12] I also note the evidence given by Mr Vasseur and Ms Basile about the directions given to Mr Fitzgerald about such matters. I note that the evidence given by Mr Fitzgerald was inconsistent with the evidence given by employer witnesses in many respects. Overall, I prefer the evidence given by employer witnesses.

[13] While Mr Vasseur was willing to admit to conduct which didn’t necessarily help his case on at least one occasion, namely that he did become frustrated with Mr Fitzgerald’s conduct, and Ms Basile said the same thing and admitted that possibly some inappropriate language may have been used, Mr Fitzgerald consistently denied misconduct, even when his evidence was unconvincing. For example, he said that after he damaged a car in February 2014, he advised Mr Corran that he had done so. However, on the evidence of Mr Vasseur, which I see no reason not to accept, Mr Corran was only employed between April and May 2014. It was not possible for him to have advised Mr Corran of this. Similarly, Mr Vasseur was frequently overseas and when in Australia, was engaged in his job. It seems unlikely that Mr Vasseur engaged in the type of abuse on such a regular basis claimed by Mr Fitzgerald.

[14] Overall, in my view, it is likely that Mr Vasseur may have said inappropriate things, but not nearly to the extent claimed by Mr Fitzgerald. I also note that the reference relating to Mr Mappin was clearly incorrect. I also note that the resume dated 2010 was also incomplete. All that, and the opportunity to observe the witnesses giving evidence, leads me to prefer the evidence of employer witnesses to contrary evidence given by Mr Fitzgerald, who may have inadvertently not given the full truth on all occasions.

[15] I am satisfied that in relation to the allegation made in the termination letter of 30 June 2014 that there is substance to the employer complaint that Mr Fitzgerald caused damage to plants due to carelessness when dealing with chemicals. It was careless because of the directions given to Mr Fitzgerald by his employer.

[16] Secondly, in relation to damage and breakage to garden pots and sprinkler system, I prefer the evidence given by Ms Basile. I also note the evidence of Mr Vasseur 4:

On one occasion during the latter part of June [presumably June 2014] I noticed a pot turned upside down. When I went to investigate, I found that it was covering damage to a sprinkler pipe which had been plainly damaged as a result of the applicant’s activity in the garden. Again, I had not been informed of this. I went to speak to him about it. In the first instance, he denied any knowledge of it, but I told him that could not be true because he had covered the leak with a pot. He then admitted that and said that he didn’t have the equipment to repair it. I pointed out to him that he had everything he needed in the shed to repair it.

[17] I accept that that statement is substantially true.

[18] In relation to the termination letter of 30 June 2014, a third allegation is that Mr Fitzgerald removed private tools from the premises. Mr Vasseur said his housekeeper told them that she had caught him, Mr Fitzgerald, borrowing a steam mop. There were other items of equipment from the garden shed, including a broom and some tools, which had also gone missing and which he later returned from his home. In addition to tools, I had lent him some books on gardening which have not been returned 5.

[19] Ms Basile said 6:

I had also been concerned that items of equipment have disappeared from the house and he has later admitted that he has taken them home. The various reports I received about his behaviour from Jenny and from my housekeeper, Karyn, have all created a lack of trust and have led me to the point where I no longer feel comfortable having him in and around our home.

[20] I am satisfied again that the employer has substantiated the third dot point in the letter of termination dated 30 June 2014.

[21] In relation to the fourth dot point, lack of following directions for requested daily tasks, Mr Vasseur says 7

When he commenced employment, Mr Fitzgerald was given specific and detailed instructions about what was required around the property. I went to great lengths to explain what I expected him to do and how I expected him to do it. For example, I provided him with a typed list of duties.

It was about two weeks after the applicant commenced employment that we began to have cause for concern. First, we noticed that he had managed to cut the tips of his fingers with secateurs and that he appeared careless and clumsy. Moreover, he was not following the daily tasks and routines that I had specifically directed him to do. I therefore asked him what was going on.

.......

When I returned from our first trip overseas at the end of February, it was obvious to me that a range of everyday tasks that had been allocated to the applicant had not been carried out. The general maintenance and tidiness of the property had declined in the time that we were away and it was obvious that work was not being done on a regular basis. Moreover, I discovered that our front driveway was covered with soil and was extremely dirty. Apart from the fact that the lawn had been mowed, there was no evidence of any other work having been done. I was extremely disappointed.

I spoke to the applicant about this and asked him to be more diligent in the performance of his duties. He offered no explanation except to suggest that he didn’t think he had enough time to do all that was required of him.

........

My partner and I returned from our second overseas trip on 27 May 2014. Apart from the chlorine incident, it was immediately obvious on our return home that there was a continuing lack of attention on the part of the applicant and the state of the garden showed that his work was not being undertaken diligently despite our previous discussions and the first warning. Many of the plants looked in poor condition and were unhealthy. There was no evidence that they had been regularly or properly watered or fertilised as had been required by the applicant. Pots which had been required to be planted out had not been planted out and there was a general appearance of ongoing lack of attention. Consequently, I determined to issue the applicant with a second written warning which I did on 30 May. Now produced and shown to me and marked JV8 is a true and accurate copy of the second warning.

........

In so many ways, he just failed to fulfil the tasks that he had been set to perform.

[22] Ms Hulm 8 states:

The tools and equipment for use in the garden were kept in the garden shed, which was Shea’s responsibility. In my observation, he regularly failed to maintain the shed in a clean and/or safe working condition. I constantly found tools on the floor which left me at risk of tripping over when I was required to walk through the area carrying large bags full of garbage.

[23] A number of other allegations are made about the conduct of Mr Fitzgerald 9.

[24] Another allegation made against Mr Fitzgerald is in relation to the motor car.

[25] Mr Vasseur gave evidence 10 that Mr Fitzgerald was allowed to have the use of a motor vehicle. He sets out the conditions under which the motor vehicle was provided, including that no other persons were permitted to drive the vehicle. However, the evidence before me was that Mr Fitzgerald’s wife drove the vehicle. Mr Vasseur11 made a number of allegations about the applicant’s use of the vehicle. Ms Basile’s12 witness statement referred to the damage to the motor vehicle that was provided to Mr Fitzgerald.

[26] Ms Murphy 13 gave further evidence about the conduct of Mr Fitzgerald with respect to the motor vehicle, including that the applicant’s wife drove the motor vehicle. She gave evidence that the vehicle could be driven for business purposes only, which would include to and from home, but it was not insured to be driven, for example, by the applicant’s wife or for any purpose other than the legitimate business of The Sugarless Company. She gave evidence about the damage done to the car14 and that the applicant had not told her about this. She reported this to Mr Vasseur and to Ms Basile. I also note the evidence of Ms Basile and Mr Vasseur about this issue.

[27] Overall, I generally accept the evidence given by the employer witnesses. I am satisfied that there was a valid reason for termination of Mr Fitzgerald’s employment within section 387(a) of the Fair Work Act 2009.

(b) whether the person was notified of that reason

[28] I am also satisfied that Mr Fitzgerald was notified of that reason by letter dated 30 June 2014 within section 387(b) of the Act.

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

[29] In relation to section 387(c) of the Act, Ms Murphy gave evidence 15 relating to that issue. I also note the evidence given by Ms Basile16 that she rang the applicant and gave him an opportunity to respond. She gave evidence that she read out the letter to him verbatim, gave him an opportunity to respond, and he simply replied with words to the effect of, “That’s okay”. Overall, I am satisfied that Mr Fitzgerald was given an opportunity to respond to the reasons for termination set out in the termination letter of 30 June 2014.

(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

[30] In relation to section 387(d), there was no request by Mr Fitzgerald to have a support person present and that factor is not relevant.

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

[31] In relation to section 387(e), I note that Mr Fitzgerald was warned about various matters on two separate occasions. The matters he was warned about do not always directly relate to the termination grounds set out in the letter of 30 June 2014. Nevertheless, they relate to issues which are relevant to those.

(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

[32] In relation to section 387(f), in this case I am satisfied that Mr Vasseur should have had available to him all necessary information to enable him to adopt proper procedures in terminating Mr Fitzgerald.

(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

[33] In relation to section 387(g), it appears that there was no dedicated human resource management specialist directly in line management. Nevertheless, Mr Vasseur again should have had access to sufficient human resources management advice to enable him to terminate in a fair manner.

(h) any other matters that the FWC considers relevant.

[34] In relation to section 387(h), I have taken account of all matters raised by the parties in the evidence. In particular, I have taken account of the hardship caused to Mr Fitzgerald and to his family. The unfair dismissals often involve hardship of some kind and clearly there is hardship in this case, which is a matter of some concern to me. I have taken into account Mr Fitzgerald’s medical difficulties and all evidence put to me.

[35] Overall, I find that the dismissal was not harsh, unjust or unreasonable. I am therefore compelled to issue an order dismissing the matter 17.

DEPUTY PRESIDENT

Appearances:

Mr S Fitzgerald, the applicant

Mr D Miller for the respondent

Hearing details:

2014

Brisbane

8 December

 1   [2014] FWCFB 7813 at 24 onwards.

 2 (1995) 62 IR 371

 3   Exhibit S5 at paragraph 13

 4   Exhibit S2 at paragraph 40

 5   Exhibit S2 at paragraph 38

 6   Exhibit S3 at paragraph 10

 7   Exhibit S2 at paragraphs 15 to 17, 26, 27, 35 to 37.

 8   Exhibit S5, paragraph 8

 9   Exhibit S5 paragraphs 9 and 10

 10   Exhibit S2 paragraphs 22 to 25

 11   Exhibit S2 paragraph 23

 12   Exhibit S3 paragraph 8

 13   Exhibit S4 paragraph 12 to 15

 14   Exhibit S4 paragraph 14

 15   Exhibit S4 paragraphs 21 to 24

 16   Exhibit S4 paragraphs 13, 14, 31 and 36

 17   PR558769

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