Simon Mabil v Rew Bros Pty Ltd T/A Rew Bros Cleaning Pty Ltd
[2018] FWC 1379
•7 MARCH 2018
| [2018] FWC 1379 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Simon Mabil
v
Rew Bros Pty Ltd T/A Rew Bros Cleaning Pty Ltd
(U2017/11205)
COMMISSIONER PLATT | ADELAIDE, 7 MARCH 2018 |
Application for an unfair dismissal remedy – valid reason – refusal to comply with reasonable lawful instruction – not harsh unjust or unreasonable – application dismissed.
Background
[1] On 19 October 2017, Mr Simon Mabil lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer Rew Bros Pty Ltd T/A Rew Bros Cleaning Pty Ltd (RBC) on 18 August 2017.
[2] The unfair dismissal application was lodged out of time and was the subject of an extension of time hearing before me on 28 November 2017. A Decision1 was issued on that day, granting Mr Mabil an extension of time to file the application.
[3] The parties agreed that there is no dispute that:
• Mr Mabil was employed as a casual cleaner by RBC commencing on 24 January 2017.
• Mr Mabil was dismissed by RBC on 18 August 2017.
• Mr Mabil was employed as a casual on a regular and systematic basis and had a reasonable expectation of continuing employment pursuant to ss.383 and 384 of the Act.
• The average weekly wage received by Mr Mabil was $1,258.33.
[4] I find that Mr Mabil was protected from unfair dismissal at the relevant time pursuant to s.382 of the Act.
[5] The merits of Mr Mabil’s unfair dismissal application were arbitrated on 18 January 2018 by way of Determinative Conference. Mr Mabil represented himself and Mr Phil Rew represented RBC.
[6] RBC provides cleaning services to a chicken processing plant operated by Inghams. RBC employs approximately 43 persons. The cleaners work in teams in defined areas of the plant. Each team has a leading hand (employed by RBC) and the working areas rotate every three weeks.2 Mr Mabil was engaged as a cleaner and worked night shift.
[7] There were two incidents involving Mr Mabil which led to the dismissal.
[8] The first occurred on 11 August 2017 and involved Mr Mabil being required to clean the scald tank, the second occurred on 16 August 2017 and involved the need to clean a tub which is used to transfer waste to a mega bin.
[9] Mr Mabil’s Supervisor, Mr Burns, then spoke to him about the need to follow directions. Mr Mabil complained about the manner in which Mr Burns spoke to him.
[10] An investigation was conducted. The investigation concluded that Mr Burns had not threatened Mr Mabil.
[11] A meeting was conducted with Mr Mabil about the need to follow directions. RBC assert that whilst it intended to give Mr Mabil a warning, he refused to commit to following instructions in the future, as a result Mr Mabil was dismissed.
[12] Mr Mabil states he did not refuse to follow directions in the future and that his response was misunderstood.
[13] Mr Mabil provided a witness statement3 and gave evidence. I have also had reference to Mr Mabil’s account of what occurred contained in his form F2 application.4
[14] Mr Phil Rew (Director) provided a witness statement5 and gave evidence. I have also had regard to the information contained in the form F3 Employer Response.6
[15] Mr Chris Rew (Site Manager/Director) provided a witness statement7 and gave evidence.
[16] Mr Steven Burns (Leading Hand) provided a witness statement 8 and gave evidence.
[17] I deal firstly with the evidence as to the cleaning of the scald tank.
Scald Tank Incident
[18] Mr Burns advised that on the night of 11 August 2017 both the big bird kill line and the small bird kill line was running. Mr Burns asked Mr Mabil to help Mr Abraham Makuei on the small bird line, by cleaning the end scald tank. An hour later, Mr Burns returned and saw Mr Mabil standing in the corner of the big bird line. Mr Burns asked why he had not foamed the tank, Mr Mabil explained that he washed the scald tank and the head puller. Mr Burns showed Mr Mabil how bad his work was and asked why he had not followed instructions. Mr Mabil shrugged his shoulders and said ‘the tanks are dirty because Abraham was doing ladder work’.
[19] Mr Mabil said he could not foam the tank as the line nearby was operating and explained that the feathers had dropped from above as another employee was working on a ladder above the tank.
[20] Mr Burns contended that Mr Mabil when first challenged about the scald tank said he washed the tank and the head puller. Whilst giving evidence, Mr Mabil conceded that he completed this process for only half the tank, and that he could not clean the other side without interfering with the other line.
[21] Mr Burns contends the task should have taken about 30 minutes.
Tub Cleaning Incident
[22] Mr Phil Rew gave evidence that when cleaners are working, a tub is transported around the factory using a trolley. The tub is used to collect waste. The waste material is hosed into a pile on the floor, and then picked up and put in the tub, and the tub placed on the trolley. The trolley is then pushed through the factory to the mega bin where it is emptied into the mega bin and then taken back to the factory and cleaned by the cleaner.9
[23] Mr Phil Rew advised that the issue of cleaning the tubs was raised at a team meeting in July 2017. Mr Mabil said he was not present at this meeting.10 It was put to Mr Mabil that he attended a ‘toolbox’ meeting on 25 July 2017 where he was advised of the requirements to wash trolley bins after emptying the contents into the mega bin. Initially Mr Mabil disputed that such a meeting was held and later said that he could not remember attending such a meeting. Mr Phil Rew gave evidence that Mr Mabil was rostered on that day.
[24] The tub cleaning incident occurred on 16 August 2017.
[25] Mr Mabil said that he was cleaning in an area called Grade 2 and was taking the tub which contained waste to the mega bin which was about 40-50 metres away. Mr Burns was standing near the mega bin with another cleaner called Jax. Mr Mabil asked another person to assist him tip the rubbish contained in the tub into the mega bin. Jax offered to help and lifted one side of the tub. Mr Mabil then stacked the tub near the mega bin.
[26] After being told by Michael, who was a Supervisor in the mega bin area, to take the tub back and clean it,11 Mr Mabil said he had already stacked the tubs and contended that the dirty tubs were cleaned by Inghams’ employees, and he was not required to clean them.12
[27] Mr Mabil then gave evidence that he took the tub back to his area and cleaned it. Later he agreed that he had not taken the tub back and cleaned it, because ‘that is the work we do’.13 He subsequently explained his failure to clean the tub as he was in a hurry.14
[28] About five minutes later Mr Burns spoke to Mr Mabil and said ‘Simon when I tell you something you have to do it OK.’15 Mr Mabil asked if there was anything he had refused to do. Mr Burns said Mr Mabil had been told to take the tub back to his place and clean it.
[29] Mr Mabil contends that Mr Burns then asked Mr Mabil if he was accusing him of lying, to which Mr Mabil responded ‘No, I am just saying what happened’. Mr Burns then said ‘Keep doing like that and I will see how you will go this time.’
[30] Mr Burns said there were issues with a number of cleaners not cleaning their tubs and he was trying to ‘nip it in the bud’.16 Mr Burns’ evidence was that he was standing by the mega bin when Mr Ajak Jiela, Mr Michael Ursini and Mr Mabil walked over with rubbish tubs on their trolleys. Mr Burns first asked Mr Jiela to take the trolley to his area and clean it, he asked the same of Mr Ursini and then Mr Mabil. The other employees took their trolleys to clean them but Mr Mabil did not. Mr Burns asked Mr Mabil again to take the trolley to his area and clean it. Mr Mabil pointed to a stack of trolleys and said ‘What about all of them’, Mr Burns replied ‘I didn’t see who left them, I saw you, Michael, Ajak and Daniel Panchol’. Mr Burns stated that Mr Mabil left the tub and walked off.
[31] Mr Mabil suggested at the hearing that as Michael had initially told him to ‘clean it’, and not Mr Burns, that he did not need to obey the instruction. 17
[32] Mr Burns said he allowed time for Mr Mabil to calm down and then approached him later in the night and said ‘We need to take the tubs back to our areas and clean them so they don’t get left all dirty next to the bin’. Mr Mabil called him a liar twice to which Mr Burns responded ‘Keep calling me a liar and see how this works out for you’.
Complaint in relation to the Mr Burns conduct
[33] At 4.16pm on 16 August 2017, prior to Mr O’Leary concluding his dealing with the matter, Mr Mabil emailed a complaint18 to Mr Phil Rew which contained a description of the events and asserted that Mr Burns conduct towards him was threatening. Mr Mabil had complained about the manner in which Mr Burns spoke to Mr Brendan O’Leary (Site Supervisor) prior to sending the email.
[34] At 5.38pm on 16 August 2017 Mr Phil Rew responded to Mr Mabil stating that he had failed to identify any threatening behaviour in his email but that he would look into it.
[35] Mr Mabil responded by email at 8.17pm stating words to the effect that he considered the words ‘I will see how you go this time’ and ‘Do not talk to me like that’ as threats.
[36] On 17 August 2017, Mr Phil Rew sent a response to Mr Mabil advising that he had taken into account his complaint and the responses from Mr O’Leary and Mr Burns and did not consider that Mr Mabil had been threatened. Mr Phil Rew proffered the view that the complaint was made to cover up Mr Mabil’s refusal to follow reasonable directions. Mr Phil Rew advised that Mr O’Leary and Mr Chris Rew would investigate the matter further. If it was found that Mr Burns had threatened him there would be disciplinary action. If it was found there were no grounds for the allegations, disciplinary action would be taken against Mr Mabil. Mr Phil Rew also asked that in future if Mr Mabil wanted to make a complaint he should refer it to his Supervisor and allow sufficient time for it to be investigated before escalating it to the site Manager.
[37] Mr Phil Rew attended the work site that same night and spoke with Mr O’Leary and Mr Burns. Mr Burns told him that he asked Mr Mabil to take a trolley back to his area, however Mr Mabil walked off without the trolley. Mr Burns explained that when he approached Mr Mabil to discuss the matter, Mr Mabil became belligerent and said that Mr Burns had not asked him to return the trolley and Mr Burns was lying. Mr O’Leary told Mr Phil Rew that he had spoken to Mr Mabil after work and that he had been planning to speak to Mr Burns about the incident that night.
Termination Meeting
[38] On 18 August 2017, Mr Chris Rew took Mr Mabil to the office and explained the outcome of the investigation. Mr Chris Rew found that Mr Burns had given Mr Mabil a simple instruction to take a trolley back to his area and clean it and that Mr Mabil failed to do so.
[39] Mr Mabil contends that Mr Chris Rew asked him to sign a written warning and explained that if he did not sign the warning that he would be dismissed. Mr Mabil contends that he did not believe that he had done anything wrong and therefore refused to sign the written warning, and as a consequence he was dismissed.
[40] Mr Mabil did not ask for a support person to be present.
[41] Mr Chris Rew contends that Mr Mabil was asked to sign to acknowledge receipt of the written warning letter and confirm that in future that he would follow instructions and not make false accusations against people. Mr Mabil declined to sign the warning and said he could not work under those arrangements. Mr Chris Rew then dismissed Mr Mabil.
Witness Credibility
[42] Having had the opportunity to observe Mr Mabil give evidence, it is clear to me that English is not his first language. I have made allowances for the way in which he constructs his sentences and have considered if that could have resulted in a misunderstanding.
[43] I have also noted that Mr Mabil had no difficulty at the determinative conference challenging positions advanced by Mr Chris or Phil Rew.
[44] From the interactions of the witnesses at the determinative conference it appeared to me that Mr Mabil had issues accepting direction from Mr Burns. The reason for this was not apparent to me.
[45] I was concerned at the varying explanations put forward by Mr Mabil for the reasons why he did not clean the tubs. It appears that Mr Mabil was changing his evidence as he realised it may not have suited the desired outcome of his application.
[46] Conversely I found the evidence of Mr Chris and Phil Rew and Mr Burns was clear, measured and concessions being made where appropriate.
[47] I prefer the evidence of Mr Chris Rew and Mr Phil Rew and Mr Burns where it conflicts with Mr Mabil.
Findings of Fact
[48] Mr Mabil accepts that he only cleaned half the scald tank and that the tank was not foamed (sanitised). I find that Mr Mabil did not properly clean the scald tank in accordance with a reasonable lawful direction given by his Supervisor on 11 August 2017, and I reject the excuses proffered to explain his failure.
[49] Mr Mabil was required to clean up waste, place the waste in a tub and use the trolley to transport the tub to a mega bin where it would be emptied. Mr Mabil was then required to return the tub to his area and clean it. I find that Mr Mabil together with other employees were reminded of this procedure on 25 July 2017.
[50] I find that on 16 August 2017 Mr Mabil did not comply with this requirement, and refused to comply with a reasonable lawful direction by a Supervisor when his deficiency was noticed.
[51] Having accepted the evidence of Mr Burns as to the conversation between him and Mr Mabil, the evidence viewed objectively does not support a finding that Mr Burns’ interaction with Mr Mabil was threatening conduct. Mr Burns clearly spelt out the consequences if Mr Mabil continued to disobey him - that is he would not have a job. I accept that Mr Mabil was aggrieved as a result of this interaction, it appears that Mr Mabil disliked being held to account for failing to follow the tub cleaning process.
[52] There was no evidence before me to support Mr Mabil’s contention that he was discriminated against based on his race.
[53] Mr Mabil was advised of the allegations against him on 18 August 2017 and invited to respond.
[54] I find that during the termination meeting Mr Chris Rew advised Mr Mabil about his concerns that he did follow the required tub cleaning procedure, and he failed to comply with a direction from his Supervisor, he escalated his complaint too hastily and that he should not make unjustified complaints about being threatened or being discriminated against. Mr Mabil was invited to respond and suggested it was a misunderstanding and that the directions were not clear to him. Mr Chris Rew said he could accept that but Mr Mabil needed to acknowledge that he will do what he was told in the future. I accept Mr Chris Rew’s account that Mr Mabil’s response was ‘I can’t work under those conditions.’
[55] I find that Mr Mabil failed to follow the tub cleaning process, disobeyed a direction to clean the tub from his Supervisor and used words which conveyed to Mr Chris Rew that he would not accept continued direction by his Supervisor, Mr Burns.
Was the dismissal harsh unjust or unreasonable?
[56] Pursuant to s.387 of the Act, the Commission must, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, take into account:
“387 Criteria for considering harshness etc.
(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.”
Valid reason - s.387(a)
[57] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd19which requires the reason for termination to be “sound, defensible or well founded.”
[58] In light of the factual findings of fact I have made, I find that RBC had a valid reason to dismiss Mr Mabil based on his failure to comply with two reasonable and lawful directions given by his Supervisor, and his failure to commit to following directions of his Supervisor in the future.
Notification of valid reason - s.387(b)
[59] Mr Mabil was advised of the reason for the dismissal at the meeting on 18 August 2017.
Opportunity to respond - s.387(c)
[60] Mr Mabil was provided with an opportunity to respond and did so.
Any unreasonable refusal by the employer to allow Mr Mabil to have a support person present to assist at any discussions relating to dismissal - s.387(d)
[61] Mr Mabil did not request a support person.
Warnings relative to unsatisfactory performance - s.387(e)
[62] Mr Mabil has not been formally warned in respect of his work performance however Mr Mabil was advised (as part of a group) about the need to follow the correct tub cleaning process on 25 July 2017.
Size of the employer’s enterprise and absence of dedicated human resources support - ss.387(g) and (f)
[63] Whilst the employer is not a small business, it does not have internal HR support and is a relatively small enterprise and appears inexperienced in disciplinary processes.
Other matters considered relevant - s.387(h)
[64] Mr Mabil’s service was approximately 7 months and English is a second language for him. Mr Mabil’s failure to commit to accepting direction from his Supervisor weighs against a finding that the dismissal was harsh, unjust or unreasonable.
Conclusion
[65] The Explanatory Memorandum to the Act20 explains the approach of the Commission in considering the elements of s.387 of the Act:
“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”
[66] In Byrne and Frew v Australian Airlines Pty Ltd,21 the following observations made by McHugh and Gummow JJ are relevant to my conclusion:
“It may be that the termination is harsh but not 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.”
[67] Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Mr Mabil’s employment was not harsh, unjust or unreasonable. The application is dismissed.
[68] An Order22 reflecting this decision will be issued.
COMMISSIONER
Appearances:
Mr S.Mabil the Applicant.
Mr P.Rew on behalf of the Respondent.
Hearing details:
2018.
Adelaide:
January 18.
Printed by authority of the Commonwealth Government Printer
<PR600974>
1 [2017] FWC 6278
2 Transcript PN210-284
3 Exhibit A2 including attachments (letter of appointment and identification card)
4 Exhibit A1
5 Exhibit R3 including attachments PR1 (email from Mr Mabil 16 August 2017 at 4.16pm), PR2 (email chain between Mr Phil Rew and Mr Mabil spaning period 16 August to 18 August 2017), PR3 (email chain between Mr O’Leary and Mr Chris Rew and Mr Phil Rew dated 16 August 2017)
6 Exhibit R1
7 Exhibit R4
8 Exhibit R5
9 Transcript PN285-316
10 Transcript PN471-475
11 Transcript PN453
12 Transcript PN421
13 Transcript PN539-559
14 Transcript PN569
15 Transcript PN457
16 Transcript PN461
17 Transcript PN573
18 Exhibit R3 attachment PR1
19 (1995) 62 IR 371 at 373
20 Explanatory Memorandum to the Fair Work Bill 2008
21 Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24
22 PR600975
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