Simon Thompson v Snorkel Australia Pty Ltd T/A Snorkel Australia
[2010] FWA 7652
•30 SEPTEMBER 2010
[2010] FWA 7652 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Simon Thompson
v
Snorkel Australia Pty Ltd T/A Snorkel Australia
(U2010/8116)
COMMISSIONER WILLIAMS | PERTH, 30 SEPTEMBER 2010 |
Termination of employment - summary dismissal - harsh, unjust and unreasonable.
[1] Mr S. Thomson, the applicant, has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The respondent is Snorkel Australia Pty Ltd.
[2] The application was the subject of a conciliation conference however it was not resolved and has been now referred to the tribunal for determination.
The legislation
[3] Section 385 of the Act prescribes when a person has been unfairly dismissed:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA 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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
Background
[4] Mr Thompson, the applicant, was first employed by the respondent in June 2009 as the respondent’s West Australian State Manager. Mr Thompson was dismissed by the respondent on 16 April 2010 by Mr Brian Peters the respondent’s Director - Sales.
[5] Snorkel sells and services a range of aerial work platforms such as scissor lifts, boom lifts and personnel lifts with branches throughout Australia.
[6] Mr Peter's dismissed Mr Thompson by sending him the following e-mail.
“From: Brian Peters
Sent: Friday, 16 April 2010 8:32 AM
To: Simon Thompson
Subject: Insurance Claim
Simon,
I have just received the insurance claim you have signed and intend Snorkel Australia to submit to our insurance company for compensation from the recent storm damage suffered to Snorkel Australia’s Western Australia outlet.
It appears you have signed a declaration that everything you are claiming is “true and correct”.
The claims you have signed for is not “true or correct” and buy doing so you are putting Snorkel Australia in an extremely serious legal position.
As a State Manager for this company we place a vast amount of trust in you to protect our name and business, but in this instance the repercussions of these actions could have disastrous effects.
Unfortunately I have no option at this time due to the seriousness of what appears to be a deliberate misconstruction of facts, but to dismiss you from your duties immediately pending legal advice. I request you vacate the premises immediately leaving all company assets including keys with the receptionist.
All monies owing will be forwarded to you as soon as possible.
Regards
Brian M. Peters
Director - Sales
Snorkel Australia”
The evidence
[7] At the hearing of this matter Mr Thompson was self represented and Mr Peters represented the respondent.
[8] Whilst both parties were directed to provide witness statements in advance of the hearing neither the respondent nor the applicant did provide a witness statement.
[9] In the lead up to the hearing both parties did provide written materials by e-mail to the to the Tribunal including references sought by Mr Thompson to attest to his good character and the quality of service he had provided to customers.
[10] A large number of these documents were copies of e-mail correspondence between Mr Thompson and Mr Peters. I have considered these materials in determining this matter but note that other than the e-mail dismissing Mr Thompson, Exhibit A2, and an e-mail dated 25 March 2010 from Mr Thompson to Mr Peters which appears to be a report of storm damage, Exhibit A1, none of these materials were identified by either of the witnesses in their evidence although I further note that neither Mr Thompson nor Mr Peters seem to take issue with any of these written materials that were provided to the Tribunal.
[11] The central issue in this application is that the respondent dismissed Mr Thompson because it says he had prepared an insurance claim and signed an accompanying declaration that the claim was true and correct when that was not the case and that this falsification was a deliberate act.
[12] The evidence of Mr Thompson is that on 22 March 2010 as a result of storm damage the respondent’s office was affected by flooding and lightning strikes. He says he was later instructed by Mr Peters to claim from the respondent’s insurance company for items that the company did not own. Particularly this was two sets of drawers for a desk and a hutch for a reception desk. 1 Mr Thompson’s evidence was that he was also instructed in a one-on-one phone call by Mr Peters to damage the air conditioning unit by taking a hose pipe up to the air conditioner to damage it with water. There had been ongoing problems with the air conditioning unit and the property manager/owner refused to repair or replace it.
[13] Mr Thompson says he refused to do this.
[14] Mr Thompson says that the report on the storm damage that he originally compiled (his e-mail dated 25 March, Exhibit A1) prior to being instructed to damage the air conditioner by Mr Peters, shows the actual damage that was suffered before he submitted the falsified insurance claim, in which he included the two sets of drawers and the hatch for the reception desk as instructed by Mr Peters.
[15] Mr Thompson says the reasons relied on by the respondent for his dismissal were actions he undertook at the direction of Mr Peters.
[16] The evidence of Mr Peters was that he had taken over his role in December 2009. He says it was well known that Mr Thompson was the manager of the worst performing state branch and that he had a constantly negative attitude wanting the respondent to provide him with things including new furniture.
[17] Mr Peters says over time Mr Thompson’s negative attitude got worse and his insubordination necessitated a number of counselling meetings being held with him to discuss this problem which was getting out of control. This required trips to be made to Perth to meet with him over these issues. Mr Peters says he counselled Mr Thompson on at least three occasions.
[18] With respect to directing Mr Thompson to damage to the air conditioner, Mr Peters denies he ever said any such thing to Mr Thompson.
[19] Mr Peters gave some examples of Mr Thompson’s poor attitude towards him including an occasion when he flew from Sydney to Perth to find that Mr Thompson had gone to Albany with another staff member, which Mr Peters viewed as a deliberate act to avoid him.
[20] Mr Peters also gave evidence about a complaint from a customer regarding Mr Thompson.
Consideration
[21] The respondent says it dismissed Mr Thompson because of his actions in falsifying the insurance claim form which it says was a breach of the Standards of Conduct which formed part of his contract of employment.
[22] These Standards of Conduct were provided to the Tribunal and specify amongst other things that providing false or misleading information to the company, falsification of records etc would be a breach of the standards.
[23] Further the respondent argues that the tone and attitude displayed in various e-mails from Mr Thompson to Mr Peters involved further breaches of the Standards of Conduct which also include a prohibition on insubordinate conduct and refusal to obey instructions from a manager or other authorised person. I note however that this issue of insubordination was not mentioned at all in the dismissal email from Mr Peters to Mr Thompson on 16 April 2010.
[24] In this case it is clear the respondent dismissed Mr Thompson summarily without notice. No pay in lieu notice was provided to Mr Thompson. 2
[25] Becausethe respondent terminated Mr Thompson’s employment summarily it is necessary to consider the principles which a Full Bench of the Australian Industrial Relations Commission in Intercontinental Ship Management Pty Ltd v Culpeper 3has held to constitute the proper approach to take where the termination of employment has occurred on the grounds of misconduct:
“[19] Before turning to the first matter, we summarise the proper approach to be taken to a finding in respect of whether the termination based on misconduct was harsh, unjust or unreasonable:
• The Commission is obliged to make a finding as to whether or not there is a valid reason for the termination of the employment.
(Edwards v Giudice, Moore J, 94 FCR 561)
• The reason must be “sound, defensible and well founded”.
(Selvachandran v Peteron Plastics Pty Ltd, Northrop J, 62 IR 371)
• The appellant carries the onus of establishing a valid reason.
• In a matter in which the termination is based on the conduct of the employee, the Commission must determine that the conduct took place.
(Edwards v Giudice, Moore J, 94 FCR 561)
• In determining whether the alleged conduct took place and what it involved, the Commission must make a finding on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.
(King v Freshmore, Ross VP, Williams SDP and Hingley C, Print S4213)
• It is not the Court’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Court but rather it is for the Court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct.
(Walton v Mermaid Dry Cleaners Pty Ltd, Moore J, 142 ALR 681)
• In deciding whether there is a valid reason, the Commission must look at the applicant’s conduct and determine on the balance of probabilities what that conduct was and whether it took place.
(Farrugia v Transadelaide, SAIR 6, Stevens DP)
In matters involving misconduct there is an onus on the employer to establish that the misconduct took place.
(YEW v ACI Glass Packaging Pty Ltd, Wilcox CJ, 71 IR 201)
• Misconduct justifying dismissal is conduct that is so serious that it goes to the heart of the contract.
(North v Television Corporation, Smithers, Franki and Evatt JJ, 11 ALR 599)
• Serious misconduct will usually justify summary dismissal and will rarely support a finding that a dismissal was “harsh, unjust or unreasonable”.
(R v Industrial Court; ex parte Mt Gunson Mines Pty Ltd, King CJ, 30 SAIR 504)
• A termination may be harsh because it is disproportionate to the gravity of the misconduct.
(Byrne v Australian Airlines Limited, High Court per McHugh and Gummow J, 185 CLR 410)
• In deciding whether a termination is harsh, unjust or unreasonable the Commission will have regard to each of the matters in s.170CG and apply the statutory test of a “fair go all round”.”
[26] The practical effect of the respondent having summarily dismissed the applicant is that in these proceedings the respondent bears the onus of establishing whether Mr Thompson’s alleged misconduct actually occurred. The tribunal is to then determine whether the alleged misconduct, if it did occur, amounted to a valid reason for termination.
[27] The insurance property claim form completed by Mr Thompson states the date of the event claimed for was 22 March 2010 and describes the damage as storm damage and the damage to the items listed as having been caused by water leaking from the office roof.
[28] However Mr Thompson admits that the claim form included furniture that was not damaged during the storm in March 2010 as he states on the form, but rather was either damaged when moving premises in October 2009 or was never owned by the respondent at all. Mr Thompson says in his application that the claim form he completed included sets of drawers and a hutch to the reception desk that were not damaged during the storm but he says that these items were included on the instruction of Mr Peters.
[29] Mr Thompson says in his defence that he was also instructed to damage an air conditioner by his superior Mr Peters, who dismissed him, but he did not do so. Mr Peters however denies giving Mr Thompson any such instructions.
[30] The standard of proof for the Tribunal in these matters, notwithstanding in this case there are allegations of fraudulent activities on both sides, is the balance of probabilities.
[31] It is clear in this case that Mr Thompson did knowingly, falsely complete the insurance claim form. In normal circumstances that would be sufficient in my view to support an employer terminating the employment summarily for serious misconduct.
[32] However Mr Thompson says his misconduct, in falsely completing the insurance claim form, was carried out at the instruction of his superior Mr Peters. Mr Peters, however, denies giving any such instruction.
[33] My view is that if I am satisfied that Mr Thompson’s falsification of the insurance claim form was done at the instruction of Mr Peters then whilst such action would still be misconduct the fact that it was carried out at the instruction of a superior would support a conclusion that the misconduct would not warrant summary dismissal. Any instruction from Mr Peters to falsify the insurance claim form would be a significant factor in mitigation for Mr Thompson. Clearly though Mr Thompson’s duty to the respondent went beyond simply complying with a self evidently unlawful direction of a superior. In such circumstances he should have reported Mr Peters instructions to him to the managing director rather than simply complying with it.
[34] The question then is whether or not I am satisfied that Mr Peters did issue the instruction to Mr Thompson to falsify the insurance claim form.
[35] Mr Thompson says Mr Peters instructed him to include on the insurance claim, amongst other items, a hutch for a reception desk that the company never owned. 4 I note that the insurance claim form attached to the application includes item number 6 “Reception Desk + Hutch”. Mr Thompson says the instruction from Mr Peters was given to him some time after he had tendered his report to the directors on 25 March 2010 detailing the true storm damage. A copy of this email was provided to the tribunal.
[36] Reviewing this email from Mr Thompson dated 25 March 2010 the subject of which is “REPORT :Storm Damage WA 22/03/10” I note that under a heading “Main Office” the second last line of the email reads as follows:
“The reception desk/hutch was also covered in water and again this caused the laminate tops to swell and buckle.”
[37] The inclusion of this damage to the reception desk/hutch in his original report to Mr Peters, which he copied to a Ms Stewart and Mr Floyd, is contrary to the oral evidence of Mr Thompson that this item was included in the insurance claim improperly on the instruction of Mr Peters.
[38] Separately I note that for some period prior to the dismissal the email interactions between Mr Thompson and Mr Peters demonstrate significant friction between the two. Further Mr Thompson says that he refused to damage the air-conditioner when instructed to do so by Mr Peters.
[39] On this background it seems unlikely then that Mr Thompson who says he had refused Mr Peters’ direction to damage the air-conditioner and who was challenging Mr Peters regularly in their email exchanges would have readily complied with a direction from Mr Peters to deliberately falsify the insurance claim form.
[40] Having considered the evidence on balance my conclusion is that Mr Peters did not instruct Mr Thompson to falsify the insurance claim form as Mr Thompson alleges.
[41] That being the case I am satisfied that in all the circumstances the respondent has discharged the onus upon it to demonstrate that the misconduct on which it based its dismissal of Mr Thompson did in fact occur. In addition I find that misconduct was such that summary dismissal of Mr Thompson was warranted.
[42] However this conclusion is not to say that what occurred here was not an unfair dismissal.
Was the dismissal harsh, unjust unreasonable?
[43] Section 387 of the Act sets out the factors that the Tribunal must take into account in considering whether a dismissal is harsh, unjust or unreasonable:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(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 FWA considers relevant.”
[44] Considering these criteria in turn, I have found above that the applicant, Mr Thompson, did falsify the insurance claim form and that this was not done at the instruction of his superior. This act of serious misconduct was a valid reason for the dismissal of the applicant.
[45] The dismissal was summary and so Mr Thompson was not notified prior to his dismissal of the reason for his dismissal. Further Mr Thompson was not given an opportunity to respond to the reason the respondent terminated his employment.
[46] The question of allowing the applicant to have a support person present is not relevant in this matter.
[47] Whilst the respondent did complain at the hearing about the applicant’s performance, behaviour and attitude leading up to the dismissal these were not the reason for the dismissal and so the question of warnings about unsatisfactory performance does not apply in this instance.
[48] The employer is a significant employer but there is no evidence before the Tribunal as to precisely how many employees the respondent has nor whether it does have dedicated human resource specialists.
[49] What is clear is that the dismissal of Mr Thompson was carried out in a manner that could have been improved on. There was no investigation of Mr Thompson’s misconduct which was the basis for the respondent’s decision to terminate. Mr Thompson was not given an opportunity to put forward an explanation for his actions which is something that the respondent should have provided. If that had occurred then Mr Thompson’s allegations regarding directions from Mr Peters to falsify the insurance claim form and separately to damage the air conditioner could have been independently investigated.
[50] In terms of other matters that are relevant in considering whether or not the dismissal here was harsh, unjust or are unreasonable I note that the applicant has been employed only since June of 2009.
[51] Considering all the above factors I have decided that in this case the dismissal of the applicant was not harsh, unjust or unreasonable. Accordingly this application is dismissed.
COMMISSIONER
Appearances:
S. Thompson on his own behalf.
B. Peters for Snorkel Australia Limited.
Hearing details:
2010.
Perth:
September 21.
1 See Form F2 Application for Unfair Dismissal Remedy.
2 Transcript PN 78 and PN 79.
3 PR944547, 23 March 2004 per Marsh SDP, Blain DP and Hoffman C.
4 See Form F2, Application for Unfair Dismissal Remedy, Point 2.
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