Simon Workman v South Metropolitan Personnel Inc

[2012] FWA 5340

[2012] FWA 5340

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Workman
v
South Metropolitan Personnel Inc
(U2011/11573)

COMMISSIONER WILLIAMS PERTH, 28 JUNE 2012

Termination of employment.

[1] This matter involves an application made by Mr Simon Workman (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is South Metropolitan Personnel Inc (the Respondent).

[2] This matter was dealt with at conciliation by a Fair Work Australia Conciliator however the matter was not resolved and has been referred for determination.

[3] At the hearing of this matter the Applicant, Mr Workman, was self represented and the Respondent was represented by Mr McKenna.

[4] Mr Workman gave evidence as did Mr Green, the Chief Executive Officer of the Respondent, and Mrs Stubbs, the Respondent’s Human Resource Manager.

Background

[5] The Respondent is a not-for-profit organisation that provides employment services, alternatives to employment, post school options and a seniors enjoying life program for individuals in the community who are living with a disability.

[6] Mr Workman was employed as an Alternative to Employment Field Coordinator.

[7] The Respondent’s Alternative to Employment program allows individuals with a disability to access programs that assist with:

• Social participation, including facilitating engagement and participation in activities that are enjoyable and reflect the participants’ needs interests and cultures;



• Personal independence such as the ability to make decisions and undertake everyday life activities;



• Lifelong learning including acquiring and developing the skills competencies and knowledge to support independence, personal interests and inclusion in the community; and



• Enhancing natural support networks and relationships beyond a person’s family and relationships developed with paid support workers.

[8] The position description for the Applicant 1 explains his overall responsibilities was to manage a caseload of clients with significant disabilities to access the community and to support those clients by social participation, personal independence and enhancing natural support networks.

[9] One of the specific duties identified therein under the heading ‘Transport Support and Training’ is to transport clients to and from Alternative to Employment activities were necessary.

[10] As part of these responsibilities Mr Workman would routinely drive individual clients from place to place as required using the Respondent’s vehicle.

[11] The Respondent has a company vehicle policy which expressly states that staff may use the Respondent’s vehicles for private use. The policy expressly states at paragraphs 2.7, 2.8 and 2.9 that:

“2.7 Only those drivers entered on the application for private use form are eligible to drive the vehicle.

2.8 No other person may drive a vehicle without the prior consent of the Chief Executive Officer.

2.9 Staff must maintain a log book pertaining to use of company vehicles were the used privately or for business purposes and kilometres travelled.”

[12] In August of 2011 the Respondent received from the West Australian Police Department a notice requesting information as to whom was the driver of one of the Respondent’s motor vehicles. That notice indicated that the particular vehicle had been photographed on 15 August 2011 at 5.43 p.m. allegedly speeding at 77 km/h where the maximum allowed speed was 70 km/h 2.

[13] On the day in question the Respondent’s records identified that Mr Workman was using that vehicle.

[14] Consequently Mr Green had a discussion with the Applicant about this as did subsequently Mrs Stubbs and following this there was a final meeting attended by the Applicant, Mr Green and Mrs Stubbs where the decision was made to terminate the Applicant’s employment.

[15] The letter of termination dated 5 September 2011 recounts the history of the matter and says that during the investigation into this matter on two occasions Mr Workman gave accounts of his actions which proved to be untrue and that because he had not been truthful, the Respondent has decided to terminate his employment. The Applicant’s employment was terminated with pay in lieu of notice.

The evidence

[16] The Applicant concedes he was aware of the Respondent’s policy regarding the use of company vehicles and in particular agrees he was aware that the unauthorised use of the Respondent’s vehicles for private purposes was not allowed.

[17] The Applicant agrees he at no time completed an application for private use form nor paid the allowance that would be required if he had done so.

[18] The Applicant admits he was driving the vehicle at the time of the speeding offence identified in the Police Department notice at 5.43 p.m. on August 15, 2011. The Applicant says that the latest he would normally work would be 4.30 p.m. and does admit that he was using the vehicle at the time of the speeding offence for private purposes. The Applicant acknowledges that he did not seek prior authority to use the Respondent’s vehicle for private purposes.

[19] The Applicant concedes that his action was contrary to the company’s policies.

[20] The evidence is that there were a number of meetings where this issue was discussed with the Applicant.

[21] The first of these was with Mr Green on 31 August 2011. Mr Green asked the Applicant to explain what he had been doing using the Respondent’s vehicle at that time of day. The Applicant said he was working late transporting one of his clients.

[22] The evidence is that there was initially some confusion as to what day of the week the notice of the speeding offence referred to. The Applicant says because of this confusion the explanation he gave to Mr Green was later shown to be incorrect but that this was an innocent mix up rather than a deliberate lie because he was confused as to the day in question.

[23] Next on 2 September 2011 Mrs Stubbs met with the Applicant. The Applicant in his evidence was quite unclear as to what matters were discussed in that meeting. His only memory is that the issue of the use of the Respondent’s vehicle was discussed. This is in contrast with the evidence of Mrs Stubbs which details a number of other matters that the Respondent had concerns about that were dealt with in that meeting. Mrs Stubbs provided notes that she says were taken of that meeting which detail these other matters.

[24] Given Mr Workman was unable to recall whether these matters were discussed I prefer the evidence of Mrs Stubbs as to the detail of what transpired in this meeting.

[25] Following the general work matters that were discussed with Mr Workman she asked about the use of the vehicle on 15 August 2011.

[26] Mr Workman repeated what he had said to Mr Green in the previous meeting. He was then advised by Mrs Stubbs that the Respondent’s records demonstrate that this explanation was not correct because he was not with the particular client he had mentioned in his explanation on that particular day.

[27] Mr Workman then queried what day of the week it was and this was clarified for him. He then gave a different explanation as to why he was driving the Respondent’s vehicle outside of normal working hours. This second explanation again did not involve any admission that he had been using the vehicle for private use.

[28] Mrs Stubbs evidence was that she then adjourned the meeting so that she could check on this second explanation that had been provided by Mr Workman.

[29] A review of the Respondent’s records by Mrs Stubbs demonstrated that the client the Applicant mentioned in his second explanation again could not have been involved as Mr Workman said and so his second explanation was also not correct.

[30] A further meeting on 5 September 2011 was then held between Mr Green, Mrs Stubbs and Mr Workman.

[31] At that meeting Mr Green suggested that Mr Workman go and check his client files to confirm whether what he had told Mrs Stubbs in the previous meeting was true.

[32] The meeting broke up to allow this to happen and whilst he was doing this Mr Green passed by and Mr Workman, according to Mr Green, said to him that he had been using the vehicle privately and said words to the effect of ‘I guess I’m going to lose my job’.

[33] The meeting then reconvened and Mr Workman admitted that after checking his client files that he was wrong in his second explanation and Mr Workman then said that he must have just ‘... gone to the shops...’. No further explanation for his private use of the vehicle was given.

[34] The evidence of Mr Green and Mrs Stubbs is then that Mr Green said words to the effect of ‘so you have lied to both myself and the HR Officer?’ to which Mr Workman replied ‘yes’.

[35] Mr Workman was then asked to leave whilst Mr Green and Mrs Stubbs discussed the situation.

[36] When Mr Workman returned he was advised that because he had lied to both Mr Green and Mrs Stubbs the element of trust and honesty which was critical to the employment relationship was lost and so Mr Workman was to be terminated.

[37] Mr Workman in his evidence admits that he lied when he gave Mrs Stubbs the second explanation for using the Respondent’s vehicle out of hours to cover up his unauthorised private use of the Respondent’s vehicle 3. Mr Workman however says that he did not lie in the first meeting with Mr Green but that there was simply confusion around the dates which led him to give an incorrect explanation.

[38] Whilst it is not critical to the determination of this matter as will ultimately be seen my conclusion, is that in the first meeting with Mr Green Mr Workman was not being fully open and honest in his response. Mr Workman either deliberately misled Mr Green with his first explanation or deliberately chose not to later clarify what he came to realise was an incorrect explanation. My conclusion on this is informed by the subsequent events that demonstrate that only when it was proven to Mr Workman that his explanations were false did he then either revise them or ultimately on the second occasion did he then admit the truth. This admission was only made when proof that his previous explanations were not correct was put before him.

Consideration

[39] The legislation sets out particular criteria for considering whether or not the dismissal of an employee was harsh, unjust or unreasonable and these are included in section 387 of the Act which is set out below:

“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.”

[40] In this instance there are a number of valid reasons for the dismissal of the Applicant.

[41] The first was that contrary to the Respondent’s policies the Applicant had used the Respondent’s vehicle for private purposes without authority.

[42] The Respondent’s policies together with the Applicant’s contract of employment clearly indicate that breaches of the Respondent’s policies may lead to disciplinary action up to and including the termination of an employee’s employment.

[43] I note that the Respondent’s position is that if this was the only matter at issue they would not have dismissed Mr Workman.

[44] Notwithstanding this being the Respondent’s position, there is no doubt that Mr Workman’s unauthorised use of the Respondent’s vehicle was a valid reason for dismissal. Of course if in the past in similar circumstances the Respondent had only given employees who had transgressed in this way a warning then dismissal of the Applicant would in all likelihood be found to have been harsh by comparison, regardless of the fact there was a valid reason for the dismissal.

[45] The second valid reason for the dismissal of the Applicant was that during the investigation carried out by Mr Green and then Mrs Stubbs the Applicant was not at all times open and honest in his responses and indeed on his own admission lied to cover up his unauthorised private use of the Respondent’s vehicle.

[46] The Tribunal has previously held that employees need to be honest during investigations by their employer. Where an employee is dishonest during such investigations the employer can no longer be confident that the employee will be honest in future and so the relationship of trust and confidence between the parties has been destroyed, potentially warranting dismissal 4.

[47] In this instance the evidence is that the Respondent needs to have full confidence and trust in its employee’s because they are responsible for clients with disabilities whom are particularly vulnerable and heavily reliant on the Respondents’ staff, such as the Applicant.

[48] The Applicant was notified of the reasons for his dismissal at the final meeting with Mr Green and Mrs Stubbs where he had an opportunity again to respond to their concerns. The reasons for the dismissal were also detailed in the letter of termination provided to the Applicant.

[49] There was no refusal by the Respondent to allow the Applicant to have a support person present.

[50] The dismissal was not related to unsatisfactory performance.

[51] Given the size of the employer’s enterprise and that the employer does have dedicated Human Resource Management specialists the procedure followed was appropriate.

[52] The Applicant had been employed for just under one year at the time of his termination.

[53] Considering all of these criteria I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable. Mr Workman has not been unfairly dismissed. Consequently this application will now be dismissed and an order to that effect will now be issued.

COMMISSIONER

Appearances:

S Workman on his own behalf.

D McKenna, Solicitor for the Respondent.

Hearing details:

2012.
Perth:
June 19.

 1   Exhibit R2, Schedule 2 of Annexure PES2.

 2   Exhibit R2, Annexure PES4.

 3   Transcript PN148 and PN157-166.

 4   [2008] AIRCFB 15 at paragraph [23].

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